Dermatology Associates, P.C. and Sonya Campbell Johnson, M.D. v. Elizabeth C. White v. Commissioner of Indiana Department of Insurance, and Douglas J. Hill, Esq., Medical Review Panel Chair

FILED
Jan 19 2017, 7:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
Chad J. Bradford Gerald B. Coleman
O’Bryan, Brown and Toner, PLLC Coleman Stevenson, LLP
Indianapolis, Indiana Indianapolis, Indiana
Karl L. Mulvaney
Jessica Whelan
Bingham Greenebaum Doll LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dermatology Associates, P.C. January 19, 2017
and Sonya Campbell Johnson, Court of Appeals Case No.
M.D., 49A02-1512-PL-2189
Appellants-Petitioners, Appeal from the Marion Superior
Court
v. The Honorable David J. Dreyer,
Judge
Elizabeth C. White, Trial Court Cause No.
Appellee-Respondent, 49D10-1506-PL-18385
v.
Commissioner of Indiana
Department of Insurance, and
Douglas J. Hill, Esq., Medical
Review Panel Chair,
Third Party Defendants.
Robb, Judge.
Court of Appeals of Indiana | Opinion 49A02-1512-PL-2189 | January 19, 2017 Page 1 of 21
Case Summary and Issue
[1] On September 7, 2012, Elizabeth White visited Dr. Sonya Campbell Johnson at
Dermatology Associates, P.C. (collectively, the “Providers”), for laser hair
removal on her face. Due to a reaction between the makeup White was
wearing and the treatment, part of White’s face was burned and remained
discolored thereafter. In 2013, White filed a complaint for medical negligence
against the Providers directly with the trial court, seeking damages in an
amount not greater than $15,000 for her injury. Later, White moved to dismiss
that complaint. The trial court granted the motion to dismiss without prejudice,
and on November 18, 2014, White filed a proposed complaint with the Indiana
Department of Insurance. The Providers filed a petition for preliminary
determination and a motion for summary judgment alleging White failed to
timely file her claim with the Department of Insurance. The trial court denied
the motion for summary judgment but certified its order for interlocutory
appeal. The Providers raise one restated issue for our review: whether the trial
court erred in denying their motion for summary judgment. Concluding the
statute of limitations bars White’s action and the Providers are entitled to
judgment as a matter of law, we reverse.
Facts and Procedural History
[2] White went to the offices of Dermatology Associates on September 7, 2012, for
a laser hair removal procedure on her face. A few minutes after Dr. Johnson
began performing the procedure, she stopped and asked if White had anything
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on her face. White replied that she was wearing mineral powder, and Dr.
Johnson said the laser reacts to minerals. Dr. Johnson cleansed White’s face
and completed the procedure. The part of White’s face that had been in contact
with the laser prior to the cleansing immediately discolored, but Dr. Johnson
said the discoloration would go away by the end of the day. Instead, the
discoloration worsened and White’s skin peeled. Over time, the discoloration
improved but did not completely go away.
[3] On November 20, 2013, White filed a complaint for medical negligence in the
Marion Superior Court 14, alleging the Providers were negligent in performing
the laser hair removal. On December 12, 2013, White filed a motion for leave
to amend her complaint to add a declaration that she was seeking damages in
an amount not greater than $15,000.1 The trial court granted her motion and
her amended complaint was filed.
[4] In October 2014, the Providers filed a motion for summary judgment. White
did not respond to the motion for summary judgment but instead filed a motion
to dismiss her complaint without prejudice because she “has learned during the
pendency of her action that her bodily injury is more serious than previously
believed . . . and therefore believes that Fifteen Thousand and 00/100 Dollars
($15,000.00) will be insufficient compensation for her bodily injury.”
1
As will be discussed below, such a declaration allows a party to file a medical negligence complaint directly
with the trial court instead of submitting a proposed complaint through the Department of Insurance for
presentation to a medical review panel. See Ind. Code § 34-18-8-6(a).
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Appellants’ Appendix at 84. Attached to her motion was her affidavit, stating
in pertinent part:
2. On September 7, 2012, I went to the offices of the [Providers]
to have a laser hair removal procedure performed by [Dr.
Johnson].
3. [Dr. Johnson] performed the procedure in a negligent manner
resulting in injury burning to my face.
4. I experienced immediate discoloring and burning. I thought
the discoloring would disappear; however, discoloring still
remains and therefore, I do not believe that [$15,000] is sufficient
to compensate me for the injury to my face.
5. I have asked my attorney to take the necessary steps so that I
can pursue additional monetary damages to compensate me for
my injury.
Id. at 88. The trial court granted White’s motion to dismiss her complaint on
November 12, 2014.
[5] On November 18, 2014, White filed a proposed complaint with the Indiana
Department of Insurance, which was identical in all respects to the amended
complaint she had filed in the trial court minus the limited damages
declaration. On June 4, 2015, the Providers filed a Petition for Preliminary
Determination and Motion for Summary Judgment in Marion Superior Court
10, alleging White’s proposed complaint before the Department of Insurance
was untimely. The trial court denied the motion for summary judgment on
June 19, 2015. The Providers then filed a motion to reconsider, and, in the
alternative, a motion to certify the order denying summary judgment for
interlocutory appeal. Following a hearing, the trial court denied the Providers’
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motion to reconsider but certified the order denying summary judgment for
interlocutory appeal.
Discussion and Decision
I. Standard of Review
[6] Pursuant to Indiana Code section 34-18-11-1, a trial court may assert
jurisdiction over threshold issues and preliminarily determine an issue of law or
fact while the proposed complaint is pending before the medical review panel in
the Department of Insurance. Haggerty v. Anonymous Party 1, 998 N.E.2d 286,
294 (Ind. Ct. App. 2013). The grant or denial of summary judgment on a
motion for preliminary determination is subject to the same standard of review
as any other summary judgment ruling. Jeffrey v. Methodist Hosps., 956 N.E.2d
151, 154 (Ind. Ct. App. 2011).
When reviewing the grant or denial of summary judgment, we
apply the same standard as the trial court. Summary judgment is
proper only when the designated evidence shows that there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. All facts and reasonable inferences
therefrom are construed in a light most favorable to the
nonmovant. The statute of limitations defense is particularly
suitable as a basis for summary judgment. When the moving
party asserts the statute of limitations as an affirmative defense
and establishes that the action was commenced beyond the
statutory period, the burden shifts to the nonmovant to establish
an issue of fact material to a theory that avoids the defense. Any
doubts as to the existence of a material issue are resolved in favor
of the nonmovant.
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Anonymous Physician v. Wininger, 998 N.E.2d 749, 751 (Ind. Ct. App. 2013)
(citations omitted).
II. Timeliness of White’s Action
A. Statute of Limitations in General
[7] In general, a patient asserting a medical negligence claim must file her
complaint within two years of the alleged malpractice. Ind. Code § 34-18-7-
1(b). Except in limited circumstances, medical negligence claims in Indiana
must first be submitted to a medical review panel through the Indiana
Department of Insurance before they may be filed in court. Ind. Code § 34-18-
8-4. The filing of a proposed complaint with the medical review panel tolls the
applicable statute of limitations until ninety days following receipt by the
patient of the panel’s decision. Ind. Code § 34-18-7-3(a); Comer v. Gohil, 664
N.E.2d 389, 391 (Ind. Ct. App. 1996), trans. denied. Thus, the failure to file a
proposed complaint with the Department of Insurance for consideration by a
medical review panel within two years from the date of the alleged malpractice
is ordinarily fatal to a medical negligence claim. Mayfield v. Cont’l Rehab. Hosp.,
