Nina Cahill v. Charity Davis ( 2024 )

IN THE
Court of Appeals of Indiana
FILED
Nina Cahill and Kenneth S. Davis, Aug 28 2024, 9:10 am
Appellants-Plaintiffs CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
v.
Charity Davis, Baptist Healthcare System, Inc., and Baptist
Health Medical Group, Inc.,
Appellees-Defendants
August 28, 2024
Court of Appeals Case No.
23A-PL-1682
Appeal from the Floyd Circuit Court
The Honorable Justin B. Brown, Judge
Trial Court Cause No.
22C01-1906-PL-832
Opinion by Judge May
Judges Vaidik and Kenworthy concur.
May, Judge.
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 1 of 14
[1] Nina Cahill and Kenneth S. Davis (collectively “Plaintiffs”) appeal the trial
court’s grant of summary judgment to Baptist Healthcare Systems and Baptist
Health Medical Group, Inc. (collectively “Baptist”). Plaintiffs raise two issues
on appeal, but we need address only one, which we restate as: Whether the trial
court erroneously granted summary judgment to Baptist based on the two-year
statute of limitations for negligence actions found in Indiana Code section 34-
11-2-3 because that statute of limitations was tolled by Plaintiffs’ filing of
proposed medical malpractice complaints against Baptist pursuant to Indiana
Code section 34-18-7-3. Because Plaintiffs – who had the burden to
demonstrate they could avoid the statute of limitations for a claim sounding in
“ordinary negligence” 1 – failed to cite the tolling statute in the trial court and
failed to provide cogent argument regarding why a tolling provision from the
Medical Malpractice Act (“MMA”) should toll the statute of limitations for a
lawsuit that asserts only claims of ordinary negligence, we affirm. 2
Facts and Procedural History
[2] Charity Davis (“Charity”) was an employee of Baptist, where she worked as a
coding specialist and bill processor. Charity was divorced from Kenneth S.
Davis (“Kenneth”) on November 2, 2017, and Kenneth began dating Nina
1
Herein, we use the term “ordinary negligence” to denote any claim of negligence that does not implicate the
Medical Malpractice Act.
2
We held oral argument on this case on April 22, 2024, at the Court of Appeals Courtroom at the Indiana
Statehouse. We thank counsel for engaging in discussion with us to clarify the issues and deliberate relevant
law.
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 2 of 14
Cahill (“Nina”). In 2017 and 2018, during work hours at Baptist, Charity
“snooped” in the medical records of Kenneth, Nina, and other relatives of
Nina. (See Amended Br. of Appellants at 7 (“This is a ‘snooping’ case.
Snooping is the unlawful access to an individual’s confidential medical
records.”).) Around January 16, 2019, Baptist informed Nina and Kenneth that
Charity had accessed their medical records without authorization.
[3] On April 26, 2019, Plaintiffs separately filed proposed medical malpractice
complaints with the Indiana Department of Insurance (“IDOI”) against Charity
and Baptist. On June 5, 2019, Plaintiffs separately filed actions against only
Charity in Floyd Circuit Court that asserted counts for invasion of privacy,
negligence, and defamation. 3 The parties engaged in discovery regarding
whether Charity’s snooping was within the course and scope of her
employment with Baptist. On January 20, 2022, Plaintiffs separately filed
proposed amended malpractice complaints with the IDOI that included counts
for medical malpractice, common law negligence, negligence per se, and
respondeat superior vicarious liability.
[4] On July 12, 2022, Plaintiffs moved to amend their complaints in Floyd Circuit
Court to add Baptist as defendants. The trial court granted Plaintiffs’ motions
to amend on August 22, 2022. The amended complaints asserted claims of
common law negligence and invasion of privacy against all defendants;
3
Nina’s action was 22C01-1906-PL-000832, and Kenneth’s action was filed as 22C01-1906-PL-000833. On
August 24, 2022, the actions were consolidated into 22C01-1906-PL-000832.
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 3 of 14
negligence per se, respondeat superior liability, and medical malpractice against
Baptist; and defamation against Charity.
