Neal F. Eggeson, Jr. Neal F. Eggeson earned his B.A. from Butler University in 1995, graduat­ ing cum laude with High Departmental Honors after only six semesters. Thereafter, Mr. Eggeson earned his J.D. from Cornell University where he served on the Cornell International Law Review, won the 1998 Cornell Moot Court Winter Cup, earned the Ralston R. Irvine award for Legal Writ­ ing, and pursued additional graduate studies in Philosophy. Since returning to Indiana, Mr. Eggeson has focused exclusively on civil jury trial and appellate practice. After devoting many years to insurance defense litigation, Mr. ~ggeson opened his own law frrm which provides legal research and writing services to attorneys throughout the state. Mr. Eggeson's writings on negligence law have appeared in the Indiana Law Encyclopedia, the Indiana Lawyer, and Res Gestae, and he is the 2006 run­ ner-up for the Harrison Legal Writing Award from the Indiana State Bar Association. Mr. Eggeson has argued and/or briefed appeals in the Indiana Supreme Court, the Indiana Court of Appeals, the Sixth and Seventh Circuit Courts of Appeals, and the United States Supreme Court. Mr. Eggeson has earned the designation of "Master Advocate" from the National Institute of Trial Advocacy, and he is a member of Mensa. In his free time, Mr. Eggeson volunteers with the Hamilton County Guardi­ an ad litem program, and he teaches Legal Analysis, Research & Commu­ nication as an Adjunct Clinical Professor of Law at the Indiana University School of Law - Indianapolis. SNATCHING CONFUSION FROM THE JAWS OF CLARITY: THE PUZZLING EVOLUTION OF THE DISCOVERY RULE VIS-A-VIS INDIANA'S MEDICAL MALPRACTICE STATUTE OF LIMITATIONS Neal F. Eggeson, Jr.' I. INTRODUCTION ................................................................................. 98 II. THE MEDICAL MALPRACTICE STATUTE OF LIMITATIONS AND THE DEVELOPMENT OF THE DISCOVERY RULE .............................. 100 A. The Origins of the Medical Malpractice Statute of Limitations ............................................................................... 100 B. Creation of the Discovery Rule ................................................ 102 1. Does the "Discovery of Malpractice" Rule Apply Only to Medical Conditions with Long Latency Periods? ........... 104 2. What Types of Facts will Satisfy the Standard? .................. I05 3. What Does "Reasonable Diligence" Mean? ...................... 106 4. When Is the Trigger Date Determination a Question of Fact, and When Is It a Question of Law? ....................... 106 5. Who Resolves the Questions of Fact- the Court or the Jury? ............................................................................. 107 C. Developing the Standard (1999-2005) ..................................... 107 D. The Supreme Court Re-enters the Fray (2005) ........................ 112 E. The 2008 Trio of Supreme Court Decisions ............................. 115 1. Brinkman v. Bueter ............................................................. 115 2. Overton v. Grillo ................................................................. 117 3. Herron v. Anigbo ................................................................ 120 Ill. SYNTHESIS: THE STATE OF THE LAW AS OF 2008 ......................... 122 A. The Objective Standard Remains Unchanged ......................... 122 B. Questions of Fact vs. Questions ofLaw ................................... 123 C. How the Discovery Date Affects the Limitations Period ......... 124 D. Analysis Not Limited to Conditions with Long Latency Periods ..................................................................................... 125 E. Lay Suspicion is Irrelevant ...................................................... 126 F. Worsening Symptoms vs. Physician Notification of Probable Malpractice .............................................................. 127 G. Discovery of Injury and Receipt of Correct Diagnosis Insufficient (Usually) ............................................................... 128 H. Fraudulent Concealment Remains a Viable, Yet Impotent, Doctrine ................................................................................... 129 * Neal F. Eggeson, Jr. (J.D., Cornell Law School 1998; B.A., Butler University 1995) is a Clinical Adjunct Professor Law at the Indiana University School of Law- Indian­ apolis, where he has taught Legal Analysis, Research & Communication from 2006-2010. 98 INDIANA HEALTH LAW REVIEW [Vol. 8:95 I. "Reasonable Diligence" Requires Investigation, Not Complete Inactivity .................................................................... 131 IV. THE INDIANA COURT OF APPEALS CAREENS OFF THE TRACKS •... 132 A. The Facts .................................................................................. 132 B. The Court's Analysis ................................................................ 134 C. Dissecting the Court's Rationale ............................................. 135 1. Rationale #1: Non-Latency ................................................. 135 2. Rationale #2: Correct Diagnosis ........................................ 136 3. Rationale #3: Worsening Symptoms ................................... 136 4. Rationale #4: Lay Suspicion ............................................... 137 v. CONCLUSION .•..........•....••..•••••..•••...••....•••.•••••..•••..•.••...•••.....•.•........ 140 ABSTRACT For medical malpractice actions in Indiana, a frequently contradictory and always-confusing pool of jurisprudence has swelled around the statute of limitations. With its announcement of an accrual-based standard in 1999, the Indiana Supreme Court imposed a seemingly-impossible chal­ lenge on Indiana patients, attorneys, and judges: divine the factor(s) are­ viewing court will deem sufficient to trigger the statute of limitations in a given medical malpractice case. For some litigants, this confounding exer­ cise means filing a lawsuit solely to protect the statute of limitations even before the patient or her attorney knows that a claim exists, leaving the liti­ gant to hope that her suspicions of negligence will find support in the evi­ dence. For the more dutiful litigant, any investigation designed to detect or confirm negligence risks a post hoc evaluation of past symptoms, test re­ sults, conversations, or diagnoses which, in retrospect, should have led to the discovery of the malpractice. And each time an Indiana court dares at­ tempt to create unity out of the impossibly-inconsistent precedent that came before, a subsequent court tears down the transitory edifice of consensus as quickly as it had been built. This frustrating pattern culminated in late 2009 when the Indiana Court of Appeals forced medical malpractice litigants back to square one on nearly every principle of discovery rule jurisprudence established over the prior decade. This Article tracks the common law evo­ lution of the discovery rule in Indiana's medical malpractice jurisprudence, synthesizes the common law history into a workable framework for future applications of the accrual-based standard, and then explores the Indiana Court of Appeals' unilateral destruction of that framework in the 2009 case ofWilliams v. Adelsperger. I. INTRODUCTION For the medical patient suffering the consequences of a physician's er­ ror, the world of medicine appears impossibly complex. Facing a field overrun with hyper-technical diagnostic tools and increasingly expensive 2011] SNATCHING CONFUSION FROM niB JAWS OF CLARITY 99 treatment options, the average layperson has little chance of gauging whether a poor treatment result stems from physician error or some other aspect of treatment. On the one hand. the cautious patient will wish to re­ main vigilant against unrealistic expectations. On the other hand. to assume infallibility on the part of one's physician discounts one's own suffering while inviting similar harms to the physician's future patients. Thus, the patient must navigate between the Scylla and Charybdis: either act on po­ tentially unfounded suspicion, or risk allowing an act of negligence to go uncompensated and. thus, unpunished. Complicating this choice, most states have enacted discovery-based statutes of limitations for medical malpractice actions. These statutes are triggered on the date a plaintiff knew, or should have known of, or in other words, discovered the injury and its negligent cause.1 In Indiana, this standard found voice not in statute itself but in judicial construction. In the landmark case of VanDusen v. Stotts, the Indiana Supreme Court construed Indiana's Medical Malpractice Act to permit medical malpractice victims ''to file their claims within two years of the date when they discover the malpractice and the resulting injury or facts that, in the exercise of reasona­ ble diligence, should lead to the discovery of the malpractice and the result­ ing injury.',2 With this pronouncement, the Indiana Supreme Court transmuted an occurrence-based statute of limitations into an accrual-based standard. This accrual-based standard asserted by the Indiana Supreme Court imposed a seemingly impossible challenge on Indiana patients, attorneys, and judges: determine the factor(s) a reviewing court will deem sufficient to trigger the statute of limitations in a given case. For some, this confounding exercise might mean filing a lawsuit solely to protect the statute of limita­ tions even before the patient or her attorney knows that a claim exists, leav­ ing the litigant to hope that her suspicions of negligence will find support in the evidence. For the more dutiful litigant, any investigation (including collection and review of medical records or consultation with other physi­ cians) designed to detect or confirm negligence risks a post hoc evaluation of past symptoms, test results, conversations, or diagnoses which, in retro­ spect, should have led to the discovery of the malpractice. Now, nearly twelve years after the Indiana Supreme Court announced the accrual-based standard, the waters are no clearer for those maneuvering the medical malpractice shores. Each time an Indiana court attempts to cre­ ate unity out of the impossibly inconsistent precedent that came before, a subsequent court tears down the transitory edifice of consensus as quickly as it had been built. This frustrating pattern culminated in late 2009 when 1. Nancy Smith, Discovery Date in Medical Malpractice Litigation, in 26 AM. JuR. 3D Proof of Facts§ 185 (1994). 