690 N.E.2d 738, 741 (Ind. Ct. App. 1998), trans. denied.
[8] This case presents several exceptions to the general rules cited above. One of
the circumstances in which a claim need not be first presented to a medical
review panel is where the patient’s pleadings include a declaration that the
patient seeks damages of $15,000 or less. Ind. Code § 34-18-8-6(a). In that
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situation, the case may be commenced directly in the trial court. Id. Indiana
Code section 34-18-8-6(b) (“subsection (b)”) then provides that a patient who:
(1) commences an action [directly in court] in the reasonable
belief that damages in an amount not greater than [$15,000]
are adequate compensation for the bodily injury allegedly
caused by the health care provider’s malpractice; and
(2) later learns, during the pendency of the action, that the bodily
injury is more serious than previously believed and that
[$15,000] is insufficient compensation for the bodily injury;
may move that the action be dismissed without prejudice and,
upon dismissal of the action, may file a proposed complaint
subject to [medical review panel proceedings] based upon the
same allegations of malpractice as were asserted in the action
dismissed under this subsection. In a second action commenced
in court following the medical review panel’s proceeding on the
proposed complaint, the patient may recover an amount greater
than [$15,000].
Indiana Code section 34-18-8-6(c) (“subsection (c)”) provides an exception to
the general two-year statute of limitations for a second action filed under these
circumstances, stating that if the patient:
(1) commences an action under subsection (a) . . .;
(2) moves under subsection (b) . . . for dismissal of that action;
(3) files a proposed complaint subject to [presentation to a
medical review panel] based upon the same allegations of
malpractice as were asserted in the action dismissed under
subsection (b) . . .; and
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(4) commences a second action in court following the medical
review panel proceeding on the proposed complaint;
the timeliness of the second action is governed by IC 34-18-7-
1(c).
Indiana Code section 34-18-7-1(c) in turn provides that if the patient meets the
criteria of subsection (c), “the applicable limitations period is equal to the
period that would otherwise apply to the patient under subsection (b) . . . plus
one hundred eighty (180) days.”
[9] A few Indiana cases have cited Indiana Code section 34-18-8-6 (or its
predecessors, sections 16-9.5-9-2.1 (added in 1985, repealed in 1993) and 27-12-
8-6 (repealed in 1998)). See, e.g., Narducci v. Tedrow, 736 N.E.2d 1288, 1290-91
(Ind. Ct. App. 2000) (noting plaintiff rectified his error in filing his action in the
trial court without first presenting his proposed complaint to a medical review
panel by amending his complaint to request damages in the amount of $15,000
or less); Albright v. Pyle, 637 N.E.2d 1360, 1364 (Ind. Ct. App. 1994) (holding
$15,000 limit applies to entire action, not each defendant) (opinion on reh’g);
see also Gleason v. Bush, 664 N.E.2d 1183, 1185 n.2 (Ind. Ct. App. 1996); Simms
v. Schweikher, 651 N.E.2d 348, 349 n.1 (Ind. Ct. App. 1995), trans. denied;
Hoskins v. Sharp, 629 N.E.2d 1271, 1274 n.3 (Ind. Ct. App. 1994) (all simply
noting the existence of a statutory “shortcut” for bypassing the medical review
panel). But no Indiana case has substantively addressed this statute for the
purpose of answering the question the Providers pose to us: what are the
requirements for triggering the 180-day extension of the statute of limitations?
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[10] The Providers claim White did not trigger the 180-day extension under the facts
of this case and therefore her second action, filed with the Department of
Insurance beyond the general two-year statute of limitations, is time-barred.
