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FOR PUBLICATION

ATTORNEYS FOR APPELLANTS: REX E. BAKER CAROLINE A. GILCHRIST Baker & Gilchrist Avon, Indiana

ATTORNEYS FOR APPELLEES: MARY H. WATTS NANA QUAY-SMITH KELLY R. ESKEW Bingham McHale LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
SANDRA BRINKMAN and MARK BRINKMAN, Appellants-Plaintiffs, vs. ANNE P. BUETER, M.D., JAMES F. DUPLER, M.D., and WOMAN'S HEALTH PARTNERSHIP, P.C., Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 29A02-0510-CV-980

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Steven David, Special Judge Cause No. 29D01-0410-CT-872

November 20, 2006 OPINION - FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE

Appellants-Plaintiffs, Sandra and Mark Brinkman (collectively, the Brinkmans), appeal the trial court's grant of summary judgment in favor of Appellees-Defendants, Anne P. Bueter, M.D. (Dr. Bueter), James F. Dupler, M.D. (Dr. Dupler), and Women's Health Partnership (WHP) (collectively, the Physicians). We affirm in part, reverse in part, and remand. ISSUES The Brinkmans raise three issues on appeal, which we restate as: (1) Whether the two-year statute of limitations for actions brought under the Medical Malpractice Act violates the Indiana constitution where the Brinkmans neither knew, nor could have known in the exercise of reasonable diligence, that they possessed a claim for medical malpractice; and (2) Whether the trial court erred in concluding that no genuine issue of material fact existed as to the question of Dr. Dupler's standard of care in treating Sandra Brinkman. On cross-appeal, the Physicians raise the following issue: Whether the statute of limitations under the Medical Malpractice Act bars the Brinkmans' claim that Dr. Bueter negligently counseled them to not have any more children. FACTS AND PROCEDURAL HISTORY 1
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In our recitation of the facts and procedural history, we rely in part on our earlier opinion, Bueter v. Brinkman, 776 N.E.2d 910, 911-12 (Ind. Ct. App. 2002).

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In May of 1994, Sandra Brinkman (Sandra) learned she was pregnant and sought prenatal, obstetrical, and postnatal care from the Physicians. Dr. Bueter determined that Sandra was due to deliver on or about February 2, 1995. While Sandra's primary obstetrician was Dr. Bueter, other physicians within WHP saw Sandra throughout her pregnancy. During a prenatal appointment on January 19, 1995, Dr. Dupler evaluated Sandra and noted that her blood pressure was elevated, her weight had increased, and her urine was positive for two-plus protein. As a result of his evaluation, Dr. Dupler

requested Sandra return for another office visit in three days. Dr. Dupler did not record on Sandra's chart any suspicion he may have had that she was suffering from preeclampsia. 2 On Sunday, January 22, 1995, Sandra was admitted to St. Vincent Hospital in Carmel, Indiana with complaints of a severe headache that had persisted for a few days. Sandra additionally complained of gastric pain and vomiting. Upon admission, Dr. Dupler evaluated Sandra, again noting that her blood pressure was high and that her urine contained trace protein, but also charting that he found no signs or symptoms of preeclampsia. Due to her continuing and severe headache, Dr. Dupler ordered a

neurological exam of Sandra, which was performed by neurologist, Wesley Wong, M.D.

Preeclampsia is the development of elevated blood pressure and protein in the urine (proteinuria) after the 20th week of pregnancy. http://www.nlm.nih.gov/medlineplus/ency/article/000898.htm. The condition is additionally signified by documented weight gain, swelling in the upper body, and systemic problems such as headache, blurred vision and abdominal pain. Id.; http://www.nichd.gov/health/topics/Preeclampsia_and_Eclampsia.cfm. The only way to cure preeclampsia is to deliver the baby. http://www.nlm.nih.gov/medlineplus/ency/article/000898.htm. However, if delivery would be very premature, the disease may be managed by bed rest, close monitoring, and delivery as soon as the fetus has a good chance of surviving outside the womb. Id. Preeclampsia is also referred to as "toxemia" or "pregnancy-induced hypertension." Id.

