ATTORNEY FOR APPELLANT
Mary Beth Ramey
ATTORNEYS FOR APPELLEE
Douglas V. Jessen
SUPREME COURT OF INDIANA
R.C. BOGGS, Individually and on )
behalf of CAROLYN BOGGS, )
) Indiana Supreme Court
Appellant (Plaintiff Below), ) Cause No. 82S04-0002-CV-115
v. ) Indiana Court of Appeals
) Cause No. 82A04-9809-CV-450
TRI-STATE RADIOLOGY, INC., )
Appellee (Defendant Below). )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Terry D. Dietsch, Judge
Cause No. 82D03-9710-CP-3553
ON PETITION TO TRANSFER
June 28, 2000
We hold that the Indiana Constitution is not violated by application of the
Medical Malpractice Acts two-year limitations period to bar a claim that was discovered
several months before the limitations period expired and well within two years of
Factual and Procedural Background
In July 1991 Carolyn Boggs went to Doctor Robert H. Oswald after detecting
a mass in her left breast. A mammogram was taken and Carolyn
was instructed to return after one year. On July 28, 1992, a
second mammogram was taken, and, based on a comparison with the first, an
excisional biopsy was recommended. Both mammograms were taken by Oswalds office and
interpreted by physicians at Tri-State Radiology. The biopsy took place on August
12, 1992, and revealed that the mass in Carolyns left breast was malignant.
Subsequently it was discovered that the cancer had metastasized to her liver
and that her breast cancer was in Stage IV. Carolyn died on
July 28, 1993. On July 1, 1994, Carolyns husband, R.C. Boggs, filed
a proposed medical malpractice complaint pursuant to the Medical Malpractice Act against Oswald
He alleged that [a]s a direct and proximate result of
the carelessness and negligence of [Tri-State], . . . [Carolyns] malignancy metastasized and
by the time it was discovered, it was incurable.
Tri-State filed a motion for preliminary determination of its statute of limitations defense.
This is a procedure unique to Medical Malpractice Act claims that permits
the trial court to assume jurisdiction over threshold issues before the Medical Review
Panel has acted.
See Ind. Code § 34-18-11-1 (1998). Tri-State designated
Boggs complaint and the affidavit of the Tri-State doctor, which established the dates
of Carolyns treatment. Boggs designated only his complaint, but contended that there
were material issues of fact as to which discovery was needed and that
the Medical Malpractice Acts two-year limitations period was unconstitutional. The trial court
properly treated this motion as governed by the summary judgment standard of Trial
Rule 56. Finding no issue of material fact, the trial court entered
judgment in Tri-States favor on May 21, 1998. The Court of Appeals
reversed, holding the medical malpractice statute of limitations unconstitutional as applied to Boggs.
See Boggs v. Tri-State Radiology, Inc., 716 N.E.2d 45, 51 (Ind. Ct.
This appeal raises the following issues: (1) Was the Court of Appeals correct
in concluding that the statute of limitations was unconstitutional as applied to Boggs?
(2) If not, does either fraudulent concealment or continuing wrong operate to toll
the statute of limitations?
Standard of Review
The entry of summary judgment on a motion for a preliminary determination is
subject to the same standard of appellate review as any other entry of
summary judgment. See, e.g., Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind.
1991). The standard of appellate review of a summary judgment ruling is
the same as that used in the trial court: summary judgment is appropriate
only where the evidence shows that there is no genuine issue of material
fact and that the moving party is entitled to a judgment as a
matter of law. Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold
Co., 705 N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable inferences
drawn from those facts are construed in favor of the nonmoving party.
Shell Oil, 705 N.E.2d at 983-84. When the moving party asserts the
statute of limitations as an affirmative defense, however, and establishes that the action
was commenced beyond the statutory period, the burden shifts to the nonmovant to
establish an issue of fact material to a theory that avoids the defense.
Conard v. Waugh, 474 N.E.2d 130, 134-35 (Ind. Ct. App. 1985).
