author: BARNES, Judge.

text:
    Teresa A. HOUSER, Personal Representative for the Estate of Anonymous PHYSICIAN, Deceased, Appellant, v. Stacy KAUFMAN, C.K., and Brent Kaufman, Appellees. Teresa A. Houser, Personal Representative for the Estate of Anonymous Physician, Deceased, Appellant, v. Stacy Kaufman, et al., Appellees.
    No. 50A03-1201-MI-19.
    Court of Appeals of Indiana.
    Aug. 10, 2012.

      Peter H. Pogue, Carla V. Garino, Schultz & Pogue, LLP, Indianapolis, IN, Attorneys for Appellant/Appellee, Teresa A. Houser.
    D. Bruce Kehoe, Christopher G. Stevenson, Wilson Kehoe & Winningham, Indianapolis, IN, Attorneys for Appellee/Appel-lant, C.K., et al.
   OPINION

BARNES, Judge.

Case Summary

Teresa Houser, as Personal Representative of the Estate of Anonymous Physician Dr. K. (“the Estate”), appeals the trial court’s denial of the Estate’s motion for summary judgment in the medical malpractice suit filed by Stacy Kaufman. C.K. appeals the trial court’s grant of summary judgment in favor of the Estate with respect to his medical malpractice claim against Dr. K. We affirm.

Issues

The restated issues before us are:

I. whether Stacy’s claim against the Estate is constitutionally time-barred by the Medical Malpractice Act’s statute of limitations; and
II. whether C.K.’s claim against the Estate fails because Dr. K. owed no duty to C.K.

Facts

The evidence most favorable to Stacy and C.K. as the summary judgment non-movants is that Stacy was born to Mary and Brent Kaufman on April 1, 1974. Dr. K. was the Kaufmans’ family physician who delivered Stacy and was Stacy’s doctor thereafter. When Stacy was born, Dr. K. ordered that a blood test for phenylke-tonuria (“PKU”) be performed on her. Although the blood test revealed that Stacy had PKU, Dr. K. never communicated that result to Mary and Brent.

A physician who counseled Stacy in 2007 described PKU as follows:

Amino acids are the building blocks for body proteins, and they are converted into different forms by enzymes. Classic PKU is an inherited condition in which a person cannot breakdown the amino acid, phenylalanine, due to a lack in a specific enzyme, which then leads to a build-up in the body. The excess phenylalanine is toxic to the central nervous system and can cause mental retardation, increased muscle tone, microcephaly, and certain physical features. Treatment for PKU is a special diet that restricts the dietary intake of phenylalanine, and must be followed to prevent central nervous system damage....
Women affected by PKU must pay special attention to their diet if they wish to become pregnant, since high levels of phenylalanine in the uterine environment can cause severe malformation and mental retardation in the child. However, women who maintain an appropriate diet can have normal, healthy children.

App. p. 145. As described in the second paragraph, maternal PKU that affects a baby is a condition separate from PKU “and can even affect babies who do not have the PKU disease.” See http:// medical-dictionary.thefreedictionary.com/ phenylketonuria (last visited June 28, 2012).

Because Dr. K. never communicated the PKU test results to Mary and Brent or otherwise advised them that Stacy had PKU, she was never placed on a special, low-phenylalanine diet. Early in Stacy’s childhood, Mary and Brent noted that she appeared to be developmentally delayed and exhibited other symptoms that were consistent with her having untreated PKU, such as severe diaper rash. Mary and Brent took Stacy to various doctors, including specialists at Riley Children’s Hospital in Indianapolis (“Riley”) when she was four, to determine the cause of these symptoms. These doctors, however, failed to diagnose Stacy with PKU. Instead, they told Mary and Brent that they “needed to just accept her cognitive impairment and help her learn to live with the problems she was experiencing.” Id. at 115. Stacy graduated from high school, although she was placed in special education classes. As an adult, Stacy has an IQ of seventy-four, or “mild to borderline mental retardation .... ” Id. at 127. She is unable to hold a job and receives public assistance. Dr. K., meanwhile, died in 1981.

Stacy gave birth to C.K. in November 2005. C.K. was born with microcephaly, i.e. a small head, and dysmorphic facial features, but a genetic test performed shortly after birth and a CT scan performed a few months later failed to reveal a cause for these abnormalities. Because of developmental delays and other issues, C.K. visited a specialist at Riley on June 1, 2007. Stacy mentioned during this visit that she was being treated for “lesions” on her brain but that multiple sclerosis had been ruled out. This specialist recommended that C.K. follow up with a medical geneticist, but made no mention of PKU or maternal PKU as a possible cause of C.K.’s difficulties.

On July 13, 2007, C.K. was seen by a medical geneticist at Riley. In his written notes of the consultation, the geneticist stated:

There are several possibilities that could explain [C.K.’s] microcephaly. One of the possibilities could be a maternal infection, however, there is no supporting evidence. Another possibility is a chromosomal problem, but the CGH (comparative genomic hybridization) test ruled out that explanation. There is the possibility of the patient’s microcephaly being isolated, or found alone, then again he does exhibit other minor physical findings. The possibility of the patient’s mother having PKU ... or hy-perphenylalaninemia should be ruled out due to her blond hair, light skin, and mental delays.

Id. at 145. The geneticist also recommended, among several other things, that someone “[o]btain phenylalanine levels on the mother to rule out maternal PKU or hyperphenalaninemia.” Id. Mary does not recall being advised at this visit that Stacy might have PKU, as opposed to being advised generally that further testing was needed.