[5] On September 8, 2022, Baptist filed answers to the amended complaints, and
on December 19, 2022, Baptist filed a motion for summary judgment,
designation of evidence, memorandum in support of summary judgment, and
exhibits. Baptist asserted it was entitled to summary judgment because
Plaintiffs were attempting to add Baptist as a defendant after the two-year
statute of limitations for commencing an action asserting ordinary negligence
had passed.
[6] On February 1, 2023, Plaintiffs filed a designation of evidence, a memorandum
in opposition to Baptist’s motion for summary judgment and in support of
Plaintiffs’ cross-motion for summary judgment, and exhibits, including copies
of their proposed malpractice complaints filed against Baptist with the IDOI.
On March 1, 2023, Baptist filed a reply in support of summary judgment, a
response to Plaintiffs’ motion for summary judgment, and a designation of
evidence in opposition to Plaintiffs’ motion for summary judgment.
[7] The trial court heard argument on the summary judgment motions on May 23,
2023. On June 2, 2023, the court entered an order in which it found, in
necessary part:
18. There is no dispute that Plaintiffs [Nina] and [Kenneth]
had actual notice regarding [Charity’s] tortious conduct on or
about January 16th, 2019.
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 4 of 14
19. There is also no dispute that the present action against
[Baptist] was filed on July 12th, 2022; approximately forty (40)
months after Plaintiffs were provided actual notice and thirty-
seven (37) months after this action was initiated.
20. The [s]tatute of limitations for the relief sought in
Plaintiff’s [sic] complaint, whether for general negligence,
invasion of privacy, or a violation of the Medical Malpractice
Act, is two (2) years. Ind. Code Ann. § 34-11-2-4, Ind. Code
Ann. § 34-18-7-1.
21. [Baptist] asserted the statute of limitations as a defense in
their Answer.
22. There was no argument made, and the Court finds no
basis, that the time period for the statute of limitations was tolled
under any theory. There does not appear to be either fraudulent
concealment (as [Baptist] put Plaintiffs on notice immediately) or
a continuing wrong (as [Charity] was terminated in 2019 and her
access to the medical records in question ended).
23. There is likewise no other theory in equity that has been
presented to the Court which would give this Court the authority
to toll the statute of limitations.
24. As such, the statute of limitations for the commencement
of an action against [Baptist] in this case ran on or about January
16th, 2021.
25. As the action against [Baptist] was not initiated until July
1[2]th, 2022, it falls outside of the applicable statutes of limitation
by approximately eighteen (18) months and summary judgment
in favor of [Baptist] is therefore appropriate.
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26. Regarding Plaintiffs Motion for Summary Judgment
against [Baptist], while the issue is now moot, the Court also
finds that there is a genuine issue of material fact as to the claims
against [Baptist] and summary judgment would therefore not be
appropriate.
(Appellants’ App. Vol. 2 at 13-14.) Based thereon, the trial court granted
Baptist’s motion for summary judgment because “Plaintiffs’ complaint . . . was
filed outside the applicable statutes of limitation.” (Id. at 15.) The trial court
also ordered Plaintiffs’ motion for summary judgment against Baptist “is
DENIED, as it is both moot, and there exists a genuine issue of material fact.”
(Id.) Baptist thereafter asked the trial court to enter the summary judgment for
Baptist as a final judgment, and the trial court entered that final judgment order
as to Baptist on June 21, 2023.
Discussion and Decision
[8] Plaintiffs appeal from the trial court’s decisions regarding the parties’ competing
motions for summary judgment. “‘When reviewing the grant or denial of a
motion for summary judgment we stand in the shoes of the trial court.’”
Supervised Estate of Kent, 99 N.E.3d 634, 637 (Ind. 2018) (quoting City of
Lawrence Utils. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind. 2017)). Summary
judgment should be granted “if the designated evidentiary matter shows that
there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).
The party moving for summary judgment bears the burden of
making a prima facie showing that there is no issue of material
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 6 of 14
fact and that it is entitled to judgment as a matter of law. The
burden then shifts to the non-moving party to show the existence
of a genuine issue.
