Robb, J.
Case Summary and Issue
Richard Rogers, pro se, filed with the Indiana Department of Insurance a proposed complaint for medical malpractice on March 4, 2011 against Anonymous Physician and Anonymous Medical Group (collectively, “Physician”). Physician filed in the trial court a Motion for Preliminary Determination and for Summary Judgment, alleging Rogers’s complaint was not timely filed under the Indiana Medical Malpractice Act. The trial court initially granted summary judgment to Physician but later granted Rogers’s motion to correct error and denied summary judgment. The parties present several issues on appeal, which we consolidate as the following single issue: whether the trial court erred in denying summary judgment upon finding that genuine issues of material fact exist as to whether Rogers timely filed his proposed complaint. Concluding that Rogers’s claim was not timely filed under the Indiana Medical Malpractice Act and summary judgment for Physician was appropriate, we reverse.
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Physician has established that Rogers did not file his complaint until March 4, 2011, which is outside of the statute of limitations period if the last negligent act occurred January 7, 2009. Rogers argues that the doctrine of continuing wrong saves his claim because Physician’s negligence continued until March 6, 2009. This, Rogers argues, is the day the statute of limitations period began to run.
The doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury. When this doctrine attaches, the statutory limitations period begins to run at the end of the continuing wrongful act. In order to apply the doctrine, the plaintiff must demonstrate that the alleged injury-producing conduct was of a continuous nature. The doctrine of continuing wrong is not an equitable doctrine; rather, it defines when an act, omission, or neglect took place.
Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct. App. 2012) (emphasis added) (citations omitted). For the doctrine to apply, the physician’s conduct must be more than a single act. See id.
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We would have to ignore our case law refusing to apply the doctrine to isolated instances of negligence in order to accept Rogers’s argument. See Babcock v. Lafayette Home Hosp., Woman’s Clinic, 587 N.E.2d 1320, 1323 (Ind. Ct. App. 1992) (refusing to apply the doctrine of continuing wrong to the defendant hospital’s two isolated acts of negligence). On these facts, the doctrine of continuing wrong does not apply.
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Conclusion
Concluding that Physician’s last act of negligence occurred January 7, 2009 and that the doctrine of continuing wrong does not apply, Rogers’s claim is barred by the Medical Malpractice Act’s occurrence-based statute of limitations. Accordingly, summary judgment is appropriate for Physician, and the trial court abused its discretion in finding otherwise and granting Rogers’s motion to correct error. We reverse.
Reversed.
BAKER, J., concurs.
KIRSCH, J., dissents with opinion.
KIRSCH, Judge, dissenting.
I respectfully dissent.
The doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 699 (Ind. 2000). When the doctrine attaches, the statutory limitations period begins to run at the end of the continuing wrongful act. Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991). In order to apply the doctrine, the plaintiff must demonstrate that the alleged injury-producing conduct was of a continuous nature. Burton v. Elskens, 730 N.E.2d 1281, 1284 (Ind. Ct. App. 2000). “The doctrine of continuing wrong is not an equitable doctrine; rather, it defines when an act, omission, or neglect took place.” Coffer v. Arndt, 732 N.E.2d 815, 821 (Ind. Ct. App. 2000), trans. denied.
Here, Anonymous Physician was Richard Rogers’ urologist from the date of his first appointment in August 2006 through July 2009. The course of conduct giving rise to this action was Physician’s use of Cidex OPA to disinfect the urology equipment, contrary to the standard of care, and his failure to diagnose and advise Rogers of such usage after Rogers’ repeated allergic reactions. This course of conduct commenced in August 2006. It continued at least until March 6, 2009, the date that the Allergist to whom Physician stated he referred Rogers, advised both Rogers and Physician that Rogers was allergic to Cidex OPA. Because Rogers’ Proposed Complaint for Medical Malpractice was filed on March 4, 2011, it was timely filed.