We address first White’s claim that subsection (c) does not apply because she
has not yet received a medical review panel opinion and has not yet
commenced a second action in court; therefore, she asserts the Providers’
petition for preliminary determination is premature. See Ind. Code § 34-18-8-
6(c)(4). The Providers are not required to raise their statute of limitations
affirmative defense in a preliminary determination action, see Ind. Code § 34-18-
11-1(d); Miller v. Dobbs, 991 N.E.2d 562, 564 (Ind. 2013) (holding medical
defendants’ statute of limitations defense is not waived for failure to move for a
preliminary determination), but in the appropriate case, the preliminary
determination procedure allows early resolution of a potentially dispositive
issue. It is true White’s proposed complaint is still pending before the medical
review panel and she has not yet commenced a second action in court.
However, the facts pertinent to determining the statute of limitations question
raised by the Providers are already set. The filing of a proposed complaint with
the Department of Insurance may toll the applicable statute of limitations, Ind.
Code § 34-18-7-3(a), but only if the proposed complaint itself is timely filed
within the same limitations period, see Mayfield, 690 N.E.2d at 740-42 (affirming
dismissal of patient’s action as time barred due to failure to file a proposed
complaint with the Department of Insurance before the expiration of the two-
year statute of limitations). Therefore, if White’s action is untimely now, it will
also be untimely when and if it is filed in court after a review panel decision.
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The Providers’ request for a preliminary determination of this issue is not
premature.
[11] White further claims she does not need subsection (c) to apply because she filed
her initial complaint in court within the applicable statute of limitations, and
therefore subsection (b) allows her to dismiss that complaint and file her
proposed complaint with the Department of Insurance within a reasonable
period of time “[w]ithout regards to the statute of limitations,” as subsection (b)
imposes no specific cut off period for filing a proposed complaint after
dismissal. Appellee’s Brief at 8, 10-11. However, a complaint that is
voluntarily dismissed is treated as if it never existed and thus, cannot toll the
statute of limitations. Kohlman v. Finklestein, 509 N.E.2d 228, 232 (Ind. Ct.
App. 1987), trans. denied. Although not arising in a medical negligence context,
the procedural posture of Kohlman is very similar to the instant case: there, the
plaintiff’s cause of action for conversion of personal property accrued in July
1979. He filed suit to recover damages in municipal court in May 1981, but
thereafter amended his prayer for damages to exceed the monetary
jurisdictional limit of the municipal court and consequently, moved to
voluntarily dismiss the case without prejudice for lack of jurisdiction. The trial
court granted the motion to dismiss and the plaintiff refiled his complaint in
superior court in October 1982. The trial court granted summary judgment to
the defendant because the plaintiff’s second action was barred by the statute of
limitations. We affirmed, holding the plaintiff’s “timely municipal court case
cannot extend the time within which he could file his superior court case.” Id.
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at 232. Here, White alleges the Providers’ negligence occurred on September 7,
2012, and therefore, her action accrued on that date. She timely filed her initial
complaint seeking limited damages in the trial court on November 20, 2013, but
then voluntarily dismissed that complaint and filed a proposed complaint with
the Department of Insurance on November 18, 2014, in order to seek greater
damages. Because White voluntarily dismissed her initial complaint, her
current action is considered filed on November 18, 2014. In the absence of
some mechanism for extending the statute of limitations past September 7,
2014, White’s action is time-barred, as it was filed more than two years after the
alleged malpractice.
B. Criteria to Extend the Statute of Limitations
[12] The legislature provided such a mechanism within the statute allowing for
dismissal and refiling of a medical negligence complaint. A patient who has
filed an action directly in court seeking limited damages may dismiss that
action—and thereafter have the standard two years after the action accrued plus
an additional 180 days to file a new action seeking greater damages—if she
learns, after commencing the original action and while that action is still
pending in the trial court, that her bodily injury is more serious than she
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believed when she commenced her action and $15,000 will not be adequate
compensation. See Ind. Code § 34-18-8-6(b)(2).2
[13] The Providers contend White has an affirmative obligation to show she
“obtained additional evidence or knowledge during the pendency of the court-
filed suit” that her injuries were more serious than she initially believed in order
to be given the benefit of the extended statute of limitations. Brief of Appellants
at 24. White contends the phrase “later learns” should be interpreted solely
under a subjective standard and therefore she has no obligation to produce
evidence other than her own affidavit, which she claims shows “[she] learned
by personal experience that when the discoloration did not initially disappear, it
was worse than she previously believed.” Appellee’s Brief at 11-12.
