Date: 11-19-2001

Case Style: L. Ralph Rogers, M.D. v. Ann Mendel

Case Number: 82A04-0103-CV-84

Judge: Mathias

Court: Indiana Court of Appeals

Plaintiff's Attorney: Glenn A. Deig, Evansville, Indiana and H. Wayne Turpin, Evansville, Indiana for plaintiff-appellee.

Defendant's Attorney: Danny E. Glass of Fine & Hafield, Evansville, Indiana for defendant-appellant.

Description: Dr. L. Ralph Rogers (“Dr. Rogers”) appeals the trial court’s order denying his motion for summary judgment. Dr. Rogers raises the following issue: whether the trial court erred when it found a genuine issue of material fact regarding whether Ann Mendel and Linus Mendel (“Mendels”) filed their complaint within the applicable two-year statute of limitations. We agree with Dr. Rogers and accordingly, we reverse the trial court’s denial of Dr. Rogers’ summary judgment motion and remand with instructions to enter summary judgment in favor of Dr. Rogers. See footnote We hand this case down with a companion case, Shah v. Harris, ___ N.E.2d ___ (Ind. Ct. App. 2001), which raises essentially the same issues but with a different result, reached by a different panel of this court.

Facts and Procedural History

The facts most favorable to the trial court’s judgment reveal that Dr. Rogers performed a hysterectomy on Maryetta Mendel on December 9, 1993. At that time, Dr. Rogers removed a tumor and had a laboratory test run on the tissue. The results from the December 9, 1993 test revealed the presence of carcinoma. Dr. Rogers subsequently met with Maryetta on December 17, 1993 and January 4, 1994, at which time Maryetta was released from Dr. Rogers’ care. Although the record indicates that the test results were listed in Dr. Rogers’ notes, there is no indication in the record that Dr. Rogers disclosed to Maryetta the presence of carcinoma in the removed tumor.

Approximately one year later, in January 1995, Maryetta began suffering from abdominal cramping and visited her family doctor, Dr. Elliot. Dr. Elliot referred Maryetta to a colon specialist, who referred her to another doctor, who in turn referred her to Dr. Fox, an oncologist. On March 10, 1995, Dr. Fox informed Maryetta that she had metastatic endometrial cancer. Maryetta began chemotherapy treatment immediately, but it was discontinued because it caused hematologic toxicity. In September 1995, Maryetta was referred to Dr. Moore, a GYN oncologist, who recommended Taxol treatments.

Maryetta received Taxol treatments at least until February 1996, at which point Ann Mendel, Maryetta’s daughter, learned that Medicare would not reimburse them for the Taxol treatments. In March 1996, Ann requested medical records from Dr. Rogers in an attempt to gather information to assist her in writing a letter to Medicare to request coverage of Maryetta’s Taxol treatments. Upon review of Dr. Rogers’ medical records, Ann discovered the December 1993 pathology report that advised of carcinoma in the tumor removed by Dr. Rogers. Dr. Fox assisted Ann in writing the Medicare appeal letter, which was dated April 17, 1996.

On September 15, 1996, Maryetta died of progressive metastatic endometrial cancer. On December 30, 1996, the Mendels filed their Proposed Medical Malpractice Complaint with the Indiana Department of Insurance against Dr. Rogers, and on March 14, 2000, the Medical Review Panel entered a decision in favor of the Mendels, who then filed their Complaint in Vanderburgh Circuit Court on May 31, 2000.

On November 17, 2000, Dr. Rogers filed a motion for summary judgment. After briefing was completed, the trial court held a hearing on January 12, 2001, after which it denied Dr. Rogers’ summary judgment motion because it found genuine issues of material fact as to whether the Mendels timely filed their complaint. On February 9, 2001, the trial court certified its summary judgment order for interlocutory appeal and granted a stay of the trial proceedings pending the outcome of the appeal. On March 12, 2000, this court accepted Dr. Rogers’ permissive interlocutory appeal.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Reversed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan