Martha Ellis, Appellant-Petitioner v. Anonymous Hospital, et al. Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] On November 9, 2023, Martha Ellis (Ellis) filed a Proposed Complaint for medical malpractice with the Indiana Department of Insurance against Anonymous Hospital, Anonymous Physician A, and Anonymous Physician B (collectively, Medical Providers). The Medical Providers filed a Motion for Preliminary Determination and Summary Judgment in the trial court, alleging Ellis’ Proposed Complaint was barred under the Indiana Medical Malpractice Act's (MMA) statute of limitations. The trial court granted the Medical Providers’ motions and later denied Ellis’ Motion for Relief from Judgment pursuant to Indiana Trial Rule 60(B)(8). On appeal, Ellis contends she was entitled to relief from judgment because the continuing wrong doctrine tolled the application of the statute of limitations until February 11, 2022. Concluding that no relief from judgment can be granted and that Ellis’ claim was not timely filed under the MMA, we affirm.

Facts and Procedural History 1

[2] On April 30, 2021, Ellis was involved in a motor vehicle accident after which she developed pain in her back and right hip. The following day, Ellis was diagnosed with a concussion and neck strain after seeking treatment from Anonymous Physician A (Dr. A) and Anonymous Physician B (Dr. B) at Anonymous Hospital's Emergency Department (Hospital). On May 4, 2021, Ellis returned to Hospital with complaints of persistent back pain, primarily in the right buttock. Drs. A and B evaluated Ellis and diagnosed her with post-concussion headache and sciatica. She underwent physical therapy at Hospital from May 1 through July 31, 2021.

[3] Despite completing physical therapy, Ellis continued to experience pain. A chiropractor ordered an x-ray of Ellis’ lumbar spine on January 31, 2022, which revealed moderate to severe osteoarthritis of the right hip and bilateral dysplasia. Imaging studies taken at Hospital on February 11, 2022 confirmed the chiropractor's diagnosis. On October 29, 2022, Ellis filed a personal injury lawsuit against the individual who caused the accident. Ellis then filed her Proposed Complaint for Damages with the Indiana Department of Insurance against Medical Providers on November 9, 2023, alleging that Medical Providers were negligent in diagnosing her. She amended her Complaint on January 23, 2024.

[4] On February 16, 2024, Dr. B filed a Motion for Preliminary Determination of Law/Motion for Summary judgment (Motion for Summary Judgment), arguing that Ellis’ claims were barred by the statute of limitations. On February 22, 2024, Hospital and Dr. A each filed a similar motion on the same ground.²

[5] After a hearing on May 28, 2024, the trial court granted Dr. A's and Hospital's Motions for Summary Judgment in separate orders and concluded that there was no genuine issue of material fact that Ellis failed to comply with the statute of limitations.³ The following day, the trial court granted Dr. B's Motion.

[6] On June 5, 2024, Ellis moved for relief from “the order granting summary judgment in favor of [Hospital]” pursuant to Indiana Trial Rule 60(B)(8), contending that the trial court failed to apply the continuing wrong doctrine to Ellis’ treatment, which tolled the statute of limitations until the Hospital's wrongful conduct ceased on February 11, 2022. Appellee's App. Vol. 2 at 129. The trial court denied this motion the following day.

[7] On July 4, 2024, Ellis filed her Notice of Appeal, naming Hospital as the appellee and appealing the Order of “6-6-24,” titled “Order Granting [Dr. A's] Motion for Preliminary Determination of Law and Motion for Summary Judgment.” Notice of Appeal at 2. Ellis also indicated that a “Motion to Correct Error” had been “denied” on “6-6-24.” Id. As exhibits to her Notice of Appeal, Ellis included the trial court's Order granting Hospital's Motion for Summary Judgment issued on May 28, 2024, as well as the court's denial of her Motion for Relief from Judgment under Trial Rule 60(B)(8) issued on June 6, 2024.

Discussion and Decision

1. Appealed Order

[8] It is unclear which order Ellis is appealing. While naming Hospital as the sole appellee, Ellis indicated that she was appealing the trial court's order granting Dr. A's Motion for Summary Judgment, which was not granted as she noted on “6-6-24” but rather was issued by the trial court on May 28, 2024. Notice of Appeal at 2. To add to the confusion, Ellis then attached the trial court's order granting Hospital's Summary Judgment Motion of May 28, 2024, as well as the trial court's denial of Ellis’ Motion pursuant to Trial Rule 60(B)(8) against Hospital, issued on “6-6-24.” Notice of Appeal at 2.

[9] Ellis’ brief clarifies that she “appeals the decision to deny [Ellis’] Motion for Relief from Judgment Pursuant to Indiana Trial Rule 60(B).” Appellant's Br. p. 5. Accordingly, we will analyze Ellis’ appeal in light of the trial court's denial of her Trial Rule 60(B) Motion.