2. VanDusen v. Stotts, 712 N.E.2d 491,497 (Ind. 1999) (emphasis added). 100 INDIANA HEALTH LAW REVIEW [Vol. 8:95 the Indiana Court of Appeals forced II!edical malpractice litigants back to square one on nearly every principle of discovery rule jurisprudence estab­ lished over the prior decade. Part II of this article tracks the common law evolution of the discovery of malpractice rule as it pertains to Indiana's medical malpractice statute of limitations. Part III synthesizes the common law history into a workable framework for future applications of the accrual-based standard. Part N explores the Indiana Court of Appeals' unilateral departure from and reimagining of the discovery of malpractice rule in the 2009 case of Wil­ liams v. Adelsperger.3 II. THE MEDICAL MALPRACTICE STATUTE OF LIMITATIONS AND THE DEVEWPMENT OF THE DISCOVERY RULE A. The Origins of the Medical Malpractice Statute of Limitations In 1975, Indiana became the first state4 to pass statutory reform measures to deal with a perceived "health care crisis'.s of rising malpractice insurance costs6 resulting in reduced availability of services. 7 This crisis allegedly brought on by excessive and unjustifiable malpractice judgments and settlements, a failure to identify habitually negligent health care provid­ ers, very large attorney fees, and prolonged time limitations for bringing malpractice actions, 8 prompted the Indiana General Assembly to pass the Medical Malpractice Act.9 Among the five major provisions contained therein, 10 the Medical Malpractice Act (''the Act") created a two year statute of limitations applicable to all medical malpractice actions: ''No claim, whether in contract or tort, may be brought against a health care provider based upon professional services or health care rendered or that should have been rendered unless filed within two (2) years from the date of the alleged 3. Williams v. Adelsperger, 918 N.E.2d 440,442 (Ind. Ct. App. 2009), trans. denied, 929 N.E.2d 788 (Ind. 2010). 4. Eleanor D. Kinney & William P. Gronfein, Indiana's Malpractice System: No­ Fault By Accident?, 54 LAW & CONTEMP. PROBS. 169, 169 (1991 ). 5. In re Stephens, 867 N.E.2d 148, 150-51 (Ind. 2007). 6. H.R. 1460 §l(b), 99th Gen. Assemb., Reg. Sess. (Ind. 1975) (''The effect of[in­ creasing] judgments and settlements, base[ d] frequently on legal precedents, have caused the insurance coverage to uniformly and substantially increase the cost of such insurance cover­ age."). 7. Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585,589 (Ind.1980), abrogated by Collins v. Day, 644 N.E.2d 72 (Ind. 1994), overruled by In re Stephens, 867 N.E.2d 148. 8. Id. at 590; JAMES R. FISHER & DEBRA H. MILLER, 23 IND. PRACTICE SERIES: IND. PERSONAL INRJRY LAW & PRACTICE § 11:1 (201 0), available at Westlaw INPRAC. 9. 1975 Ind. Acts 146 (formerly codified at IND. CoDE §16-9.5-1-1); see IND. CODE§ 34-18 for similar current provisions. 10. Bruce D. Jones, Unfair and Harsh Results of Contributory Negligence Lives in Indiana: The Indiana Medical Malpractice System and tire Indiana Comparative Fault Act, 6 Ind. Health L. Rev. 107, 111 (2009). 2011] SNATCHING CONFUSION FROM THE JAWS OF CLARITY 101 . . l ,u act, omtsston, or neg ect .... Before the passage of the Act, the medical malpractice statute of limi­ tations was treated as "occurrence based" by Indiana courts. This occur­ rence-based interpretation meant that the occurrence of a negligent act, rather than the discovery of the malpractice and resulting injury, triggered the two-year period. 12 Indeed, the occurrence-based interpretation had pre­ vailed in Indiana since 1941,13 and subsequent courts continued to apply this approach to the new Act. 14 In 1990, the Indiana Supreme Court con­ firmed and formally adopted the occurrence-based standard for the Act's statute of limitations. 15 Under the occurrence-based standard, a malpractice victim blind to her physician's malpractice, or the resulting injury, enjoyed only one refuge from the harsh effect of the Act's statute of limitations. The sole refuge was protection in equity from the physician who intentionally concealed, or failed to disclose, relevant information in an effort to hide either the mal­ practice and/or injury from the patient.16 In these circumstances, equitable estoppel for fraud would preclude the defendant from asserting the statute of limitations as a defense until the termination of the physician-patient re­ lationship in the case of constructive concealment, 17 or when the "patient learns of the malpractice, or discovers information which would lead to dis­ covery of the malpractice if the patient exercises reasonable diligence," in the case of active concealment, whichever came first. 18 Yet, to be protected in equity under the narrowly-drawn courtesy of fraud protection demanded a near-Herculean showing from the aggrieved victim including: proof of intentional concealment19 or failure to disclose by the defendant,20 reliance 11. IND. CoDE§ 16-9.5-3-1(a) (1971 & Supp. 1976) (repealed 1993) (The current statute of limitations is codified in IND. CODE § 34-18-7-1 (b)( 1998). ). 12. Hosp. Corp. of Am. v. Hiland, 547 N.E.2d 869, 872 (Ind. Ct. App. 1989), adopted in Cacdac v. Hiland, 561 N.E.2d 758 (Ind. 1990); see also Toth v. Lenk:, 330 N.E.2d 336, 338 (Ind. Ct. App. 1975)(discussing former IND. CODE §34-1-2-5 (1971)). 13. Martin v. Richey, 711 N.E.2d 1273, 1278 n. 6 (lnd 1999). 14. Hosp. Corp. of Am., 547 N.E.2d 869; Cyrus v. Nero, 546 N.E.2d 328 (Ind. Ct. App. 1989); Jones v. Cloyd, 534 N.E.2d 257 (Ind. Ct. App. 1989); Guinn v. Light, 531 N.E.2d 534 (Ind. Ct. App. 1988); Ferrell v. Geisler, 505 N.E.2d 137 (Ind. Ct. App. 1987), trans. denied; Martin v. Rinck, 501 N.E.2d 1086 (Ind. Ct. App. 1986); Spoljaric v. Pangan, 466 N.E.2d 37 (Ind. Ct. App. 1984), trans. denied; Colbert v. Waitt, 445 N.E.2d 1000 (Ind. Ct. App. 1982). 15. Cacdac, 561 N.E.2d at 759. 16. Guy v. Schuldt, 138 N.E.2d 891, 894-95 (Ind. 1956); Toth, 330 N.E.2d at 339. 17. Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995); Guy, 138 N.E.2d at 895; Toth, 330 N.E.2d at 339; Ostojic v. Brueckmann, 405 F.2d 302 (7th Cir. 1968). 18. Hughes, 659 N.E.2d at 519 (quoting Hosp. Corp. of Am., 547 N.E.2d at 873); Toth, 330 N.E.2d at 339-40. 19. Guy, 138 N.E.2d at 894 ("Before the doctrine of estoppel may be used ... the fraud must be of such character as to prevent inquiry, or to elude investigation, or to mislead the party who claims the cause of action."). 20. !d. at 895 ("Usually, there must be some active effort on the part of one to be guilty of concealment but where a fiduciary or confidential relationship exists, such as phy- 102 INDIANA HEAL Til LAW REVIEW [Vol. 8:95 by the plaintiff, ignorance of the fraud by the plaintiff, and an inability to discover the fraud in the exercise of diligence,21 which required absolute ignorance of any harm or injury and of the malpractice itself.22 Moreover, a finding of fraudulent concealment would not extend the statute of limita­ tions two full years from the plaintiff's discovery of the malpractice, but rather, would allow the plaintiff only a ''reasonable" time thereafter in which to initiate suit. 23 Even under subsequent amendments and codifications24 of the Act's statute of limitations, the occurrence-based standard, with its narrow "fraudulent concealment" exception, prevailed until July 1999. B. Creation of the Discovery Rule In two separate cases decided on July 8, 1999, the Indiana Supreme Court pronounced its departure from the occurrence-based standard. First/5 in Martin v. Richey,26 the defendant physician failed to correctly diagnose the plaintiff's breast cancer following a needle aspiration, and the defendant further failed to notify the plaintiff that she needed a follow-up excisional biopsy following the needle aspiration?' Three years later, the plaintiff ex­ perienced increased pain from the lump in her breast, and a subsequent bi­ opsy revealed adenocarcinoma requiring a radial mastectomy and chemotherapy.28 The Indiana Supreme Court found the medical malprac­ tice statute of limitations unconstitutional as applied to the plaintiff. First, the statute violated the Indiana Constitution's Privileges and Immunities sician-patient, there exists a duty to disclose material information between the parties and a failure to do so results in concealment"). 