BARNES, Judge.
Teresa Houser, as Personal Representative of the Estate of Anonymous Physician Dr. K. ("the Estate"), appeals the trial court's denial of the Estate's motion for summary judgment in the medical malpractice suit filed by Stacy Kaufman. C.K. appeals the trial court's grant of summary judgment in favor of the Estate with respect to his medical malpractice claim against Dr. K.
The restated issues before us are:
The evidence most favorable to Stacy and C.K. as the summary judgment non-movants is that Stacy was born to Mary and Brent Kaufman on April 1, 1974. Dr. K. was the Kaufmans' family physician who delivered Stacy and was Stacy's doctor thereafter. When Stacy was born, Dr. K. ordered that a blood test for phenylketonuria ("PKU") be performed on her. Although the blood test revealed that Stacy
A physician who counseled Stacy in 2007 described PKU as follows:
App. p. 145. As described in the second paragraph, maternal PKU that affects a baby is a condition separate from PKU "and can even affect babies who do not have the PKU disease." See http:// medical-dictionary.thefreedictionary.com/ phenylketonuria (last visited June 28, 2012).
Because Dr. K. never communicated the PKU test results to Mary and Brent or otherwise advised them that Stacy had PKU, she was never placed on a special, low-phenylalanine diet. Early in Stacy's childhood, Mary and Brent noted that she appeared to be developmentally delayed and exhibited other symptoms that were consistent with her having untreated PKU, such as severe diaper rash. Mary and Brent took Stacy to various doctors, including specialists at Riley Children's Hospital in Indianapolis ("Riley") when she was four, to determine the cause of these symptoms. These doctors, however, failed to diagnose Stacy with PKU. Instead, they told Mary and Brent that they "needed to just accept her cognitive impairment and help her learn to live with the problems she was experiencing." Id. at 115. Stacy graduated from high school, although she was placed in special education classes. As an adult, Stacy has an IQ of seventy-four, or "mild to borderline mental retardation...." Id. at 127. She is unable to hold a job and receives public assistance. Dr. K., meanwhile, died in 1981.
Stacy gave birth to C.K. in November 2005. C.K. was born with microcephaly, i.e. a small head, and dysmorphic facial features, but a genetic test performed shortly after birth and a CT scan performed a few months later failed to reveal a cause for these abnormalities. Because of developmental delays and other issues, C.K. visited a specialist at Riley on June 1, 2007. Stacy mentioned during this visit that she was being treated for "lesions" on her brain but that multiple sclerosis had been ruled out. This specialist recommended that C.K. follow up with a medical geneticist, but made no mention of PKU or maternal PKU as a possible cause of C.K.'s difficulties.
On July 13, 2007, C.K. was seen by a medical geneticist at Riley. In his written notes of the consultation, the geneticist stated:
Id. at 145. The geneticist also recommended, among several other things, that someone "[o]btain phenylalanine levels on the mother to rule out maternal PKU or hyperphenalaninemia." Id. Mary does not recall being advised at this visit that Stacy might have PKU, as opposed to being advised generally that further testing was needed.
On August 2, 2007, Stacy visited a neurologist. The neurologist's written notes from the visit stated in part, "Elevated phenylalanine level was confirmed by recent urine quantitation — likely has PKU." Id. at 148. Mary recalls being told by the neurologist at this visit that Stacy "could have PKU, but further testing must be done." Id. at 107. Further testing conducted on August 6, 2007, confirmed the PKU diagnosis, and the neurologist conveyed the news to the Kaufmans on August 7, 2007. Mary then began researching PKU, and on September 18, 2007, she eventually managed to obtain the records of Stacy's birth, including the 1974 test confirming Stacy had PKU that had never been communicated to Mary and Brent.
The Kaufmans filed a proposed medical malpractice complaint against Dr. K. with the Indiana Department of Insurance on August 4, 2009, alleging negligence in his failure to communicate the results of the PKU test.
