FILED
Aug 31 2026, 9:11 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Preston Pratt, Individually and on behalf of Wanda Pratt,
Deceased,
Appellant-Respondent/Plaintiff
v.
Anonymous Physician 1,
Appellee-Petitioner/Defendant
and
Anonymous Hospital, Anonymous Facility, Anonymous
Physician 2, Michele Bryant, as Panel Chair, and Holly
Williams Lambert, in her capacity as Commissioner of the
Indiana Department of Insurance,
Appellees-Third-Party Respondents
August 31, 2026
Court of Appeals Case No.
26A-MI-189
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 1 of 27
Appeal from the Tippecanoe Circuit Court
The Honorable Sean M. Persin, Judge
Trial Court Cause No.
79C01-2505-MI-111
Opinion by Judge Mathias
Judges Kenworthy and DeBoer concur.
Mathias, Judge.
[1] Preston Pratt, individually and on behalf of Wanda Pratt, deceased (“Wanda”)
(collectively, “Pratt”), appeals the trial court’s entry of summary judgment for
Anonymous Physician 1 (“Pulmonologist”), Anonymous Hospital (“the
Hospital”), Anonymous Facility (“the Facility”), and Anonymous Physician 2
(“Family Doctor”), on Pratt’s proposed complaint alleging medical
malpractice. Pratt presents three issues for our review, which we consolidate
and restate as:
1. Whether the trial court erred when it entered summary
judgment for Pulmonologist, the Hospital, and the Facility.
2. Whether the trial court erred when it entered summary
judgment for Family Doctor.
[2] We affirm in part and reverse and remand in part for further proceedings.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 2 of 27
Facts and Procedural History
[3] In November 2013, Wanda, a heavy smoker, was diagnosed with pulmonary
nodules after undergoing a CT scan of her lungs. Wanda knew that the nodules
were “not good,” and she worried that they might be cancerous. Appellant’s
App. Vol. 2, p. 51. In September 2014, Wanda first consulted with
Pulmonologist, who ordered a repeat CT scan of Wanda’s lungs.
Pulmonologist found that there was “no significant change” in the nodules
since 2013. Id. at 12. During follow-up visits in 2015 and 2016, Pulmonologist
ordered additional CT scans, which continued to show no significant change in
the nodules in Wanda’s lungs.
[4] During a follow-up visit in March 2017, Pulmonologist told Wanda that, “since
there had been no change in the nodules from November 2013 to March 2016,
she did not require continued CT imaging of the chest.” Id. at 42. And during a
follow-up visit in March 2018, Pulmonologist told Wanda that she was “not
recommending repeat CT scans of the chest because her pulmonary nodules
had been stable for more than twenty-four months.” Id. Pulmonologist
instructed Wanda to follow up in the pulmonary clinic in one year. Wanda did
not return to the clinic as instructed.
[5] On September 12, 2018, Wanda first saw Family Doctor, who noted that
Wanda was a smoker and had previously been diagnosed with pulmonary
nodules and chronic obstructive pulmonary disease (“COPD”). Wanda saw
Family Doctor on two other occasions: in March 2020 for an upper respiratory
infection and in early February 2022 for neck pain. On February 18, 2022,
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 3 of 27
Family Doctor and Wanda spoke on the telephone about the results of an MRI
of her neck. Id. at 13. In April 2022, Family Doctor refilled a prescription for an
anti-inflammatory medication. None of Wanda’s treatment with Family Doctor
appears to have been related to her pulmonary nodules or screening for lung
cancer. 1 In May 2022, Wanda moved to Alabama.
[6] On May 26, Wanda sought emergency medical care at an Alabama hospital for
a “severe headache, visual changes, and nausea.” Appellant’s App. Vol. 6, p.
84. A CT scan of her brain showed a “partially calcified mass,” and a CT of her
chest showed “[m]ultiple pulmonary nodules as well as mediastinal
lymphadenopathy suspicious for metastatic disease.” Id. at 87. After additional
diagnostic testing, Wanda was diagnosed with stage IV squamous cell lung
cancer. The following year, on September 9, 2023, Wanda died from “acute
respiratory failure and lung cancer.” Appellant’s App. Vol. 2, p. 13.
[7] On March 13, 2024, Pratt filed a proposed complaint against Pulmonologist,
Family Doctor, the Hospital, and the Facility alleging that Wanda had died as a
result of the physicians’ “substandard care. . . .” 2 Id. at 123. On May 1, 2025,
before a medical review panel had been convened, Pulmonologist filed a
motion for summary judgment with the trial court supported by designated
evidence including: Pulmonologist’s affidavit; Pratt’s answer to one
1
To the extent Pratt contends that Family Doctor treated Wanda for any of her lung conditions, he does not
cite any designated evidence in support of that contention.