21. Toth, 330 N.E.2d at 339. 22. Id at 341 (citing Withers v. Sterling Drug, Inc., 319 F .Supp. 878 (S.D. Ind. 1970)) ("It is knowledge of the condition or •injury' rather than its reason that destroys the estoppel and permits the statute to operate."). 23. Hughes, 659 N.E.2d at 519; Cacdac v. Hiland, 561 N.E.2d 758, 759 (Ind. 1990). 24. In 1998, the General Assembly amended and recodified the statute of limitations. IND. CoDE §34-18-7-1(b) (1998) ("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 pro­ vided 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 .... "). In substance, this version (which remains current as of this writing) is identiCal to the Act's original formulation. Martin v. Richey, 711 N.E.2d 1273, 1278 n. 6 (Ind. 1999). 25. Though decided the same day, the Supreme Court considered Martin v. Richey "the lead case" decided that day. VanDusen v. Stotts, 712 N.E.2d 491, 493 (Ind. 1999). Furthermore, Justice Sullivan cited Martin for stare decisis purposes in his Van Dusen con­ currence and Van Dusen appears in a later volume of the North Eastern Reporter 2d than does Martin. /d. at 500 (Sullivan, J., concurring). But for these facts, one wonders if the Martin opinion was necessary at all. See William F. Harvey, Two Cases, Two Statutes of Limitations, a 'New' Indiana Constitution and One More Case Pending Decision, REs GESTAE, Nov. 1999, at 32, 37. 26. Martin, 711 N.E.2d at 1273. 27. ld. at 1275-76. 28. Id. at 1277. 2011] SNATCHING CONFUSION FROM THE JAWS OF CLARITY 103 Clause29 "because it is not 'uniformly applicable' to all medical malpractice victims .... " 30 That is, "the statute precludes [the victim] from pursuing a claim against her doctor because she has a disease which has a long latency period and which may not manifest significant pain or symptoms until sev­ eral years after the asserted malpractice."31 Second, the statute violated the Open Courts Clause32 "because it requires plaintiff to file a claim before she is able to discover the alleged malpractice and her resulting injury, and, therefore, it imposes an impossible condition on her access to the courts and pursuit of her tort remedy."33 From these rulings, the court did not find that the statute of limitations for medical malpractice claims was unconstitution­ al in general; rather the court declared the statute of limitations unconstitu­ tional as applied to the plaintiff's situation in which she ''was unaware that she had a malignancy and that the cancer had spread to her lymph nodes" until three years after the negligent failure to diagnose?4 That same day, in VanDusen v. Stotts,35 the Indiana Supreme Court expounded upon Martin by purporting to create a framework "to determine how generally to construe or reconstrue the statute of limitations to avoid its unconstitutional application in this case and in future cases."36 In Van Dusen, the defendant physician "badly misread" a prostate biopsy.37 More than two years later, the plaintiff began experiencing swelling and pain in his groin and lower back.38 Follow-up tests revealed incurable prostate cancer.39 Looking to its line of fraudulent concealment cases, as well as cases construing the general tort and product liability statutes of limitation, the court construed the Act to permit medical malpractice victims ''to file their claims within two years of the date when they discover the malpractice and the resulting injury or facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury.'o4° The Indiana Supreme Court pronounced three principles to help guide the application of this standard. First, "the question of when a plaintiff discov­ ered facts which, in the exercise of reasonable diligence, should lead to the discovery of the medical malpractice and resulting injury, is often a ques­ tion offact.'o41 Second, "a plaintiff's lay suspicion that there may have been malpractice is not sufficient to trigger the two-year period[,]" though, "[a ]t 29. IND. CONST. art. I, § 23. 30. Martin, 711 N.E.2d at 1279. 31. Martin, 711 N.E.2d at 1279. 32. IND. CONST. art. I,§ 12. 33. Martin, 711 N.E.2d at 1279. 34. Id. at 1284-85. 35. VanDusen v. Stotts, 712 N.E.2d 491 (Ind. 1999). 36. Id. at 493. 37. Id. at 494 (emphasis added). 38. Id. 39. Id. 40. Id. at497. 41. Id. at499. 104 INDIANA HEALTH LAW REVIEW [Vol. 8:95 the same time, a plaintiff need not know with certainty that malpractice caused his injury, to trigger the running of the statutory time period." 42 Finally, "the question may become one of law" where "it is undisputed that plaintiff's doctor has expressly informed a plaintiff that he has a specific injury and that there is a reasonable possibility, if not a probability, that the specific injury was caused by a specific act at a specific time . . ." and in such circumstances, the date the plaintiff receives this information "is the date upon which the two-year period begins to run.'"'3 Relying on these principles to choose its "trigger date," the court held that the two-year stat­ ute of limitations began to run on the date the plaintiff's doctor opined that the biopsy slides might have been misread.44 1. Does the "Discovery of Malpractice" Rule Apply Only to Medical Conditions with Long Latency Periods? In announcing its new construction of the Act's statute of limitations in the Martin and VanDusen cases, the Indiana Supreme Court exposed a litany of questions, the answers to which the court offered only clues. One such question is whether the discovery rule applies only to medical condi­ tions with long latency periods. Undeniably, Martin and Van Dusen each dealt with a plaintiff battling "a disease which has a long latency period and which may not manifest significant pain or symptoms until several years after the asserted malpractice.'"'5 Yet, the court's analysis in Martin leaves room for the interpretation that the Martin/Van Dusen standard should ap­ ply to all medical conditions, not merely the ones with a long latency peri­ od. Specifically, in discussing the Privileges and Immunities Clause, the Martin court is explicit in its concern over diseases with long latency peri­ ods by defining the subclass of citizens subject to disparate treatment as those with "a disease which may not manifest significant pain or debilitat­ ing symptoms until several years after the initial diagnosis or misdiagno­ sis.'"'6 Yet, the discussion in Martin ofthe Open Courts Clause invokes no such reliance on long latency periods or the manifestation of pain or symp­ toms. Instead, this portion of the court's analysis seems to apply more broadly, emphasizing the ''plaintiff[who] has no meaningful opportunity to file an otherwise valid tort claim within the specified statutory time period because, given the nature of the asserted malpractice and the resulting inju­ ry or medical condition, plaintiff is unable to discover that she has a cause 42. ld at 499. 43. Id. 44. Id. at 499-500. 45. Martin v. Richey, 711 N.E.2d 1273, 1279 (Ind. 1999) (stating that breast cancer was a medical condition with a long latency period); see also VanDusen, 712 N.E.2d at 497 (asserting that prostate cancer was a medical condition with a long latency period). 46. Martin, 711 N.E.2d at 1282. 2011] SNATCHING CONFUSION FROM TilE JAWS OF CLARITY 105 of action.',..7 By eschewing language of latency, the court implicitly acknowledges· the broader class of medical conditions beyond those with long latency periods.48 In addition, though VanDusen explicitly invoked "long latency periods" in establishing its framework, 49 there seems no rea­ sonable basis for limiting use of that :framework only to plaintiffs seeking relief under the Privileges and Immunities Clause but not those seeking re­ lief under the Open Courts Clause. 2. What Types of Facts will Satisfy the Standard? Another question arising from the Martin and VanDusen cases in­ volves the facts necessary to satisfy the standards therein. The Martin and VanDusen opinions offer little guidance as to what facts "in the exercise of reasonable diligence, should lead to the discovery of the medical malprac­ tice and resulting injury." Though VanDusen highlights the outer bounda­ ries of the inquiry (i.e., that mere lay suspicion of malpractice definitely is not sufficient to trigger the statute of limitations50 but a physician telling a plaintiff that malpractice may have occurred definitely is sufficient51), liti­ gants were left to wonder how to define the middle ground. Both Martin and Van Dusen seem to suggest that the appearance or worsening of symp­ toms would not serve as a trigger. The Martin court chose to emphasize the 47.. ld. at 1284. 