We review a grant or denial of summary judgment de novo. Price v. Kuchaes, 950 N.E.2d 1218, 1225 (Ind.Ct.App. 2011), trans. denied. Summary judgment is proper only if the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Ind. Trial Rule 56(C)). In making this determination, courts must construe
We first address whether the Act's statute of limitations bars Stacy's claim against the Estate.
When considering whether the Act's statute of limitations may constitutionally bar a malpractice claim, a court must first "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
In the case of a missed disease diagnosis, the Act's statutory period "does not begin to run until either a correct diagnosis is made or the patient has sufficient facts to make it possible to discover the alleged injury." Brinkman v. Bueter, 879 N.E.2d 549, 554 (Ind.2008). The Estate suggests in part that the reasoning of cases such as Martin and Van Dusen does not apply here, because those cases involved cancer that had a long latency period, whereas Stacy's PKU manifested itself early in her childhood. However, this court has found no reason to restrict the Martin/Van Dusen analysis to only certain types of diseases, or only to diseases with long latency periods. Shah v. Harris, 758 N.E.2d 953, 958 (Ind.Ct.App.2001), trans. denied. Regardless of the type of disease, injury, or illness at issue, the question is the same as far as determining a "trigger date" for the statutory period: when did the claimant possess enough information that, in the exercise of reasonable diligence, should have led to the discovery of the alleged malpractice and resulting injury? Id. at 959.
It is often a question of fact as to when a plaintiff discovered facts that, in the exercise of reasonable diligence, should have led to the discovery of the medical malpractice and resulting injury and triggered the statute of limitations. Van Dusen, 712 N.E.2d at 499. The question may become one of law if there is undisputed evidence that a doctor has expressly informed a plaintiff that he or she has a specific injury and that there is a reasonable possibility, if not a probability, that the specific injury was caused by a specific act at a specific time. Id. In such a case, a plaintiff generally is deemed to have sufficient facts to require him or her to seek promptly any additional medical or legal advice needed to resolve any remaining uncertainty or confusion he or she may have regarding the cause of his injury and any legal recourse he or she may have. Id. "The date is also set as a matter of law when there is undisputed evidence that leads to the legal conclusion that the plaintiff should have learned of the alleged malpractice and there is no obstacle to initiating litigation." Herron v. Anigbo, 897 N.E.2d 444, 450 (Ind.2008). If there are factual issues relating to the triggering of the limitations period, they are to be resolved by the trier of fact at trial. Id. at 452.
Turning to the facts of this particular case, the date of the occurrence of malpractice would have been no later than the death of Dr. K. in 1981, meaning the statute of limitations would have expired sometime in 1983. In cases where the malpractice claim is based upon a failure to diagnose an illness or disease, the occurrence of malpractice extends to, but not beyond, the last opportunity the physician had to give a proper diagnosis. Workman v. O'Bryan, 944 N.E.2d 61, 65-66 (Ind.Ct.
We note the evidence in the record that Stacy began exhibiting symptoms of PKU in early childhood, including developmental delays and severe diaper rash. Such evidence leaves open the possibility that Stacy could have been diagnosed with PKU at some point during her childhood, in which case Dr. K's alleged failure to inform Mary and Brent of the newborn PKU test could or should have been discovered much, much earlier than it was — possibly before 1983. The evidence most favorable to Stacy as the non-movant, however, is that her parents did in fact exercise reasonable diligence in attempting to determine the cause of the symptoms they were noticing. Mary and Brent went so far as to have Stacy examined by specialists at Riley, who failed to diagnosis her with PKU. There is no evidence that any of the doctors they visited ever mentioned PKU as a possible cause of her ailments. Instead, they were told that they just needed to "accept her cognitive impairment and help her learn to live with the problems she was experiencing." App. p. 105.
