INDIANA SUPREME COURT
The Indiana Business Trust Act’s five year limitations period for claims is not subject to tolling because it is a statute of repose
In 2003, the Welborn Clinic tested Teresa Blackford for hepatitis, a known cause of a skin condition from which she suffered at the time. Upon completing the test, the Clinic informed Blackford that the results were negative. For the next several years, Blackford continued to receive treatment for her skin condition from the Clinic. But on June 30, 2009, the Clinic, under the Indiana Business Trust Act, surrendered its authority to conduct business in the state, effectively terminating its relationship with Blackford.
In 2014, as Blackford’s health declined, her new doctor diagnosed her with hepatitis. The diagnosis prompted Blackford to request her medical records from the Clinic, which revealed that she had in fact tested positive for hepatitis in 2003. Though treated for her condition by her new doctor, Blackford had developed cirrhosis of the liver because of the delay in treatment, exposing her to a heightened risk of other medical problems.
Upon discovering the original test results, Blackford, on March 13, 2015, sued for medical malpractice. The Clinic moved for summary judgment, arguing that, because Blackford sued more than five years after the Clinic dissolved, the IBTA time-barred her claim. The trial court ruled for the clinic.
The Court of Appeals in a divided opinion held that (1) fraudulent concealment may, upon a sufficient showing of facts, toll the IBTA’s five-year limitation period; (2) that, as a matter of law, by giving Blackford inaccurate test results in 2003, and by designating no evidence to the contrary, the Clinic fraudulently concealed- passively, if not actively- material medical information; and (3) that, by investigating her condition after termination of the doctor-patient relationship “in a reasonably diligent manner,” Blackford filed a timely complaint under the IBTA.
The Indiana Supreme Court held that the Indiana Business Trust Act’s limitation period was not subject to equitable tolling. The Court held that the IBTA’s five-year limitation period is a statute of repose, effectively barring Blackford’s claim as untimely.
The Court went on to hold that even if the IBTA were subject to tolling, the Clinic’s constructive fraud precludes equitable relief for Blackford. The Clinic argued that even if the claim were tolled, the tolling ended in June 2009 when the doctor-patient relationship was terminated. The Supreme Court agreed.
Trial court improperly applied the eggshell skull rule in determining damages in personal injury case
On April 20, 2016, eighteen year old Sydney Renner was stopped in traffic when Trevor Shepard-Bazant struck the back of her vehicle and pushed her into the vehicle in front of her. Although shaken and upset, Sydney did not strike her head, lose consciousness, or lose her ability to recount the accident. She told the police officer on the scene that she was fine.
Sydney began developing a severe headache. She had suffered two significant concussions in the past. She was also believed to have suffered two more concussions in incidents that followed the crash.
Sydney sued Shepard-Bazant for negligence. A default on liability was entered. The court then held a seven day trial on damages. Sydney requested over $600,000 in damages while the Defendant argued she should not recover more than $20,000. The trial court ultimately awarded Sydney $132,000 in damages. In reaching that conclusion, the court factored in all five concussions that Sydney suffered from 2013 to 2016, along with her medical expenses and her failure to follow post-concussion protocols recommended by her physicians.
Sydney filed a motion to correct errors, asking the court to increase the damages awarded. After the hearing, the trial court denied her motion. Sydney appealed and the Court of Appeals reversed. It held that the trial court erred in its calculation of damages because (1) the court failed to apply the eggshell-skull doctrine; and (2) the Defendant did not meet his burden of showing that Sydney suffered separate harm, from either the head injuries sustained after the accident or from her failure to follow her healthcare providers’ advice. The Court of Appeals remanded to the trial court for retrial on the amount of damages. The defendant sought transfer and it was granted.
On appeal, the Defendant argued that sufficient evidence support the trial court’s determination that Sydney failed to mitigate her damages. Sydney argued that additional expert testimony was required to show that she failed to mitigate her damages and to show that her failure to mitigate caused an identifiable, quantifiable harm not attributable to Trevor’s negligence.
When a defendant claims a plaintiff aggravated their own injuries by failing to follow medical advice, the defendant must prove that such neglect caused the plaintiff to suffer a discrete, identifiable harm arising from that failure, and not arising from the defendant’s acts alone. Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006). In Humphrey v. Tuck, 151 N.E.3d 1203 (Ind. 2020), the Supreme Court held that a plaintiff’s prolonged suffering or continuing symptoms may qualify as an identifiable harm attributable not to the defendant’s negligence, but to the plaintiff’s failure to follow their doctor’s orders.