48. Summarizing its holding in Martin, the Van Dusen court again highlighted the distinction between those medical malpractice victims protected by the Open Courts Clause versus those. protected by the Privileges and Immunities Clause and invoking long "latency periods" only with regards to the latter: Specifically, we held in Martin 1hat, under [the Open Courts Clause], the two-year occurrence-based statute of limitations may not constitutionally be applied to preclude the filing of a claim before a plaintiff either knows of the malpractice and resulting injury, or discovers facts, which in the exercise of reasonable diligence. should lead to the discovery of the malpractiCe and the resulting injury. To do so would be to impose an impossible condition on her access to the courts and pursuit of her tort remedy. We also held that [the Privileges and Immunities Clause] ... requires 1hat the statute of limitations be "uniformly applicable" to all medical malpractice victims, and that, therefore, the statute could not be applied to preclude a plaintiff from filing a claim simply because she bas a disease which bas a long latency period and which may not manifest significant pain or debilitating symptoms until several years after the as­ serted misdiagnosis. VanDusen, 712 N.E.2d at 493 (emphasis added). 49. Id at497. 50. Id at 498 (discussing Evenson v. Osmose Wood Preserving Co. of America, 899 F.2d 701, 705 (7th Cir. 1990)) ("[P]laintiff's mere suspicions regarding the cause of her medical problems in February of 1985 did not trigger the time period .... "). 51. Id. at 499 (discussing Degussa Corp. v. Mullens, 695 N.E2d 172, 178 (Ind. Ct. App. 1998), trans. granted, vacated, 106 N.E.2d 178 (Ind. 1998)) ("[T]he statute began to run when her doctor informed her of the possible causal link and the need to investigate fur­ ther."). 106 INDIANA HEALTH LAW REVIEW [Vol. 8:95 date of the plaintiff's actual knowledge rather than the date on which the plaintiff "experienced increased pain from the lump in her breast and under her right arm,"52 and the Van Dusen court chose not to select the date on which plaintiff experienced pain and swelling in the affected area or the date on which the plaintiff realized pain medication was not improving his symptoms. 53 Likewise, Van Dusen seems to suggest that in a failure-to­ diagnose case, the date of a correct diagnosis from a subsequent physician would not serve as a trigger date. Of the multiple events that occurred on the trigger date in VanDusen, the court did not rely on it being the date a doctor told the plaintiff he had incurable prostate cancer; nor did the court rely on it being the date plaintiff suspected malpractice such that he asked if the biopsy slides had been misread.54 Beyond these (vague) clues, however, litigants would have to wait for further explanation and guidance. 3. What Does "Reasonable Diligence" Mean? Another question brought about by and not answered by the Martin and Van Dusen decisions is the definition of ''reasonable diligence." Is "in the exercise of reasonable diligence"55 intended as a hypothetical construct (i.e., the court can envision a hypothetical scenario in which a plaintiff might discover the malpractice and resulting injury after conducting an im­ aginary investigation), or does this clause create a separate requirement of diligent investigation for plaintiffs? If the latter, then what of the plaintiff who does conduct an investigation yet still fails to discover the malpractice and resulting injury? The court provided no standard for what type of in­ vestigation would be diligent and what factors would make an investigation fall short ofbeing diligent. 4. When Is the Trigger Date Determination a Question of Fact, and When Is It a Question of Law? In announcing that ''the question of when a plaintiff discovered facts which, in the exercise of reasonable diligence, should lead to the discovery of the medical malpractice and resulting injury, is often a question of fact,"56 the VanDusen Court offered little guidance or explanation as to what "often" means, aside from a declaration that the trigger date inquiry "may become one of law" where physician input reveals "a reasonable pos­ sibility, if not a probability, that the specific injury was caused by a specific 52. Martin, 711 N.E.2d at 1277. 53. VanDusen, 712 N.E.2d at 494. 54. !d. 55. !d. at 493. 56. !d. at 499. 2011] SNATCHING CoNFUSION FROM 1HE JAWS OF CLARITY 107 act at a specific time .... "51 5. Who Resolves the Questions of Fact- the Court or the Jury? Related to the prior questio~ the Martin and Van Dusen courts offered no guidance or explanation as to how the questions of fact surrounding the trigger date should be resolved. Likewise, these decisions did not clarify whether the determination of what .. reasonable diligence" should uncover was to be made by a court or by a fact-finder. Litigants would have to wait almost a full decade before receiving an answer to this question. 58 C. Developing the Standard (1999-2005) The Indiana Supreme Court's next three pronouncements offered little guidance on how to apply the Martin/Van Dusen standard. Only two months after the Martin and Van Dusen decisions, the court, in Harris v. Raymond,59 ruled that a plaintiff's malpractice action filed after the statuto­ ry period against a dentist for "failure to warn" had been timely. In so hold­ ing, though it did not specify a precise event, the court implied that the trigger date occurred during a two-month window when the plaintiff con­ sulted a doctor for bleeding in her ear, had a piece of the defective implant removed from her head, discovered that the implant had shattered, and dis­ covered that the FDA had issued a safety alert regarding the implant.60 Of particular interest is the fact that, though the court expressly invoked Martin as the basis for its result, the court neither mentioned nor discussed whether a defective implant qualified as a condition with a .. long latency period." Instead, the Harris court observed that the plaintiff "could not have discov­ ered the alleged negligence within the statutory period, and to apply the statute of limitations would force her to bring a claim before she knew or reasonably could have known of the existence of such claim.'o61 Thereafter in Halbe v. Weinberg,62 a plurality of the Indiana Supreme Court determined that even though the plaintiff ''may have suspected some­ thing was amiss" when she experienced nipple discharge, she did not have .. any reason whatsoever to suspect she bad a cause of action against her doctor" prior to collecting her own medical records and discovering that her implants contained silicone rather than saline. 63 The court appeared to place no significance on the four-year interval between manifestation of 57. ld. (emphasis added). 58. See infra Part I.E. 59. Harris v. Redmond, 715 N.E.2d 388 (Ind. 1999), reh 'g denied. 60. Id. at 396. 61. ld. at 392. 62. Halbe v. Weinberg, 717 N.E2d 876 (Ind. 1999), reh 'g denied. 63. Id. at 882. 108 INDIANA HEALTH LAW REVIEW [Vol. 8:95 symptoms and the plaintiff's investigation into her medical records,64 and the court again omitted any discussion of whether breast implants causing nipple discharge qualify as a condition with a "long latency period." Inter­ estingly, the plurality seemed to acknowledge (without holding or deciding) that the equitable remedy available for fraudulent concealment remained available to medical malpractice litigants,65 a curious supposition given that the discovery rule would seem to subsume any need for separate inquiry into fraudulent concealment.66 The following year, the Indiana Supreme Court, in Boggs v. Tri-State Radiology, Inc., 61 addressed a situation where the trigger date occurred thir­ teen months after the date of malpractice, yet the plaintiff waited another twenty-two and one-half months before initiating suit.68 In a 3-2 majority opinion, the court upheld the trial court's dismissal of the action, holding that an eleven-month window (between the trigger and the expiration of the limitations period two years after the act of malpractice) did not shorten the limitations period "so unreasonably that it is impractical for a plaintiff to file a claim at all.'o69 Though the majority opinion appeared to equate the date of a biopsy revealing malignancy with the plaintiff's "knowledge of facts that led to the discovery of alleged malpractice,"70 the court neither discussed nor analyzed its reasons for selecting that particular trigger date, and only a bare-bones factual background is given bereft of reference to that plaintiff's manifestation of symptoms, suspicions, or conversations with physicians. 71 Over the next two years, the court of appeals applied the Martin/Van Dusen standard to determine trigger dates in several cases, each time wres­ tling with unanswered questions left by the Martin and Van Dusen courts. 64. Id 65. /d. at 881. The two concurring justices would have decided the case on the basis of fraudulent concealment rather than by resort to constitutional challenge. /d. at 882-83 (Sullivan, J., concurring). 66. See infra Part ll.H. 67. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692 (Ind. 2000). 68. /d. at 694, 699. 69. /d. at 697. 70. /d. at 699. 71. /d. at 694. Five years later the court appeared to discount Boggs' treatment of the trigger date inquiry: [T]he discussion in Boggs summarily referred to a plaintiff's discovery of injury without any specific reference to the discovery of the malprac­ tice itself, or facts that in the exercise of reasonable diligence should lead to the discovery of the malpractice. This observation, however, did not represent a retreat from the rule of Martin and Van Dusen that the dis­ covery date is triggered when a plaintiff either (l) knows of the malprac­ tice and resulting injury or (2) learns of facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury. Booth v. Wiley, 839 N.E2d 1168, 1172 (Ind. 2005). 