2. Motion for Relief from Judgment

[10] Challenging the trial court's denial of her Motion for Relief from Judgment against Hospital, Ellis argues that she is entitled to relief “from the operation of” the trial court's order under the catch-all provision of Indiana Trial Rule 60(B) because her Proposed Complaint was timely filed by applying the continuing wrong doctrine. See Ind. T.R. 60(B)(8).

[11] Indiana Trial Rule 60(B)(8) provides in relevant part:

On motion and upon such terms as are just the court may relieve a party ․ from a judgment ․ for the following reasons: ․

(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in sub-paragraphs (1), (2), (3), and (4).4

․

A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense.

“The trial court's residual powers under subsection (8) may only be invoked upon a showing of exceptional circumstances justifying extraordinary relief.” Baker & Daniels, LLP v. Coachmen Indus., 924 N.E.2d 130, 140 (Ind. Ct. App. 2010), trans. denied. The circumstances must be other than those enumerated in the preceding subsections, such as mistake, surprise, or excusable neglect. Id. In addition to showing sufficient grounds for relief under Trial Rule 60(B), the movant must also make a prima facie showing of a meritorious claim. Id. at 141.

[12] The burden is on the movant to establish the basis for Trial Rule 60(B) relief. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). A motion made under subdivision (B) of Trial Rule 60 is addressed to the “equitable discretion” of the trial court and its grant or denial “will be disturbed only when that discretion has been abused.” Id. at 740-41. An “[a]buse of discretion will be found only when the trial court's action is clearly erroneous, that is, against the logic and effect of the facts before it and the inferences which may be drawn therefrom.” Id. at 741.

[13] Ellis fails to point to any extraordinary set of circumstances occurring since the trial court granted Medical Providers’ motions for summary judgment that warrants her relief from those orders. She presents no evidence supporting a meritorious claim, nor does she explain how the trial court may have abused its discretion in denying her Trial Rule 60(B)(8) Motion for Relief. Instead, Ellis casts her claim as a challenge to the legal merits of the trial court's May 28, 2024 order granting Hospital's Motion for Summary Judgment by arguing that the application of the continuing wrong doctrine on Ellis’ diagnosis and treatment placed the filing of her Proposed Complaint within the two-year deadline of the statute of limitations.

[14] A motion for relief from judgment under Indiana Trial Rule 60(B) is not a substitute for a direct appeal. Gertz v. Estes, 922 N.E.2d 135, 138 (Ind. Ct. App. 2010). “Trial Rule 60(B) motions address only the procedural, equitable grounds justifying relief from the legal finality of a final judgment, not the legal merits of the judgment.” In re Paternity of P.S.S., 934 N.E.2d at 740. Although Ellis’ challenge to the legal merits of the trial court's order is not properly before us by way of an appeal to the trial court's T.R. 60(B) denial, “Indiana law strongly prefers disposition of cases on their merits.” Coslett v. Weddle Bros. Const. Co., Inc., 798 N.E.2d 859, 861 (Ind. 2003), reh'g denied. Therefore, we will consider the merits of Ellis’ claim.

3. Continuing Wrong Doctrine 5

[15] Ellis contends that her Proposed Complaint was timely filed based on the application of the continuing wrong doctrine, which tolled the two-year medical malpractice statute of limitations until February 11, 2022.

[16] The MMA's statute of limitations is found in Indiana Code section 34-18-7-1(b) and provides:

A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect[.]

The statute is written as an occurrence-based statute rather than as a discovery-based statute, meaning the time “begins to run on the date the alleged negligent act occurred, not on the date it was discovered.” Brinkman v. Bueter, 879 N.E.2d 549, 553 (Ind. 2008). But our Indiana Supreme Court has concluded that if the cause of action could not reasonably be discovered until after the statute has run (or when there is not enough remaining time to file a claim before the statute has run), then applying the statute by its terms violates the Indiana Constitution's guarantee that the courts shall be open and every person shall have a remedy for an injury, (Ind. Const. art. 1, § 12), as well as its bar on statutes which deny citizens’ privileges or immunities (Ind. Const. art. 1 § 23). Martin v. Richey, 711 N.E.2d 1273, 1282-84 (Ind. 1999).

[17] Thus, when determining whether a medical malpractice claim is timely, “the discovery or trigger date is the point when a claimant either knows of the malpractice and resulting injury, or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury.” David v. Kleckner, 9 N.E.3d 147, 152-53 (Ind. 2014). If the discovery or trigger date is less than two years after the alleged malpractice occurred, the statute of limitations bars the claim “unless it is not reasonably possible for the claimant to present the claim in the remaining time, in which case the claimant must do so within a reasonable time after the discovery or trigger date.” Id. at 153. But if the “date is more than two years after the occurrence of the malpractice, the claimant has two years within which to commence the action.” Id. In other words, if the defendant could, with reasonable diligence, discover the malpractice within two years, then the statute operates like an occurrence-based statute. If not, then it operates like a discovery-based statute.

