FOR PUBLICATION

ATTORNEYS FOR APPELLANTS:    ATTORNEY FOR APPELLEES:

MICHAEL H. MICHMERHUIZEN    RONALD E. JAMES
TINA M. BELL     Benson, Pantello, Morris, James & Logan
Barrett & McNagny, LLP    Fort Wayne, Indiana
Fort Wayne, Indiana

GYN-OB CONSULTANTS, L.L.C., and     )

STEPHEN E. COATS, M.D.,                  )    
                                         )
Appellants-Defendants,                   )
                                         )
vs.                                      )    No. 02A03-0203-CV-73
                                         )
LYNN C. SCHOPP and THOMAS C. SCHOPP,     )
                                         )
Appellees-Plaintiffs.                    )

    Appellants-defendants, GYN-OB Consultants, L.L.C., and Stephen E. Coats, M.D, (collectively, “the Doctor”) appeal the grant of partial summary judgment to the appellees-plaintiffs, Thomas and Lynn Schopp (collectively, “the Patient”). See footnote Specifically, the Doctor argues that the trial court erred when it determined there was an issue of fact regarding whether the Doctor had fraudulently concealed a certain surgery he performed on the Patient. The Patient also cross-appeals, arguing that the trial court erred when it granted the Doctor’s motion for summary judgment on the ground that there was no issue of fact as to whether the Doctor was negligent in the manner in which the surgery was performed. Concluding that the Patient’s medical malpractice action was not timely filed, we reverse the denial of the Doctor’s motion for summary judgment and affirm the grant of the Doctor’s motion for summary judgment with respect to the Patient’s negligence claim.See footnote

A:    Well, I suppose so, but there would be no reason to. You know, if the lesions were lower, then there would be no reason to remove anything from the anterior part.

Appellants’ App. p. 109. It is apparent from the language and the context of this exchange in the deposition that Dr. Hollenberg was addressing only the issue of the Patient’s consent, and not negligence in the manner of performing the surgery. Therefore, we agree that the Patient has designated no evidence to rebut the medical review panel’s opinion as to whether the Doctor acted within the requisite standard of care.

VAIDIK, Judge, concurring in part, dissenting in part.

