Indiana Case Law
BRINKMAN v. BUETER, 29A02-0510-CV-980 (Ind.App. 11-20-2006)
SANDRA BRINKMAN and MARK BRINKMAN, Appellants-Plaintiffs, v.
ANNE P. BUETER, M.D., JAMES F. DUPLER, M.D., and WOMAN’S
HEALTH PARTNERSHIP, P.C., Appellees-Defendants. No.
29A02-0510-CV-980. Court of Appeals of Indiana. November
20, 2006.
APPEAL FROM THE HAMILTON SUPERIOR COURT, The Honorable
Steven David, Special Judge, Cause No. 29D01-0410-CT-872.
REX E. BAKER, CAROLINE A. GILCHRIST, Baker & Gilchrist,
Avon, Indiana, ATTORNEYS FOR APPELLANTS.
MARY H. WATTS, NANA QUAY-SMITH, KELLY R. ESKEW, Bingham
McHale LLP, Indianapolis, Indiana, ATTORNEYS FOR APPELLEES.
OPINION
RILEY, Judge.
STATEMENT OF THE CASE
Appellants-Plaintiffs, Sandra and Mark Brinkman
(collectively, the Brinkmans), appeal the trial court’s
grant of summary judgment in favor of Appellees-Defendants,
Anne P. Bueter, M.D. (Dr. Bueter), James F. Dupler, M.D.
(Dr. Dupler), and Women’s Health Partnership (WHP)
(collectively, the Physicians).
We affirm in part, reverse in part, and remand.
ISSUES
The Brinkmans raise three issues on appeal, which we
restate as:
(1) Whether the two-year statute of limitations for
actions brought under the Medical Malpractice Act violates
the Indiana constitution where the Brinkmans neither knew,
nor could have known in the exercise of reasonable
diligence, that they possessed a claim for medical
malpractice; and
(2) Whether the trial court erred in concluding that no
genuine issue of material fact existed as to the question
of Dr. Dupler’s standard of care in treating Sandra
Brinkman.
On cross-appeal, the Physicians raise the following issue:
Whether the statute of limitations under the Medical
Malpractice Act bars the Brinkmans’ claim that Dr. Bueter
negligently counseled them to not have any more children.
FACTS AND PROCEDURAL HISTORY[fn1]
In May of 1994, Sandra Brinkman (Sandra) learned she was
pregnant and sought prenatal, obstetrical, and postnatal
care from the Physicians. Dr. Bueter determined that Sandra
was due to deliver on or about February 2, 1995. While
Sandra’s primary obstetrician was Dr. Bueter, other
physicians within WHP saw Sandra throughout her pregnancy.
During a prenatal appointment on January 19, 1995, Dr.
Dupler evaluated Sandra and noted that her blood pressure
was elevated, her weight had increased, and her urine was
positive for two-plus protein. As a result of his
evaluation, Dr. Dupler requested Sandra return for another
office visit in three days. Dr. Dupler did not record on
Sandra’s chart any suspicion he may have had that she was
suffering from preeclampsia.[fn2]
On Sunday, January 22, 1995, Sandra was admitted to St.
Vincent Hospital in Carmel, Indiana with complaints of a
severe headache that had persisted for a few days. Sandra
additionally complained of gastric pain and vomiting. Upon
admission, Dr. Dupler evaluated Sandra, again noting that
her blood pressure was high and that her urine contained
trace protein, but also charting that he found no signs or
symptoms of preeclampsia. Due to her continuing and severe
headache, Dr. Dupler ordered a neurological exam of Sandra,
which was performed by neurologist, Wesley Wong, M.D. (Dr.
Wong). Dr. Wong’s evaluation revealed no neurological
explanation for Sandra’s headache or other symptoms.
On January 25, 1995, while still hospitalized, Sandra went
into labor. In the early morning hours of January 26,
Sandra delivered a baby girl. Following delivery, Sandra
experienced some relief of her previous symptoms, but her
blood pressure remained elevated. Due to her elevated blood
pressure, Dr. Wong recommended that Sandra remain in the
hospital until it was stabilized; nonetheless, Dr. Dupler
released Sandra on the afternoon of January 27, 1995, with
instructions to call WHP if her headache returned.
On January 28 and 29, 1995, Sandra’s husband, Mark
Brinkman (Mark), called WHP and reported that Sandra had a
severe headache. On January 30, 1995, Sandra called WHP
complaining of a severe headache, as well as vomiting.
However, because Sandra was now post-delivery and did not
require obstetrical care, WHP referred her to a family
physician, Steven Lang, M.D. (Dr. Lang), to treat her
headache and vomiting. During an office visit on the same
date, Dr. Lang treated Sandra’s pain and nausea with
medication, and sent her home. Later that afternoon, while
resting in bed, Sandra had a grand mal seizure, witnessed
by Mark. Shortly thereafter, she was taken by an ambulance
to the emergency room at St. Vincent Hospital in Carmel,
Indiana where she experienced another grand mal seizure.
She was then transferred to St. Vincent Hospital in
Indianapolis, and admitted with a diagnosis of toxic
eclampsia.[fn3] She remained in the hospital under
treatment for eclampsia until February 4, 1995.