2
Pratt filed an amended proposed complaint for damages two months later to correct a typographical error.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 4 of 27
interrogatory; and portions of Pratt’s deposition testimony. Pulmonologist
alleged that Pratt’s proposed complaint was barred by Indiana’s Medical
Malpractice Act’s occurrence-based two-year statute of limitations. On May 23,
Family Doctor moved to join Pulmonologist’s summary judgment motion and
filed a memorandum and designated evidence in support thereof. And, in June,
the Hospital and the Facility moved to join the pending summary judgment
motions. 3
[8] In his brief in opposition to summary judgment, Pratt argued that his proposed
complaint was timely with respect to Pulmonologist pursuant to an exception to
the occurrence-based two-year statute of limitations recognized by our Supreme
Court in Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), and Van Dusen v. Stotts,
712 N.E.2d 491 (Ind. 1999) (“the Martin/Van Dusen exception”). And Pratt
argued that his proposed complaint was timely with respect to Family Doctor
pursuant to the doctrine of continuing wrong.
[9] Following a hearing on the summary judgment motions, the trial court found
and concluded in relevant part that
[Wanda] saw [Pulmonologist] for a known medical condition,
pulmonary nodules. In March of 2017, [Pulmonologist] and
[Wanda] discussed the recommendation to not order additional
CT scans at that time after two years of no significant changes,
despite [Wanda’s] ongoing concerns about cancer. Pratt’s
3
Pratt’s claims against the Hospital and the Facility are derivative of his claims against Pulmonologist and
Family Doctor.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 5 of 27
argument that it was impossible to discover a potential
malpractice claim within two years is not persuasive. Nothing
prevented [Wanda] from seeking a second opinion or further
medical advice. In fact, [Pulmonologist] directed [Wanda] to
return to the pulmonology clinic within 12 months of the March
6, 2018 visit, but [Wanda] did not return. At the very latest, the
last alleged occurrence of malpractice would have been March 6,
2018, which means the proposed complaint should have been
filed no later than March 6, 2020.
[Pratt’s] proposed complaint against [Pulmonologist] was not
filed until March 13, 2024, and it is untimely.
Id. at 14. The trial court also concluded that the doctrine of continuing wrong
did not operate to render Pratt’s proposed complaint against Family Doctor
timely. This appeal ensued.4
Discussion and Decision
Standard of Review
[10] Our standard of review is well established:
In its review of a summary judgment, an appellate court applies
the same standard as the trial court. Overton v. Grillo, 896 N.E.2d
499, 502 (Ind. 2008). Summary judgment may be granted, or
affirmed on appeal, only “if the designated evidentiary matter
shows that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.” Ind. Trial Rule 56(C). All facts and reasonable inferences
established by the designated evidence are to be construed in
4
Notably, this case has not yet been submitted to a medical review panel.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 6 of 27
favor of the non-moving party. Overton, 896 N.E.2d at 502. When
a medical malpractice defendant asserts the statute of limitations
as an affirmative defense, that defendant “bears the burden of
establishing that the action was commenced beyond that
statutory period.” Id. If established, the burden shifts to the
plaintiff to establish “an issue of fact material to a theory that
avoids the defense.” Id. (quoting Boggs v. Tri-State Radiology, Inc.,
730 N.E.2d 692, 695 (Ind. 2000)).
David v. Kleckner, 9 N.E.3d 147, 149 (Ind. 2014).
Occurrence-based Statute of Limitations
[11] The trial court found that Pratt’s proposed complaint was not filed within the
time prescribed by the applicable statute of limitations. Indiana’s Medical
Malpractice Act (“the Act”) provides that
[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. . . .
Ind. Code § 34-18-7-1(b). As our Supreme Court has explained, this statute of
limitations is an “occurrence” rather than a “discovery” statute. See Martin, 711
N.E.2d at 1278. “As such, an action for medical malpractice generally must be
filed within two years from the date the alleged negligent act occurred rather
than from the date it was discovered.” Id. However, our courts have held that
Indiana Code section 34-18-7-1(b) is unconstitutional as applied in some
circumstances. See, e.g., id.; see also Van Dusen, 712 N.E.2d at 495.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 7 of 27 [12] In Martin, on March 13, 1991, Martin saw a nurse practitioner (“NP”) in Dr.
Richey’s office for a painful lump in her right breast. 711 N.E.2d at 1274. Dr.
Richey was out of town at the time. The NP ordered a mammogram which
revealed a benign cyst and a solid mass in Martin’s breast. The radiologist who
read the mammogram stated that a biopsy of the solid mass “may be
indicated,” and the NP instructed Martin to schedule an excisional biopsy with
a general surgeon. Id. at 1275. The next day, Martin told the NP that she had
scheduled the excisional biopsy for March 19. And Martin asked the NP to
have Dr. Richey call her when he returned to the office.