[14] Our rules of statutory construction are as follows:
When courts set out to construe a statute, the goal is to determine
and give effect to the intent of the legislature. The first place
courts look for evidence is the language of the statute itself, and
courts strive to give the words their plain and ordinary meaning.
We examine the statute as a whole and try to avoid excessive
reliance on a strict literal meaning or the selective reading of
individual words. We presume the legislature intended the
language used in the statute to be applied logically, consistent
2
If White is entitled to the extension of the statute of limitations, her proposed complaint was filed within
that window (her cause of action accrued on September 7, 2012; two years plus 180 days from that date is
March 6, 2015). Therefore, the only question before us is whether she is entitled to that additional time.
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with the statute’s underlying policy and goals, and not in a
manner that would bring about an unjust or absurd result.
Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1283 (Ind. 2009)
(citations omitted). Further, we will not read into the statute that which is not
expressed, so it is just as important to recognize what a statute does not say as it
is to recognize what it does say. Weinberger v. Estate of Barnes, 2 N.E.3d 43, 47
(Ind. Ct. App. 2013), trans. denied. Finally, as statutory procedures for bringing
a medical negligence action are in derogation of common law, we strictly
construe those statutes against limiting a patient’s right to bring suit. Mooney v.
Anonymous M.D. 4, 991 N.E.2d 565, 580 (Ind. Ct. App. 2013), trans. denied.
[15] The language employed in a statute is deemed to have been used intentionally.
Anonymous Hosp. v. A.K., 920 N.E.2d 704, 708 (Ind. Ct. App. 2010). Here, the
statute says the patient may dismiss a limited damages suit in court and have
additional time to refile a medical negligence claim through the Department of
Insurance if she “later learns . . . that the bodily injury is more serious than
previously believed and that [$15,000] is insufficient compensation . . . .” Ind.
Code § 34-18-8-6(b)(2) (emphasis added). “Learn” is defined as to “acquire
knowledge of (a fact); to become acquainted with or informed of (something);
to hear of, ascertain.” Oxford English Dictionary,
http://www.oed.com/view/Entry/106716?redirectedFrom=learn#eid (last
visited Nov. 17, 2016). Use of the phrase “later learns” implies something
additional has to have occurred since the original lawsuit was filed in court:
that is, the patient has subsequently acquired knowledge of or received
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information about something she did not previously know with regard to her
injury and $15,000 is insufficient to compensate her for that more serious
injury.3 Subsection (b) does not say simply that the plaintiff may dismiss her
original complaint and have an extended statute of limitations for refiling with
the Department of Insurance in order to seek additional damages. The statute
imposes requirements upon such a course of action—that the patient learns her
bodily injury is more serious than previously believed. The inclusion of these
requirements implies there is some burden on the patient to show she has
dismissed and refiled for a reason other than seeking more damages for the
same injury. To adopt White’s reading of the statute would be to read those
requirements out of the statute.
[16] White alleges her face was burned by the laser treatment resulting in
discoloration. White’s original and amended complaints filed in the trial court
and her proposed complaint filed with the Department of Insurance all allege,
with respect to her injury:
9. [White’s] face immediately began to experience discoloring.
***
3
We do not mean to imply that the “something additional” necessarily has to be medical evidence, such as a
second doctor’s opinion. As White points out, “a patient can ‘learn’ something in a variety of ways, for
example, by being told, by reading or by personal experience.” Appellee’s Brief at 11.
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11. [Dr. Johnson] stated that the discoloring would go away by
the end of the day.
12. The burned area on [White’s] face turned dark and peeled
until a layer of skin referred to as “the white meat” showed.