On March 10, 1995, Sandra, along with Mark, visited Dr.
Bueter for a post-partum check-up. At this appointment, Dr.
Bueter advised the Brinkmans to not have any more children
because Sandra’s diagnosis with eclampsia put her in a
high-risk category for future complications during
pregnancy. Further, the Brinkmans contend that Dr. Bueter
stated she would terminate her physician-patient
relationship with Sandra if Sandra did not choose a
sterilization procedure to prevent another pregnancy. On
the other hand, Dr. Bueter alleges she remembers little
about the details of her discussion with the Brinkmans that
day, but that it is her practice to discuss sterilization
with any patient who has had two or more children.[fn4]
As a result of Dr. Bueter’s advice, the Brinkmans decided
to not have any more children; however, for financial
reasons, the Brinkmans opted not to undergo the
sterilization procedure. The Brinkmans did not contact Dr.
Bueter or WHP again until January of 2000, when Sandra
suspected she might be pregnant despite efforts to prevent
pregnancy. As Dr. Bueter was no longer with WHP, WHP
advised Sandra to seek a physician elsewhere. Consequently,
Sandra contacted Dr. Lang, who confirmed her pregnancy and
referred her to Dawn Zimmer, M.D. (Dr. Zimmer), an
obstetrician providing high-risk obstetrical care.
On January 31, 2000, the Brinkmans met with Dr. Zimmer,
and were informed that a review of Sandra’s previous
medical records showed she had symptoms of preeclampsia
prior to the birth of her daughter in 1995. Further, Dr.
Zimmer informed the Brinkmans that if Sandra had received
proper care for preeclampsia, she would not have progressed
into toxic eclampsia. In addition, Dr. Zimmer explained to
the Brinkmans that (1) the risk of preeclampsia does not
increase in subsequent pregnancies with the same father,
(2) preeclampsia does not always recur in subsequent
pregnancies, and (3) if preeclampsia recurs, it can be
treated and toxic eclampsia can be prevented. Therefore,
because preeclampsia can be managed, Dr. Zimmer neither
agreed with Dr. Bueter’s advice that Sandra should not have
any more children, nor that she should be sterilized to
prevent subsequent pregnancies.
On December 7, 2000, as a result of the information gained
through Dr. Zimmer, the Brinkmans filed a Proposed
Complaint against the Physicians with the Indiana
Department of Insurance. On February 28, 2001, the
Physicians filed a Motion for Preliminary Determination of
Law, arguing that the statute of limitations barred the
Brinkmans’ claim.[fn5] After briefing and arguments, the
trial court denied the Physician’s motion. Consequently,
the Physicians filed an interlocutory appeal with this
court, resulting in our decision of Bueter v. Brinkman, 776
N.E.2d 910 (Ind.Ct.App. 2002), where we concluded that the
trial court’s denial of the Physician’s Motion for a
Preliminary Determination of Law did not constitute a final
disposition. Accordingly, we held that the statute of
limitations defense could be raised again by the Physicians
in subsequent proceedings.
Following our decision in 2002, the parties proceeded
through the Medical Review Panel process,[fn6] and on July
16, 2004, the panel issued the following decision, in
pertinent part:
The panel is of the unanimous opinion that the evidence
does not support the conclusion that [Dr. Dupler] failed
to meet the applicable standard of care. With regard to
[Dr. Bueter], the panel is of the unanimous opinion that
there is a material issue of fact, not requiring expert
opinion, bearing on liability for consideration by the
court or jury. The panel also is of the unanimous opinion
that the evidence supports the conclusion that [Women’s
Health Partnership] failed to comply with the appropriate
standard of care, and that its conduct was a factor in
the resultant damages.
(Appellant’s App. p. 18).
On October 4, 2004, the Brinkmans filed a Complaint for
Damages, alleging the following negligent acts and omissions
by the Physicians: (a) the Physicians failed to identify
and treat the prenatal signs of preeclampsia exhibited by
Sandra; (b) the Physicians failed to identify and treat the
continuing signs of eclampsia exhibited by Sandra after
delivery, and negligently discharged her from the hospital
on January 27, 1995; (c) the Physicians failed to diagnose
and treat the signs of eclampsia reported by Sandra after
her discharge from the hospital; and (d) the Physicians
failed to appropriately counsel the Brinkmans about the
potential risks and complications relating to future
pregnancies.
On October 25, 2004, the Physicians filed a Motion for
Summary Judgment, wherein they argued a second time that
the Brinkmans’ claim was barred by the statute of
limitations. On September 20, 2005, the trial court entered
the following Order, in pertinent part:[fn7]
IT IS, THEREFORE, ORDERED that there is no just reason
for delay in the entry of final judgment and Defendants,
[Dr. Bueter, Dr. Dupler, and WHP], are hereby granted
summary judgment on all issues in this matter, except as
to Allegation [(d)] as it relates to [Dr. Bueter] and
[WHP]. As to Allegation [(d)], the Motion for Summary
Judgment is denied.