[13] On March 18, Dr. Richey returned to his office, and the NP reported the
circumstances regarding the lump in Martin’s breast. Without consulting the
radiologist, Dr. Richey called Martin that night and told her to cancel the
excisional biopsy. Dr. Richey told Martin that he would perform a needle
aspiration instead. After the needle aspiration on March 20, “Dr. Richey
informed [Martin] that he was able to aspirate a small amount of fluid from the
solid mass and did not tell her that the aspirate could have come from the
surrounding tissue rather than the mass itself.” Id. at 1276. “The pathology
report indicated that no malignant tumor cells were present in the specimen
drawn by Dr. Richey.” Id. The evidence was disputed whether Dr. Richey had
told Martin to follow up with the general surgeon regarding the need for an
excisional biopsy, but there was no record of any such instruction, and Martin
did not seek any further treatment for the breast lump at that time.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 8 of 27
[14] In April 1994, Martin experienced increased pain in the breast lump as well as
pain under her arm. She was diagnosed with breast cancer and underwent a
mastectomy of the right breast. Martin also underwent five months of
chemotherapy. In October, Martin filed a proposed complaint against Dr.
Richey alleging medical malpractice. Dr. Richey filed a motion for summary
judgment 5 arguing that Martin’s claim was barred by the two-year occurrencebased statute of limitations in Indiana Code section 34-18-7-1(b). Martin argued
in relevant part that the statute of limitations was an unconstitutional violation
of the Indiana and federal due process clauses and Indiana’s privileges and
immunities clause.
[15] The trial court entered summary judgment for Dr. Richey. On appeal, this
Court held that “the statute of limitations contained in the Medical Malpractice
Act violated Article I, Section 23 and Section 12 of the Indiana Constitution,”
and our Supreme Court granted transfer “to address the constitutionality of [the
Act’s statute of limitations] in a case where the plaintiff alleging malpractice
suffers from a medical condition with a long latency period which prevents her
from discovering the alleged malpractice within the two-year medical
malpractice statutory period.” Id. at 1277.
5
Dr. Richey filed a “Motion for Preliminary Determination of a Question of Law and Motion to Dismiss,”
but our Supreme Court refers to the trial court’s entry of “summary judgment” for Dr. Richey, and we do the
same. Martin, 711 N.E.2d at 1277.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 9 of 27 [16] The Court described “the asserted negligence” as Dr. Richey’s “failure to
diagnose and treat plaintiff’s breast cancer” and described the “relevant
negligent acts” as “his advice to cancel the scheduled biopsy, his decision to aspirate
the solid mass, and his failure to inform her of the importance of following up with a
general surgeon for a biopsy even if the results of the needle aspiration were
negative for malignancy.” Id. at 1278 (emphases added). Notably, there is
nothing in the opinion showing that there was any evidence that the breast
lump was cancerous in 1991.6 Rather, Martin merely alleged that Dr. Richey had
failed to diagnose and treat her breast cancer.
[17] In any event, the Court held that
the statute of limitations as applied to [Martin] is
unconstitutional under Section 23 because it is not “uniformly
applicable” to all medical malpractice victims within the
meaning of Collins v. Day, 644 N.E.2d 72 (Ind. 1994). Simply put,
the statute precludes Melody Martin from pursuing a claim
against her doctor because she has a disease which has a long latency
period and which may not manifest significant pain or symptoms until
several years after the asserted malpractice. The statute of limitations
is also unconstitutional under Section 12 because it requires plaintiff
to file a claim before she is able to discover the alleged malpractice and her
6
Here, at the summary judgment hearing, Pulmonologist stated that Wanda’s cancer was “extremely
aggressive” and asserted, without evidence, that “everyone would agree it’s not possible it was present at the
time” Pulmonologist last saw Wanda in March 2018. Tr. p. 10. Thus, Pulmonologist argued that the absence
of cancer as of March 2018 took Pratt’s proposed complaint out of the realm of an alleged failure to diagnose
cancer as in Martin and Van Dusen. As we explain below, however, the Martin/Van Dusen exception has been
applied to cases alleging malpractice that do not allege a failure to diagnose cancer.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 10 of 27
resulting injury, and, therefore, it imposes an impossible condition
on her access to the courts and pursuit of her tort remedy.
Id. at 1279 (emphases added). Thus, the Court reversed the grant of summary
judgment for Dr. Richey.
[18] In Van Dusen, which was handed down the same day as Martin, William Stotts
underwent a needle biopsy of a small prostate tumor in July 1992. 712 N.E.2d
at 494. Drs. Van Dusen and O’Brien analyzed the biopsy, and both concluded
that “the tissue was benign.” Id. Stotts’s family doctor reported those findings to
Stotts, who was “relieved.” Id. More than two years later, in November 1994,
“Stotts experienced pain and swelling in his groin area and his lower back.” Id.
After Stotts underwent diagnostic tests, his family doctor informed him that he
had “incurable prostate cancer.” Id. Stotts underwent aggressive treatment, but
the cancer began to “spread again” in December 1995. Id.