Our supreme court has stated:
Herron, 897 N.E.2d at 451. This passage describes what allegedly happened here: Stacy exhibited symptoms of PKU, her parents exercised reasonable diligence to determine what was causing those symptoms, but medical professionals failed to diagnosis the PKU at that time and gave Stacy's parents answers that deflected any inquiry into whether Stacy's ailments could be the result of malpractice. Under such circumstances, the mere fact that Stacy had symptoms of PKU during childhood is not enough to establish as a matter of law that she should have discovered her claim against Dr. K. before 1983. In other words, there is a question of fact as to whether Stacy and her parents discovered or should have discovered an injury and act of malpractice before 1983 and whether they were required to file suit before that time.
We now address when, if not by 1983, Stacy or her parents did discover or in the exercise of reasonable diligence should have discovered her injury and act of malpractice, thus triggering the two-year statute of limitations for purpose of Martin. See Booth, 839 N.E.2d at 1172. We focus our attention on the series of three doctors' visits in the summer of 2007, which finally culminated in a definitive diagnosis that Stacy has PKU. These visits occurred on June 1, July 13, and August 2, 2007. The Estate contends that Stacy gleaned sufficient information of a PKU diagnosis at any one or all of these visits, thus making her proposed complaint filed on August 4, 2009, untimely, as it was filed two years and two days after the latest
The June 1, 2007, appointment was with Dr. Brei, a developmental pediatrics specialist at Riley. This appointment was focused upon possible causes of C.K.'s developmental issues. Dr. Brei seems to have recommended that both Stacy and C.K. undergo genetic testing. His notes of this appointment are unclear, but that is Mary's recollection of the visit.
The July 13, 2007 appointment was with Dr. Weaver, a geneticist at Riley. Mary recalls the visit as follows:
App. pp. 106-07. Mary's recollection of the appointment with Dr. Weaver does not reflect that she or Stacy acquired sufficient information at this visit to alert them that Stacy had been suffering for the previous thirty-three years from undiagnosed PKU.
The Estate directs our attention to Dr. Weaver's notes of this visit. In particular, Dr. Weaver states, "The possibility of the patient's mother having PKU ... should be ruled out...." Id. at 145. The notes also recommend, "Obtain phenylalanine levels on the mother to rule out maternal PKU...." Id. The notes also contain two paragraphs discussing the cause of and treatment for PKU and maternal PKU. Regardless of what is stated in Dr. Weaver's notes, however, it is unclear that everything written in the notes was communicated verbatim to Stacy and Mary. Certainly, on summary judgment, we decline to assume that the content of the notes was repeated verbatim to Stacy and Mary, as opposed to merely relating Dr. Weaver's thoughts on the case. The evidence most favorable to Stacy as summary judgment non-movant, reflected in Mary's affidavit, is that there was no definitive
Finally, we address the appointment of August 2, 2007, which was with a neurologist treating Stacy, Dr. Strawsburg. Between July 13 and August 2, Stacy's urine had been submitted for testing. At the August 2 visit, Mary recalls Dr. Strawsburg telling her and Stacy "that the tests indicated an elevated amino acid level. He mentioned that she could have PKU, but further testing must be done." Id. at 107. Dr. Strawsburg's notes for the visit state, in more definitive language than was used in Mary's recollection, that Stacy "likely has PKU." Id. at 148. As with Dr. Weaver, however, to the extent there is a conflict between Mary's affidavit and Dr. Strawsburg's appointment notes, it is Mary's affidavit that is most favorable to Stacy as the summary judgment non-movant regarding what was actually said to Mary and Stacy by Dr. Strawsburg at the August 2, 2007 appointment.
In fact, there was further confirmatory testing done after the August 2, 2007, appointment. On August 7, 2007, Dr. Strawsburg informed Mary and Stacy by phone that Stacy indeed did have PKU. After receiving this diagnosis, Mary began researching PKU on the internet and learned that Stacy should have been tested for the disease at birth. On September 18, 2007, Mary managed to locate the medical records from Stacy's birth and discovered that Dr. K. had ordered a PKU test at that time and that it was positive.