***
14. Although [White’s] scarring has improved, it still remains
after several months.
Appellant’s App. at 31 (proposed complaint); 35 (original complaint); and 45
(amended complaint). White’s affidavit, attached to the motion to dismiss her
original action in the trial court, avers:
3. [Dr. Johnson] performed the [laser hair removal] procedure in
a negligent manner resulting in injury burning to my face.
4. I experienced immediate discoloring and burning. I thought
the discoloring would disappear; however, discoloring still
remains and therefore, I do not believe that [$15,000] is sufficient
to compensate me for the injury to my face.
Id. at 88. Even under a wholly subjective standard, White’s pleadings and her
affidavit fail to demonstrate that she is entitled to the benefit of the extended
statute of limitations. She has not alleged she learned anything new or different
about her injury after filing her original complaint.4 Moreover, her pleadings
4
As we noted in footnote 3, supra, we agree with the dissent that a person may “later learn” something in a
variety of ways and we do not disagree that the threshold for new information may be relatively low.
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and affidavit fail to demonstrate her bodily injury is more serious than she
originally believed; in fact, they demonstrate her injury is exactly the same now
as it was when she commenced her original action in court seeking $15,000 or
less. For instance, White does not allege the discoloration worsened between
November 2013 and November 2014 or that she learned of additional current
or future side effects from the burning other than the remaining discoloration.
The only thing that appears to have changed is that she now wants the
possibility of recovering a greater amount of damages for the same injury.
[17] White posits this decision will now require the trial court in the original action
“to determine what injury a plaintiff has suffered, require a plaintiff to submit
medical evidence that the injury has worsened and then . . . decide if the
medical evidence submitted by a plaintiff is sufficient to conclude that the injury
has worsened.” Appellee’s Brief at 14. We disagree that the trial court will
have any such obligation. If the patient files a motion for voluntary dismissal of
her complaint, it is not the trial court’s function to question on the patient’s
behalf whether dismissal is actually a good idea or might result in prejudice to
the patient. Cf. Principal Life Ins. Co. v. Needler, 816 N.E.2d 499, 502 (Ind. Ct.
However, even accepting that White could learn from looking into her mirror every day that a lifetime of
facial disfiguration was worth more to her than $15,000, see ¶ 27, supra, that amounts to speculation here
because White did not allege that in her pleadings. Dr. Johnson told her at the time of the procedure that the
discoloration would go away by the end of the day. When White filed her original complaint over a year
later, however, her face was still discolored. When she dismissed and refiled her complaint, her face
remained discolored. Thus, she knew from the outset of this litigation that her face was discolored from the
procedure and she did not aver anything differently in her second complaint. The specific language of the
statute requires the plaintiff affirmatively show something has changed since the original allegations and
White has failed to do that here.
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Ohio App. 2004) (noting that voluntary dismissals should generally be allowed unless
the defendant will suffer some legal prejudice other than the prospect of a second
lawsuit).
[18] The facts of this case are not in dispute. The Providers have shown that White
did not file her proposed complaint with the Department of Insurance within
two years of her action accruing. White in turn has failed to establish she is
entitled to the benefit of Indiana Code sections 34-18-8-6(c) and 34-18-7-1(c)
extending the statute of limitations in certain circumstances. Section 34-18-8-
6(c) imposes certain requirements on the ability to benefit from the extended
time to file a medical negligence action, and White has failed to meet those
requirements. White had every right to dismiss and refile her cause of action in
order to seek additional damages, but under these facts, she needed to do so
within the two-year statute of limitations.
Conclusion
[19] The Providers are entitled to judgment as a matter of law on their motion for
summary judgment alleging White’s proposed complaint was filed with the
Department of Insurance outside the applicable statute of limitations. The trial
court’s denial of the motion is reversed.
[20] Reversed.
Brown, J., concurs.
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Mathias, J., dissents.