(Appellant’s App. p. 9). Thus, only one of the Brinkmans’
claims survived summary judgment — whether Dr. Bueter
and WHP negligently counseled the Brinkmans as to the risk
of eclampsia in future pregnancies.
The Brinkmans now appeal. Additional facts will be provided
as necessary.
DISCUSSION AND DECISION
APPEAL
The Brinkmans argue that the trial court erred in granting
summary judgment in favor of the Physicians on three of the
four issues. Specifically, the Brinkmans contend that all
of their claims should have survived summary judgment
because the two-year statute of limitations for medical
malpractice actions in Indiana is unconstitutional as
applied to the facts in their case. Additionally, the
Brinkmans assert that despite the Medical Review Panel’s
determination that the evidence is insufficient to show Dr.
Dupler’s actions fell below the applicable standard of
care, other expert medical evidence shows that Dr. Dupler
did in fact breach the applicable standard of care in
treating Sandra, and such substandard care was a
substantial factor in Sandra’s injuries and damages.
I. Standard of Review
Summary judgment provides a procedural means to halt
litigation when there are no factual disputes and to allow
the case to be determined as a matter of law. Rogers v.
Mendel, 758 N.E.2d 946, 948 (Ind.Ct.App. 2001), trans.
denied. Summary judgment is appropriate only when there are
no genuine issues of material fact and the moving party is
entitled to a judgment as a matter of law. Ind. Trial Rule
56 (C). A negligence action is rarely properly disposed of
by summary judgment, particularly when the critical
question for resolution is whether the defendant exercised
the requisite degree of care under the circumstances. Bunch
v. Tiwari, 711 N.E.2d 844, 847 (Ind.Ct.App. 1999). This
issue is generally a question for the trier of fact, and
not answerable as a matter of law. Id.
In reviewing a trial court’s ruling on summary judgment,
this court stands in the shoes of the trial court, applying
the same standards in deciding whether to affirm or reverse
summary judgment. AutoXchange.com, Inc. v. Dreyer and
Reinbold, Inc., 816 N.E.2d 40, 47 (Ind.Ct.App. 2004). Thus,
on appeal, our duty is to determine whether there is a
genuine issue of material fact and whether the trial court
has correctly applied the law. Id. A genuine issue of
material fact exists where facts concerning an issue that
would dispose of the litigation are in dispute or where the
undisputed material facts are capable of supporting
conflicting inferences on such an issue. American Family
Mut. Ins. Co. v. Hall, 764 N.E.2d 780, 783 (Ind.Ct.App.
2002), reh’g denied, trans. denied. The party appealing the
grant of summary judgment has the burden of persuading this
court that the trial court’s ruling was improper. Palmer v.
Gorecki, 844 N.E.2d 149, 153 (Ind.Ct.App. 2006), reh’g
denied. However, we must carefully assess the trial court’s
decision to ensure the nonmovant was not improperly denied
his or her day in court. Bunch, 711 N.E.2d at 848.
If the moving party asserts the statute of limitations as
an affirmative defense and establishes that the action was
commenced outside of the statutory period, the non-moving
party then has the burden of showing an issue of fact
material to a theory that avoids the affirmative defense.
Rogers, 758 N.E.2d at 948-49. In our review, we consider
all of the designated evidence in the light most favorable
to the nonmoving party. Hall, 764 N.E.2d at 783.
II. Application of Occurrence-Based Statute of Limitations
The Brinkmans first argue that Indiana’s occurrence-based
two-year statute of limitations for medical malpractice
actions is unconstitutional as applied to the facts of
their case.[fn8] Although the alleged malpractice occurred
in 1995, the Brinkmans contend they did not have enough
knowledge to file their lawsuit against the Physicians
until Sandra unexpectedly became pregnant in 2000 and
sought high-risk obstetrical care from Dr. Zimmer.
Indiana’s statutory scheme governing medical malpractice
actions contains a statute of limitations, providing:
A claim, whether in contract or tort, may not be brought
against a health care provider based upon professional
services or health care that was provided or that should
have been provided unless the claim is filed within two
(2) years after the date of the alleged act, omission, or
neglect.
I.C. § 34-18-7-1(b). Our supreme court has stated
that because this statutory time limit begins to run upon
the occurrence of the alleged malpractice, without regard
to the date of actual or constructive discovery of injury
or malpractice by a person sustaining harm, literal
application of the statute can be found unconstitutional in
certain situations. Booth v. Wiley, 839 N.E.2d 1168,
1170-71 (Ind. 2005). Specifically, our supreme court has
held that under the Indiana Constitution, Article 1,
Sections 12 and 23, the two-year occurrence-grounded
statute of limitations may not constitutionally be applied
to preclude the filing of a claim before a plaintiff either
knows of the malpractice and resulting injury or discovers
facts that, in the exercise of reasonable diligence, should
lead to the discovery of the malpractice and the resulting
injury. Id. at 1171. Further, in Booth, our supreme court
clarified the methodology guiding the application of the
medical malpractice statute of limitations as follows:
Initially, a court must determine the date the alleged
malpractice occurred and determine the discovery date
— the date when the claimant discovered the alleged
malpractice and resulting injury, or possessed enough
information that would have led a reasonably diligent
person to make such discovery. If the discovery date is
more than two years beyond the date the malpractice
occurred, the claimant has two years after discovery
within which to initiate a malpractice action. But if the
discovery date is within two years following the
occurrence of the alleged malpractice, the statutory
limitation period applies and the action must be initiated
before the period expires, unless it is not reasonably
possible for the claimant to present the claim in the time
remaining . . .
