Robb, J.
Case Summary and Issue
On September 7, 2012, Elizabeth White visited Dr. Sonya Campbell Johnson at Dermatology Associates, P.C. (collectively, the “Providers”), for laser hair removal on her face. Due to a reaction between the makeup White was wearing and the treatment, part of White’s face was burned and remained discolored thereafter. In 2013, White filed a complaint for medical negligence against the Providers directly with the trial court, seeking damages in an amount not greater than $15,000 for her injury. Later, White moved to dismiss that complaint. The trial court granted the motion to dismiss without prejudice, and on November 18, 2014, White filed a proposed complaint with the Indiana Department of Insurance. The Providers filed a petition for preliminary determination and a motion for summary judgment alleging White failed to timely file her claim with the Department of Insurance. The trial court denied the motion for summary judgment but certified its order for interlocutory appeal. The Providers raise one restated issue for our review: whether the trial court erred in denying their motion for summary judgment. Concluding the statute of limitations bars White’s action and the Providers are entitled to judgment as a matter of law, we reverse.
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Indiana Code section 34-18-8-6(c) (“subsection (c)”) provides an exception to the general two-year statute of limitations for a second action filed under these circumstances, stating that if the patient:
(1) commences an action under subsection (a) . . .;
(2) moves under subsection (b) . . . for dismissal of that action;
(3) files a proposed complaint subject to [presentation to a medical review panel] based upon the same allegations of malpractice as were asserted in the action dismissed under subsection (b) . . .; and
(4) commences a second action in court following the medical review panel proceeding on the proposed complaint;
the timeliness of the second action is governed by IC 34-18-7- 1(c).
Indiana Code section 34-18-7-1(c) in turn provides that if the patient meets the criteria of subsection (c), “the applicable limitations period is equal to the period that would otherwise apply to the patient under subsection (b) . . . plus one hundred eighty (180) days.”
…But no Indiana case has substantively addressed this statute for the purpose of answering the question the Providers pose to us: what are the requirements for triggering the 180-day extension of the statute of limitations?…However, the facts pertinent to determining the statute of limitations question raised by the Providers are already set. The filing of a proposed complaint with the Department of Insurance may toll the applicable statute of limitations, Ind. Code § 34-18-7-3(a), but only if the proposed complaint itself is timely filed within the same limitations period, see Mayfield, 690 N.E.2d at 740-42 (affirming dismissal of patient’s action as time barred due to failure to file a proposed complaint with the Department of Insurance before the expiration of the two year statute of limitations). Therefore, if White’s action is untimely now, it will also be untimely when and if it is filed in court after a review panel decision. The Providers’ request for a preliminary determination of this issue is not premature.
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The legislature provided such a mechanism within the statute allowing for dismissal and refiling of a medical negligence complaint. A patient who has filed an action directly in court seeking limited damages may dismiss that action—and thereafter have the standard two years after the action accrued plus an additional 180 days to file a new action seeking greater damages—if she learns, after commencing the original action and while that action is still pending in the trial court, that her bodily injury is more serious than she believed when she commenced her action and $15,000 will not be adequate compensation. See Ind. Code § 34-18-8-6(b)(2). [Footnote omitted.]
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…Use of the phrase “later learns” implies something additional has to have occurred since the original lawsuit was filed in court: that is, the patient has subsequently acquired knowledge of or received information about something she did not previously know with regard to her injury and $15,000 is insufficient to compensate her for that more serious injury. [Footnote omitted.] Subsection (b) does not say simply that the plaintiff may dismiss her original complaint and have an extended statute of limitations for refiling with the Department of Insurance in order to seek additional damages. The statute imposes requirements upon such a course of action—that the patient learns her bodily injury is more serious than previously believed. The inclusion of these requirements implies there is some burden on the patient to show she has dismissed and refiled for a reason other than seeking more damages for the same injury. To adopt White’s reading of the statute would be to read those requirements out of the statute.
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The facts of this case are not in dispute. The Providers have shown that White did not file her proposed complaint with the Department of Insurance within two years of her action accruing. White in turn has failed to establish she is entitled to the benefit of Indiana Code sections 34-18-8-6(c) and 34-18-7-1(c) extending the statute of limitations in certain circumstances. Section 34-18-8- 6(c) imposes certain requirements on the ability to benefit from the extended time to file a medical negligence action, and White has failed to meet those requirements. White had every right to dismiss and refile her cause of action in order to seek additional damages, but under these facts, she needed to do so within the two-year statute of limitations.
Conclusion
The Providers are entitled to judgment as a matter of law on their motion for summary judgment alleging White’s proposed complaint was filed with the Department of Insurance outside the applicable statute of limitations. The trial court’s denial of the motion is reversed.
Reversed. Brown, J., concurs.
Mathias, J., dissents.
Mathias, Judge, dissenting.
I respectfully dissent. The majority’s explanation of the statutory framework of the issue before us is commendable. I disagree only with the majority’s interpretation of this statutory framework.
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The majority concludes that White must show that “something additional has to have occurred since the original lawsuit was filed in court: that is, the patient has subsequently acquired knowledge of or received information about something she did not previously know with regard to her injury and $15,000 is insufficient to compensate her for that more serious injury.” Slip op., supra, at pp. 13-14. The majority then notes that they do not mean to imply that this “something additional” “necessarily has to be medical evidence, such as a doctor’s opinion.” Id. at 14 n.2. Indeed, the majority agrees with White that “‘a patient can “learn” something in a variety of ways, for example, by being told, by reading or by personal experience.’” Id. (quoting Appellee’s Brief at 11) (emphasis added).
I write separately to emphasize that I believe that medical evidence, such as a physician’s expert opinion, is certainly not required to establish that a patient has “later learned” that her injury is more serious than originally believed.
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