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ATTORNEYS FOR APPELLANTS
L. THOMAS AND NORMA SUE BOOTH James P. Fenton Alan VerPlanck Leonard E. Eilbacher Eilbacher Scott, P.C. Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE
ROBERT G. WILEY, M.D. Dane L. Tubergen Kathleen A. Kilar Hunt Suedhoff Kalamaros, LLP Fort Wayne, Indiana

ATTORNEY FOR APPELLEES
RONALD K. NORLUND, O.D. AND MIDWEST EYE CONSULTANTS, P.C. John Johnston Johnston & Johnston Wabash, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 02S03-0402-CV-95 L. THOMAS BOOTH AND NORMA SUE BOOTH, v. ROBERT G. WILEY, M.D., RONALD K. NORLUND, O.D., AND MIDWEST EYE CONSULTANTS, P.C., D/B/A CATARACT & LASER INSTITUTE, Appellees (Defendants below). _________________________________ Appeal from the Allen Superior Court, No. 02D01-0107-CT-260 The Honorable Nancy Eshcoff Boyer, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-0210-CV-355 _________________________________ December 30, 2005 Dickson, Justice.

Appellants (Plaintiffs below),

In this medical malpractice action, the plaintiffs, L. Thomas Booth and Norma Sue Booth, husband and wife, appeal from a grant of summary judgment in favor of the defendants, Robert G. Wiley, M.D., Ronald K. Norlund, O.D., and Midwest Eye Consultants, P.C., d/b/a Cataract & Laser Institute (collectively, "the defendants"). The Court of Appeals reversed.

Booth v. Wiley, 793 N.E.2d 1104 (Ind. Ct. App. 2003). We granted transfer and now reverse the summary judgment and remand the case to the trial court.

In their appeal, the plaintiffs contend that, because the evidence shows that they did not discover the alleged malpractice until more than two years after it occurred, and they initiated their action within eight months thereafter, the trial court erred in finding their action timebarred. The plaintiffs also assert that even if they are deemed to have discovered the alleged malpractice within two years after it occurred, they initiated their action within a reasonable time thereafter, as permitted by Indiana case law. 1

"Summary judgment is appropriate where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Time Warner Entertainment Co., L.P. v. Whiteman, 802 N.E.2d 886, 895 (Ind. 2004); see also Ind. Trial Rule 56(C). The party seeking summary judgment has the burden of proving the non-existence of a genuine issue of material fact. Whiteman, 802 N.E.2d at 895. In determining the appropriateness of granting a summary judgment, the trial court and the reviewing appellate court construe all facts and reasonable inferences from those facts in favor of the nonmoving party. Id.

Indiana's statutory scheme governing medical malpractice actions contains a particular statue of limitations that provides, in relevant part: 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. Ind. Code

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