Here, Boggs seeks to avoid the defense by arguing that the statute of
limitations is unconstitutional as applied to him and also by asserting that material
factual disputes remain that bear on the doctrines of fraudulent concealment and continuing
I. Statute of Limitations
In Martin v. Richey, 711 N.E.2d 1273, 1284-85 (Ind. 1999), and Van Dusen
v. Stotts, 712 N.E.2d 491, 493 (Ind. 1999), this Court held that the
medical malpractice statute of limitations was unconstitutional as applied to the plaintiffs because
they were barred from pursuing an otherwise valid medical malpractice claim before they
had reason to know of that claim. We concluded that barring their
claims violated Article I, Section 12, the Open Courts Clause, and Article I,
Section 23, the Equal Privileges and Immunities Clause of the Indiana Constitution.
We held that under both constitutional provisions the statute of limitations was unconstitutional
where a plaintiff, in the exercise of reasonable diligence, could not have discovered
the injury before the expiration of the limitations period. See Martin, 711
N.E.2d at 1282, 1284-85; Van Dusen, 712 N.E.2d at 493. In Van
Dusen, we held that under those circumstances plaintiffs would be allotted the full
two-year statutory period to file a claim, running from the time 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. 712 N.E.2d at 493.
Here, however, Carolyn became aware of her injury eleven months before the statute
of limitations expired. Thus, she or Boggs could have filed a claim
within the two-year limitations period prescribed by the Medical Malpractice Act, but did
not. By its terms, the two-year statute bars Boggs claim. He
thus presents the issue whether the statute of limitations is unconstitutional as applied
to plaintiffs who cannot reasonably be expected to learn of their injuries at
the time of the alleged occurrence of malpractice, but do, or should, become
aware of their injuries well before the end of the limitations period.
Article I, Section 12
The Court of Appeals held that the statute of limitations as applied to
Boggs did not violate Article I, Section 12 because he was not denied
a meaningful opportunity to pursue his malpractice claim. Boggs argued that the
limitations period often operates as a practical bar by forcing medical malpractice victims
who suffer from terminal conditions to commence litigation and simultaneously battle for their
lives. There is no doubt some force to Boggs point. But
it is equally plain that nothing prevented him or Carolyn from initiating litigation
within the statutory period or attempting to secure a waiver of the limitations
period. The legislature has chosen the benefits of certainty over the burdens
that may be imposed on still suffering families by a requirement that litigation
be filed promptly. This scheme raises no inherent bar to a remedy
and leaves our courts open to entertain the claim. Accordingly, it is
a constitutional exercise of the balancing of interests that legislatures are called upon
to do. The Court of Appeals correctly concluded that Article I, Section
12 is not violated by the application of the statute of limitations to
bar Boggs claim.
Article I, Section 23
Although the Court of Appeals found no Article I, Section 12 violation, it
concluded that barring Boggs from proceeding with his claim did violate Article I,
Section 23 because it granted to some a privilege denied to others similarly
situated and therefore created a classification that failed the second prong of Collins
v. Day, 644 N.E.2d 72, 80 (Ind. 1994). See Boggs, 716 N.E.2d
at 50. The Court of Appeals pointed out that some plaintiffs, like
Boggs, have less than the full two-year statutory period to file their claims,
but others have the full two years. As the Court of Appeals
noted, under Martin et al., the plaintiff who discovers his or her claim
the day after the statutory period expires may pursue the claim, but the
statute would purport to bar the plaintiff who discovers the malpractice the day
before the statutory period expires. See id. The Court of Appeals
reasoned that these two plaintiffs are for all practical purposes identically situated, and
yet one has hours, minutes, or seconds within which to file a claim,
and the other has two years. This was found to be an
impermissible classification. Further, the court reasoned, Boggs is situated similarly to the
plaintiffs in Martin and Van Dusen, in that they were also unable to
discover the malpractice on the day it occurred, and both were allowed two
years from discovery to file their claims.
