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Levy v. Newell2/10/2005
FOR PUBLICATION
Appellant-Defendant Carl A. Levy, M.D. appeals the trial court's denial of his motion for summary judgment in an action filed by Appellees-Plaintiffs Tracey L. Newell and Mark D. Newell. We reverse and remand with instructions.
Levy raises one issue for our review, which we restate as whether the trial court erred in determining as a matter of law that the Newells' complaint and proposed complaint were not barred by the applicable statute of limitations.
On April 5, 2001, Levy performed a laparoscopic cholecystectomy (gall bladder surgery) on Tracey. Tracey was discharged from the hospital on the same day.
Tracey experienced increased jaundice and returned to the hospital on April 8, 2001. On April 11, 2001, an endoscopic retrograde cholangiopancreatography revealed that Tracey had a bile duct injury. Tracey was discharged from the hospital on April 11, 2001 to receive follow-up care at the University of Chicago Hospital.
By October 23, 2001, the Newells were so convinced they had a malpractice claim that they hired an attorney who sent a letter informing Levy that Tracey "strongly believes that you deviated from standards of care [in performing the April 5, 2001 surgery] which has resulted in substantial injury to her." (Appellant's App. at 57). The Newells subsequently hired another attorney who sent Tracey's medical records to an Illinois physician, Elizabeth Allen. Allen wrote a letter, dated February 18, 2003, advising the Newells that she believed they had a meritorious medical malpractice case against Levy.
The Newells subsequently filed their complaint with the trial court on May 13, 2003. A proposed complaint was filed the next day with the Indiana Department of Insurance. Levy responded by filing a motion for preliminary determination and summary judgment asking the trial court to determine as a matter of law that the Newells' complaint and proposed complaint were filed after the statute of limitation had run. The trial court denied Levy's motion, and he now appeals.
A motion for preliminary determination, when accompanied by evidentiary matters, "is akin to a motion for summary judgment and is subject to the same standard of review as any other summary judgment disposition." Jacobs v. Manhart, 770 N.E.2d 344, 349 (Ind. Ct. App. 2002), trans. denied. The purpose of summary judgment is to end litigation where there can be no factual dispute and where a determination may be made as a matter of law. LeBrun v. Conner, 702 N.E.2d 754, 756 (Ind. Ct. App. 1998). Summary judgment is appropriate only if there is no evidence of a genuine issue of material fact for trial, and the moving party is entitled to judgment as a matter of law. Aide v. Chrysler Financial Corp., 699 N.E.2d 1177, 1180 (Ind. Ct. App. 1998), trans. denied.
Under Ind. Trial Rule 56, the moving party bears the burden of showing that there are no genuine issues of material fact. If the moving party meets its burden, the burden shifts to the non-moving party to set forth facts showing the existence of a genuine issue for trial. Ind. Trial Rule 56(C) and 56(E). When the moving party asserts the statute of limitations as an affirmative defense and makes a prima facie showing that the action was commenced outside of the statutory period, the non-moving party then has the burden of establishing an issue of fact material to a theory that avoids the affirmative defense. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000); Jacobs, 770 N.E.2d at 349. Additionally, "when material facts are not in dispute, our review is limited to determining whether the trial court correctly applied the law to the undisputed facts." Jaco
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