[19] In January 1996, Stotts’s urologist “had the 1992 biopsy reread by a
pathologist,” who “read the biopsy as malignant.” Id. Stotts learned of the error
in February, and, in April, he and his wife filed a proposed complaint against
Drs. Van Dusen and O’Brien. The trial court found that the two-year statute of
limitations was unconstitutional as applied to the Stottses and entered summary
judgment for them. On transfer, our Supreme Court held as follows:
In Part I, we conclude that section 34-18-7-1(b) should be
construed to permit plaintiffs like Martin and the Stottses to file
their claims within two years of the date when they discover the
malpractice and the resulting injury or facts that, in the exercise
of reasonable diligence, should lead to the discovery of the
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 11 of 27
malpractice and the resulting injury. In Part II, we apply this
general rule and conclude that, in this case, the two-year period
was triggered when, in January of 1995, Dr. Allen informed
Stotts that he had incurable cancer and that the biopsy slides may
have been misread in 1992. Plaintiffs’ claim of medical
malpractice, therefore, was timely filed within the two-year
statutory period.
Id. at 495.
[20] In 2005, in Booth v. Wiley, 839 N.E.2d 1168 (Ind. 2005), our Supreme Court
“synthesiz[ed]” the holdings in Martin and Van Dusen with Boggs v. Tri-State
Radiology, Inc., where the Court had “upheld application of the medical
malpractice two-year statute of limitations ‘to bar a claim that was discovered
several months before the limitations period expired and well within two years
of its occurrence.’” Booth, 839 N.E.2d at 1172 (quoting Boggs, 730 N.E.2d at
694). The Court then proceeded to establish a “methodology” to “guide[] the
application of the medical malpractice statute of limitations.” Id.
Initially, a court must determine the date the alleged malpractice
occurred and determine the discovery date—the date when the
claimant discovered the alleged malpractice and resulting injury, or
possessed enough information that would have led a reasonably diligent
person to make such discovery. If the discovery date is more than
two years beyond the date the malpractice occurred, the claimant
has two years after discovery within which to initiate a
malpractice action.
Id. (emphasis added).
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 12 of 27
Issue One: Pulmonologist 7
[21] Pratt contends that the trial court erred when it found that his proposed
complaint against Pulmonologist was barred by the applicable statute of
limitations. Pratt correctly asserts that the Martin/Van Dusen exception “applies
if a plaintiff is unaware of either the physician’s negligence or the resulting
injury during the applicable two-year period because of the nature of the
medical condition.” Appellant’s Br. at 18 (emphasis removed). And Pratt
maintains that the designated evidence supports the application of that
exception here as a matter of law. In short, Pratt argues that Wanda had no
way to know that Pulmonologist’s March 2018 advice to forego additional CT
scans was negligent advice until she learned of her cancer in May 2022, and
Pratt filed his proposed complaint within two years of that date. We agree with
Pratt’s analysis under the Martin/Van Dusen exception.
[22] The undisputed designated evidence shows that Pulmonologist provided
ongoing care for Wanda’s pulmonary nodules from September 2014 until
March 6, 2018. Wanda had annual CT scans to monitor the nodules in 2013,
2014, 2015, and 2016. In her affidavit, Pulmonologist stated that she had
ordered the CT scans “to confirm that the nodules were not increasing in size”
because “[a]n increase in size could reflect a malignant process.” Appellant’s App.
7
Again, Pratt’s claims against the Hospital and the Facility are solely derivative of his claims against
Pulmonologist. Accordingly, for ease of discussion, we refer only to “Pulmonologist” in this section.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 13 of 27
Vol. 2, p. 42 (emphasis added). In other words, Pulmonologist ordered the
annual CT scans to screen for lung cancer.
[23] In March 2017, Pulmonologist “told [Wanda] that since there had been no
change in the nodules from November 2013 to March 2016, she did not require
continued CT imaging of the chest.” Appellant’s App. Vol. 2, p. 42. And in
March 2018, Pulmonologist told Wanda that she was “not recommending
repeat CT scans of the chest because her pulmonary nodules had been stable for
more than twenty-four months.” Id. Thus, Pulmonologist did not merely skip
additional CT scans in 2017 and 2018, but she explicitly advised Wanda that
additional CT scans were neither “require[d]” nor “recommend[ed].” Id.
[24] Pulmonologist instructed Wanda to “follow-up in the pulmonary clinic again in
twelve months.” Id. Wanda did not follow up in the clinic, but she continued to
follow Pulmonologist’s advice to not get additional CT scans of the chest. 8
Wanda had no indication that anything had changed with her pulmonary
nodules until May 2022, when she experienced symptoms that sent her to an
emergency room, and she was diagnosed with lung cancer. Pratt filed his
proposed complaint in March 2024, within two years of May 2022.
[25] During the summary judgment hearing in the trial court, Pulmonologist argued
that the Martin/Van Dusen exception does not apply here because Pratt is not
8
Nothing in the designated evidence, including Pulmonologist’s affidavit, suggests that, had Wanda followed
up as instructed, Pulmonologist would have ordered any additional CT scans.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 14 of 27
alleging a “failure to diagnose” cancer, as alleged in those cases, but rather a
“failure to monitor” Wanda’s pulmonary nodules. See Tr. p. 7. In support,
Pulmonologist argued that there is no evidence that Wanda had cancer when
Pulmonologist last saw her in March 20189 and that Wanda’s “lung nodules
were not a latent condition. . . .” Id. at 9.