I respectfully dissent from the majority’s conclusion that the Patient did not timely bring this action because she experienced symptoms almost immediately after her October 30, 1996, surgery that should have led to the discovery of the removal of the skin tags near her clitoris. Although it is true that the Patient experienced symptoms almost immediately after the surgery, the Doctor, whom the Patient should have been able to reasonably rely upon, told her that he had not operated near her clitoris when in fact he had. Because the evidence most favorable to the Patient indicates that she did not have adequate information that would have led to the discovery of the malpractice until December 28, 1998, when she first learned that the Doctor removed skin tags from near her clitoris, and that the Patient instituted her action within a reasonable time after that date, I would affirm the trial court’s denial of the Doctor’s motion for summary judgment on this issue.
“The doctrine of fraudulent concealment operates to estop a defendant from asserting a statute of limitations defense when that person, by deception or a violation of a duty, has concealed material facts from the plaintiff thereby preventing discovery of a wrong.” Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995) (quotation omitted). There are two types of fraudulent concealment, active and constructive. Id. Active concealment involves affirmative acts of concealment intended to mislead or hinder the plaintiff from obtaining information about the malpractice. Coffer v. Arndt, 732 N.E.2d 815, 821 (Ind. Ct. App. 2000), reh’g denied, trans. denied. Constructive concealment involves the failure to disclose material information to the patient. Id. If the concealment is active, then the statute of limitations is tolled until the patient discovers the malpractice or in the exercise of due diligence should discover it. Id. If the concealment is constructive, then the statute of limitations is tolled until the termination of the physician-patient relationship or, as in the active concealment case, until discovery, whichever is earlier. Id. “Regardless whether the fraudulent concealment is active or constructive, a plaintiff must institute an action within a reasonable time after a patient learns of the malpractice, or discovers information which would lead to the discovery of malpractice if the patient exercises reasonable diligence.” Hughes, 659 N.E.2d at 519 (quotation omitted).
Here, the record shows that about two months before the surgery, the Patient spoke with the Doctor about three skin tags on the right side of her vagina that were at least 3 cm down and away from her clitoris. The Patient told the Doctor that she would inform him on the morning of the surgery whether she wanted the skin tags removed. She never gave him consent to remove the skin tags. On October 30, 1996, the Patient underwent a total hysterectomy. About a week following the surgery, the Patient began to feel swelling and discomfort in and around her clitoris. On November 19, she scheduled an appointment with the Doctor because the appearance of her clitoris had changed. On December 9, the Patient told the Doctor that she was experiencing pain, swelling, and discomfort near her clitoris. At that time, the Doctor told her that he had removed skin tags at the time of the hysterectomy. The Patient then asked the Doctor whether the removal of the skin tags was related to the discomfort she was experiencing because the skin tags she had discussed with him before the surgery were not located near her clitoris. The Doctor told her that there was no connection, that he had not operated near her clitoris, and that it was probably referred pain from the hysterectomy. On December 28, 1998, the Patient learned that the Doctor had removed skin tags from near her clitoris. Accordingly, on February 4, 1999, she filed a proposed complaint with the Indiana Department of Insurance.
The majority concedes that there was evidence that the Doctor concealed from the Patient that he had operated near her clitoris. Yet, the majority finds that the Patient had information that should have led to the discovery of the removal of the skin tags near her clitoris. I respectfully disagree. First and foremost, a patient should be able to reasonably rely upon what her doctor tells her. This is especially so here, where the Patient specifically asked the Doctor if the pain near her clitoris was related to the removal of the skin tags, and the Doctor replied that there was no connection because he did not operate anywhere near her clitoris when in fact the post-operative report reveals that he had. This factual situation is much different from cases where there is no fraudulent concealment, and the patient experiences symptoms from the outset but does nothing about it until years down the road. See Johnson v. Gupta, 762 N.E.2d 1280, 1282-83 (Ind. Ct. App. 2002) (finding that the patient did not timely bring her medical malpractice action because she experienced symptoms almost immediately after surgery but did not discover a causal link between her symptoms and the malpractice until four years later). In this case, what arguably may have been obvious at first, as in Johnson, became muddled once the Doctor explicitly and inaccurately told the Patient that he did not operate near her clitoris.
Second, the result in this case promotes fraudulent misrepresentations in that as long as a doctor tells his or her patient a kernel of truth, the statute of limitations continues to run because the patient can be later held to have information that should have led to the discovery of the malpractice. Here, the kernel of truth that the majority relies upon is that the Doctor told the Patient that he removed skin tags. However, that kernel of truth was accompanied by the Doctor’s explicit denial of operating near the Patient’s clitoris, which is at the heart of the malpractice.
In light of the materiality of the concealment, the Patient’s right to reasonably rely upon the Doctor, and the fact that to hold otherwise promotes fraudulent misrepresentations, I believe that the record provides ample evidence to support that the Patient did not have adequate information that would have led to the discovery of the malpractice until December 28, 1998. Because the Patient instituted her action within a reasonable time after that date, I would affirm the trial court’s denial of the Doctor’s motion for summary judgment on this issue.

711 N.E.2d at 1284.

    As discussed below, the type of latent injury addressed in Martin and Halbe includes situations where the patient does not experience any symptoms that might indicate malpractice. The medical malpractice statute of limitations “is an occurrence-based statute of limitations that passes constitutional muster except in cases where the patient does not suffer symptoms that put the patient on notice that something may have gone wrong in the course of medical treatment.” Johnson v. Gupta, 762 N.E.2d 1280, 1283 (Ind. Ct. App. 2002) (emphasis added). We accordingly believe the Patient’s claim is more usefully examined as one of concealment rather than as a constitutional question.