2011] SNATCHING CONFUSION FROM TilE JAWS OF CLARITY 109 For example, in three separate cases decided during this span, the court of appeals selected trigger dates based on the date a plaintiff learned (from a subsequent physician) of a prior misdiagnosis, not the date on which symp­ toms first appeared or worsened.72 Likewise, these decisions implicitly re­ ject trigger dates based upon the mere receipt of a correct diagnosis unless that diagnosis is combined with additional information signaling prior er­ ror.73 Furthermore, the court of appeals emphasized repeatedly that mere knowledge of the ultimate injury, standing alone, is insufficient to trigger a discovery date.74 In its 2001 Rogers v. Mendel decision, the court of ap­ peals announced for the first time that where the facts surrounding a trigger date determination are in dispute, ''the judge will be required to resolve dis­ puted facts through pre-trial motion practice ... :m Moreover, in Shah v. Harris, the court of appeals explicitly rejected any suggestion that the Mar­ tin/Van Dusen standard applied only in the context of conditions with "long latency" periods. 76 In early 2002, however, two court of appeals decisions appeared to signal a partial retreat from these prior cases by emphasizing symptomatol­ ogy over physician input. In Johnson v. Gupta, the court of appeals reinter­ preted Martin and Van Dusen to apply only where a plaintiff suffers no discernible symptoms within two years of the date of malpractice. 77 Yet even under this new interpretation, the court of appeals did not select as its trigger the date on which Johnson first "knew there was something wrong,'' 72. See Rogers v. Mendel, 758 N.E.2d 946,948,952 (Ind. Ct. App. 2001) (concluding that trigger occurred when the second physician diagnosed plaintiff with metastatic cancer, not when plaintiff experienced symptoms of abdominal cramping that led to diagnosis); Shah v. Harris, 758 N.E.2d 953, 959 (Ind. Ct. App .. 2001) (holding the statute oflimitations un­ constitutional as applied-two-year period did not begin to run until the date Harris "learned that his illness may have been misdiagnosed seven years earlier."); Coffer v. Arndt, 732 N.E.2d 815, 818, 822 (lnd Ct. App. 2000) (concluding that the date plaintiff"learned [from subsequent physician] that he had glaucoma and that he had had it for a long time" served as discovery date, both for purposes of statute of limitations and fraudulent concealment analy­ sis, and the date of temporary blindness did not). 73. Rogers, 158 N.E.2d at 948-52 (mentioning that cancer had metastasized already by date of correct diagnosis); Shah, 758 N.E.2d at 954, 959 (holding that trigger was satis­ fied by a diagnosis ofB-12 deficiency combined with input from physician .. that [plaintiff's] illness may have been misdiagnosed seven years earlier."); Coffer, 732 N.E.2d at 822 (stat­ ing that diagnosis of glaucoma combined with physician input .. that he had had it for a long time" was sufficient trigger''). 74. Cf. Hopster v. Burgeson, 750 N.E.2d 841, 856 (lnd Ct. App. 2001) (declining to rule as matter oflaw that patient's death itself was a sufficient trigger; remanding for factual determination as to when personal representative discovered the malpractice); Ling v. Still­ well, 732 N.E.2d 1270, 1275 (Ind. Ct. App. 2000) (concluding that though son was "techni­ cally aware of [her] ultimate injury, her death," he had no way of knowing that it might have resulted from malpractice until two years later). 75. Rogers, 758 N.E.2d at 952. 76. Shah, 758 N.E.2d at 958 (''We find no case law that would support the restriction of the analysis announced in Martin and Van Dusen to specific types of diseases, nor do we discern any public policy or common sense reason for doing so."). 77. Johnson v. Gupta, 762 N.E.2d 1280, 1283 (Ind. Ct. App. 2002). 110 INDIANA HEALTH LAW REVIEW [Vol. 8:95 the date she first experienced fecal incontinence, or even the date she decid­ ed to seek a second opinion;78 rather, the court of appeals selected the date on which a subsequent doctor told her "that her incontinence was caused by a complete lack of rectal tone."79 As the Supreme Court would later ex­ plain, "the Gupta court expressly recognized that the occurrence-based stat­ ute of limitations does not apply 'in cases where the patient does not suffer symptoms that put the patient on notice that something may have gone wrong in the course of medical treatment "'80 The following month, Langman v. Milos again mentioned worsening symptoms while (arguably) relying on other factors. 81 In Langman, the plaintiff suffered increased pain following podiatric surgery, and be opined to his physician that the surgery bad made his condition worse.82 Neverthe­ less, the plaintiff discontinued treatment, and refused to follow any recom­ mendations or referrals prescribed by another physician. 83 Rather, the plaintiff abstained from all medical treatment for two and a half years de­ spite worsening symptoms. 84 From this, the court of appeals concluded (without selecting a specific trigger and without identifying a dispositive factor) that "[w]ithin two years of his surgery, and clearly within two years of his last visit to [his physician]," the plaintiff "had enough information that a reasonably diligent person should have discovered the alleged mal­ practice claim .... "8s Though Langman might be read for the proposition that worsening symptomatology alone may be sufficient to serve as a trig­ ger, it seems equally, if not more, plausible to read Langman as the first post-Martin/Van Dusen examination of "reasonable diligence," i.e., that "reasonable diligence" is absent as a matter of law where a plaintiff aban­ dons medical treatment altogether for two and a half years despite worsen­ ing symptoms. Just three months later, a different panel of the court of appeals re­ turned to the pre-Gupta/Langman line of thought In the 2002 case of Ja­ cobs v. Manhart,86 defendants reported two PAP smears as normal.87 In June 1999, the plaintiffbegan to experience bleeding, and adjustment of her medications over the next two months did not improve her symptoms. 88 78. ld. at 1282. 79. Id. at 1283. 80. Booth v. Wiley, 839N.E.2d 1168, 1175 (Ind. 2005), quoting Johnson, 762 N.E.2d at 1283 (emphasis added by Booth). 81. Langman v. Milos, 765 N.E.2d 227 (Ind. Ct. App. 2002), abrogated by Herron v. Anigbo, 897 N.E.2d 444 (Ind. 2008). 82. Id. at 232, 235. 83. Id at 235. 84. Id at 235-36. 85. Id at 236. 86. Jacobs v. Manhart. 770 N.E.2d 344 (Ind. Ct. App. 2002), reh 'g denied, abrogated on other grounds by Herron, 897 N.E.2d 444 (Ind. 2008). 87. Id at 347. 88. /d. 2011] SNATCHING CONFUSION FROM THE JAWS OF CLARITY 111 Thereafter, an August ·1999 ultrasound revealed a large malignant tumor at which time plaintiff was diagnosed with cervical cancer and, as a result, underwent a radical hysterectomy. 89 Following the surgery, plaintiff be­ came curious as to why the results of her previous PAP smears had been negative given how quickly her tumor had developed. After collecting her own medical records, she asked a cytotechnologist to review the slides from the prior PAP smears "to see if anything may have been missed. "90 The cytotechnologist indicated that some of the slides might have been mis­ read-a conclusion confirmed by a pathologist in April2000.91 In a confusing opinion, the Jacobs Court initially flirted with the idea that the plaintiff's August 1999 diagnosis of cervical cancer should act as the appropriate trigger, presumably because that was the ''trigger date" ar­ rived at by the trial court. 92 The court of appeals eventually concluded that even assuming this earliest possible trigger date, the six months remaining in the initial two-year statute of limitations was insufficient as a matter of law to afford plaintiff a meaningful opportunity to pursue her malpractice claim. 93 Yet, before reaching that conclusion, the court of appeals estab­ lished a range of time in which the actual trigger would have occurred. Painting the earliest possible edge of the range, the court of appeals ob­ served that "[ o ]nly after being diagnosed with cervical cancer and learning of the advanced stage of the disease did [the plaintift] possess information which would even give rise to the 'suspicion or speculation of malpractice by a plaintiff who is without technical or medical knowledge"'-a "suspi­ cion or speculation" which the court of appeals acknowledged would be insufficient by itself to serve as a triggering event. 94 Locating the latest possible edge of the range, the court of appeals noted that the April 2000 pathologisfs report gave the plaintiffs "more information than they needed to put them on notice that there was a reasonable possibility [of malprac­ tice] and that there was a need to investigate :further."95 Apparently settling on the latter date as the appropriate trigger, the court of appeals observed: 89. /d. 90. /d. 91. Id. Unlike Van Dusen, where the plaintiff's doctor ad­ vised the plaintiff that there was a reasonable possibil­ ity, if not a probability, that the specific injury was caused by a specific act at a specific time, here there was no such advice. Rather, Ms. Manhart had to first hear the diagnosis of tumor and advanced stage can- 92. /d. at 352-53 & n.9, 354. 