[26] In its order entering summary judgment for Pulmonologist, the trial court
adopted Pulmonologist’s reasoning and found the analysis in Brinkman v. Bueter,
879 N.E.2d 549 (Ind. 2008), dispositive. In Brinkman, the plaintiff was
“immediately diagnosed with and treated for eclampsia” following the birth of
her daughter in 1995. Id. at 554. Dr. Bueter advised the Brinkmans that another
pregnancy would put Mrs. Brinkman’s “life in danger” and that they should not
have any more children. Id. at 551. Accordingly, despite their desire for more
children, the Brinkmans used birth control to avoid future pregnancies. But
Mrs. Brinkman became pregnant again in January 2000, and she saw a new
obstetrician, Dr. Zimmer, who told her that: Dr. Bueter had not properly
treated her pre-eclampsia, which had caused it to become eclampsia; and that
there was no reason that she should have avoided becoming pregnant since
1995.
9
Again, there is no evidence that the plaintiff in Martin had cancer at the time Dr. Richey last treated her for
the breast lump in March 1991. While the alleged medical negligence was characterized as a “failure to
diagnose” cancer, the opinion omits any reference to evidence that the breast lump was cancerous in March
1991. Cf., Van Dusen, 712 N.E.2d at 494 (evidence showed that the original biopsy was misread as benign).
Thus, the lack of any such evidence here is likewise of no moment for purposes of this appeal, which does not
go to the merits of Pratt’s claims.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 15 of 27 [27] In December 2000, the Brinkmans filed a proposed complaint against Dr.
Bueter alleging that he had failed to diagnose and treat Mrs. Brinkman’s preeclampsia and eclampsia and that he had “failed to appropriately counsel” the
Brinkmans about the potential risks of future pregnancies. Id. at 552. Dr. Bueter
argued that their claims were barred by the two-year statute of limitations. The
trial court granted summary judgment for Dr. Bueter in part, and this Court
held that all of their claims were timely under the Martin/Van Dusen exception.
[28] On transfer, our Supreme Court held that,
[u]nlike the plaintiffs in Martin and Van Dusen, however, Mrs.
Brinkman did not suffer from a disease or medical condition with
a long latency period. When a physician fails to diagnose cancer,
the patient may continue without symptoms for years. It is
impossible for these patients to claim failure to diagnose cancer
before they know they are suffering from the disease. The
Brinkmans did not face this challenge. Instead, Mrs. Brinkman
suffered eclamptic seizures on January 30, 1995, and was
immediately diagnosed with and treated for eclampsia.[] All of
these events occurred in 1995, and nothing prevented the
Brinkmans from bringing a claim about faulty diagnosis or
treatment within the two-year statutory period. The statute of
limitations on the Brinkmans’ failure to diagnose and treat claims
thus began to run in 1995 and expired in 1997. The trial court
was correct to grant summary judgment to defendants on these
claims.
The Brinkmans similarly argue that they did not have sufficient
facts to support their negligent counseling claim until 2000, when
Dr. Zimmer contradicted some of the advice given to them at the
1995 post-partum exam. This argument lacks merit. A plaintiff
does not need to be told malpractice occurred to trigger the
statute of limitations. Van Dusen, 712 N.E.2d at 499. The
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 16 of 27
Brinkmans were equipped with a correct diagnosis in 1995, and
the alleged negligent counseling occurred in 1995. Nothing
prevented the Brinkmans from seeking further medical or legal
advice. Thus, the two-year statute of limitations also bars this
claim.
Id. at 554-55.
[29] Citing our Supreme Court’s opinion in Brinkman, the trial court here observed:
When a physician fails to diagnose cancer, it is impossible for the
patient to claim failure to diagnose until they are actually
diagnosed with the disease. However, the same is not necessarily
true when the allegation is a failure to provide competent medical
advice regarding a known medical condition. In other words, a
plaintiff does not need to be told medical malpractice has
occurred to trigger the statute of limitations under these
circumstances. This is particularly [true] where nothing prevents
the patient from seeking a second opinion or further medical
advice regarding the proper course of treatment.
Appellant’s App. Vol. 2, p. 14 (citations omitted). And the court found that
“Pratt’s argument that it was impossible to discover a potential malpractice
claim within two years is not persuasive. Nothing prevented [Wanda] from
seeking a second opinion or further medical advice.” Id.
[30] The trial court’s reliance on Brinkman is misplaced. Pratt’s proposed complaint
does not allege a failure to monitor a known condition. 10 Rather, it alleges that
10
In an answer to an interrogatory, Pratt, who is not an expert, stated that “[Wanda] should have undergone
additional CTs to monitor her pulmonary nodules.” Id. at 46. Regardless, the crux of Pratt’s medical
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 17 of 27
Pulmonologist’s negligence resulted in Wanda’s death, and the undisputed
designated evidence shows that her death was caused by lung cancer, not
pulmonary nodules. Wanda’s lung cancer was a latent disease that went
undetected until her first symptoms appeared in May 2022. Accordingly, the
facts of this case are analogous to Martin, not Brinkman.