Id. at 1172.
Therefore, it is now precedent that “persons `unable to
discover the malpractice and their resulting injury within
the two-year statutory period may `file their claims within
two years of the date when they discover the malpractice
and the resulting injury or facts that, in the exercise of
reasonable diligence, should lead to the discovery of the
malpractice and the resulting injury.'” Id. at 1171
(quoting Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind.
1999)). Furthermore, our supreme court explained in Van
Dusen that generally, “[a] plaintiff’s lay suspicion that
there may have been malpractice is not sufficient to
trigger the two-year period,” however, “[a]t the same time,
a plaintiff need not know with certainty that malpractice
caused his injury, to trigger the running of the statutory
time period.” Id. (quoting Van Dusen, 712 N.E.2d at 499).
Additionally, to clarify the standard of proof necessary
to establish a plaintiff’s date of discovery, our supreme
court has provided that when it is undisputed that a
physician has expressly informed a plaintiff that he has a
specific injury caused by a specific act at a specific
time, if not a probability therefore, then the question may
be one of law. Id. Under such circumstances, a plaintiff is
deemed to have sufficient facts to require him to promptly
seek any additional medical or legal advice needed to
resolve any uncertainty or confusion he or she may have
regarding the injury and its cause, and thus should not be
excused for failing to timely file a claim. Therefore, the
date on which a potential plaintiff receives information
that there is a reasonable probability that a specific
injury was caused by a specific act at a specific time is
the date upon which the two-year statute of limitations
begins to run. Id.
In the present case, the Brinkmans assert they did not
discover there was a reasonable probability that Dr.
Bueter, Dr. Dupler, and WHP caused a specific injury to
Sandra in their provision of obstetrical and post-delivery
care in 1995 until meeting with Dr. Zimmer on January 31,
2000. Conversely, although it is undisputed that the
Brinkmans did not have actual knowledge of the malpractice
until January of 2000, the Physicians argue that Sandra
received sufficient information to discover that an act of
malpractice occurred when she was accurately diagnosed with
eclampsia on January 30, 1995; in other words, according to
the Physicians’ argument, being diagnosed with eclampsia
is sufficient to signal that a diagnosis of preeclampsia
was missed. As a result, the Physicians contend that
January 30, 1995 is the “discovery date” that began the
running of the statute of limitations.
In our determination of the discovery date, we construe
all facts in favor of the Brinkmans as nonmovants. See
Palmer, 844 N.E.2d at 154. First, as directed by Booth, we
determine the date, or dates in this case, the alleged
malpractice occurred. Here, as previously noted, the
Brinkmans urge that four separate instances of malpractice
occurred: (a) the Physicians’ failure to diagnose and treat
preeclampsia; (b) the Physicians’ failure to diagnose and
treat eclampsia during Sandra’s hospitalization from
January 22 to January 26, 1995 and their negligence in
discharging her on January 27, 1995; (c) WHP’s negligent
follow-up care upon telephone calls by the Brinkmans to the
Physicians’ practice over the weekend of January 28, 1995;
and (d) Dr. Bueter’s negligent counseling given to the
Brinkmans during their final office visit at WHP on March
10, 1995. Thus, the “occurrence” date(s) for the alleged
acts of malpractice are confined to January and March of
1995. Consequently, strict adherence to the
occurrence-based method of the statute of limitations would
put the Brinkmans’ claim, filed in December of 2000, nearly
four years beyond the expiration of the two-year time
period.
However, if the determination relies strictly on the date
the Brinkmans were made directly aware of their possible
malpractice claim — January 31, 2000 — their
filing of the claim in December of 2000 falls well within
the statutory time period. Nevertheless, as Booth noted,
the discovery date does not solely depend upon when a
claimant discovers the malpractice, but also depends upon
when a claimant has enough information that through
reasonable diligence, discovery of the alleged malpractice
can be made. See Palmer, 844 N.E.2d at 154.
From our evaluation of the record, we conclude that the
Brinkmans’ ability to discover information supporting a
malpractice claim prior to meeting with Dr. Zimmer in
January of 2000 is impracticable. In particular, our review
of Sandra’s deposition indicates she and Mark trusted the
Physicians’ care through her episode of eclampsia, and were
unaware that the condition was a result of untreated
preeclampsia. Furthermore, both Sandra’s and Mark’s
depositions indicate they placed a significant amount of
confidence in Dr. Bueter’s recommendation that Sandra have
no additional children. Moreover, we find contradiction
within the Physicians’ assertion that the Brinkmans were
made aware of the failure to diagnose preeclampsia when
Sandra was diagnosed with eclampsia because such an
assertion is inconsistent with Dr. Bueter’s testimony from
her deposition wherein she states that the discharge notes
upon Sandra’s release from the hospital on February 4, 2005
never reference preeclampsia. Thus, there is no evidence in
the record to support a conclusion that Dr. Bueter
discussed preeclampsia with the Brinkmans during Sandra’s
hospitalization.