The August 2, 2007, appointment with Dr. Strawsburg arguably comes close to having supplied Stacy with the necessary information to begin investigating whether she had been the victim of medical malpractice. We cannot conclude, however, that this appointment provided Stacy with the necessary information as a matter of law. First, we note the discrepancy between Mary's recollection of what was actually said at the appointment as opposed to what was written in Dr. Strawsburg's notes.
Second, and perhaps more importantly, there is no designated evidence in the record that Stacy or Mary were informed at this visit that Stacy should have been tested for PKU at birth, or that the PKU could have been controlled early in her life if a PKU diagnosis had been communicated in a timely fashion and she had been placed on an appropriate diet. In fact, Mary's affidavit states the opposite, that even as of August 7, 2007, when it was definitively confirmed that Stacy had PKU, she was unaware that Stacy should have been tested for the disease at birth. Reasonable diligence in the context of discovering medical malpractice claims requires a patient to take action if he or she knows of both the injury and/or disease and the treatment that either caused or failed to identify or improve it. Jeffrey v. Methodist Hospitals, 956 N.E.2d 151, 159 (Ind.Ct.App.2011). Here, even if the evidence can be construed as indicating that Stacy knew or should have known she had PKU as of August 2, 2007, the evidence most favorable to her is that she did not know of the treatment that failed to identify that condition, or did not know that anything even could have been done to help her if the condition had been more timely diagnosed. The Act's two-year statute of limitations would not have been triggered on August 2, 2007. This is entirely unlike a case in which a patient develops symptoms of an injury or illness in close conjunction with medical treatment and begins suspecting that something was wrong with the treatment, at which time the statute of limitations may be triggered. See Williams v. Adelsperger, 918 N.E.2d 440, 447 (Ind.Ct.App.2009), trans. denied.
We are, of course, fully cognizant that we are permitting a nearly four-decade old claim of malpractice to proceed at this time. Nonetheless, it is not unheard of in our jurisprudence to permit lawsuits based upon decades-old acts of negligence to proceed, under very limited circumstances. See, e.g., Jurich v. Garlock, Inc., 785 N.E.2d 1093, 1095 (Ind.2003) (holding, in case involving asbestos exposure between 1946 and 1986, that ten-year statute of repose for asbestos-related claims would be unconstitutional as applied if there was evidence a physician could have diagnosed plaintiff with asbestos-related disease within ten years of asbestos exposure but plaintiff had no reason to know of the diagnosable condition until after the ten years had passed). We believe the circumstances here are very limited and highly unlikely to be repeated. We note that this case appears to be, by an order of magnitude of several decades, the longest period of time in which the Martin analysis has been employed in an appellate decision to extend the Act's statute of limitations. Moreover, if the allegations here are true, Stacy has been forced to suffer needlessly from a debilitating, but treatable, illness for almost forty years. Given the highly unique facts here, and given the designated evidence of diligence by Stacy and her parents with respect to her PKU diagnosis (or lack thereof for the first thirty-three years of her life), we conclude that allowing this case to proceed does not contravene public policy and is consistent with the Act's goals of maintaining sufficient medical treatment and controlling malpractice insurance costs by, in part, encouraging the prompt presentation of claims. Van Dusen, 712 N.E.2d at 496.
Next, we address whether Dr. K. owed a duty of care to C.K.
The case that requires our scrutiny, because of its similarity to this case, is Walker v. Rinck, 604 N.E.2d 591, 595 (Ind. 1992). In Walker, a woman pregnant with a child who had Rh positive blood was diagnosed as having Rh positive blood herself, when in fact the mother's blood was Rh negative. The mother should have been given, but was not, an injection of RhoGAM to prevent the formation of antibodies that arise when an Rh negative mother is carrying an Rh positive fetus and which antibodies can be harmful to fetuses conceived during future pregnancies. The mother gave birth to three additional children, who alleged that they suffered injuries due to antibodies that could have been prevented from forming if the mother had received a RhoGAM injection at the time of the first pregnancy. The three children sued the lab that tested mother's blood during the first pregnancy and the doctor who had treated her for medical malpractice. The trial court granted summary judgment to the doctor and lab, finding no duty owed to the children, and this court affirmed.
