ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
W. Brent Gill                                              Edward J. Liptak
Ken Nunn Law Office                                        Jeremy M. Dilts
Bloomington, Indiana                                       Carson Boxberger LLP
                                                           Bloomington, Indiana
James O. McDonald
Terre Haute, Indiana




                                            In the
                              Indiana Supreme Court
                                                                           Aug 08 2013, 11:27 am


                             _________________________________

                                     No. 59S01-1205-PL-249

        MARY ALICE MANLEY, AND
        GARY MANLEY,                                              Appellants (Plaintiffs),

                                               v.

        RYAN J. SHERER, M.D., AND
        SHERER FAMILY MEDICINE, P.C.,                     Appellees (Defendants).
                          _________________________________

                   Appeal from the Orange Circuit Court, No. 59C01-1007-PL-320
                           The Honorable J. Terrence Cody, Special Judge
                              _________________________________

             On Transfer from the Indiana Court of Appeals, No. 59A01-1104-PL-190
                            _________________________________

                                         August 8, 2013

Dickson, Chief Justice.


        In this medical malpractice action the plaintiffs, Mary Alice Manley and Gary Manley,
appeal from a grant of summary judgment in favor of the defendants, Dr. Ryan Sherer and Sherer
Family Medicine, P.C. We reverse.


        On November 27, 2006, Mary Manley was involved in a head-on automobile collision
with Kimberly Zehr. At the scene of the accident, Ms. Manley overheard Ms. Zehr say that "she

                                               1
should not be driving because of her medical condition." Appellants' App'x. at 24. At an un-
specified later date, Ms. Manley learned of an undated letter from Ms. Zehr's physician, Dr.
Sherer, to the Orange County Prosecuting Attorney reporting that Ms. Zehr had several medical
conditions that, combined with medications she had been prescribed by Dr. Sherer, may have
contributed to the automobile accident. Id. at 125.


        The plaintiffs sued Ms. Zehr alleging that, as a result of the collision, Ms. Manley suf-
fered permanent, debilitating injuries that required extensive hospitalization and Mr. Manley suf-
fered a loss of spousal consortium. That case settled for an undisclosed sum.1 On November 25,
2008, the plaintiffs filed a proposed complaint with the Indiana Department of Insurance against
Dr. Sherer and his medical group alleging medical negligence in failing to warn Ms. Zehr not to
drive while she was taking her medication. On July 30, 2010, the defendants filed a motion for
preliminary determination of law and for summary judgment contending that the plaintiffs failed
to timely file their complaint. The trial court granted summary judgment in favor of the defend-
ants, the plaintiffs appealed, and the Court of Appeals reversed. Manley v. Sherer, 960 N.E.2d
815, 818 (Ind. Ct. App. 2011). We granted transfer, thereby vacating the opinion of the Court of
Appeals. Ind. Appellate Rule 58(A).


        When a trial court's ruling granting or denying summary judgment is challenged on ap-
peal, the procedure and standard under Indiana law is clear. Our standard of review is the same
as it is for the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind. 2010). The moving party
"bears the initial burden of making a prima facie showing that there are no genuine issues of ma-
terial fact and that it is entitled to judgment as a matter of law." Gill v. Evansville Sheet Metal
Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). Summary judgment is improper if the moving
party fails to carry its burden, but if it succeeds, then the non-moving party must come forward
with evidence establishing the existence of a genuine issue of material fact. Id. We construe all


        1
          The complaint filed by the Manleys against Ms. Zehr was not included in the record provided to
this Court. Therefore, we do not know the exact date the Manleys initiated their claim against Ms. Zehr.
The record does contain a "Plaintiffs' Response to Defendants' Interrogatories and Requests for
Production of Documents," related to that action, which was completed on May 4, 2007. Appellants'
App'x at 35–52. Therefore, for purposes of this opinion we simply note that the initial action commenced
at some point before May 4, 2007.
                                                   2
factual inferences in favor of the non-moving party and resolve all doubts as to the existence of a
material issue against the moving party. Plonski, 930 N.E.2d at 5. An appellate court reviewing
a challenged trial court summary judgment ruling is limited to the designated evidence before the
trial court, see Ind. Trial Rule 56(H), but is constrained to neither the claims and arguments pre-
sented at trial nor the rationale of the trial court ruling, see Woodruff v. Ind. Family & Soc.
Servs. Admin., 964 N.E.2d 784, 790 (Ind. 2012) ("We will reverse if the law has been incorrectly
applied to the facts. Otherwise, we will affirm a grant of summary judgment upon any theory
supported by evidence in the record."); Wagner v. Yates, 912 N.E.2d 805, 811 (Ind. 2009)
("[W]e are not limited to reviewing the trial court's reasons for granting or denying summary
judgment but rather we may affirm a grant of summary judgment upon any theory supported by
the evidence.").