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(Dr. Wong). Dr. Wong's evaluation revealed no neurological explanation for Sandra's headache or other symptoms. On January 25, 1995, while still hospitalized, Sandra went into labor. In the early morning hours of January 26, Sandra delivered a baby girl. Following delivery, Sandra experienced some relief of her previous symptoms, but her blood pressure remained elevated. Due to her elevated blood pressure, Dr. Wong recommended that Sandra remain in the hospital until it was stabilized; nonetheless, Dr. Dupler released Sandra on the afternoon of January 27, 1995, with instructions to call WHP if her headache returned. On January 28 and 29, 1995, Sandra's husband, Mark Brinkman (Mark), called WHP and reported that Sandra had a severe headache. On January 30, 1995, Sandra called WHP complaining of a severe headache, as well as vomiting. However, because Sandra was now post-delivery and did not require obstetrical care, WHP referred her to a family physician, Steven Lang, M.D. (Dr. Lang), to treat her headache and vomiting. During an office visit on the same date, Dr. Lang treated Sandra's pain and nausea with medication, and sent her home. Later that afternoon, while resting in bed, Sandra had a grand mal seizure, witnessed by Mark. Shortly thereafter, she was taken by an

ambulance to the emergency room at St. Vincent Hospital in Carmel, Indiana where she experienced another grand mal seizure. She was then transferred to St. Vincent Hospital

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in Indianapolis, and admitted with a diagnosis of toxic eclampsia. 3 She remained in the hospital under treatment for eclampsia until February 4, 1995. On March 10, 1995, Sandra, along with Mark, visited Dr. Bueter for a post-partum check-up. At this appointment, Dr. Bueter advised the Brinkmans to not have any more children because Sandra's diagnosis with eclampsia put her in a high-risk category for future complications during pregnancy. Further, the Brinkmans contend that Dr. Bueter stated she would terminate her physician-patient relationship with Sandra if Sandra did not choose a sterilization procedure to prevent another pregnancy. On the other hand, Dr. Bueter alleges she remembers little about the details of her discussion with the Brinkmans that day, but that it is her practice to discuss sterilization with any patient who has had two or more children. 4 As a result of Dr. Bueter's advice, the Brinkmans decided to not have any more children; however, for financial reasons, the Brinkmans opted not to undergo the sterilization procedure. The Brinkmans did not contact Dr. Bueter or WHP again until January of 2000, when Sandra suspected she might be pregnant despite efforts to prevent pregnancy. As Dr. Bueter was no longer with WHP, WHP advised Sandra to seek a physician elsewhere. Consequently, Sandra contacted Dr. Lang, who confirmed her pregnancy and referred her to Dawn Zimmer, M.D. (Dr. Zimmer), an obstetrician providing high-risk obstetrical care.

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Eclampsia is a more severe form of preeclampsia that can cause seizures and coma in the mother. http://www.nichd.gov/health/topics/Preeclampsia_and_Eclampsia.cfm. The record indicates that prior to the birth of her daughter in January of 1995, Sandra had one other child.

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On January 31, 2000, the Brinkmans met with Dr. Zimmer, and were informed that a review of Sandra's previous medical records showed she had symptoms of preeclampsia prior to the birth of her daughter in 1995. Further, Dr. Zimmer informed the Brinkmans that if Sandra had received proper care for preeclampsia, she would not have progressed into toxic eclampsia. In addition, Dr. Zimmer explained to the

Brinkmans that (1) the risk of preeclampsia does not increase in subsequent pregnancies with the same father, (2) preeclampsia does not always recur in subsequent pregnancies, and (3) if preeclampsia recurs, it can be treated and toxic eclampsia can be prevented. Therefore, because preeclampsia can be managed, Dr. Zimmer neither agreed with Dr. Bueter's advice that Sandra should not have any more children, nor that she should be sterilized to prevent subsequent pregnancies. On December 7, 2000, as a result of the information gained through Dr. Zimmer, the Brinkmans filed a Proposed Complaint against the Physicians with the Indiana Department of Insurance. On February 28, 2001, the Physicians filed a Motion for Preliminary Determination of Law, arguing that the statute of limitations barred the Brinkmans' claim. 5 After briefing and arguments, the trial court denied the Physician's motion. Consequently, the Physicians filed an interlocutory appeal with this court,

resulting in our decision of Bueter v. Brinkman, 776 N.E.2d 910 (Ind. Ct. App. 2002), where we concluded that the trial court's denial of the Physician's Motion for a Preliminary Determination of Law did not constitute a final disposition. Accordingly, we

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See I.C.

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