[31] On appeal, Pratt argues: “Pulmonologist told [Wanda] she did not need to
undergo annual screening for lung cancer, and [Wanda] relied on her advice.
The law—and common sense—dictate that she was entitled to rely on
Pulmonologist’s advice.” Appellant’s Br. at 22. Indeed, nothing in Martin or
Van Dusen required that the plaintiffs in those cases, whose cancers were
allegedly misdiagnosed, had to seek second opinions. One of the claims in
Martin was that Dr. Richey was negligent in advising Martin to forego an
excisional biopsy to screen for cancer, and the Court did not require a second
opinion on that issue. That claim is closely analogous to Pratt’s claim that
Pulmonologist was negligent in advising Wanda that she did not need
additional CT scans to screen for lung cancer. Brinkman is inapposite here.
[32] Moreover, Pulmonologist is simply incorrect that the Martin/Van Dusen
exception only applies to cases involving an alleged failure to diagnose a latent
disease. In Booth, the plaintiff alleged permanent injuries as a result of Lasik
surgery he underwent in 1998. 839 N.E.2d at 1173. Booth did not file a
malpractice allegation is that Pulmonologist’s negligent advice to forego additional CT scans led to her
cancer going undetected until irrevocable symptoms appeared. See Appellant’s Br. at 5.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 18 of 27
proposed complaint alleging medical malpractice until July 2001, after another
physician told him that he had not been a candidate for Lasik surgery when it
was performed by Dr. Wiley. The trial court entered summary judgment for Dr.
Wiley because the court found that Booth had learned of injuries related to the
Lasik surgery in October 1999 and could have filed his proposed complaint
within two years after the alleged occurrence of malpractice. Id. at 1173-74.
[33] On transfer in Booth, our Supreme Court held:
The evidence does not indisputably establish that Mr. Booth
discovered the malpractice and resulting injury, or acquired
knowledge sufficient to lead a reasonably diligent person to
discover the malpractice and resulting injury, until December 4,
2000, when Dr. Parent advised him that the Lasik surgery should
not have been performed because of his preexisting cataracts and
glaucoma. Therefore, as to alleged malpractice occurring more
than two years earlier, the discovery occurred outside the twoyear occurrence-based statute of limitations, authorizing the
plaintiffs to initiate their action within two years after discovery,
with which they complied by initiating this action on July 24,
2001, or September 18, 2001.[] Thus, the statute of limitations
does not preclude any claims arising out of Dr. Norlund’s
evaluation, advice, and referral of October 1998 and those arising
from Dr. Wiley’s surgery on November 2, 1998. As to these
claims, it was error to grant the defendants’ motions for summary
judgment.
Id. at 1176. Thus, even though Booth knew “within the period prescribed by the
statute of limitations that he had serious vision problems and probable
permanent vision impairment” after the Lasik surgery, the Court determined
that the evidence did “not necessarily establish as an undisputed issue of fact
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 19 of 27
that this amount[ed] to discovery of ‘facts which, in the exercise of reasonable diligence,
should [have led] to the discovery of the medical malpractice.’” Id. at 1175 (quoting
Van Dusen, 712 N.E.2d at 497) (emphasis added); see also, Halbe v. Weinberg, 717
N.E.2d 876, 882 (Ind. 1999) (applying Martin to hold that plaintiff’s proposed
complaint alleging that surgeon had implanted the wrong breast implants was
timely filed more than two years after surgery where plaintiff had no reason to
know of the alleged malpractice any sooner).
[34] Likewise, here, Pratt need not have alleged a failure to diagnose cancer to bring
his proposed complaint under the Martin/Van Dusen exception. See Booth, 839
N.E.2d at 1175. And, considering only the limited designated evidence at this
early stage of the litigation, we cannot say that Wanda did not have a right to
rely on Pulmonologist’s advice to forgo additional CT scans of her chest. While
the record on appeal is devoid of evidence regarding the date of onset of
Wanda’s cancer, it was a latent disease, and it is undisputed that she did not
know that she had cancer until May 2022. There is no designated evidence
showing that she had discovered facts which, in the exercise of reasonable
diligence should have led to the discovery of the alleged medical malpractice
(Pulmonologist’s advice that she did not need additional CT scans) and the
resulting injury (delayed diagnosis of lung cancer) prior to May 2022. Id. Thus,
Pratt’s proposed complaint filed on March 13, 2024, was timely under the
Martin/Van Dusen exception to Indiana Code section 34-18-7-1(b), and we
reverse the trial court’s entry of summary judgment for Pulmonologist, the
Hospital, and the Facility.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 20 of 27
Issue Two: Family Doctor
[35] Pratt also contends that the trial court erred when it entered summary judgment
for Family Doctor. Pratt argues that Family Doctor “was aware of [Wanda’s]
risk factors for developing cancer during their first encounter,” and Pratt alleges
that Family Doctor was negligent when he did not “order screening or refer her
to a specialist” during the course of their physician-patient relationship.