We do not agree that the statute of limitations as applied to Boggs
violates Article I, Section 23. In
Collins, this Court enunciated a two-part
test for determining whether a statute granting unequal privileges or immunities to differing
classes of persons passes constitutional muster under Article I, Section 23: First,
the disparate treatment accorded by the legislation must be reasonably related to inherent
characteristics which distinguish the unequally treated classes. Second, the preferential treatment must
be uniformly applicable and equally available to all persons similarly situated. 644
N.E.2d at 80. In applying this test, we exercise substantial deference to
the legislature. Id.
As the Court of Appeals noted, and Martin reaffirmed, a classification scheme resulting
in different treatment for medical malpractice plaintiffs as compared to other tort victims
satisfies the first prong of Collins. See Martin, 711 N.E.2d at
1280-81. The only issue remaining is whether the classes defined by discovery
of the claims at different times in relation to the alleged occurrence of
malpractice pass constitutional muster under the second prong of Collins. Specifically, the
issue presented by Boggs complaint is whether the statute of limitations is constitutional
as applied to patients who discover the malpractice well before the expiration of
the limitations period, but some time after the act of malpractice. We
conclude that it is.
This Court has already resolved the constitutionality of an occurrence-based medical malpractice statute
See Martin, 711 N.E.2d at 1279 (citing Rohrabaugh v. Wagoner,
274 Ind. 661, 413 N.E.2d 891 (1980); Johnson v. St. Vincent Hosp., Inc.,
273 Ind. 374, 404 N.E.2d 585 (1980)). The plaintiff may or may
not be immediately aware of an injury from an act of malpractice and
also may or may not be aware that the injury was attributable to
an act or omission by a health care provider. Unless a plaintiff
is immediately aware of both, there will be a lag between the occurrence
and the discovery of the claim. Thus, medical malpractice plaintiffs will frequently,
if not virtually always, have varying amounts of time within which to file
their claims before an occurrence-based statute of limitations expires. But that difference
in time to file is not sufficient to create an impermissible classification under
Article I, Section 23. All statutes of limitations are to some degree
arbitrary. The logic of the Court of Appeals would render every statute
of limitations or repose a discovery-based statute as a matter of constitutional law.
This would significantly undermine the fundamental objective of limitations periods, which recognizes
value in the certainty generated by a known date after which a claim
is either asserted or expires. Moreover, extending the statute has a price.
Memories fade and witnesses and physical and documentary evidence can become unavailable
over time. Martin subordinates these considerations to the extent necessary to permit
a claim to be brought at all. Here, however, we are not
facing the practical impossibility of asserting the claim. Rather, Boggs or Carolyn
could have brought a claim within the statutory period. As long as
the claim can reasonably be asserted before the statute expires, the only burden
imposed upon the later discovering plaintiffs is that they have less time to
make up their minds to sue. The relatively minor burden of requiring
a claimant to act within the same time period from the date of
occurrence, but with less time to decide to sue, is far less severe
than barring the claim altogether.
The Court of Appeals concluded that Boggs was similarly situated to the plaintiffs
Martin and Van Dusen because the Boggs, like those plaintiffs, could not
have discovered the alleged acts of malpractice when they occurred. See Boggs,
716 N.E.2d at 50. Boggs is similar to the plaintiffs in Martin
and Van Dusen in that respect, but quite different in another. Boggs
or Carolyn had an 11-month window to file a medical malpractice claim after
knowledge of the injury, yet did not. We hold that as long
as the statute of limitations does not shorten this window of time so
unreasonably that it is impractical for a plaintiff to file a claim at
all, as it did in Martin and Van Dusen, it is constitutional as
applied to that plaintiff. The statute reflects a legislative judgment to define
the class who may proceed as those who discover their claim in time
to file within two years after the occurrence. That judgment is entitled
to deference, and permits all within the class, including Boggs, to bring their
case to court, if they choose to do so, within the statutory period.
