Anonymous Physician and Anonymous Medical Group v. Richard Loucks Rogers
20 N.E.3d 192, 2014 Ind. App. LEXIS 543, 2014 WL 5791555 (2014)
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Rule of Law:
Indiana's two-year medical malpractice statute of limitations is occurrence-based, meaning it generally runs from the date of the alleged negligent act, and the doctrine of continuing wrong only applies when an entire course of continuous conduct combines to produce a single injury, not a series of distinct negligent acts causing separate injuries.
Facts:
- On August 4, 2006, Richard Rogers experienced painless blood in his urine and had his first appointment with Anonymous Physician, a licensed urologist.
- Between August 2006 and January 2009, Anonymous Physician performed several cystoscopies on Rogers, disinfecting the urology equipment with Cidex OPA without informing Rogers that manufacturer warnings and medical literature advised against its use for bladder cancer patients.
- After a cystoscopy on March 10, 2008, Rogers experienced minor itching, and after another on July 14, 2008, his symptoms worsened to redness and swelling in his face and lips.
- On January 7, 2009, Rogers had his third allergic reaction after a cystoscopy, experiencing swelling in his hands and a rash, requiring overnight observation; this was the last time Anonymous Physician used Cidex OPA on Rogers.
- On January 22, 2009, Rogers met with Dr. Mahan Menon (Allergist), who performed a skin test confirming Rogers was allergic to Cidex OPA.
- On March 6, 2009, Allergist informed both Rogers and Anonymous Physician by letter of the Cidex OPA allergy.
- Anonymous Physician remained Rogers's urologist until July 2009 but did not use Cidex OPA to disinfect equipment used on Rogers after the allergy diagnosis.
Procedural Posture:
- On March 4, 2011, Richard Rogers, pro se, filed a proposed complaint for medical malpractice with the Indiana Department of Insurance against Anonymous Physician and Anonymous Medical Group.
- Anonymous Physician filed a Motion for Preliminary Determination and for Summary Judgment in the trial court (court of first instance), alleging Rogers's complaint was not timely filed under the Indiana Medical Malpractice Act.
- The trial court initially granted summary judgment to Anonymous Physician.
- Rogers filed a motion to correct error, alleging a genuine issue of material fact as to how the statute of limitations applied.
- After a hearing, the trial court granted Rogers’s motion to correct error and denied Anonymous Physician’s motion for summary judgment.
- Anonymous Physician appealed the trial court's grant of Rogers's motion to correct error (which had the effect of denying summary judgment) to the Indiana Court of Appeals.
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Issue:
Does the doctrine of continuing wrong apply to toll Indiana's two-year medical malpractice statute of limitations when a physician's repeated negligent acts, which caused separate allergic reactions, are followed by a period of continued care and failure to diagnose the cause, such that the statute of limitations begins to run only from the date the malpractice was discovered?
Opinions:
Majority - Robb, Judge
No, the doctrine of continuing wrong does not apply to toll the statute of limitations in this case because the physician's actions constituted a series of distinct negligent acts causing separate injuries, not a continuous course of conduct combining to produce a single injury. The Indiana Medical Malpractice Act establishes an occurrence-based two-year statute of limitations, requiring a claim to be filed within two years of the alleged act, omission, or neglect. While a discovery rule can modify this if it's not reasonably possible to file within the remaining time after discovery, Rogers discovered the malpractice on March 6, 2009, leaving him 22 months to file his claim, which was a reasonably possible timeframe. The doctrine of continuing wrong applies only where an entire course of continuous conduct combines to produce an injury, with the limitations period starting at the end of that continuous wrongful act. Here, Rogers experienced three separate injury-producing allergic reactions, not a single continuous injury from combined conduct. The last 'occurrence' or negligent act by Physician was the cystoscopy on January 7, 2009. The court rejected Rogers's argument that Physician's continued care and failure to diagnose constituted a continuing wrong, likening it to cases where isolated acts or a single prescription were not considered continuous wrongs, even if symptoms persisted. Therefore, Rogers's proposed complaint, filed March 4, 2011, was beyond the two-year statute of limitations, which began to run on January 7, 2009.
Dissenting - Kirsch, Judge
Yes, the doctrine of continuing wrong should apply in this case, making Richard Rogers's proposed complaint timely. The doctrine applies when an entire course of conduct combines to produce an injury, and the limitations period begins at the end of that continuous wrongful act. Here, the physician's conduct was a continuous course of using Cidex OPA contrary to the standard of care and failing to diagnose and advise Rogers of such usage after repeated allergic reactions. This continuous course of conduct began in August 2006 and continued until at least March 6, 2009, when the Allergist informed both Rogers and the physician of the allergy. Since Rogers's proposed complaint was filed on March 4, 2011, it was within two years of March 6, 2009, and therefore timely.
Analysis:
This case narrows the application of the 'continuing wrong' doctrine in Indiana medical malpractice cases, emphasizing its strict requirement for a single, continuous injury-producing course of conduct rather than a series of distinct negligent acts or a prolonged failure to diagnose. It reinforces the occurrence-based nature of the state's statute of limitations, even when discovery of malpractice occurs later. The ruling also clarifies that having 22 months remaining after discovery to file a claim is considered 'reasonably possible,' placing a high burden on plaintiffs to demonstrate why they could not file within such a period. This decision likely makes it more challenging for plaintiffs to extend the statute of limitations in cases involving extended periods of care or diagnostic failures, pushing the focus back to the specific dates of alleged negligent 'occurrences'.
