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ATTORNEY FOR APPELLANTS Timothy S. Schafer Merrillville, Indiana

ATTORNEY FOR APPELLEES Robert F. Parker Merrillville, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 64S04-0811-CV-595 LLOYD OVERTON, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHRISTINE OVERTON,

FILED
Nov 13 2008, 12:02 pm
of the supreme court, court of appeals and tax court

CLERK

Appellants (Plaintiffs below), v. MARSHALL GRILLO, D.O. AND RADIOLOGIC ASSOCIATES OF NORTHWEST INDIANA, INC., AN INDIANA CORPORATION, Appellees (Defendants below). _________________________________ Appeal from the Porter Superior Court, No. 64D02-0110-CT-8838 The Honorable William Alexa, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 64A04-0605-CV-278 _________________________________ November 13, 2008 Boehm, Justice. We hold that a medical malpractice claim for allegedly misreading a mammogram is barred by the two-year statute of limitations when the plaintiff learned of cancer with approximately nine months remaining in the limitations period.

Facts and Procedural History This is an appeal from a grant of summary judgment in favor of the defendant. Accordingly, we take the facts from the designated evidence most favorable to the plaintiffs. Christine Overton had a routine mammogram on July 7, 1999. Dr. Marshall Grillo of Radiologic Associates of Northwest Indiana, Inc. (RANI) examined the resulting film and found no "malignancy, suspicious calcifications or dominant masses." Mrs. Overton was told that the "mammogram was normal." Fifteen months later, on September 27, 2000, a lump was

discovered in her right breast in the course of an annual checkup. Another mammogram was performed on October 2, 2000, showing a lesion and clustered calcifications. An ultrasound and biopsy on the same date revealed carcinoma of the right breast, which had metastasized to the lymph nodes. On November 1, 2000, Mrs. Overton underwent a mastectomy and reconstructive surgery, during which four of the eleven adjacent lymph nodes were found to be cancerous and removed. Mrs. Overton then received chemotherapy and radiation treatments until July 2001, approximately two years after her first mammogram. Mrs. Overton was "advised of the

possibility of a potential claim of medical negligence" in a meeting with her attorney on October 11, 2001. She testified in deposition that this was the first time she "had any information which led [her] to believe or suspect that the mammogram that Dr. Grillo interpreted in July of 1999 was not interpreted correctly[.]" The Overtons filed suit against Dr. Grillo and RANI on October 19, 2001, alleging failure to "properly interpret" Mrs. Overton's July 7, 1999 mammogram, and seeking Mrs. Overton's damages and her husband's loss of consortium. In 2002, Dr. Grillo and RANI moved to dismiss the claim and for summary judgment, respectively, on the issue of the statute of limitations. The trial court denied both motions without explanation and the parties engaged in discovery. Over two years later, Dr. Grillo moved for summary judgment,1 asserting that the claim was untimely and also that there was no malpractice. The latter point was supported by an affidavit from another physician. The trial court granted summary judgment on the statute of limitations, finding that the October 2, 2000 diagnosis of cancer "provided enough information to lead a

The summary judgment appealed from in this case was filed by Dr. Grillo alone. The record does not indicate the status of the claim against RANI.

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reasonably diligent person in Overton's position to have discovered the alleged malpractice." As of October 2, 2000, there were nine months remaining in the limitations period. The Overtons appealed the grant of summary judgment. Mrs. Overton died on

September 21, 2007, while her appeal was pending. Her husband, as personal representative of her estate, has since been substituted for her as a plaintiff. In an unpublished opinion, the Court of Appeals reversed and remanded, holding that the limitations period raised disputed issues of fact. Overton v. Grillo, No. 64A04-0605-CV-278, slip op. at 8 (Ind. Ct. App. October 2, 2007). We grant transfer concurrent with this opinion. Standard of Review This Court applies the same standard as the trial court when reviewing a grant of summary judgment; summary judgment is to be affirmed only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Row v. Holt, 864 N.E.2d 1011, 1013 (Ind. 2007). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind. 2007). A medical malpractice defendant who asserts the statute of limitations as an affirmative defense bears the burden of establishing that the action was commenced beyond that statutory period. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind. 2000). Once that is established, the burden shifts to the plaintiff to establish "an issue of fact material to a theory that avoids the defense." Id. Trigger Date and Incapacity Determinations Because Dr. Grillo is not a "qualified healthcare provider," this case is not governed by the Indiana Medical Malpractice Act (MMA). The parties agree, however, that the two-year statute of limitations for claims of negligence in professional services applies. See Ind. Code

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