93. /d. at 355. 94. Id at 354. 95. Id 112 INDIANA HEALTH LAW REVIEW cer, wait for the confirmation, and undergo a radical hysterectomy and the attendant recovery. She then acted with the appropriate dispatch in seeking first an informal opinion and then a formal medical opinion.96 [Vol. 8:95 Note that in accordance with its 2000-2001 line of cases, the court of ap­ peals in Jacobs did not choose as its earliest possible trigger the date on which the plaintiff first began experiencing symptoms, the date on which she first sought medical assistance for her symptoms, or the date she real­ ized her symptoms were not improving under conservative care. Thereafter, from 2003 to 2005, the court of appeals bounced back­ and-forth between physician-input-as-trigger and worsening-symptoms-as­ trigger in its application of the Martin/Van Dusen standard. Most decisions during this span continued to select trigger dates based upon suggestions of malpractice received from physicians rather than based upon a plaintiffs lay suspicion or symptomatology.97 Yet, on two occasions, majority opin­ ions by the court of appeals again relied on symptomatology as a trigger.98 D. The Supreme Court Re-enters the Fray (2005) In December 2005, the Indiana Supreme Court for the first time exam­ ined in detail the facts necessary to trigger a discovery date. In Booth v. 96. Id. 97. See Burns v. Hatchett, 786 N.E.2d 1178, 1181 & n.2 (Ind. Ct. App. 2003), trans. denied (assuming without deciding that date subsequent physician "told [plaintiff] she had TMJ and that she had a 'clear case of malpractice' against [defendant]" served as trigger); Donnan v. Osmose, Inc., 782 N.E.2d 463, 467-69 (Ind. Ct. App. 2003), trans. denied (plain­ tiff's lay suspicion combined with ongoing symptoms of swelling and pain over four years insufficient-statute did not begin to nm until physician report connecting illness to treated wood). Cf Levy v. Newell, 822 N.E.2d 234, 238-39 (Ind. Ct. App. 2005), reh 'g denied (plaintiffs possessed sufficient knowledge when their attorney sent demand letter indicating "strong belief' of malpractice--court did not select date three days after surgery when pa­ tient "began having indications that something was wrong," date of diagnostic test revealing duct injury, or date of admission to hospital for repair of injury). 98. E.g., GYN-OB Consultants, LLC v. Schopp, 780 N.E.2d 1206, 1210-11 & n.5 (Ind. Ct. App. 2003), trans. denied. Relying heavily on Johnson v. Gupta, 762 N.E.2d 1280, 1283 (Ind. Ct. App. 2002), the court of appeals held that vaginal swelling and discomfort almost immediately after surgery was sufficient to serve as a trigger in the fraudulent con­ cealment context. In dissent, Judge Vaidik rejected the symptoms-as-trigger approach and instead concluded that the plaintiff "did not have adequate infonnation that would have led to the discovery of the malpractice" until she collected her own medical records and learned that her physician had operated on the affected area. Schopp, 780 N.E.2d at 1212 (Vaidik, J., dissenting). Thereafter, two Justices on the Supreme Court voted in favor of transfer. 792 N.E.2d 44 (Table) (Ind. 2003). See also Garneau v. Bush, 838 N.E.2d 1134, 1142 (Ind. Ct. App. 2005), trans. denied. The court of appeals held that the trigger occurred after "Lise had experienced almost 20 months of pain and extreme difficulty abducting her hip, had spent some eight months in a nursing home, and had been advised by an orthopedic surgeon to have a new bipolar hip prosthesis installed." Again, two Justices on the Supreme Court vot­ ed in favor of transfer. Garneau, 855 N.E.2d I 004 (Table) (Ind. 2006). 2011] SNATCHING CONFUSION FROM THE JAWS OF CLARITY 113 Wiley, defendants recommended and performed Lasik surgery on a patient with a history of glaucoma and cataracts.99 The surgery required multiple revisions and eventually resulted in permanent vision loss.100 Because plaintiff suffered from problems almost immediately following the surger­ ies, defendants argued that the plaintiff should have discovered the malprac­ tice within two years.101 Reversing the trial court's grant of summary judgment, the Supreme Court first synthesized its prior holdings into a methodology to guide application of the Act's statute of limitations: Initially, a court must determine the date the alleged malpractice occurred and determine the discovery date--the date when the claimant discovered the al­ leged malpractice and resulting injury, or possessed enough information that would have led a reasonably diligent person to make such discovery. If the dis­ covery date is more than two years beyond the date the malpractice occurred, the claimant has two years after discovery within which to initiate a malpractice action. But if the discovery date is within two years following the occurrence of the alleged malpractice, the statutory limitation period applies and the action must be initiated before the period expires, unless it is not reasonably possible for the claimant to present the claim in the time remaining after discovery and before the end of the statutory period. 102 Turning next to the facts of the case at bar, the Booth Court distinguished between knowledge of injury and knowledge of potential malpractice in selecting a trigger date: While the facts stressed by the defendants in the pre­ sent case demonstrate that Mr. Booth had knowledge within the period prescribed by the statute of limita­ tions that he had serious vision problems and proba­ ble permanent vision impairment, they do not necessarily establish as an undisputed issue of fact that this amounts to discovery of "facts which, in the exercise of reasonable diligence, should lead to the 99. Booth v. Wiley, 839 N.E.2d 1168, 1173 (Ind 2005). 100. !d. at 1173-74. 101. !d. at 1174. 102. Id at 1172. 114 INDIANA HEALm LAW REVIEW [Vol. 8:95 discovery of the medical malpractice.''103 Instead, the Court selected as its trigger the date when another physician advised the plaintiff"that the Lasik surgery should not have been performed because of his preexisting cataracts and glaucoma."104 In so holding, the Booth majority implicitly confirmed the importance of physician input in selecting a trigger date, while, at the same time, discounting the significance of symptom manifestation. Yet, the Court cautioned against reading its de­ cision as "holding that an expert's advice is always required to put a patient on notice that problems may be due to malpractice."105 Instead, the majori­ ty opined (without further explanation or example) that the requisite facts might in some circumstances "arise from a patient's ordinary experiences and observations ... .''106 Following the Booth Court's implicit affirmation that "symptoms aren't enough," the court of appeals again fell in line, reaffirming the im­ portance of physician input in calculating a trigger.107 For example, in the 2006 Battema v. Booth decision, the court of appeals reversed the trial court's grant of summary judgment. Rejecting the contention that post­ surgical scarring was a sufficient trigger, the Court instead emphasized the fact that no subsequent physician had opined to plaintiff that her procedure had been performed negligently.108 Instead, "Battema was aware of an 'un­ fortunate result' shortly after the procedure performed by Dr. Sally, but she was not necessarily aware that the scarring could have been caused by mal­ practice until she found out that Dr. Sally was a recovering narcotics addict and had experienced a relapse around the time of the procedure."109 Likewise, in Palmer v. Gorecki, 110 the defendant physician misread the plaintiff's echocardiogram, erroneously diagnosed the plaintiff with en­ docarditis, and initiated a course of antibiotic treatment that resulted in nau­ sea, dizziness, imbalance, and eventual hospitalization.111 The court of appeals held that the plaintiff in that case "reasonably should have known 103. Id. at 1175 (quoting VanDusen v. Stotts, 712 N.E.2d 491,497 (Ind. 1999)). 104. Id. at 1176. 105. /d. 106. Id at 1178-79 (Sullivan, J., dissenting) (questioning whether a scenario could exist when expert opinion would not be required under the majority's reasoning.). See also id at 1178 (Shepard, C.J., dissenting) (bemoaning that knowledge of injury (without knowledge of associated malpractice) was no longer sufficient to trigger the statute of limita­ tions under the majority's rationale.). 107. Battema v. Booth, 853 N.E.2d 1014 (Ind Ct. App. 2006), trans. denied. 108. Id at 1020. 109. Id See also Moyer v. Three Unnamed Physicians, 845 N.E.2d 252, 257-59 (Ind. Ct App. 2006) (trigger occurred when physician informed plaintiff of possible link between Accutane and heart disease-Court rejected earlier dates of heart disease diagnosis and open-heart surgery). 110. Palmer v. Gorecki, 844 N.E.2d 149 (Ind Ct. App. 2006), reh'g denied, trans. denied. 111. Id. at 152. 