Toth v. Lenk , 164 Ind. App. 618 ( 1975 )

Garrard, J.

In 1968 Frank Toth (Toth) suffered an industrial injury for which he was treated by Dr. Lenk. Treatment continued from October 9, 1968, until early April 1969. Although Toth continued to experience problems, he did not return to Dr. Lenk for further treatment. In May and June 1969, Toth returned to his native Hungary. While there, he consulted another physician for treatment regarding his condition. He had five or six consultations with that doctor. He then returned to the United States, and saw Dr. Lenk for a required re-employment physical before resuming his former employment. Toth testified in his discovery deposition that he had in fact lost faith in Dr. Lenk and decided not to seek further treatment from him. On June 7, 1970, he consulted a third doctor and allegedly for the first time actually learned of Dr. Lenk’s asserted failure to properly diagnose his condition. On June 6, 1972, he brought this action against Dr. Lenk for malpractice. The trial court granted Lenk’s motion for summary judgment based upon the statute of limitations, and Toth appeals.

I find the summary judgment was proper. In so doing, we are squarely confronted with the proper interpretation of our medical malpractice statute of limitations, IC 1971, 34-4-19-1 (Burns Code Ed.).

Toth contends that because a literal application of the statute could hypothesize a plaintiff upon whom the statute would expire before he knew, or in the exercise of reasonable diligence could have known, that malpractice had been committed, the only application of the statute which comports with due process is to interpret it as commencing to run only with the actual discovery of the malpractice.

Our statute requires that the action be “filed within two [2] years from the date of the act, omission or neglect complained of.”

The statute thus differs from the general statute governing personal injuries, IC 1971, 34-1-2-2 (Burns Code Ed.) which requires that such actions be commenced within two years “after the cause of action has accrued.” Clearly the choice of terminology in the malpractice statute is more restrictive. It is intended to avoid, in medical malpractice cases, the impact of that line of case law holding that “accrual of the action” phraseology extends the time for commencing an action where either the injury or damage (essential elements of the tort) do not occur until long after the act or omission which gave rise to them. See, Montgomery v. Crum (1928), 199 Ind. 660, 161 N.E. 251; Merritt v. Economy Dept. Stores (1955), 125 Ind. App. 560, 128 N.E.2d 279.

There can be no doubt that the legislature did not intend actual discovery to be the event that triggers the commencement of the statutory period.

Furthermore, as observed by the Court in Guthrie v. Wilson (1959), 240 Ind. 188, 162 N.E.2d 79, statutes of limitations generally address merely the remedy rather than the right. They are not therefore violative of due process, at least, so long as a potential plaintiff is afforded some not unreasonably short period of time within which to bring his action.

On the other hand, in Chaffin v. Nicosia (1974), 261 Ind. 698, 310 N.E.2d 867, our Supreme Court recently held the relief provisions of our disability statute, IC 1971, 34-1-2-5 (Burns Code Ed.) applicable to medical malpractice cases. In so doing, the Court relied upon the doctrine of the reasonable construction of statutes stating:¹

“This statute’s [IC 1971, 34-4-19-1] application to a given case must not be allowed to produce an absurd result, which the legislature, as a reasonably minded body, could not have possibly intended:

‘. . . it would be illogical and unintelligent to say that a person who does not know, and cannot know . . . would be denied damages because his claim . . . was filed due to delay in learning . . .’ ” 310 N.E.2d 870.

Thus, while our statute speaks of the “act, omission or neglect complained of” it does not appear that the legislature thereby intended to deprive a patient of a remedy by way of an action for malpractice if he did not and could not have known of his claim within two years after the initial act, omission or neglect.² As heretofore mentioned, the reason for the more restrictive language in the malpractice statute appears designed to preclude delaying operation of the statute until damage or injury actually occurs.

Despite its rather clear language, must our statute be construed to include the proviso that the statute will not commence to run until the plaintiff, in the exercise of reasonable care, ought to have known of the malpractice in order to avoid unreasonable harshness on the hypothetical plaintiff ? In prior decisions our courts have generally acknowledged the legislative intent (apart from the case of the hypothetical plaintiff who could not know) that the limitation period operate promptly. Chaffin, supra; Guy v. Schuldt (1956), 236 Ind. 101, 138 N.E.2d 891.

In Guy v. Schuldt, supra, our Supreme Court held that fraud would estop a physician from relying on the statute of limitations and that accordingly the statute could not be set up by demurrer since to do so would preclude the plaintiff’s ability to assert fraud in a reply.