Appellant’s Br. at 27. And Pratt maintains that his proposed complaint was
timely under the doctrine of continuing wrong. We do not agree.
[36] The doctrine of continuing wrong is applicable where an entire course of
conduct combines to produce an injury. Boggs, 730 N.E.2d at 699. The doctrine
of continuing wrong is not an equitable doctrine; rather, it defines when an act,
omission, or neglect took place. Id. When this doctrine attaches, the statute of
limitations does not begin to run until the wrongful act ceases, and at that point
the plaintiff may bring the claim within the normal statutory period. Id.
[37] Pratt argues that, during the course of the physician-patient relationship with
Wanda, Family Doctor “had access to [Wanda’s] medical history that forms
the basis of her allegation of negligence” including “her long smoking history,
lung nodules, and COPD.” Appellant’s Br. at 26. And Pratt contends that the
designated evidence shows that Family Doctor’s physician-patient relationship
with Wanda existed through April 9, 2022, when he refilled a prescription for
an anti-inflammatory medication to treat neck pain. Thus, Pratt maintains that
Family Doctor could have ordered lung cancer screens for Wanda as late as
April 2022, and his proposed complaint was timely filed in March 2024.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 21 of 27 [38] In support of his contentions on appeal, Pratt relies on Ferrell v. Geisler, 505
N.E.2d 137 (Ind. Ct. App. 1987), and Frady v. Hedgcock, 497 N.E.2d 620 (Ind.
Ct. App. 1986). In Ferrell, the plaintiff saw her OB/GYN, Dr. Geisler, and his
partner Dr. Everetts several times from 1979 to late 1981 regarding lumps in her
breasts. Despite the “ominous tone” of a diagnostic report in February 1981,
Dr. Geisler did not order a biopsy, and he told Ferrell that she had “no reason
to be concerned.” 505 N.E.2d at 138. Ferrell returned to see Dr. Geisler in
September 1981 and reported lumps under her arm. A biopsy showed that she
had breast cancer, and Dr. Geisler performed a mastectomy in October.
[39] On September 1, 1983, Ferrell filed a proposed complaint against Dr. Geisler.
Dr. Geisler argued that Ferrell’s proposed complaint was untimely, and the trial
court entered summary judgment for Dr. Geisler. On appeal, this Court held in
relevant part that,
under the continuing wrong theory, a factual situation is
presented as to whether Geisler’s failure to diagnose was a
continuing wrong up to and including September 21, 1981.
Under the continuing wrong theory the full two-year statute of
limitations would commence to run at the end of the continuing
wrong, . . . and Ferrell’s action would have been timely. It is our
opinion that a physician’s responsibility to a regular patient, who
continued under his care for a specified ailment, is not limited, as
a matter of law, to the periods of time the patient is in his
presence. It is a factual matter. This is especially true where, as
here, reports, histories, laboratory tests (which is a basis for the
negligence alleged) are relevant and existent in the physician’s
file. Additionally, Geisler had prescribed medication to Ferrell on
July 31 and had told her to return in six months.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 22 of 27
Id. at 140.
[40] And in Frady, the plaintiff saw Dr. Hedgcock for four years until June 1980.
During the course of their physician-patient relationship, Dr. Hedgcock
prescribed “over thirty medications” for Frady, and he ignored symptoms of
renal failure, which was finally diagnosed by another doctor on July 3, 1980.
Frady, 497 N.E.2d at 621. Frady died July 22, 1980, and her husband filed a
proposed complaint on July 21, 1982. The trial court entered summary
judgment for Dr. Hedgcock.
[41] On appeal, this Court reversed the grant of summary judgment and held as
follows:
Dr. Hedgcock had treated [Frady] for four years and had
prescribed many medications for her during that period. Between
April 12, 1980 and June 17, 1980, the doctor had written six (6)
prescriptions for [Frady]. It is not clear from the record how
many, if any, of the prescriptions were still in effect at July 22,
1980, the date of [Frady’s] death. Thus, a material issue of fact
existed as to whether Dr. Hedgcock’s treatment and prescriptions
could be considered a continuing wrong as late as July 22, 1980,
the last day for which the cause of action could have accrued.
Id. at 622.
[42] While we agree with Pratt that some of the facts here are analogous to those in
Ferrell and Frady, there are crucial distinctions, namely, Dr. Geisler was
monitoring the very condition that led to Ferrell’s death, and Frady’s renal
failure was allegedly caused by the many prescriptions Dr. Hedgcock had
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 23 of 27
ordered for her. In contrast, here, Family Doctor treated Wanda for an upper
respiratory infection and neck pain. There is no designated evidence that
Family Doctor ever discussed Wanda’s pulmonary nodules or risk factors for
cancer, let alone treated her for those conditions. Indeed, in Ferrell, the Court
emphasized that “a physician’s responsibility to a regular patient, who
continued under his care for a specified ailment, is not limited, as a matter of law,
to the periods of time the patient is in his presence.” 505 N.E.2d at 140
(emphasis added). And the Court stated that “[t]his is especially true where . . .
reports, histories, [and] laboratory tests (which is a basis for the negligence
alleged) are relevant and existent in the physician’s file.” Id.
