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Garneau v. Bush12/13/2005
645 (Ind. Ct. App. 1999)).
Here, the plaintiffs were aware of facts which should have led them to discover their cause of action, at the very latest, by November 8, 1999. Therefore, if the jury determines that Dr. Bush's actions constituted a continuing wrong, the statute of limitations would have begun to run on November 8, 1999, and expired on November 7, 2001. Thus, if applicable, the doctrine of continuing wrong saves the Garneaus' claim from summary judgment based on the statute of limitations.
III. Continuing Treatment Beyond September 17, 1998, as a Separate Act of Negligence
Finally, the Garneaus likewise argue that, even if the doctrine of continuing wrong does not save their malpractice claim based upon the hip replacement surgery, their malpractice claim based upon Dr. Bush's negligence in his continuing treatment of Lise's pain after September 17, 1998, was timely filed. This date was the six-month anniversary of Lise's surgery and the date after which Dr. Colyer's affidavit asserts that continued treatment with pain medication and without revision or referral for revision was a breach of the applicable standard of care. We agree that Dr. Colyer's affidavit establishes a genuine issue of material fact in this regard, we therefore conclude that the trial court improperly granted summary judgment in favor of Dr. Bush concerning his treatment of Lise after September 17, 1998. Thus, even if the doctrine of continuing wrong does not apply to toll the statute of limitations, the Garneaus' claim for compensible injuries and damages based upon Dr. Bush's continuing treatment of Lise after September 17, 1998, is not time-barred.
Conclusion
The Garneaus possessed information that would have led a reasonable person to discover the alleged malpractice of Dr. Bush's installation of an obsolete prosthesis within the applicable two-year statute of limitations. The doctrine of fraudulent concealment does not save the Garneaus' complaint from being time-barred. However, the designated evidence creates a genuine issue of material fact as to whether the doctrine of continuing wrong tolls the statute of limitations. In addition, the designated evidence creates a genuine issue of material fact as to whether Dr. Bush's treatment of Lise with pain medication and without revision or referral for corrective surgery after September 17, constituted a separate act of negligence. Therefore, the trial court erred in granting summary judgment in favor of Dr. Bush.
Reversed and remanded for proceedings consistent with this opinion.
BARNES, J., and CRONE, J., concur.
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