The Court found sufficient evidence that Sydney’s post-accident behavior was sufficient to support the trial court’s consideration that she failed to exercise reasonable care and that her failure caused harm. Sydney decided to attend her senior prom just days after the accident. Dr. Salberg agreed that concussed patients should avoid busy environments if noisy environments bother them. Dr. Owens testified that he advises concussed patients that stimulating environments may prolong their recovery time. Sydney testified that she was unable to remember multiple events from her prom night. Sydney also went to Great America amusement park the day after prom. Dr. Mullally testified that had Sydney or her parents called him to ask whether it would be advisable for her to go ride roller coasters after her concussion, he would have told them not to do such a thing because it would possibly exacerbate her condition. While he would be unable to say whether Sydney sustained an additional concussion from riding the roller coasters, he considered such activity four days after the accident to be a violation of her post-concussion protocols and agreed that such activity could exacerbate her symptoms and make the recovery slower, longer, and more complex.
No expert directly attributed any of the harm to Sydney’s failure to follow post-concussion protocols. However, many of her own experts testified that the failure to follow protocols would extend the healing process and make healing more difficult. Since no expert was able to directly opine that Sydney’s conduct didn’t cause additional harm and experts did testify Sydney may have extended or exacerbated her symptoms, the trial court permissibly weighed the evidence before it to determine that her conduct did cause her harm.
The Court also found that Sydney failed to follow various other recommendations of her healthcare providers after the crash. It held that post-accident conduct was analogous to the plaintiff in Tuck. Viewing the evidence most favorably to the trial court’s judgment, the trial court properly concluded that Trevor carried his burden to show both elements of his mitigation of damages defense.
The Defendant next argued that Sydney failed to demonstrate that all of her suffering resulted from the accident. He argued that the trial court properly concluded that Sydney failed to prove that her poor grades were a result of anything other than her poor school/work/life balance. The trial court found that the two head injuries Sydney sustained during the summer following the accident were concussions. This finding supported, in part, the court’s reduction of Sydney’s damages. Sydney claimed the finding was unsupported by sufficient expert testimony. The Court disagreed. It reasoned that while the medical testimony failed to show that Sydney experienced new concussions because of her two post-accident head injuries, the evidence was sufficient to infer that both incidents at least caused a continuation or temporary aggravation of Sydney’s existing concussion symptoms.
The Court also found that there was ample evidence to support the trial court’s determination that Trevor’s negligence was not the proximate cause of her poor grades in school and her abandonment of career aspirations as a neonatal nurse.
Last, the Court looked at whether Sydney’s damages for her two pre-accident concussions should have reduced her damages. Under the “eggshell skull” rule, a defendant “takes his victim as he finds him.” Bailey v. State, 979 N.E.2d 133 (Ind. 2012). A defendant is thus liable to the extent that their conduct aggravates a pre-existing condition but is not liable for damages stemming from a pre-existing injury that independently causes harm. Dunn v. Cadiente, 516 N.E.2d 52 (Ind. 1987)
In its order denying Sydney’s motion to correct error, the trial court noted the Defendant “is not excused from liability just because Sydney had suffered previous concussions.” However, the order then states that Sydney’s injuries arose from the cumulative effects of at least five documented instances of mild traumatic brain injury. The court concluded that all of these traumas contributed to her present condition and therefore, denied Sydney’s motion to correct error. Those statements show that, at a minimum, the court did not properly apply the eggshell skull rule.
The Court found that in the moments before the crash, Sydney had no injuries resulting from her two previous concussions. But, like the man with an eggshell skull, her prior concussions meant that small impacts that wouldn’t ordinarily have detrimental effects could cause severe symptoms. The Defendant should be liable to the extent to which his conduct has resulted in an aggravation of the pre-existing condition. Because the evidence, taken favorably to the trial court’s judgment, did not show that Sydney’s prior concussions independently caused the harm she suffered after the crash, the trial court should have applied the eggshell-skull rule and should not have reduced Sydney’s damages on account of her two prior concussions.
In summary, the Indiana Supreme Court affirmed the trial court’s reduction of its award due to Sydney’s failure to mitigate her damages. It affirmed the trial court’s determination that Sydney failed to prove the Defendant’s negligence proximately caused all of her damages. But if found the trial court erred in failing to apply the eggshell-skull rule. It remanded the matter back to the trial court to recalculate its award of damages considering the eggshell-skull to determine the extent to which the Defendant’s conduct resulted in an aggravation of Sydney’s pre-existing condition.
