Vickie Fenoglio, as Personal Representative of the Estate of Paul Fenoglio v. Gregory Brock, D.O. ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JOHN P. NICHOLS EDWARD J. LIPTAK
Anderson & Nichols JEREMY M. DILTS
FILED
Terre Haute, Indiana Carson Boxberger LLP
Bloomington, Indiana
Nov 29 2012, 9:47 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
VICKIE FENOGLIO, AS PERSONAL )
REPRESENTATIVE OF THE ESTATE OF )
PAUL FENOGLIO, DECEASED, )
)
Appellant-Respondent, )
)
vs. ) No. 84A04-1202-PL-59
)
GREGORY BROCK, D.O., )
)
Appellee-Petitioner. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable John Roach, Judge
Cause No. 84D01-1107-PL-6918
November 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
After Paul Fenoglio committed suicide, Vickie Fenoglio, acting as personal
representative of the Estate of Paul Fenoglio, filed a complaint against Gregory Brock, D.O.,
alleging he committed medical malpractice by prescribing a medication to Fenoglio that
caused Fenoglio’s suicide. Dr. Brock moved for summary judgment, and the trial court
granted his motion. Vickie raises one issue for our review, which we restate as whether her
complaint is barred by the applicable statute of limitations. Concluding her complaint is
barred by the statute of limitations, we affirm.
Facts and Procedural History
Dr. Brock treated Fenoglio in 2008 and 2009, and in March 2009, Dr. Brock
prescribed Celexa to Fenoglio for symptoms of depression. Fenoglio had a lengthy history of
bi-polar disorder. On March 6, 2009, Dr. Brock’s office called in the prescription to a Wal-
Mart Pharmacy. On March 16, 2009, Fenolgio committed suicide. In August 2009, the
Estate of Paul Fenoglio requested Dr. Brock’s medical records concerning his treatment of
Fenoglio. Vickie filed a complaint on March 11, 2011, claiming Dr. Brock was negligent in
prescribing Celexa to Fenoglio because the medication can cause suicidal thoughts and that
such negligence caused Fenoglio’s death. Dr. Brock moved for summary judgment, arguing
the complaint was filed after the two-year statute of limitations expired. The trial court
granted Dr. Brock’s motion, concluding the statute of limitations expired prior to Vickie’s
filing her complaint. Vickie now appeals.
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Discussion and Decision
I. Standard of Review
Our standard of review of a motion for summary judgment is the same as that in the
trial court. Collins v. HSBC Bank USA, Nat’l Ass’n, 974 N.E2d 537, 540 (Ind. Ct. App.
2012). Summary judgment is appropriate when the evidence shows there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial
Rule 56(C). The movant bears the burden of designating evidence demonstrating no genuine
issue of material fact exists and the movant is entitled to judgment as a matter of law.
Collins, 974 N.E.2d at 540 (citation omitted). Once the movant has met his burden, the
burden shifts to the non-movant to demonstrate that a genuine issue of material fact exists.
Id. We construe all facts and reasonable inferences in favor of the non-movant, and our
review is limited to the materials designated to the trial court. Id. When there are no
disputed facts and the question presented is a pure question of law, our review is de novo.
Levy v. Newell, 822 N.E.2d 234, 236 (Ind. Ct. App. 2005), trans. denied.
II. Statute of Limitations
Indiana Code section 34-18-7-1(b) provides:
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 . . . .
Vickie and Dr. Brock agree that Indiana Code section 34-18-7-1(b) is an occurrence-based
statute, meaning that the statute of limitations begins to run on the date the alleged negligent
act occurred rather than on the date it was discovered, as long as potential plaintiffs are able
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to discover the alleged malpractice within two years from the occurrence. See Brinkman v.
Bueter, 879 N.E.2d 549, 553 (Ind. 2008). Since the complaint was filed on March 11, 2011,
in order for it to have been timely filed the alleged malpractice must have occurred on or
after March 11, 2009. Vickie contends her complaint was timely filed because Fenoglio was
“under the continuing care of Brock” after March 11, 2009, and because “Fenoglio’s
prescription had not yet run its course” by March 11, 2009. Brief of Appellant at 3. Dr.
Brock argues “the last possible act of alleged malpractice on the part of Dr. Brock occurred
on March 6, 2009, when his office called a prescription to the pharmacy.” Brief of Appellee
at 4. Thus, Dr. Brock argues, Vickie’s complaint was not timely filed.
As Dr. Brock points out, we faced very similar circumstances in Gradus-Pizlo v.
Acton, 964 N.E.2d 865 (Ind. Ct. App. 2012). There, Myrtle Acton came to Dr. Gradus-Pizlo
in early March 2006, for a congenital heart defect. On March 12, 2006, Dr. Gradus-Pizlo
placed Acton on Spironolactone, a medication used to help treat severe congestive heart
failure. On March 29, 2006, Acton suffered ventricular tachycardia, and she died
approximately two weeks later. On April 1, 2008, a medical malpractice complaint was filed
against Dr. Gradus-Pizlo contending the Spironolactone given to Acton caused her demise by
raising her potassium level to a dangerously high level. We addressed whether the statute of
limitations provided in Indiana Code section 34-18-7-1(b) barred the complaint. We
concluded the alleged malpractice occurred on March 12, 2006, when Dr. Gradus-Pizlo
ordered that Acton be placed on Spironolactone. Id. at 870.
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Acton’s personal representative argued the doctrine of continuing wrong applied and
prevented his claim from being time-barred.
The doctrine of continuing wrong applies where an entire course of conduct
combines to produce an injury. When this doctrine attaches, the statutory
limitations period begins to run at the end of the continuing wrongful act. In
order to apply the doctrine, the plaintiff must demonstrate that the alleged
injury-producing conduct was of a continuous nature. The doctrine of
continuing wrong is not an equitable doctrine; rather, it defines when an act,
omission, or neglect took place.
Id. at 871 (citations omitted). We disagreed that the doctrine of continuing wrong applied,
concluding the “alleged medical malpractice consists of a single act, the prescription of
Spironolactone, not an ‘entire course of conduct.’” Id.Although not explicitly stated, Vickie’s argument is that the doctrine of continuing
wrong applies. She contends Fenoglio was under the continuing care of Dr. Brock and still
taking the prescribed medication, Celexa, after March 11, 2009. While there is no dispute
about those facts, we disagree that the doctrine of continuing wrong applies. The alleged
medical malpractice was Dr. Brock’s prescribing of Celexa, a drug which allegedly causes
suicidal thoughts, to a patient with a history of bipolar disorder. This occurred on March 6,
2009, more than two years prior to the date Vickie filed the complaint. Thus, the complaint
is barred by the occurrence-based statute of limitations, Indiana Code section 34-18-7-1(b).
Conclusion
The medical malpractice complaint was not filed within two years of the alleged act of
malpractice, and it is therefore barred by the statute of limitations. We thus affirm the trial
court’s grant of summary judgment in favor of Dr. Brock.
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Affirmed.
BAKER, J., and BRADFORD, J., concur.
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