2011] SNATCHING CONFUSION FROM THE JAWS OF CLARITY 115 of the alleged malpractice" eight months after the misreading of the echo­ cardiogram, when a subsequent physician informed him "'there was no cur­ rent evidence for active endocarditis. "'112 The court of appeals did not select the date the plaintiff first experienced adverse symptoms from the antibiotic treatments, the date of his hospitalization from those symptoms, or even the date another physician concluded that the plaintiff's "symptoms were directly related to toxic effects of the antibiotic therapy," and correctly diagnosed the plaintiff with vestibular toxicity.113 E. The 2008 Trio ofSupreme Court Decisions In 2008, the Supreme Court issued three separate decisions, one by unanimous decision, and two by plurality, which both clarified and (poten­ tially) destroyed many of the principles solidified by the prior nine years of appellate court decisions. Yet, before the dust from this upheaval could settle, the Court managed to resolve the issues in each of the three cases without necessitating any significant departure from precedent. 1. Brinkman v. Bueter In Brinkman v. Bueter,114 the plaintiff suffered from significant head­ aches and seizures that required emergency hospitalization in the days fol­ lowing the birth of plaintiff's first child. 115 Plaintiff's obstetrician diagnosed her with preeclampsia, a pregnancy-related medical condition, which, if left untreated, could develop into eclampsia with associated con­ vulsions and eventual coma. 116 Though preeclampsia typically develops after the twentieth week of pregnancy,117 the defendant obstetrician con­ vinced plaintiff that her situation was "atypical ... in that [plaintiff] [had] not show[n] [any] signs of preeclampsia until four days after delivery."118 The obstetrician then advised the plaintiff that any future pregnancies would put plaintiff's life at risk and that she should consider sterilization.119 Yet, . when plaintiff accidentally became pregnant again five years later, her new obstetrician notified plaintiff that in truth, plaintiff had shown signs of preeclampsia during her first pregnancy that had gone unnoticed and un­ treated. 120 Almost immediately, the Brinkman Court signaled (either intentional- 112. /d. at 155. 113. /d. at 152. 114. Brinkman v. Bueter, 879 N.E.2d 549 (Ind. 2008). 115. /d. at 550-51. 116. /d. at 551 n.3. 117. /d. at550n.l. 118. /d. at 551. 119. /d. 120. Id. at 552. 116 INDIANA HEALTH LAW REVIEW [Vol. 8:95 ly or by poor word choice) wholesale changes to the Martin/Van Dusen standard and its nine-year progeny. Before examining the facts before it, the Brinkman Court first summarized its holdings in Martin and VanDusen as "the statutory period does not begin to run until either the correct diagno­ sis is made or the patient has sufficient facts to make it possible to discover the alleged injury."121 Though the Court offered no further explanation or justification for the summary, this single sentence could be read to revolu­ tionize discovery rule jurisprudence in Indiana. Specifically, the Court's off-handed proclamation first suggests that the mere receipt of a correct di­ agnosis is itself sufficient to serve as a trigger under the Martin/Van Dusen standard, a curious reimagining which would seem to conflict with the long string of prior cases requiring more. 122 Next, this sentence suggests that the Martin/Van Dusen standard allows for triggers based upon the mere possi­ bility of discovery, an inquiry which completely obviates any need for dis­ cussion of "reasonable diligence" or whether certain facts "should lead to the discovery of the medical malpractice and resulting injury."123 And third, this sentence implies that discovery of injury alone (without reference to discovery of malpractice) is the operative trigger, a conclusion which directly contradicts both the Van Dusen Court's original formulation of the discovery rule, 124 and the Court's analysis in Booth just three years prior. 125 Immediately after its off-handed reimagining of the Martin/Van Dusen 121. !d. at 554. 122. See, e.g., Burns v. Hatchett, 786 N.E.2d 1178, 1181 & n.2 (Ind. Ct. App. 2003), trans. denied (combining diagnosis of TMJ with opinion from subsequent physician that plaintiff had a "'clear case of malpractice' against [defendant]"); Jacobs v. Manhart, 770 N.E.2d 344, 354 (Ind. Ct. App. 2002), reh 'g denied, abrogated on other grounds by Herron v. Anigbo, 897 N.E.2d 444 (Ind. 2008) (suggesting that diagnosis of cervical cancer, even when combined with knowledge of the advanced stage of the disease, insufficient to serve as trigger); Shah v. Harris, 758 N.E.2d 953, 959 (Ind. Ct. App. 2001) (diagnosis ofB-12 defi­ ciency combined with input from physician ''that [plaintiff's] illness may have been misdi­ agnosed seven years earlier"); Rogers v. Mendel, 758 N.E.2d 946, 948-52 (Ind. Ct. App. 2001) (mentioning that cancer had metastasized already by date of correct diagnosis); Coffer v. Arndt, 732 N.E.2d 815, 822 (Ind. Ct. App. 2000) (diagnosis of glaucoma combined with physician input "that he had had it for a long time."). Cf Palmer v. Gorecki, 844 N.E.2d at 152, 155 (declining to select date plaintiff correctly diagnosed with vestibular toxicity as trigger); Levy v. Newell, 822 N.E.2d 234, 238-39 (Ind. Ct. App. 2005) (not selecting date of diagnostic test revealing duct injury as trigger). 123. VanDusen v. Stotts, 712 N.E.2d 491,499 (Ind. 1999) (emphasis added). 124. !d. at 497 (requiring plaintiffs "to file their claims within two years of the date when they discover the malpractice and the resulting injury or facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting inju­ ry") (emphasis added). 125. See Booth v. Wiley, 839 N.E.2d 1168, 1175 (Ind. 2005) (distinguishing between knowledge of injury and knowledge of potential malpractice in selecting a trigger date: "While the facts stressed by the defendants in the present case demonstrate that Mr. Booth had knowledge within the period prescribed by the statute of limitations that he had serious vision problems and probable permanent vision impairment, they do not necessarily establish as an undisputed issue of fact that this amounts to discovery of 'facts which, in the exercise of reasonable diligence, should lead to the discovery of the medical malpractice."'). 2011] SNATCHING CONFUSION FROM THE JAWS OF CLARITY 117 standard, the Brinkman Court continued its onslaught on precedent by re­ viving the debate as to whether the objective standard should apply only in cases involving asymptomatic latency periods. Noting that both Martin and VanDusen involved the failure to diagnose cancer and the impossibility of plaintiffs bringing such claims "before they know they are suffering from the disease,"126 the Court stopped short of issuing any declaration regarding the latency issue, noting only that "[t]he Brinkmans did not face this chal­ lenge."127 Instead, the Brinkman Court found that the plaintiff should have been aware of the negligent failure to diagnose preeclampsia as soon as she "suf­ fered eclamptic seizures" and ''was immediately diagnosed with and treated for eclampsia."128 By itself, this conclusion implies that the onset of symp­ toms, either alone or combined with the receipt of a correct diagnosis, is sufficient to serve as a discovery date trigger. But rather than concede that Brinkman damages the long line of prior cases (including, once again, Booth) which rejected the symptoms-as-trigger approach, a more nuanced reading suggests that in actuality, symptomatology did not inform the Court's decision. Note that the Court selected the date of the seizure, hospi­ talization, and diagnosis as its discovery date, rather than the eight-day­ prior hospitalization for severe headaches "unlike any headache in the past," the three-day-prior development of neck pain, the two-day-prior re­ currence of headaches, or the recurrence of nausea and vomiting without any relief from medication. 129 Thus, notwithstanding the dicta contained therein and, assuming the Court did not intend a distinction between various types of symptoms (e.g., those which require hospitalization and those which do not), the result in Brinkman could be read as consistent with Mar­ tin, Van Dusen, Booth, and the numerous court of appeals decisions inter­ preting those cases. Therefore, the Brinkman decision could be interpreted to hold that the appearance or progression of symptoms is not sufficient to serve as a discovery date trigger unless accompanied by a specific diagno­ sis, one which by itself signals the likely presence of a prior, undiagnosed condition. 130 2. Overton v. Grillo Implicitly confirming this reading of Brinkman, the Indiana Supreme 126. Brinkman v. Bueter, 879 N.E.2d 549, 554 (Ind. 2008). 127. Id. at 554. 128. Id. at 554-55. 129. Id at 550-51. 130. The Brinkman Court emphasized that "preeclampsia is simply a precursor to ec­ lampsia." !d. at 555 n.7. Thus, just as metastasis necessarily implies the prior presence of cancer, so too eclampsia necessarily implies the prior presence of preeclampsia. Whether a plaintiff in the exercise of reasonable diligence should have known about this relationship, of course, is another question. 