The Guy court surmised that due to the nature of the physician-patient relationship, the running of the statute might be prevented. The Court reaffirmed the general principles of an estoppel for fraud, which require both intentional conduct by the defendant, and that the plaintiff, relying upon the defense, not only be unaware of the fraud, but also have been unable to discover it in the exercise of diligence. The duty of the physician to disclose that which he knows, or in the exercise of reasonable care should have known, satisfies the requirement of conduct and constitutes a constructive fraud.³

Under this analysis the constructive fraud would terminate with the termination of the physician-patient relationship and the statute would commence to run. Guy, supra; Ostojic v. Brueckmann (C.A. 7th 1968), 405 F. 2d 302.

It must be emphasized, however, that the nature of the exception is equitable and relies upon an estoppel theory.

Accordingly, where the patient learns of the malpractice or learns information which would lead to discovery of the malpractice if the patient exercised diligence to discover, the statute will commence to run.⁴ Guy, supra; Ostojic, supra.

In Montgomery v. Crum (1928), 199 Ind. 660, 161 N.E. 251, our Supreme Court recognized that where an entire course of conduct combines to produce the injury, it may constitute a continuing wrong so as to delay the running of the statute. This theory has been applied in some jurisdictions to medical malpractice cases for the duration of the treatment provided by the physician. Wyler v. Tripi (1971), 25 Ohio St. 2d 164, 267 N.E.2d 419.

It would appear that the result-purpose of each of these doctrines is to provide protection to the patient who has been necessarily unaware of the wrong that has been done, and that accordingly, reasonable opportunity to bring suit is afforded by the statute under these rationales without making it necessary to construe the statutory language as necessarily implying a qualification for the ability to discover in the exercise of reasonable care.

We turn then to the propriety of the summary judgment. Toth argues that even in the absence of a discovery requirement, a disputed question of material fact exists as to when the doctor-patient relationship terminated. This, however, ignores the other aspect of the exception that will commence the statute running: Actual knowledge by the patient which, if pursued with diligence, would provide discovery.

Ordinarily, such factual questions preclude summary judgment because the facts themselves are in dispute or, if not, are susceptible to more than one reasonable inference. Additionally, there are times when summary judgment may be inappropriate even though the essential facts are not in dispute and appear to lead to one reasonable conclusion, because the matters appearing in the record before the court at the time do not foreclose the prospect of additional witnesses or evidence which, if presented at trial, would be sufficient to avoid a directed verdict in favor of the proponent of the motion.

Here, however, on the issue presented, the dispositional question is uniquely restricted to the conduct of the plaintiff and defendant, each of whom were thoroughly deposed prior to consideration of the summary judgment.

Actual treatment for the condition by Dr. Lenk ceased some 38 months before suit was commenced, yet Toth admitted that he continued to experience pain and problems the entire time. Three years before filing the action he consulted another physician by whom he was treated on five or six occasions. This physician told him that upon returning to the United States he should see a physician because of his hip. He admitted that in the fall of 1969 he did not return to Lenk because he believed Lenk was not helping him and because he had no faith in Lenk. There is no allegation of actual deliberate fraud.

The evidence most favorable to Toth clearly establishes that at some time prior to June 6, 1970, two years before suit was commenced, Toth ceased relying on Lenk and decided to secure no further treatment from him. At the time he did this he was aware of the continuing nature of his problem and was convinced that Lenk was not properly identifying the problem or providing proper treatment. This series of undisputed facts fulfills the requirements to set the statute in operation. It is knowledge of the condition or “injury” rather than its reason that destroys the estoppel and permits the statute to operate. Cf. Withers v. Sterling Drug Inc. (S.D. Ind. 1970), 319 F. Supp. 878.

Thus, in lay language, where the patient knows or concludes that something is wrong in the diagnosis or treatment he has been given, he is chargeable as a matter of law with the additional knowledge he would have procured had he exercised diligence to discover it.

The only reasonable inference to be drawn from the facts at bar is that the statute commenced to run prior to June 6, 1970.

Summary judgment was therefore correct.

Affirmed.

Staton, P.J., concurs; Hoffman, J., concurs with opinion.

1 . It seems to me that whether or not the rule of construction may be truly said to be an application of due process rests largely in semantics or an examination of technical antecedents. Certainly, if separate, both requirements have a common genesis.

2 . I do not believe those cases in other jurisdictions which stand for the proposition that a statute will not be declared violative of due process simply because it operates harshly in an exceptional instance are controlling on this question. See, e.g. Hargrave v. Brackett Stripping Machine Co. (E.D. Tenn. 1970), 317 F. Supp. 676. We are concerned with the proper interpretation of the statute, rather than its validity after that interpretation is discovered. Secondly, the potential class to be barred does not appear so exceptional or insignificant as to be de minimus.

3 . Note that if the physician committed malpractice a fortiori he should have known.

4 . Until the patient learns something to the contrary he is entitled to rely upon the physician faithfully discharging his duty.