        In the present case, the defendants' motion for summary judgment primarily asserts that
the plaintiffs' action was not timely commenced in accordance with the Indiana Medical Mal-
practice Act, which requires claims to be filed within two years of the allegedly negligent act,
omission, or neglect. Ind. Code § 34-18-7-1(b). The defendants claim that the last possible al-
leged act of malpractice occurred on November 21, 2006, when Ms. Zehr last visited Dr. Sherer,
and that because the plaintiffs' proposed complaint was not filed until November 25, 2008, more
than two years later, it was untimely. In the defendants' additional trial court brief in support of
their motion for summary judgment, they further argue that the medical malpractice statute of
limitation bars this action because the plaintiffs filed their proposed complaint with the Depart-
ment of Insurance but at no time did they ever file their complaint in court.2 In addition to as-
serting their statute of limitation defenses, the defendants also seek summary judgment on the
alternative claim that undisputed facts establish that the alleged failure of Dr. Sherer to warn Ms.
Zehr against driving could not have been the proximate cause of the ensuing collision. Opposing
the defendants' motion for summary judgment, the plaintiffs argue that the Medical Malpractice
Act does not apply to their claim because Ms. Manley was not a patient of Dr. Sherer, and thus

        2
           The present proceeding was initiated in the Orange Circuit Court on July 30, 2010, when the
defendants requested a preliminary determination of law and summary judgment. Presumably the
plaintiffs' proposed complaint, filed with the Department of Insurance on November 25, 2008, was still
awaiting final action by a medical review panel at the time the defendants filed their motion for prelimi-
nary determination and for summary judgment.
                                                     3
the plaintiffs' claim is not one for medical malpractice subject to the special occurrence-based
statute of limitation. As to the defendants' claim regarding proximate causation, the plaintiffs
contend that the foreseeability component of proximate cause is a question of fact in this case.


        We preliminarily reject the plaintiffs' claim that their action against Dr. Sherer and his
medical group is not governed by the Indiana Medical Malpractice Act. The plaintiffs have
treated it otherwise by filing their proposed complaint with the Department of Insurance as re-
quired by the Act. They may not now contend that the Medical Malpractice Act and its time lim-
itation do not apply to their claim.


        With respect to the statute of limitation issue, we find that the defendants are not entitled
to summary judgment. When a defendant in a medical malpractice action asserts the statute of
limitation as an affirmative defense, the defendant bears the burden of establishing that the action
was commenced outside that statutory period. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d
692, 695 (Ind. 2000). Here, the defendants have established that the plaintiffs did not file the
action until November 25, 2008, four days after the two-year medical malpractice statute of limi-
tation had run. But this is not the end of the inquiry. Once the defendant has established that the
action was filed outside the statute of limitation, the burden shifts to the plaintiff to establish "an
issue of fact material to a theory that avoids the defense." Id. Here, the designated evidence es-
tablishes such a rebuttal to the defense, namely, that there are genuine issues of fact as to the
trigger date of the plaintiffs' malpractice claim and thus whether or not it was "reasonably possi-
ble for [them] to present the claim in the time remaining after discovery and before the end of the
statutory period." Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005).


        In order for the date to be triggered, our case law requires that a plaintiff be aware of
"facts that, in the exercise of reasonable diligence, should lead to the discovery of the malprac-
tice and the resulting injury." Id. at 1171 (quoting Van Dusen v. Stotts, 712 N.E.2d 491, 497
(Ind. 1999)); see also Herron v. Anigbo, 897 N.E.2d 444, 448–51 (Ind. 2008) (discussing the
triggering of an occurrence-based limitation period). The defendants argue on appeal that the
running of the statutory limitation period was triggered when Ms. Manley overheard Ms. Zehr's
statement at the scene of the accident "that she should not be driving because of her medical
                                                   4
condition." Appellants' App'x at 24. This vague statement overheard by Ms. Manley at the sce-
ne of the accident could suggest a bevy of possibilities wholly unrelated to and not reasonably
suggestive of a doctor's failure to warn about side effects of prescribed medication. While there
is no evidence to so suggest, even if Ms. Manley had suspected that malpractice was a potential
issue at the time the statement was made by Ms. Zehr, we have found in the past that mere suspi-
cion is not enough. Van Dusen, 712 N.E.2d at 499 ("In general . . . a plaintiff's lay suspicion that
there may have been malpractice is not sufficient to trigger the two-year period. At the same
time, a plaintiff need not know with certainty that malpractice caused his injury, to trigger the
running of the statutory time period." (citation omitted)).