Burton v. Benner, 140 N.E.3d 848, 851 (Ind. 2020). “A fact is ‘material’ if its
resolution would affect the outcome of the case, and an issue is ‘genuine’ if a
trier of fact is required to resolve the parties’ differing accounts of the truth, or if
the undisputed facts support conflicting reasonable inferences[.]” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (citations omitted). Any doubts about
the facts, or the inferences to be drawn from the facts, are resolved in favor of
the non-moving party. Burton, 140 N.E.3d at 851. Where the challenge to
summary judgment raises questions of law, we review them de novo. Rogers v.
Martin, 63 N.E.3d 316, 320 (Ind. 2016).
[9] Findings of fact and conclusions of law entered by the trial court aid our review,
but they do not bind us. Supervised Estate of Kent, 99 N.E.3d at 637. Nor is our
standard of review or analysis altered by the parties’ filing of cross-motions for
summary judgment – we simply “‘consider each motion separately to determine
whether the moving party is entitled to judgment as a matter of law.’” Erie
Indemnity Co. v. Estate of Harris, 99 N.E.3d 625, 629 (Ind. 2018) (quoting SCI
Propane, LLC v. Frederick, 39 N.E.3d 675, 677 (Ind. 2015)). The party appealing
the trial court’s decision has the burden to convince us that the trial court erred,
but we scrutinize the trial court’s decision carefully to make sure that a party
was not improperly denied its day in court. Ryan v. TCI Architects, 72 N.E.3d
908, 913 (Ind. 2017). Indiana “consciously errs on the side of letting marginal
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 7 of 14
cases proceed to trial on the merits, rather than risk short-circuiting meritorious
claims.” Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014).
[10] Plaintiffs challenge the trial court’s grant of summary judgment to Baptist based
on the two-year statute of limitations for ordinary negligence actions. “Statutes
of limitations are legislative judgments and serve important purposes.” Miller v.
Patel, 174 N.E.3d 1061, 1066-67 (Ind. 2021). By encouraging prompt
presentation of claims, statutes of limitation “spare the courts from litigation of
stale claims, and the citizen from being put to his defense after memories have
faded, witnesses have died or disappeared, and evidence has been lost.”
Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006).
Statute of limitations defenses are particularly appropriate for
summary judgment determination. The party asserting it must
make a prima facie showing that the action was commenced
outside the statutory period by identifying (1) the nature of the
plaintiff’s action, so that the relevant statute of limitations period
may be identified; (2) the date the plaintiff’s cause of action
accrued; and (3) the date the cause of action was brought, being
beyond the relevant statutory period. If the moving party
demonstrates these matters properly, the burden shifts to the
opponent to establish facts in avoidance of the statute of
limitations defense.
City of Marion v. London Witte Group, LLC, 169 N.E.3d 382, 390 (Ind. 2021)
(internal citations and quotation marks omitted).
[11] Herein, Baptist’s appellate brief and trial court memorandum outlined caselaw
differentiating medical malpractice claims from ordinary negligence claims, (see
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 8 of 14
Appellees’ Br. at 22-39; and see Appellants’ App. Vol. 3 at 10-13), which
culminated with Community Health Network v. McKenzie, 185 N.E.3d 368 (Ind.
2022). McKenzie held snooping claims – claims that were nearly on-all-fours
with those brought by Plaintiffs herein – are not medical malpractice because
the snooping behavior was temporally disconnected from any healthcare
provided and was “unrelated to either the promotion of a patient’s health or the
provider’s exercise of professional expertise, skill, or judgment.” 4 Id. at 377.
Accordingly, Plaintiffs’ claims are for ordinary negligence, not medical
malpractice. See Plummer v. Beard, 209 N.E.3d 1184, 1193 (Ind. Ct. App. 2023)
(holding facts fell under McKenzie and stated a claim for ordinary negligence
because nurse’s access of medical records was unrelated to health care provided
to patients), trans. denied.
[12] The statute of limitations for ordinary negligence claims is two years. See Ind.
Code § 34-11-2-4(a) (“An action for . . . injury to person or character . . . must
be commenced within two (2) years after the cause of action accrues.” ); Ind.