Our supreme court reversed, holding that it was appropriate to recognize a "preconception" tort in those circumstances to permit "a person not yet conceived at the time of the negligent act to sue the negligent actor." Walker, 604 N.E.2d at 594. Employing the Webb balancing test, the court first addressed the relationship between the doctor and lab and the injured children. It noted that the only purpose of the RhoGAM injection would have been for the benefit of the children, as the mother's well-being would not have been affected either way if the injection had or had not been given. Thus, the court found that the children "were the beneficiaries of the consensual relationship between their mother" and the doctor. Id. at 595. Regarding foreseeability, the court stated, "It can hardly be argued that the injuries suffered by the Walker children were not foreseeable when the medical reason to give RhoGAM to their mother was to prevent the exact injuries which they allege occurred." Id. Finally, with respect to public policy considerations, the court noted that the administration of RhoGAM neither harms nor benefits the mother and has no direct relation to her personal health and that there is a "well-established medical practice of giving RhoGAM to an Rh negative mother who has given birth to an Rh positive child in order to protect future children of such mother from injury." Id. Balancing these three factors, the court found the doctor and lab owed a duty to
Because the question of duty is case sensitive and thus may differ from case to case, we do not read Walker as requiring the imposition of a duty upon Dr. K. with respect to C.K. and the PKU testing of Stacy. Regarding the relationship between Dr. K and C.K., the first thing to note is that unlike in Walker, where the three subsequent children were born within one decade of their older sibling and the original negligence, C.K. was born thirty-one years after the alleged negligent act and twenty-four years after Dr. K.'s death. The time span is much more remote than in Walker. Additionally, the Walker majority placed much emphasis on the fact that a RhoGAM injection is solely for the benefit of a mother's future children, not the mother herself. Here, a PKU diagnosis, and a failure to convey such a diagnosis, has a direct and immediate impact on the health of the original patient. In the case of a female patient, such missed diagnosis may have a devastating impact upon a future child, but such impact is more speculative, remote, and secondary than is the case with a missed RhoGAM injection.
Turning to foreseeability, the risk that untreated PKU poses to a fetus is well-documented.
Finally, turning to public policy concerns, we conclude they weigh against a finding of duty. Recognizing duty in a case such as this could extend a physician's potential liability for several decades after an alleged negligent act. This would contravene the Act's purpose of placing reasonable limits upon a physician's exposure to malpractice claims. Additionally, there is no doubt a strong public policy in favor of ensuring that infants are properly tested for PKU and that any such test results be expeditiously conveyed to the infant's parents. However, the original patient him- or herself is directly harmed and sustains injury if a positive PKU test result is not conveyed and the patient may state a claim for malpractice against the doctor. In the Walker/ RhoGAM scenario, there is no malpractice-based incentive for the doctor to provide correct treatment if an injured child could not sue, because the alleged malpractice would have no impact on the patient, i.e. the mother, but only the mother's children; if only the mother could sue, she would have no damages or injury of her own of which to complain. By contrast, the public policy of encouraging PKU testing and conveying of test results is protected by permitting the original patient to pursue a claim against the doctor for improper testing or failing to convey test results.
In balancing the relationship of the parties, the foreseeability of harm, and public policy, we conclude the trial court correctly ruled that Dr. K. owed no duty to C.K.
We affirm the trial court's denial of the Estate's summary judgment motion to the extent it sought to bar Stacy's claim under the Act's statute of limitations. We also affirm its granting of summary judgment to the Estate with respect to Dr. K. owing no duty to C.K.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