        The plaintiffs put forth an alternative trigger date, specifically, the date that Ms. Manley
received a copy of the letter sent to the Orange County Prosecuting Attorney by Dr. Sherer, iden-
tifying himself as Ms. Zehr's primary care physician, which stated, "I feel that [Ms. Zehr's] med-
ical conditions and medications combined to cause this problem." Appellants' App'x at 125. The
plaintiffs reasonably contend that it was not until this point that they possessed knowledge of the
facts necessary to investigate Ms. Zehr's medical history and discover the alleged malpractice.
However, because the letter is undated, it is unknown on what date the letter came to the atten-
tion of the plaintiffs. It is thus indiscernible whether the plaintiffs could have pursued their mal-
practice claim within the two-year statutory limit, or, if not, whether they acted within a reasona-
ble time as required by our caselaw. Booth, 839 N.E.2d at 1172 ("[I]f the discovery date is with-
in two years following the occurrence of the alleged malpractice, . . . 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." (empha-
sis added)).


        We find from the designated evidence that there exists "an issue of fact material to a the-
ory that avoids the defense," Boggs, 730 N.E.2d at 695, which serves to rebut the defendants' af-
firmative defense. "[F]actual issues relating to the running of the limitations period, such as the
date on which the plaintiff first learns of the injury, are to be resolved by the trier of fact at trial."
Herron, 897 N.E.2d at 452. Because we must construe the facts favorably to the plaintiffs as the
non-moving party, we conclude that Ms. Manley overhearing Ms. Zehr's accident-scene remark
                                                    5
is insufficient to conclusively establish the trigger date for the limitation period of the Medical
Malpractice Act and that there remains a genuine issue of material fact as to both the trigger date
and, if within the two-year limitation period, whether the plaintiffs filed their complaint within a
reasonable time. The defendants are not entitled to summary judgment on their statute of limita-
tion defense.


       We also find no merit in the defendants' claim that the plaintiffs' filing of their proposed
complaint with the Department of Insurance was insufficient to commence this action within the
statutory limitation period. Indiana Code Section 34-18-7-3 explicitly declares, to the contrary,
that such filing of a proposed complaint "tolls the applicable statute of limitations." Ind. Code
§ 34-18-7-3(a). And a proposed complaint "is considered filed" when a copy is delivered or
mailed to the Commissioner of Insurance. Id. § 34-18-7-3(b); see also Jordan v. Deery, 609
N.E.2d 1104, 1107 (Ind. 1993) ("[T]he running of a limitation period is suspended for the period
of time from the date of filing the proposed complaint until ninety days following receipt of the
panel opinion."); Miller v. Terre Haute Reg'l Hosp., 603 N.E.2d 861, 863 (Ind. 1992) ("This
Court held [in Guinn v. Light, 558 N.E.2d 821 (Ind. 1990),] that the filing of a proposed com-
plaint against a health care provider with the Department tolls the statute of limitations until the
parties are informed that the provider has not qualified under the Act.").


       We further find that summary judgment is likewise improper as to the defendants' alter-
nate summary judgment claim asserting lack of causation as a matter of law. The defendants
urge that the undisputed facts demonstrate, (a) that the alleged failure of Dr. Sherer to warn Ms.
Zehr could not have been the proximate cause of the ensuing collision because Ms. Zehr contin-
ued to drive after the collision, thus demonstrating that she would have ignored any warning
from Dr. Sherer, and (b) that Ms. Zehr's choice to drive despite knowing that she "should not be
driving" constitutes a superseding cause, thus establishing a lack of the necessary element of
causation. Both of these contentions rest on uncertain facts and inferences—genuine issues of
material fact—that preclude judgment for the defendants as a matter of law. To obtain summary
judgment, a moving party must affirmatively dispel all determinative genuine issues of material
fact. It is not enough to cite the absence of evidence and claim that the non-moving party is
thereby unable to prove an element of its case. Rather, the moving party must demonstrate that
                                                  6
the undisputed facts conclusively establish the absence of a required element of the non-moving
party's case. The defendants did not meet this burden as to the issue of causation.


       Finding genuine issues of material fact (1) as to when the plaintiffs either, (a) knew of the
alleged malpractice, or (b) learned of facts that, in the exercise of reasonable diligence, should
lead to the discovery of the malpractice and resulting injury; and (2) as to the absence of the ele-
ment of causation necessary to establish liability, we conclude that the defendants' motion for
summary judgment should have been denied. The judgment of the trial court is therefore re-
versed and this cause remanded for further proceedings.


Rucker, David, Massa, and Rush, JJ., concur.




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