Code § 34-11-2-3 (“An action of any kind for damages, whether brought in
4
Plaintiffs assert it is “without question that the IDOI complaints were proper and timely” (Amended
Appellants’ Br. at 22), because “[t]he plaintiff in Hinchy proceeded to a jury on a professional negligence
claim[.]” (Id. at 21.) In Walgreen Co. v. Hinchy, 21 N.E.3d 99 (Ind. Ct. App. 2014), aff’d on reh’g, 25 N.E.2d
748 (Ind. Ct. App. 2015), trans. denied, a pharmacist who worked for Walgreen inappropriately accessed the
prescription records of a Walgreen’s client, Abagail Hinchy. Hinchy sued the pharmacist and Walgreen and
received a damages verdict from a jury. Id. at 103. However, Hinchy’s claim was not presented to a medical
review panel before proceeding to trial. Id. at 105-06. Nor is a pharmacist a “health care provider” for
purposes of the MMA. See Kroger Co. v. Estate of Hinders, 773 N.E.2d 303, 306 (Ind Ct. App. 2002)
(pharmacist is not a “health care provider” based on MMA’s definition thereof in Ind. Code § 34-18-2-14),
trans. denied. Thus, Hinchy is inapposite to whether Plaintiffs’ claims asserted medical malpractice that was
subject to the MMA.
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 9 of 14
contract or tort, based upon professional services rendered or which should
have been rendered, may not be brought” after “two (2) years from the date of
the act, omission, or neglect complained of.”). Baptist notified Plaintiffs on
January 16, 2019, that Charity had accessed their medical records. Therefore,
any lawsuit against Baptist based on Charity’s behavior while an employee of
Baptist should have been filed before January 16, 2021. Plaintiffs filed suit
against Charity in Floyd Circuit Court on June 5, 2019, but they did not move
to amend their complaint to add Baptist as a defendant until July 12, 2022,
which was nearly eighteen months after the statute of limitations period
expired. 5 Thus, Baptist made a prima facie showing that it was entitled to
summary judgment, and the burden shifted to Plaintiffs to “establish facts in
avoidance of the statute of limitations defense.” City of Marion, 169 N.E.3d at
390.
[13] On appeal, Plaintiffs argue the two-year statute of limitations for their ordinary
negligence action against Baptist was tolled by their timely filing with the IDOI
of the proposed medical malpractice complaint against Baptist. In support,
5
We note our Indiana Supreme Court did not decide McKenzie until April 13, 2022, which is after expiration
of the two-year statute of limitations for Plaintiffs to have filed their claims against Baptist in the trial court.
However, our court had also determined that McKenzie’s claims were not subject to the MMA, Community
Health Network, Inc. v. McKenzie, 150 N.E.3d 1026, 1037 (Ind. Ct. App. 2020), trans. granted. Our decision –
which was released on May 26, 2020, and not vacated by the grant of transfer until November 19, 2020 –
should have put Plaintiffs on notice that their claims may well have been filed in the incorrect forum some
nine months before the statute of limitations on their claims expired. Moreover, in 2008, our court had held
“a health care provider’s negligent or reckless dissemination of patient confidential information to member of
the general public” raised claims of “ordinary negligence” that did not need to be presented to a medical
review panel. H.D v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 854 (Ind. Ct. App. 2008), reh’g denied, trans.
denied. While H.D. did not involve snooping, and thus is not directly on point, it certainly suggests that
improper use of confidential patient data may not constitute medical malpractice.
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 10 of 14
Plaintiffs cite a tolling provision within the MMA that provides: “The filing of a
proposed complaint tolls the applicable statute of limitations to and including a
period of ninety (90) days following the receipt of the opinion of the medical
review panel by the claimant.” Ind. Code § 34-18-7-3. Plaintiffs note they filed
their proposed complaints against Baptist with the IDOI on April 26, 2019, and
as of July 12, 2022, when Plaintiffs moved to amend their complaints in the
trial court to add Baptist as defendants, no opinion had been released by a
medical review panel. Thus, Plaintiffs allege, the statute of limitations for
negligence claims found in Indiana Code section 34-11-2-3 remained tolled by
Indiana Code section 34-18-7-3 when they moved to amend their trial court
complaints to add Baptist as defendants.
