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FOR PUBLICATION
ATTORNEY FOR APPELLANTS: W. BRENT GILL Ken Nunn Law Office Bloomington, Indiana ATTORNEYS FOR APPELLEES: EDWARD J. LIPTAK JEREMY M. DILTS Carson Boxberger LLP Bloomington, Indiana

FILED
Dec 30 2011, 9:20 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
MARY ALICE MANLEY AND GARY MANLEY, ) ) ) Appellants-Respondents, ) ) vs. ) ) RYAN J. SHERER, M.D., and SHERER FAMILY ) MEDICINE, P.C., ) ) Appellees-Petitioners. )

CLERK

No. 59A01-1104-PL-190

APPEAL FROM THE ORANGE CIRCUIT COURT The Honorable J. Terrence Cody, Special Judge Cause No. 59C01-1007-PL-320

December 30, 2011

OPINION - FOR PUBLICATION

BARTEAU, Senior Judge

STATEMENT OF THE CASE Respondents-Appellants Mary Alice Manley and Gary Manley appeal the trial court's grant of summary judgment to Petitioners-Appellees Ryan J. Sherer, M.D., and Sherer Family Medicine, P.C. (collectively, "Sherer"). We reverse and remand. ISSUE The Manleys raise two issues, which we consolidate and restate as: whether the trial court erred by granting Sherer's motion for summary judgment. FACTS AND PROCEDURAL HISTORY On November 27, 2006, Mary Manley was involved in a head-on automobile collision with Kimberly Zehr. Zehr had lost consciousness while driving due to a

medical conditions and medications prescribed by her physician, Sherer. Sherer had last treated Zehr on November 21, 2006. Mary Manley suffered permanent debilitating injuries as a result of the accident, and Gary Manley experienced a loss of spousal consortium. The Manleys sued Zehr. That lawsuit was subsequently settled, and the terms of the settlement are not provided in the record. On November 25, 2008, the Manleys filed a proposed complaint against Sherer with the Indiana Department of Insurance. On July 30, 2010, Sherer filed with the trial court a Motion for Preliminary Determination of Law and for Summary Judgment. The Manleys responded to Sherer's Motion, and Sherer filed a reply. The trial court held a hearing on Sherer's Motion. Subsequently, the trial court granted summary judgment to Sherer on all of the Manleys' claims and directed the entry of judgment in favor of Sherer. This appeal followed.
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DISCUSSION AND DECISION We review an appeal from summary judgment de novo. Eads v. Cmty. Hosp., 932 N.E.2d 1239, 1243 (Ind. 2010). Summary judgment is proper when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). All facts established by the designated evidence and inferences therefrom are to be construed in favor of the nonmoving party. Eads, 932 N.E.2d at 1243. We will affirm the trial court's grant of summary judgment if it is sustainable on any theory or basis in the record. Price v. Kuchaes, 950 N.E.2d 1218, 1226 (Ind. Ct. App. 2011), trans. denied. A defendant who asserts an affirmative statute of limitations defense must establish that the action was commenced after the limitation period has run. Eads, 932 N.E.2d at 1243. The burden then shifts to the plaintiff to show a material fact that precludes summary judgment. Id. In this case, the Manleys alleged that Sherer had been negligent in his treatment of Zehr by failing to warn Zehr not to drive. As a result, the Manleys conclude, Zehr drove despite her medical conditions and the medications prescribed by Sherer, which caused Zehr's collision with Mary Manley and the resulting injuries. In response, Sherer claims that the Manleys' proposed complaint was untimely filed and that the medical malpractice claim is without merit. The Indiana Medical Malpractice Act sets forth a two year statute of limitations for claims by victims of alleged medical malpractice, as follows:

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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, except that a minor less than six (6) years of age has until the minor's eighth birthday to file. Ind. Code

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