The Court of Appeals notes the possibility of discovery a very short time
before the expiration of the limitations period. There may be situations where,
Martin and Van Dusen, discovering and presenting the claim within the time
demanded by the statute is not reasonably possible. If so, the statute
as applied under those circumstances may run afoul of the Indiana Constitution.
But Boggs is not in that category. In the future, this Court
may be presented with facts that support a claim such as the hypothetical
eve of midnight discovery posited by the Court of Appeals. For the
moment, however, it remains a hypothetical. Indeed, the problem of a last
minute discovery is inherent in any statute of limitations that may be tolled
by concealment or related doctrines. It can best be addressed on a
case-by-case basis, and, at least in this state, has apparently never arisen.
We are sympathetic to Boggs complaint that it would have been
difficult for him or Carolyn to file a claim while Carolyn was fighting
for her life. Indeed, seeking monetary compensation during such a time may
be the furthest thing from a patients mind.
However, given that the
statute of limitations for filing a medical malpractice claim is only two years,
presumably many victims of malpractice who discover their claims immediately will also find
it necessary to engage in litigation while battling their medical condition, fatal or
not. That is a decision the legislature has made.
II. Fraudulent Concealment
The Court of Appeals concluded that Boggs could pursue his claim, and therefore
did not need to address the doctrines of fraudulent concealment and continuing wrong.
Because we disagree on the constitutional issue, we address these contentions as
well. Boggs alleges that genuine issues of fact remain concerning whether the
statute of limitations should be tolled by the doctrine of fraudulent concealment.
Under that doctrine, a person is estopped from asserting the statute of limitations
as a defense if that person, by deception or violation of a duty,
has concealed material facts from the plaintiff and thereby prevented discovery of a
wrong. Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995). If
the concealment is active, it is tolled until the patient discovers the malpractice,
or in the exercise of due diligence should discover it. If the
concealment is constructive, in this case by reason of an ongoing duty arising
from the continuing physician-patient relationship, 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. See id. Constructive concealment consists of the
failure to disclose material information to the patient. See id. Active
concealment involves affirmative acts of concealment intended to mislead or hinder the plaintiff
from obtaining information concerning the malpractice. See id. at 521 (quoting Keesling
v. Baker & Daniels, 571 N.E.2d 562, 565 (Ind. Ct. App. 1991)).
Under either strand of the doctrine, the patient must bring his or her
claim within a reasonable period of time after the statute of limitations begins
to run. See id. at 519.
Boggs alleges that the trial court erred in granting Tri-States motion because discovery
on the issue of fraudulent concealment was incomplete. Tri-State responds that Boggs
had ample time to conduct relevant discovery prior to the hearing on the
motion for a preliminary determination on March 9, 1998. It is generally
improper for a court to grant summary judgment while reasonable discovery requests that
bear on issues material to the motion are still pending.
Sec. Life Ins. Co. v. Fidelity & Deposit Co., 659 N.E.2d 1096, 1103
(Ind. Ct. App. 1996). Boggs points to no discovery requests that were
pending at the time of the hearing. He nonetheless argues that discovery
would resolve four factual disputes. He identifies: (1) [t]he duration of the
physician/patient relationship; (2) what Tri-States radiologist knew when he made the July 1991
report; and (3) whether the period of time between Boggs knowledge of the
malpractice and the filing of the complaint was reasonable. He also points
to the possibility of an agency relationship between Carolyns treating physician and Tri-State,
without specifying whether he contends Oswald was Tri-States agent or vice versa.
Even if discovery were to establish that the physician-patient relationship between Tri-State and
Carolyn did not terminate until August 12, 1992, that Tri-State was an agent
of Carolyns treating physician, or that Tri-States radiologist had information he should have
disclosed to Carolyn, the statute of limitations would not be tolled beyond August
12, 1992, the date of Carolyns biopsy and knowledge of facts that led
to the discovery of alleged malpractice. Thus, under any of these theories,
Carolyn would have only a reasonable time beyond August 1992 to file her
claim. As for the possible, but seemingly highly improbable, contention that Oswald
was an agent of Tri-State, Boggs does not contend that the physician-patient relationship
to Oswald extended beyond July 1992, and does not plead any agency relationship.