[18] Applying this analysis to the present case, we find that the alleged malpractice—the misdiagnosis of Ellis’ osteoarthritis as back pain—occurred on May 1, 2021, with the statute of limitations expiring on May 1, 2023. Ellis’ osteoarthritis diagnosis was discovered on January 31, 2022, when a chiropractor ordered imaging of Ellis’ lumbar spine. With an occurrence date of May 1, 2021, and with Ellis’ discovery date well within the original two-year statute of limitations—with 459 days remaining—Ellis’ Proposed Complaint filed on November 9, 2023 was six months past the statute of limitations’ deadline and was therefore barred.

[19] Ellis now attempts to save her claim from the statute of limitations by advancing the application of the continuing wrong doctrine. “The doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury.” Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct. App. 2012) (emphasis added). “When this doctrine attaches, the statutory limitations period begins to run at the end of the continuing wrongful act.” Id. The doctrine of continuing wrong is not an equitable doctrine; rather, it defines when an act, omission, or neglect took place. Id.

[20] To apply the doctrine, the plaintiff must demonstrate that the alleged injury-producing conduct was of a continuous nature and must constitute more than a single act. Id. In Garneau v. Bush, 838 N.E.2d 1134, 1145 (Ind. Ct. App. 2005), trans. denied, we concluded that a genuine issue of material fact existed as to whether the doctrine of continuing wrong applied after Garneau's doctor performed a hip replacement using an obsolete prosthesis. Id. at 1138. Following the surgery, Garneau experienced complications and ongoing pain for eighteen months. Id. Instead of recommending revision, the doctor treated Garneau by prescribing medication, ordering x-rays, evaluations, and physical therapy for more than six months before the prosthesis was replaced. Id. at 1139. See also Ferrell v. Geisler, 505 N.E.2d 137, 140 (Ind. Ct. App. 1987) (concluding that a question of fact remained for the jury as to whether the patient's physicians’ repeated failure to diagnose her breast cancer over a span of two years constituted a continuing wrong), reh'g denied, trans. denied. On the other hand, we have also held that a single incident cannot form the basis of a claim under the doctrine of continuing wrong. Anonymous Dr. A. v. Foreman, 127 N.E.3d 1273, 1278 (Ind. Ct. App. 2019) (finding that the misplacement of a femoral rod during the surgery performed by Dr. A was an isolated event, not conduct of a continuing nature); Cyrus v. Nero, 546 N.E.2d 328, 331 (Ind. Ct. App. 1989) (finding no continuing wrong where plaintiff became pregnant after a failed sterilization).

[21] Ellis points to February 11, 2022 as the end-date of the injury-producing conduct and the start-date of the statute of limitations. While there is an allegation in the record that Ellis underwent physical therapy from May 1, 2021 through July 31, 2021 at Hospital, Ellis did not provide us with any evidence about the physical therapy providers, whether this therapy was related to her injuries, or any other continuing medical treatment. Finding no conduct of a continuing nature in the record, we are left with the acts of May 1 and May 4 when Ellis presented at Hospital for singular treatment visits with Drs. A and B.⁶ There is nothing in the record to suggest these visits were more than just isolated events and Ellis does not present any evidence that Drs. A and B had occasion to diagnose her injury after these two visits. “[W]hen the sole claim of medical malpractice is a failure to diagnose, the omission cannot as a matter of law extend beyond the time the physician last rendered a diagnosis.” Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991) (noting that “[a] physician cannot be under a continuing duty to review all files daily to ensure that he did not misdiagnose a condition of a patient he may not have seen for months or even years”). As the continuing wrong doctrine is not applicable and Ellis filed her Proposed Complaint outside the statute of limitations, we conclude that Ellis’ medical malpractice claim is barred.

Conclusion

[22] We affirm the trial court's denial of Ellis’ Motion for Relief from Judgment.

[23] Affirmed.

FOOTNOTES

2.   Ellis responded in opposition to the Medical Providers’ motions for summary judgment and filed a motion to dismiss claiming the trial court did not have subject matter jurisdiction.

3.   Ellis’ motion to dismiss based on subject matter jurisdiction was also denied on May 28, 2024. On May 31, 2024, Dr. A filed a Motion for Nunc Pro Tunc Order to correct the misspelling of his name in the trial court's order. The trial court granted this motion on June 4, 2024.

4.   Sub-paragraphs (1), (2), (3), and (4) of T.R. 60(B) state:(1) mistake, surprise, or excusable neglect;(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;(4) entry of default or judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings[.]

6.   Even though Hospital only accepts Dr. A as its agent, and Ellis does not provide us with any evidence that Dr. B is employed by Hospital, we will assume, solely for the sake of this argument, that both Drs. A and B are employed by the Hospital and are not independent contractors. See, e.g., Sword v. NKC Hosp., Inc., 714 N.E.2d 142, 152 (Ind. 1999).

DeBoer, Judge.

Judges Bailey and Vaidik concur. Bailey, J., and Vaidik, J., concur.