Additionally, we fail to find any evidence that Dr. Bueter
discussed preeclampsia with the Brinkmans during Sandra’s
post-delivery and post-hospitalization office visits. Also,
following these office visits, we note that Sandra did not
experience any symptoms that would have put her on notice
that a malpractice had occurred. See Martin v. Richey, 711
N.E.2d 1273 (Ind. 1999); see also Van Dusen, 712 N.E.2d
491; Battema v. Booth, ___ N.E.2d ___, Cause No.
49D13-0512-CT-6285 (Ind.Ct.App. Sept. 13, 2006). Therefore,
as the Brinkmans point out, the Physicians’ argument
essentially requires the Brinkmans, as laypersons, to
automatically know that eclampsia is preceded by
preeclampsia. Consequently, viewed in the light most
favorable to the Brinkmans, we conclude that the
occurrence-based statute of limitations is unconstitutional
as applied to the facts in this case because the Brinkmans
did not have enough information to discover the malpractice
until January 2000. See Booth, 839 N.E.2d at 1171.
Nonetheless, the Physicians argue that even if the
Brinkmans did not have enough knowledge prior to January of
2000 to file their claim, the claim is still time-barred
because an “omission cannot as a matter of law extend
beyond the time the physician last rendered a diagnosis.”
(Appellees’ Brief p. 11) (quoting Havens v. Ritchey, 582
N.E.2d 792, 795 (Ind. 1991)). In Havens, the defendant, a
physician, performed surgery on the plaintiff in November
of 1984, and never saw the plaintiff, patient, again.
Havens, 582 N.E.2d at 793. The plaintiff was made aware of
a potential malpractice upon seeing another physician in
October of 1985. Id. Determining that the plaintiff’s
claim, filed in October of 1987, was outside the statute of
limitations, our supreme court held:
[A] physician cannot be under a continuing duty to review
all files daily to ensure that he did not misdiagnose a
condition of a patient he may not have seen for several
months or even years. This duty would be completely
overwhelming to health care providers, and cut against the
purposes of the Medical Malpractice Act. We hold that when
the sole claim of medical malpractice is a failure to
diagnose, the omission cannot as a matter of law extend
beyond the time the physician last rendered a diagnosis.
Palmer, 844 N.E.2d at 156 (quoting Havens, 582 N.E.2d at
795).
In the instant case, three of the four claims brought by
the Brinkmans involve a failure to diagnose either
preeclampsia or eclampsia. Also, the record discloses that
Sandra was last given a diagnosis by the Physicians on
January 30, 1995, yet did not file her malpractice claim
until December 2000. Looking at these facts in isolation,
Havens would seemingly apply to bar the Brinkmans’ three
claims as to the Physicians’ failures to diagnose
preeclampsia and eclampsia. However, we cannot ignore
primary differences between the facts in Havens and the
facts here. Unlike the patient in Havens who never saw the
physician again following the injury, Sandra visited Dr.
Bueter more than once following her hospitalization for
eclampsia. During these office visits with Sandra, there is
no evidence Dr. Bueter conferred her knowledge of the
typical progression of preeclampsia to eclampsia to Sandra
or her husband.
Additionally, we do not believe the facts before us imposed
any continuing duty on Dr. Bueter or any of the Physicians
to review Sandra’s file. Rather, the Physicians were aware
of their failure to diagnose preeclampsia at the time
Sandra was admitted for eclampsia, and had the opportunity
to review her records during the hospitalization and
afterward during subsequent office visits. Finally, the
record makes it clear that the Brinkmans filed their claim
less than eleven months after meeting with Dr. Zimmer,
whereas the patient in Havens waited two years after the
time of discovery to file a claim. Therefore, we find
Havens inapplicable under this set of facts and adhere to
our earlier conclusion that the occurrence-based statute
of limitations is unconstitutional as applied to the
Brinkmans.
III. Dr. Dupler
The Brinkmans also argue that the trial court improperly
granted summary judgment as to all claims pertaining to Dr.
Dupler. Specifically, the Brinkmans allege that summary
judgment was inappropriate as to Dr. Dupler because a
genuine issue of material fact exists as to whether he
breached the applicable standard of care in treating
Sandra.
In the Brinkmans’ case, a unanimous medical review panel
determined the evidence did not support the conclusion that
Dr. Dupler failed to meet the applicable standard of care
in treating Sandra. When a medical review panel renders an
opinion in favor of the physician, the plaintiff must then
come forward with expert medical testimony to rebut the
panel’s opinion in order to survive summary judgment.
Bunch, 711 N.E.2d at 850. Accordingly, the Brinkmans
designated as evidence in their opposition to the
Physicians’ motion for summary judgment the affidavit of
Kathryn Cashner, M.D. (Dr. Cashner), an
obstetrician/gynecologist, who stated, in pertinent part:
5. It is my opinion that during his care of [Sandra],
[Dr. Dupler] fell below the appropriate standard of care
for a obstetrician in Indiana practicing obstetrics and
gynecology in 1995.
