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Boggs v. Tri-State Radiology6/28/2000
ON PETITION TO TRANSFER
We hold that the Indiana Constitution is not violated by application of the Medical Malpractice Act's two-year limitations period to bar a claim that was discovered several months before the limitations period expired and well within two years of its occurrence.
Factual and Procedural Background
In July 1991 Carolyn Boggs went to Doctor Robert H. Oswald after detecting a mass in her left breast. A mammogram was taken and Carolyn was instructed to return after one year. On July 28, 1992, a second mammogram was taken, and, based on a comparison with the first, an excisional biopsy was recommended. Both mammograms were taken by Oswald's office and interpreted by physicians at Tri-State Radiology. The biopsy took place on August 12, 1992, and revealed that the mass in Carolyn's left breast was malignant. Subsequently it was discovered that the cancer had metastasized to her liver and that her breast cancer was in Stage IV. Carolyn died on July 28, 1993. On July 1, 1994, Carolyn's husband, R.C. Boggs, filed a proposed medical malpractice complaint pursuant to the Medical Malpractice Act against Oswald and Tri-State. He alleged that " s a direct and proximate result of the carelessness and negligence of [Tri-State], . . . [Carolyn's] malignancy metastasized and by the time it was discovered, it was incurable."
Tri-State filed a motion for preliminary determination of its statute of limitations defense. This is a procedure unique to Medical Malpractice Act claims that permits the trial court to assume jurisdiction over threshold issues before the Medical Review Panel has acted. See Ind. Code ยง 34-18-11-1 (1998). Tri-State designated Boggs' complaint and the affidavit of the Tri-State doctor, which established the dates of Carolyn's treatment. Boggs designated only his complaint, but contended that there were material issues of fact as to which discovery was needed and that the Medical Malpractice Act's two-year limitations period was unconstitutional. The trial court properly treated this motion as governed by the summary judgment standard of Trial Rule 56. Finding no issue of material fact, the trial court entered judgment in Tri-State's favor on May 21, 1998. The Court of Appeals reversed, holding the medical malpractice statute of limitations unconstitutional as applied to Boggs. See Boggs v. Tri-State Radiology, Inc., 716 N.E.2d 45, 51 (Ind. Ct. App. 1999).
This appeal raises the following issues: (1) Was the Court of Appeals correct in concluding that the statute of limitations was unconstitutional as applied to Boggs? (2) If not, does either fraudulent concealment or continuing wrong operate to toll the statute of limitations?
Standard of Review
The entry of summary judgment on a motion for a preliminary determination is subject to the same standard of appellate review as any other entry of summary judgment. See, e.g., Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991). The standard of appellate review of a summary judgment ruling is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Shell Oil, 705 N.E.2d at 983-84. When the moving party asserts the statute of limitations as an affirmative defense, however, and establishes that the action was commenced beyond the statutory period, the burden shifts to the non-movant to establish an issue of
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