118 INDIANA HEALTH LAW REVIEW [Vol. 8:95 Court again considered ''trigger dates" in Overton v. Grillo131 wherein the plurality132 addressed yet another case of a plaintiff discovering metasta­ sized cancer shortly after a misread mammogram. In Overton, the plaintiff discovered a lump in her right breast fifteen months after the defendant physician reported plaintiff's mammogram as normal.133 An ultrasound and biopsy performed the following week revealed carcinoma of the right breast that had metastasized to the lymph nodes.134 Following radiation and chemotherapy, the plaintiff first learned of the possibility of malpractice in a meeting with her attorney one year after discovering the lump in her breast.135 Perhaps following Brinkman's lead, the plurality crafted another opin­ ion that, if taken at face value, would rewrite the entirety of discovery rule jurisprudence since the incipiency of the Martin/Van Dusen standard. Writ­ ing for the plurality, Justice Boehm first compared Overton to the Court's 2000 decision in Boggs.136 From this comparison, Justice Boehm conclud­ ed that "[b ]oth Mrs. Boggs and Mrs. Overton knew of their condition and that they had not been previously diagnosed. That is enough to put the plaintiff on inquiry notice of the possibility of malpractice .... " 137 This statement appears to impose an "inquiry notice" requirement on medical malpractice victims based on nothing more than the mere receipt of a diag­ nosis. In dissent, Justices Dickson and Rucker correctly observed that "[a ]n injured plaintiff is not required to suspect, investigate, or commence litiga­ tion unless the facts known are sufficiently significant as to create a reason­ able probability that malpractice had occurred."138 The dissenting Justices further cautioned against any rule of law which would hinge on "inquiry notice ofthe possibility of malpractice" as any such·rule would "impose on injured patients an obligation of suspicious investigation never envisioned by Booth, and [would be] contrary to its express holding. "139 Yet in the following paragraph, the Overton plurality offers a further explanation for its decision, which appears to rescue both Overton and 131. Overton v. Grillo, 896 N.E.2d 499 (Ind. 2008). 132. Both Overton, 896 N.E.2d 499 and Herron v. Anigbo, 897 N.E.2d 444 (Ind. 2008), reh 'g denied (See discussion ilifra Part II.E.3) are plurality decisions. In each, Chief Justice Shepard concurred in the result without joining in the plurality opinion. 133. Overton, 896 N.E.2d at 501. 134. /d. 135. Id 136. Id at 503 (citing Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692 (Ind. 2000). 137. Id 138. /d. at 504-05 (Dickson, J., dissenting). 139. /d. at 505 (Dickson, J., dissenting). The fact that Justices Dickson and Rucker explicitly reject any insinuation of "inquiry notice" or language of "possibility'' into the Martin/Van Dusen standard should inform one's reading of Brinkman. As Justices Dickson and Rucker each signed on to the Brinlcman opinion just ten months prior to their Overton dissent, it seems unlikely that these Justices intended to validate Brinkman's (careless) word­ ing of the standard to allow triggers based upon the ~ possibility of discovery and, fur­ ther, to allow triggers based upon discovery of injury alone. See supra Part II.E.l. 2011] SNATCHING CoNFUSION FROM TilE JAWS OF CLARITY 119 Brinkman from accusations of rewriting the Martin/Van Dusen standard. Comparing its holding with Brinkman, the plurality observed that the Brink:mans' claim "was untimely because the eclampsia brought to light the potential of the preeclampsia" and, concomitantly, "although no profession­ al had advised the Overtons of possible· malpractice, the metastasized can­ cer brought to light the potential that the earlier mammogram had been misread."140 As suggested above,141 this observation allows for a reading of Brinkman (and now Overton) which is consistent with Martin, Van Dusen, Booth, and the numerous court of appeals decisions interpreting those cases, that is, the mere receipt of a diagnosis is not sufficient to serve as a discov­ ery date trigger unless that diagnosis itself signals the likely presence of a prior, undiagnosed condition}42 Finally, in an interesting act of jurisprudential acrobatics, the Overton plurality attempts a single-sentence reconciliation of Overton with Booth. Implicitly recognizing the conflict with Booth (which stressed the im­ portance·of physician input in assigning a trigger date),143 Justice Boehm offered the following: Any potential link between [Mrs. Overton's] 1999 mammogram and her cancer was not obscured by al­ ternative explanations. See Booth v. Wiley, 839 N.E.2d 1168, 1174-76 (Ind 2005) (holding that trig­ ger date not when plaintiff began having eye prob­ lems because his doctors "continued to present other explanations for the vision difficulties" without men­ tioning the alleged act of malpractice as a potential cause).144 Of course, the discerning reader will recall that no such emphasis on "alter­ native explanations" appeared in the Booth majority opinion.145 In fact, the quotation offered by Justice Boehm actually comes from a summary of the plaintiff's argument on transfer and not from any analysis by the Booth ma­ jority.146 Nevertheless, Justice Boehm's rewriting of precedent arguably invites an "alternative explanations" exception to the discovery rule, one that is similar in substance and effect to the doctrine of fraudulent conceal­ ment yet requiring no evidence of fraudulent intent. 140. Id at 504. 141. See supra Part II.E.l. 142. See supra note 130. Again, just as eclampsia necessarily implies the prior pres­ ence of preeclampsia in Brinkman, so too metastasis necessarily implies the prior presence of cancer in Overton and Boggs. 143. See Booth v. Wiley, 839 N.E.2d 1168, 1176 (Ind. 2005). 144. Overton, 896 N.E.2d at 504. 145. See supra Part II.D. 146. Booth, 839 N.E.2d at 1176. 120 INDIANA HEALTH LAW REVffiW [Vol. 8:95 3. Herron v. Anigbo The same day147 as its decision in Overton, the same plurality of the Supreme Court in Herron v. Anigbo148 attempted to synthesize the state of the law regarding trigger dates. In Herron, the plaintiff sustained a fall at his home that rendered him quadriplegic.149 The following day, the defend­ ant physician performed spinal surgery including placement of a bone graft and plate for purposes of a failed cervical fusion. 150 Thereafter, the plaintiff remained in hospitals and care facilities during which he had difficulty speaking, suffered from infection and pulmonary difficulties, and even re­ quired the use of a ventilator for nine months.151 Fifteen months later, a subsequent physician notified plaintiff that he "may well require revision surgery" and recommended more tests. 152 Five months thereafter, another physician notified plaintiff that his deteriorating condition was likely caused by negligent follow-up care. 153 Following another surgery and hospital stay during which he was confmed to a halo, the plaintiff initiated suit against the defendant physician on December 7, 2004, a full thirty-three months after his initial surgery.154 After reciting the objective standard and reiterating the distinction be­ tween triggers that occur before and after the initial two-year window clos­ es, the Herron plurality, again led by Justice Boehm, examined "reasonable diligence."155 Noting that ''the critical issue is what reasonable diligence requires, not when the claim accrues or is discovered," Justice Boehm ex­ plained: "[R]easonable diligence requires more than inaction by a patient who, before the statute has expired, does or should know of both the injury or disease and the treatment that either caused or failed to identify or im­ prove it, even if there is no reason to suspect malpractice."156 Note Justice Boehm's subtle expansion of the discovery rule, announcing for the first time, with neither discussion nor citation to authority, that the knowledge­ of-malpractice prong may be satisfied by mere awareness that one's medi­ cal treatment has failed to improve a medical condition.157 The plurality 147. As it had done with the release of its Martin and VanDusen opinions, the Su­ preme Court issued Overton and Herron on the same day. Yet, as with VanDusen nine years before, Herron appears in a later volume of the North Eastern Reporter Second than its companion decision. See supra note 25. 148. Herron v. Anigbo, 897 N.E.2d 444, 452 (Ind. 2008), reh g denied 149. ld at 447. 150. ld. 151. Id. 152. /d. 153. /d. 154. ld. 155. Id. at444,448-49. 156. Id. at 449. 157. Justice Boehm appears to ground this addition to the Martin/Van Dusen standard in a reimagining of Booth v. Wiley, describing the malpractice in that case as "failure to ar- 2011] SNATCHING CONFUSION FROM THE JAWS OF CLARITY 121 then summarized its rationale in Brinkman as ''[t]he eclampsia brought to light the potential of the preeclampsia,"158 and it was stated in Martin that '"the limitations period started when breast cancer was identified, because the patient was in a position to uncover the failure to identify it in an earlier mammogram .... "159 With that, the Herron plurality then turned to the question of whether «reasonable diligence" is to be decided as a question of law or a question of fact. 160 The plurality concluded that the '