IN THE
COURT OF APPEALS OF INDIANA
Dermatology Associates, P.C. Court of Appeals Case No.
and Sonya Campbell Johnson, 49A02-1512-PL-2189
M.D.,
Appellants-Petitioners,
v.
Elizabeth C. White,
Appellee-Respondent,
v.
Commissioner of Indiana
Department of Insurance, and
Douglas J. Hill, Esq., Medical
Review Panel Chair,
Third Party Defendants.
Mathias, Judge, dissenting.
[21] I respectfully dissent. The majority’s explanation of the statutory framework of
the issue before us is commendable. I disagree only with the majority’s
interpretation of this statutory framework.
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[22] As noted by the majority, a patient who has filed an action seeking less than
$15,000 in damages directly in a trial court may dismiss that action and
thereafter have the benefit of the normal two-year statute of limitations, plus an
additional 180 days, to file a new action seeking damages in excess of $15,000.
See Ind. Code §§ 34-18-8-6(b), 34-18-7-1(c). To qualify for this additional 180-
day extension of the normal statute of limitations, the patient need only
establish that she “later learn[s] during the pendency of the action, that the
bodily injury is more serious than previously believed and that fifteen thousand
dollars ($15,000) is insufficient compensation for the bodily injury.” I.C. § 34-
18-8-6(b)(2).
[23] The majority concludes that White must show that “something additional has
to have occurred since the original lawsuit was filed in court: that is, the patient
has subsequently acquired knowledge of or received information about
something she did not previously know with regard to her injury and $15,000 is
insufficient to compensate her for that more serious injury.” Slip op., supra, at
pp. 13-14. The majority then notes that they do not mean to imply that this
“something additional” “necessarily has to be medical evidence, such as a
doctor’s opinion.” Id. at 14 n.2. Indeed, the majority agrees with White that “‘a
patient can “learn” something in a variety of ways, for example, by being told,
by reading or by personal experience.’” Id. (quoting Appellee’s Brief at 11)
(emphasis added).
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[24] I write separately to emphasize that I believe that medical evidence, such as a
physician’s expert opinion, is certainly not required to establish that a patient
has “later learned” that her injury is more serious than originally believed.
[25] However, unlike the majority, I also believe that, in the present case, White
adequately established that she later learned that her injury was more serious
than she originally believed. White originally pleaded that: her face
immediately began to experience discoloration after the treatment; Dr. Johnson
told her, incorrectly, that the discoloration would go away by the end of the
day; that the burned area of her face turned dark and peeled, revealing the flesh
underneath the skin; and that although her scarring had improved, it still
remained after several months.
[26] White’s affidavit, attached to the motion to dismiss her original action, averred
that: Dr. Johnson negligently burned her face; she experienced immediate
burning and discoloration; she believed the discoloration would disappear; and
the discoloration still remained and therefore she did “not believe that [$15,000]
is sufficient to compensate me for the injury to my face.” Appellant’s App. p.
88. White’s proposed complaint she submitted to the Indiana Department of
Insurance contained similar allegations. See id. p. 31.
[27] The majority concludes that White failed to allege that she learned anything
new or different about her injury after filing her original complaint. However,
she averred that the discoloration still remained. Thus, because the
discoloration had still not improved, White came to the personal conclusion
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that a lifetime of facial disfiguration was worth more than $15,000. In terms of
the statute, White “learned” that her claim, based upon her permanent facial
disfiguration, was worth more than $15,000. Under the facts and circumstances
before us, I think a woman’s ultimate decision that a lifetime of facial
disfiguration was worth more than $15,000 is something she could, and here
did, “learn” from looking into the mirror every day, trying without success to
use make-up to make the scarring less noticeable. I believe this alone is
sufficient to trigger the 180-day extension provided for by Indiana Code section
34-18-7-1(c).
[28] Accordingly, I would affirm the trial court’s denial of the Provider’s motion for
summary judgment.
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