6. [Dr. Dupler] saw [Sandra] on January 19, 1995 for a
prenatal office visit. At that time, [Sandra] had a 3.8
pound weight gain, blood pressure of 138/90 and urine
positive for 2+ protein, all possible signs of early
pre[-]eclampsia.
7. On Sunday, January 22, 1995, Sandra presented to St.
Vincent Hospital with complaints of headache for the past
three days. She was seen by [Dr. Dupler] who admitted her
for evaluation of her headache. Despite elevated blood
pressure, slight edema of hands and ankles, slight
proteinuria, headache, epigastric pain, and visual
changes, Dr. Dupler concluded “no pre-eclamptic signs or
symptoms.”
8. It is my opinion that Dr. Dupler fell below the
standard of care during his care and treatment of
[Sandra], including but not limited to the following: his
failure to recognize the pre[-]eclamptic signs and
symptoms exhibited by [Sandra] at the time of her
admission on January 22, 1995; his failure to order daily
weights for [Sandra] during her hospitalization; his
failure to appropriately evaluate [Sandra’s] condition on
January 27, [1995,] which [led] to his decision to
discharge her from the hospital despite documented high
blood pressures and the recommendation by the neurologist,
Dr. Wong, to continue her hospitalization until her blood
pressure was normal; and his failure to communicate with
his partners and office staff that “strict instructions
to call should her headache redevelop or neurological
signs or symptoms appear” were given to [Sandra].
9. It is my opinion that Dr. Dupler’s breach of the
standard of care for an obstetrician/gynecologist in 1995
in Indianapolis, Indiana, as set forth herein, was a
substantial factor in [Sandra’s] resulting injury and
damages, including the progression of her condition to
eclampsia and grand mal seizures.
(Appellant’s App. pp. 80-81).
Thus, following the medical review panel’s decision, the
burden of proof shifted to the Brinkmans to respond by
designating evidentiary matter to demonstrate that a
genuine issue of fact existed regarding the standard of
care issue. See id. We conclude that the Brinkmans
satisfied this burden of proof by submitting the affidavit
of Dr. Cashner, which provides sufficient evidence to
refute the medical review panel’s opinion and create a
genuine issue of material fact. See id. Accordingly, we
conclude that the trial court erred in granting summary
judgment in favor of Dr. Dupler on all claims applicable to
him.
CROSS-APPEAL
I. Negligent Counseling by Dr. Bueter
On cross-appeal, the Physicians contend that the trial
court erred in denying summary judgment as to the claim
that Dr. Bueter negligently counseled the Brinkmans at
Sandra’s post-partum appointment on March 10, 1995.
Specifically, the Physicians argue the claim is
time-barred, and that the logic of the argument is flawed
in that the Brinkmans assert Dr. Bueter’s counseling was
both intentional and negligent.
Due to our conclusion that the occurrence-based statute of
limitations is unconstitutional here because the Brinkmans
lacked the knowledge or ability to discover the alleged
malpractice until January 2000, we disagree with the
Physicians’ proposition that the negligent counseling claim
against Dr. Bueter is time-barred. Just as the Brinkmans
did not have enough knowledge prior to January 2000 to
discover the Physicians’ failure to diagnose preeclampsia,
they also could not have had sufficient information before
that time to know that Dr. Bueter ill-advised them on the
dangers of future pregnancies. See Booth, 839 N.E.2d at
1171. Also, while we agree with the Physicians that conduct
cannot be both negligent and willful, we must view the
facts in the light most favorable to the Brinkmans. See
Hall, 764 N.E.2d at 783. In doing so, we note that both the
medical review panel and the trial court concluded that the
negligent counseling claim against Dr. Bueter should stand.
Also, considering we fail to find any independent evidence
put forth by the Physicians that would persuade us to part
from the previous decision of the medical review panel and
the trial court, we decline to reverse summary judgment on
this claim.
CONCLUSION
Based on the foregoing, we conclude: (1) the statute of
limitations under the Medical Malpractice Act is
unconstitutional as applied to the Brinkmans’ case; (2) the
trial court improperly entered summary judgment in favor of
Dr. Dupler on all claims applicable to his care of Sandra;
and (3) the trial court properly denied summary judgment as
to the negligent counseling claim against Dr. Bueter.
Affirmed in part, reversed in part, and remanded.
DARDEN, J., concurs.
VAIDIK, J., dissents with separate opinion.
[fn1] In our recitation of the facts and procedural history,
we rely in part on our earlier opinion, Bueter v.
Brinkman, 776 N.E.2d 910, 911-12 (Ind.Ct.App. 2002).
[fn2] Preeclampsia is the development of elevated blood
pressure and protein in the urine (proteinuria) after the
20th week of pregnancy.
http://www.nlm.nih.gov/medlineplus/ency/article/000898.htm.
The condition is additionally signified by documented
weight gain, swelling in the upper body, and systemic
problems such as headache, blurred vision and abdominal
http://www.nichd.gov/health/topics/Preeclampsia_and_Eclamps
pain. Id.; ia.cfm. The only way to cure preeclampsia is to
deliver the baby.
http://www.nlm.nih.gov/medlineplus/ency/article/000898.htm.
However, if delivery would be very premature, the disease
may be managed by bed rest, close monitoring, and delivery
as soon as the fetus has a good chance of surviving outside
the womb. Id. Preeclampsia is also referred to as “toxemia”
or “pregnancy-induced hypertension.” Id.
[fn3] Eclampsia is a more severe form of preeclampsia that
http://www.nichd.gov/health/topics/Preeclampsia_and_Eclamps
can cause seizures and coma in the mother. ia.cfm.
[fn4] The record indicates that prior to the birth of her
daughter in January of 1995, Sandra had one other child.
[fn5] See I.C. § 34-18-11-1.
[fn6] See I.C. § 34-18-8-4.
[fn7] We note that although Trial Rule 56(C) does not
require the trial court to specifically state the legal
basis for granting summary judgment, a trial court’s
findings and conclusions can facilitate appellate review
and offer valuable insight into the trial court’s rationale
for its decision. AutoXchange.com, Inc. v. Dreyer and
Reinbold, Inc., 816 N.E.2d 40, 48 (Ind.Ct.App. 2004). In
the instant case, contrary to our preference that trial
courts set forth their reasons for granting summary
judgment, the trial court did not issue any findings of
fact or conclusions of law. See id.
[fn8] We note that while Appellants argue that I.C. §
34-18-7-1 is generally unconstitutional as applied to the
facts of their case, they fail to inform this court as to
which specific section or sections of the Indiana
constitution have been violated. In light of precedent on
this issue, we infer that Appellants contend that under the
facts of their case, the medical malpractice statute of
limitations violates Indiana’s Privileges and Immunities
Clause, Article 1, § 23, and the Open Courts Law
Clause, Article 1, § 12. See Palmer, 844 N.E.2d at
154; see also Booth v. Wiley, 839 N.E.2d 1168, 1171 (Ind.
2005).
VAIDIK, Judge, dissenting
I respectfully dissent from the majority’s conclusion that
the trial court erred in granting summary judgment in favor
of the Physicians on three of the four issues raised in the
Brinkmans’ complaint. Specifically, I do not believe that
Indiana’s occurrence-based two-year statute of limitations
for medical malpractice actions is unconstitutional as
applied to the Brinkmans. Rather, I believe that the
Brinkmans possessed enough information that would have led
a reasonably diligent person to discover the alleged
malpractice and resulting injury within two years following
the occurrence of the alleged malpractice. Therefore, I
would affirm the trial court’s grant of summary judgment in
favor of the Physicians on these issues. I also
respectfully dissent from the majority’s conclusion that
the trial court properly denied summary judgment on the
fourth issue raised in the Brinkmans’ complaint.
Specifically, I believe that the Brinkmans have not
established that the Physicians concealed material
information that somehow prevented them from inquiring into
or investigating Sandra’s condition, thus preventing them
from discovering a potential cause of action. Therefore, I
would reverse the trial court’s denial of summary judgment
on this issue.
In their complaint, the Brinkmans alleged that the
Physicians committed malpractice by failing to diagnose and
treat Sandra’s pre-eclampsia and eclampsia. These events
all occurred in January 1995. However, the Brinkmans did
not file their complaint against the Physicians until
December 2000. The Brinkmans argue that they did not
discover there was a reasonable probability that the
Physicians caused a specific injury to Sandra in their
provision of care in 1995 until meeting with another doctor
in January 2000, who advised the Brinkmans that Sandra’s
medical records showed that she had symptoms of
pre-eclampsia prior to giving birth in 1995 and that if she
had received proper care for pre-eclampsia, it would not
have progressed into toxic eclampsia. The Physicians
respond that the Brinkmans possessed sufficient information
to discover that an act of malpractice occurred when Sandra
was accurately diagnosed with eclampsia on January 30,
1995. As such, the Physicians assert that January 30, 1995,
is the date that the statute of limitations began to run.
It is undisputed that “a plaintiff need not know with
certainty that malpractice caused his injury, to trigger
the running of the statutory time period.” Booth v. Wiley,
839 N.E.2d 1168, 1171 (Ind. 2005) (quotation omitted). Our
Supreme Court has provided the following guidance for
determining when the statutory time period begins to run:
Initially, a court must determine the date the alleged
malpractice occurred and determine the discovery date
— the date when the claimant discovered the alleged
malpractice and resulting injury, or possessed enough
information that would have led a reasonably diligent
person to make such discovery. If the discovery date is
more than two years beyond the date the malpractice
occurred, the claimant has two years after discovery
within which to initiate a malpractice action. But if the
discovery date is within two years following the
occurrence of the alleged malpractice, the statutory
limitation period applies and the action must be initiated
before the period expires, unless it is not reasonably
possible for the claimant to present the claim in the time
remaining after discovery and before the end of the
statutory period.
Id. at 1172 (emphasis added).