In August 1992, eleven months remained under the occurrence-based statute of limitations.
Boggs did not file his proposed complaint until July 1994, 22 ½
months later. Boggs asserts that the reasonableness of the delay should be
determined by the jury, but he acknowledges that there is no precedent for
this proposition. In response, Tri-State points to several cases where periods similar
to or shorter than 22 ½ months were held to be unreasonable as
a matter of law.
See Cacdac v. Hiland, 561 N.E.2d 758, 758
(Ind. 1990) (22-month delay); Cyrus v. Nero, 546 N.E.2d 328, 331 (Ind. Ct.
App. 1989) (22-month delay); Spoljaric v. Pangan, 466 N.E.2d 37, 43-44 (Ind. Ct.
App. 1984) (14-month delay).
Although this Court is sympathetic Boggs predicament, there is nothing in the circumstances
of this case to indicate that 22 ½ months was a reasonable time
to delay filing suit. The trial court correctly concluded that the doctrine
of fraudulent concealment did not bar Tri-State from asserting the statute of limitations
as a defense.
III. Continuing Wrong
Boggs also alleges that a question of material fact remains regarding the application
of the doctrine of continuing wrong. The doctrine of continuing wrong is
applicable where an entire course of conduct combines to produce an injury.
See Cyrus v. Nero, 546 N.E.2d 328, 331 (Ind. Ct. App. 1989).
The doctrine of continuing wrong is not an equitable doctrine; rather, it defines
when an act, omission, or neglect took place. Havens v. Ritchey, 582
N.E.2d 792, 795 (Ind. 1991). When this doctrine attaches, the statute of
limitations does not begin to run until the wrongful act ceases, and at
that point the plaintiff may bring the claim within the normal statutory period.
See Cyrus, 546 N.E.2d at 331.
Boggs relies on
Ferrell v. Geisler, 505 N.E.2d 137, 140 (Ind. Ct. App.
1987), in which the Court of Appeals concluded that a question of fact
remained for the jury as to whether the patients physicians repeated failure to
diagnose her breast cancer constituted a continuing wrong. In Ferrell, the plaintiff
visited the defendants more than ten times over a span of two years,
first concerned about lumps in her breasts, and then lumps under her arm.
See id. at 138. Tri-State cites Cyrus for the proposition that
a single incident cannot form the basis of a claim under the doctrine
of continuing wrong. In Cyrus, the plaintiff became pregnant after a failed
sterilization. 546 N.E.2d at 331.
Boggs alleges that the application of this doctrine places a material fact in
issue because, Tri-State interpreted, compared, and possessed both the July 1991 and the
July 1992 mammograms. Because Tri-States actions consisted solely of interpreting mammograms ordered
and taken by Oswalds office at times selected by Oswald, this fact supports
no continuing physician-patient relationship between Carolyn and Tri-State. Cf. Babcock v. Lafayette
Home Hosp., 587 N.E.2d 1320, 1323 (Ind. Ct. App. 1992) (leaving a surgical
sponge in a patient and misreading a chest x-ray are isolated events and
do not together constitute a continuing wrong); Cyrus, 546 N.E.2d at 331.
The trial court correctly concluded that the doctrine of continuing wrong was inapplicable
We affirm the trial court.
SHEPARD, C.J., and DICKSON, J., concurs.
SULLIVAN, J., dissents with separate opinion in which RUCKER, J., concurs
Attorney for Appellants
Mary Beth Ramey
Ramey & Hailey
Attorneys for Appellee
Douglas V. Jessen
Statham & McCray
Bingham Summers Welsh & Spillman
INDIANA SUPREME COURT
R.C. BOGGS, Individually and on
behalf of CAROLYNN BOGGS,
Appellant (Plaintiff below),
TRI-STATE RADIOLOGY, INC.,
Appellee (Defendant below).