[43] Moreover, in Havens v. Ritchey, our Supreme Court observed that
[a] physician cannot be under a continuing duty to review all files
daily to ensure that he did not misdiagnose a condition of a
patient he may not have seen for months or even years. This duty
would be completely overwhelming to health care providers, and
cut against the purposes of the Medical Malpractice Act.
582 N.E.2d 792, 795 (Ind. 1991). Thus, the Court held that “when the sole
claim of medical malpractice is a failure to diagnose, the omission cannot as a
matter of law extend beyond the time the physician last rendered a diagnosis.”
Id.
[44] Here, to the extent Pratt argues that Family Doctor should have ordered cancer
screening, we agree with Family Doctor that his last opportunity to have done
so would have been the conversation they had about her neck MRI on February
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 24 of 27
18, 2022. In support of that contention, Family Doctor cites Szamocki v.
Anonymous Doctor and Anonymous Group, 70 N.E.3d 419 (Ind. Ct. App. 2017),
trans. denied. In Szamocki, we followed our Supreme Court’s reasoning in Havens
even though the plaintiff’s claim was a failure to monitor instead of a failure to
diagnose. Id. at 425. We held that, for purposes of the continuing wrong
doctrine, the last opportunity the physician had to assess the plaintiff’s renal
function was the last appointment, and that was when the statute of limitations
began to run. Id. at 425-26. We noted that the physician’s instruction to followup, which the plaintiff did not do, did not alter that determination. Id. at 426.
[45] Still, Pratt argues that, in April 2022, Family Doctor ordered a refill for a
prescription for an anti-inflammatory medication, which shows that he still had
a physician-patient relationship with Wanda on that date. In support, Pratt cites
Ferrell, where this Court considered the last date Dr. Geisler had prescribed
medication to Ferrell as a relevant factor to determine the date their physicianpatient relationship ended. 505 N.E.2d at 140. And Pratt cites Frady, where this
Court observed that it was “unclear as to whether [Frady] was still taking
medications prescribed by Dr. Hedgcock” when she died. 497 N.E.2d at 623.
[46] We might be persuaded to agree with Pratt if the prescription medication
related to any of Wanda’s cancer risk factors, but it did not. Under Havens and
Szamocki, we hold that February 18, 2022, was the last time Family Doctor had
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 25 of 27
an opportunity to order cancer screening for Wanda. 11 There is no designated
evidence showing that Family Doctor would have had any occasion to assess
Wanda’s cancer risk factors after that date. See Havens, 582 N.E.2d at 795.
Thus, Pratt’s proposed complaint against Family Doctor, which was filed on
March 13, 2024, was untimely. The trial court did not err when it entered
summary judgment for Family Doctor. 12
Conclusion
[47] Under the Martin/Van Dusen exception, Pratt’s proposed complaint against
Pulmonologist, the Hospital, and the Facility was timely filed. But Pratt’s
proposed complaint against Family Doctor was not saved by the continuing
wrong doctrine. Accordingly, we reverse the trial court’s entry of summary
judgment for Pulmonologist, and, to the extent Pratt’s claims against the
Hospital and the Facility derive from his claims against Pulmonologist, we
reverse the trial court’s entry of summary judgment for them too. We remand
for further proceedings on those claims. However, we affirm the trial court’s
entry of summary judgment for Family Doctor.
11
Pratt also suggests that Family Doctor’s instruction to his staff to contact Wanda in July 2023 about
screening for breast cancer and colon cancer shows that he still considered her to be a patient at that late date.
But Family Doctor also advised his staff that Wanda had not “re-established with [him]” since their February
2022 appointment. Appellant’s App. Vol. 3, p. 56. And Wanda was living in Alabama. Thus, clearly, Wanda
did not consider Family Doctor to be her doctor at that time.
12
Likewise, we affirm the trial court’s grant of summary judgment with respect to any claims against the
Hospital and the Facility that derive solely from Pratt’s claims against Family Doctor.
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 26 of 27 [48] Affirmed in part, reversed in part, and remanded for further proceedings.
Kenworthy, J., and DeBoer, J., concur.
ATTORNEYS FOR APPELLANT
Shan L. Bryant-Haase
S. Reese Sobol II
Garau Germano, P.C.
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE ANONYMOUS PHYSICIAN 1
Alyssa D. Stamatakos
Samantha K. Downton
Eichhorn & Eichhorn, LLP
Hammond, Indiana
ATTORNEY FOR APPELLEE ANONYMOUS PHYSICIAN 2
Sean T. Devenney
Drewry Simmons Vornehm, LLP
Carmel, Indiana
ATTORNEYS FOR APPELLEES ANONYMOUS HOSPITAL AND ANONYMOUS
FACILITY
Bryan H. Babb
Louise K. Conces
Bose McKinney & Evans LLP
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 26A-MI-189 August 31, 2026 Page 27 of 27