[14] However, as Baptist argues and the record confirms, Plaintiffs did not cite that
statute or explicitly argue for application of the MMA’s tolling provision in the
trial court. Instead, Plaintiffs argued that the caselaw cited by Baptist was
inapposite to the facts before the trial court 6 and that Baptist had waived any
statute of limitations defense.7 “Generally, a party may not raise an issue on
appeal which was not raised in the trial court, even in summary judgment
6
Baptist cited cases in which medical malpractice actions were barred by the two-year statute of limitations
in the MMA after a plaintiff had filed an action in trial court but had failed to file a proposed malpractice
complaint with the IDOI. See, e.g., Metz v. St. Joseph Regional Medical Center-Plymouth Campus, Inc., 115
N.E.3d 489, 498 (Ind. Ct. App. 2018) (“Because Metz failed to present the claim to a medical review panel
and failed to file the claim in a timely manner, the court properly dismissed Metz’s complaint against
Medical Providers.”).
7
Plaintiffs’ brief on appeal contains four arguments, but none of them is the argument raised in the trial court
about whether Baptist should be estopped from asserting a statute of limitations argument by engaging in
discovery and moving to intervene in Plaintiffs’ trial court action against Charity.
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 11 of 14
proceedings.” McGill v. Ling, 801 N.E.2d 678, 687 (Ind. Ct. App. 2004), reh’g
denied, trans. denied. Plaintiffs note they designated the proposed complaints
that they filed with the IDOI in response to Baptist’s motion for summary
judgment, but as we noted in McGill: “If we were to adopt McGill’s assertion
that a party does not waive a new argument raised for the first time on appeal
simply because there are facts in the summary judgment record to support that
argument, that would create an exception which swallows the waiver rule.” Id.
at 688. We accordingly hold Plaintiffs waived any possible argument that the
tolling provision of the MMA saved their ordinary negligence claim from the
two-year statute of limitations for bringing that action against Baptist. See id.(“Because McGill did not present her class action tolling argument to the trial
court, and the Defendants did not have unequivocal notice of that claim,
McGill has waived the issue for purposes of appeal.”).
[15] Here, as before the trial court, Plaintiffs argue Baptist’s caselaw supporting
dismissal is not on point, see supra fn.8, and therefore “Baptist has not offered
any authority establishing it is entitled to summary judgment in this case.”
(Amended Br. of Appellants at 18.) Plaintiffs’ assertion attempts to place a
burden on Baptist that properly belongs on Plaintiffs – Baptist demonstrated
that Plaintiffs’ case sounded in ordinary negligence and that Plaintiffs failed to
file their action in the trial court within the two-year statute of limitation for tort
actions. The burden then shifted to Plaintiffs to demonstrate they were entitled
to avoid that statute of limitations. See City of Marion, 169 N.E.3d at 390 (after
movant makes prima facia showing that action was brought outside the statute
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of limitation, the burden shifts to Plaintiff to “establish facts in avoidance of the
statute of limitations defense”). Because Plaintiffs failed to cite the statute and
make an explicit cogent argument for application of the MMA’s tolling
provision to their claims that sound in ordinary negligence, Plaintiffs have not
met their burden, and we affirm the dismissal of Plaintiffs’ complaint against
Baptist.
[16] Before closing, we take a moment to remind practitioners that, since July 1,
1999, the MMA has permitted parties to “commence an action in court for
malpractice at the same time the claimant’s proposed complaint is being
considered by a medical review panel.” Ind. Code § 34-18-8-7. Doing so
permits parties to avoid limitations issues of the sort that Plaintiffs face.
Conclusion
[17] Baptist made a prima facie showing that it was entitled to summary judgment
because Plaintiffs failed to file their ordinary negligence actions against Baptist
within the two-year statute of limitations period for negligence actions.
Plaintiffs did not meet their burden of demonstrating that limitations period was
tolled, and we accordingly affirm the trial court’s grant of summary judgment to
Baptist.
[18] Affirmed.
Vaidik, J., and Kenworthy, J., concur.
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 13 of 14
ATTORNEY FOR APPELLANTS
W. Edward Skees
The Skees Law Office
New Albany, Indiana
ATTORNEYS FOR APPELLEES
Rodney L. Scott
Tricia K. Hofmann
John R. Hofmann
Hofmann & Scott, LLC
New Albany, Indiana
Court of Appeals of Indiana | Opinion 23A-PL-1682 | August 28, 2024 Page 14 of 14