) Supreme Court No.
) Court of Appeals No.
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Terry D. Dietsch, Judge
Cause No. 82D03-9710-CP-3553
ON PETITION TO TRANSFER
June 28, 2000
I respectfully dissent.
I believe the outcome of this case is controlled by Martin v. Richey,
711 N.E.2d 1273 (Ind. 1999), and Van Dusen v. Stotts, 712 N.E.2d 491
In Martin, the plaintiff alleged that she did not discover that she had
been the victim of medical malpractice until more than two years after the
alleged malpractice actually occurred. We held that the Medical Malpractice Acts two-year
occurrence-based statute of limitations violated the Indiana Constitution as applied because, inter alia,
it was not uniformly applicable to medical malpractice plaintiffs who did not discover
the malpractice until more than two years after occurrence. Martin, 711 N.E.2d
In Van Dusen, the plaintiff also alleged that he did not discover that
he had been the victim of medical malpractice until more than two years
after the alleged malpractice actually occurred. We held, consistent with Martin, that
the Indiana Constitution saved his claim from application of the two-year statute of
limitations. Van Dusen, 712 N.E.2d at 493. We then went on
to address the question of the amount of time after discovery that the
plaintiff had to file his claim. We concluded that the Act permitted
plaintiffs in such circumstances to file their claims within two years of the
date when they discover the malpractice. Id.
Van Dusen dealt with a situation where the alleged malpractice was discovered more
than two years after the alleged malpractice actually occurred; in this case, Boggs
discovered the alleged malpractice within two years. But Van Dusen held that
the statutory two-year time period is available to plaintiffs who do not discover
malpractice until more than two years after occurrence. And, of course, plaintiffs
who discover malpractice at the time of occurrence also have two years within
which to file their claims. The majority opinion today, therefore, creates a
class of plaintiffs to whom the medical malpractice statute of limitations is not
uniformly applicable. See Martin, 711 N.E.2d at 1281. This class consists
of plaintiffs like Boggs who discover the malpractice after, but within two years
of, occurrence. It seems to me that, paraphrasing Van Dusen, in order
to effectuate legislative intent without doing violence to the Indiana Constitution, 712 N.E.2d
at 496, we cannot make the two-year medical malpractice statute of limitations available
to plaintiffs who do not discover the malpractice until more than two years
after occurrence but deny it to those who discover within two years of
I did not join the majority opinion in Martin v. Richey, believing precedent
dictated that the occurrence-based Medical Malpractice Act statute of limitations was constitutional.
Martin, 711 N.E.2d at 1285 (Sullivan, J., concurring in result). But we
established new precedents in Martin and Van Dusen to the effect that (1)
the medical malpractice statute of limitations must be uniformly applicable to medical malpractice
plaintiffs who do not discover the malpractice until more than two years after
occurrence and (2) medical malpractice plaintiffs who discover the malpractice more than two
years after occurrence have two years from the date of discovery to file
their claims. It seems to me that these new precedents demand that
if the medical malpractice statute of limitations is to be uniformly applicable to
medical malpractice plaintiffs, all medical malpractice plaintiffs must have two years from the
date of discovery to file their claims.
RUCKER, J., concurs.
See Ind. Code § 27-12-8-4 (1993) (recodified at § 34-18-8-4 (1998)).
Although there is no easy way to get around the burdens
of litigation in the midst of a health crisis, a plaintiff who is
aware of the statutory limitations period may be able buy time by negotiating
a waiver of the statute of limitations from the defendant. In addition,
under the statute of limitations, a plaintiff is required to file a proposed
medical malpractice complaint with the Indiana Department of Insurance before an action may
be commenced in court. See Ind. Code § 34-18-8-4 (1998). This
process may also be time consuming, but it is surely preferable to immediate
full-blown litigation. A medical review panel may give a plaintiff a significant
period of time in which to submit evidence, under Indiana Code § 34-18-10-3,
in view of any physical hardship a plaintiff might be undergoing.