The majority concludes that the Brinkmans’ ability to
discover information supporting a malpractice claim prior
to meeting with the doctor in 2000 is “impracticable.” Slip
op. at 14. I disagree. On January 22, 1995, Sandra, eight
months pregnant, was hospitalized with complaints of a
severe headache that had persisted for a few days, gastric
pain, and vomiting. Her blood pressure was high and her
urine contained trace protein. Sandra, still hospitalized,
gave birth on January 26, 1995. On January 27, 1995, Sandra
was released from the hospital with high blood pressure
despite a neurologist’s advice that she remain in the
hospital until her blood pressure stabilized. After being
released from the hospital, Sandra again experienced a
severe headache and contacted the Physicians. Because
Sandra was no longer an obstetrical patient, Sandra was
referred to a family physician, and that doctor treated her
for pain and nausea on January 30, 1995, and sent her home.
Later that afternoon, Sandra experienced a grand mal
seizure and was taken by ambulance to the hospital, where
she experienced another seizure. She was admitted to the
hospital with a diagnosis of toxic eclampsia. Sandra
remained in the hospital under treatment for eclampsia
until February 4, 1995.
I believe that the discovery date — the date when
the claimant discovered the alleged malpractice and
resulting injury or possessed enough information that would
have led a reasonably diligent person to make such
discovery — is January 30, 1995, the date Sandra was
accurately diagnosed with eclampsia. The Brinkmans
possessed enough information on that date to let them know
that Sandra had a severe complication that had been
negligently left untreated until she experienced two grand
mal seizures and finally received a proper diagnosis of
eclampsia. This case is wholly unlike the Supreme Court’s
cases in Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), and
Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999), where the
plaintiffs suffered from latent diseases and did not have
any symptoms that would have put them on notice that
malpractice might have occurred.[fn9] See Battema v. Booth,
853 N.E.2d 1014, 1019 (Ind.Ct.App. 2006), trans. pending.
Despite Sandra’s symptoms and efforts to let the Physicians
know that something was wrong with her, Sandra was released
from the hospital only then to suffer two grand mal
seizures. Based on these facts, I conclude that the
Brinkmans possessed enough information within two years
after Sandra’s diagnosis of eclampsia on January 30, 1995,
to lead a reasonably diligent person to conclude that
malpractice had occurred. Therefore, I would affirm the
trial court on the issues related to the Physicians’
failure to diagnose and treat Sandra’s pre-eclampsia and
eclampsia.
In their complaint, the Brinkmans also alleged that the
Physicians failed to appropriately counsel them about the
potential risks and complications relating to future
pregnancies at Sandra’s post-partum appointment on March
10, 1995, with Dr. Bueter.[fn10] Specifically, the
Brinkmans argue that the Physicians engaged in active,
fraudulent concealment at this appointment, thereby tolling
the statute of limitations. At Sandra’s post-partum
appointment, Dr. Bueter discussed Sandra’s eclampsia with
the Brinkmans. Dr. Bueter also told the Brinkmans that
while she was hospitalized before giving birth, the
Physicians had been checking her for signs and symptoms of
pre-eclampsia but she did not appear to have any.
Nevertheless, the Brinkmans assert that Dr. Bueter then
told them things, such as not to have any more children,
“to ensure that [they] would never learn about the
malpractice.” Appellants’ Br. p. 28. However, this
assertion ignores the fact that Sandra, who had symptoms of
a severe complication, was sent home from the hospital and
experienced two grand mal seizures, at which point she was
accurately diagnosed with eclampsia. To successfully invoke
the doctrine of fraudulent concealment, the Brinkmans must
establish that Dr. Bueter’s concealment of material
information somehow prevented them from inquiring into or
investigating Sandra’s condition, thus preventing them from
discovering a potential cause of action. See Garneau v.
Bush, 838 N.E.2d 1134, 1143 (Ind.Ct.App. 2005), trans.
denied. Here, because it is undisputed that Sandra was
accurately diagnosed with eclampsia, the record lacks such
uncontroverted evidence. Accordingly, I believe that the
doctrine of fraudulent concealment does not operate to toll
the statute of limitations. Accordingly, the statute of
limitation on any claim arising from the post-partum
appointment on March 10, 1995, began to run on that date,
which is also the date that the physician-patient
relationship ended. And because the Brinkmans filed their
complaint in December 2000, like the claims above, such a
claim is time-barred. Therefore, I would reverse the trial
court on this issue and enter summary judgment in favor of
Dr. Bueter and WHP.
[fn9] In their brief, the Brinkmans rely on Booth v. Wiley.
However, that case is distinguishable from the present case
because Booth had cataracts and glaucoma before the LASIK
surgery and factual questions existed as to whether the
doctor attributed Booth’s symptoms to causes unrelated to
the LASIK surgery. See Booth, 839 N.E.2d at 1175. These
facts are not present here.
[fn10] In its summary judgment order, the trial court
denied summary judgment on this issue as it related to Dr.
Bueter and WHP. The trial court presumably granted summary
judgment on this issue in favor of Dr. Dupler because he
was not present at Sandra’s March 10, 1995, post-partum
appointment.