On August 2, 2007, Stacy visited a neurologist. The neurologist’s written notes from the visit stated in part, “Elevated phenylalanine level was confirmed by recent urine quantitation — likely has PKU.” Id. at 148. Mary recalls being told by the neurologist at this visit that Stacy “could have PKU, but further testing must be done.” Id. at 107. Further testing conducted on August 6, 2007, confirmed the PKU diagnosis, and the neurologist conveyed the news to the Kaufmans on August 7, 2007. Mary then began researching PKU, and on September 18, 2007, she eventually managed to obtain the records of Stacy’s birth, including the 1974 test confirming Stacy had PKU that had never been communicated to Mary and Brent.

The Kaufmans filed a proposed medical malpractice complaint against Dr. K. with the Indiana Department of Insurance on August 4, 2009, alleging negligence in his failure to communicate the results of the PKU test. Houser was appointed to be the personal representative for Dr. K.’s estate. On July 7, 2011, the Estate filed a motion for preliminary determination of law and summary judgment in the trial court, asserting that the two-year statute of limitations of the Medical Malpractice Act (“the Act”) barred Stacy’s claims and that Dr. K. owed no duty to C.K. On November 18, 2011, the trial court denied the summary judgment motion with respect to Stacy’s claims, concluding that there was a genuine issue of material fact as to whether a constitutionally-based exception to the Act’s statute of limitations applied and permitted Stacy’s action to proceed, despite the passage of more than two years since the alleged act of malpractice occurred. However, the trial court granted the Estate’s motion for summary judgment with respect to C.K.’s claim, agreeing that C.K. could not recover because of the absence of a physician-patient relationship between C.K. and Dr. K. C.K. initiated an appeal from this grant of summary judgment, and the Estate sought and received permission to initiate an interlocutory appeal from the denial of summary judgment with respect to Stacy. Although the appeals were separately briefed, we have ordered that the appeals be consolidated and will be issuing one opinion.

Analysis

We review a grant or denial of summary judgment de novo. Price v. Kuchaes, 950 N.E.2d 1218, 1225 (Ind.Ct.App.2011), trans. denied. Summary judgment is proper only if the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Ind. Trial Rule 56(C)). In making this determination, courts must construe the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. Id. at 1226. We may affirm a trial court’s summary judgment ruling if it is sustainable on any theory or basis in the record. Id.

I. Statute of Limitations

We first address whether the Act’s statute of limitations bars Stacy’s claim against the Estate. Indiana Code Section 34-18-7-l(b) states in part that a medical malpractice claim “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....” This is an “occurrence-based” rather than “discovery-based” statute of limitations, meaning that “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.” Martin v. Richey, 711 N.E.2d 1273, 1278 (Ind.1999). The statute is constitutional on its face. Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 403-04, 404 N.E.2d 585, 603-04 (1980). However, the statute violates Article 1, Section 23 and Article 1, Section 12 of the Indiana Constitution in cases where a plaintiff, within the two-year period, does not know, or in the exercise of reasonable diligence could not have discovered, that he or she had sustained an injury as a result of malpractice. Martin, 711 N.E.2d at 1284. “[I]n such a case the statute of limitations would impose an impossible condition on plaintiffs access to courts and ability to pursue an otherwise valid tort claim.” Id. If an act of malpractice and resulting injury cannot be discovered during the limitations period given the nature of the asserted malpractice and the medical condition, the occurrence-based statute of limitations cannot be enforced “without doing violence to the Indiana Constitution.” Van Dusen v. Stotts, 712 N.E.2d 491, 496 (Ind.1999).

When considering whether the Act’s statute of limitations may constitutionally bar a malpractice claim, a court must first “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.” Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind.2005). “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. If, however, discovery is made within the two-year period after the occurrence of malpractice, a suit must be filed within the limitations period, unless it is not reasonably possible to do so. Id. In general, “a plaintiffs lay suspicion that there may have been malpractice is not sufficient to trigger the two-year period.” Van Dusen, 712 N.E.2d at 499. On the other hand, a plaintiff need not definitely know or be informed that malpractice caused his or her injury to trigger the beginning of the statutory time period. Id.

In the case of a missed disease diagnosis, the Act’s statutory period “does not begin to run until either a correct diagnosis is made or the patient has sufficient facts to make it possible to discover the alleged injury.” Brinkman v. Bueter, 879 N.E.2d 549, 554 (Ind.2008). The Estate suggests in part that the reasoning of cases such as Martin and Van Dusen does not apply here, because those cases involved cancer that had a long latency period, whereas Stacy’s PKU manifested itself early in her childhood. However, this court has found no reason to restrict the Martin/Van Dusen analysis to only certain types of diseases, or only to diseases with long latency periods. Shah v. Harris, 758 N.E.2d 953, 958 (Ind.Ct.App.2001), trans. denied. Regardless of the type of disease, injury, or illness at issue, the question is the same as far as determining a “trigger date” for the statutory period: when did the claimant possess enough information that, in the exercise of reasonable diligence, should have led to the discovery of the alleged malpractice and resulting injury? Id. at 959.

It is often a question of fact as to when a plaintiff discovered facts that, in the exercise of reasonable diligence, should have led to the discovery of the medical malpractice and resulting injury and triggered the statute of limitations. Van Dusen, 712 N.E.2d at 499. The question may become one of law if there is undisputed evidence that a doctor has expressly informed a plaintiff that he or she has a specific injury and that there is a reasonable possibility, if not a probability, that the specific injury was caused by a specific act at a specific time. Id. In such a case, a plaintiff generally is deemed to have sufficient facts to require him or her to seek promptly any additional medical or legal advice needed to resolve any remaining uncertainty or confusion he or she may have regarding the cause of his injury and any legal recourse he or she may have. Id. “The date is also set as a matter of law when there is undisputed evidence that leads to the legal conclusion that the plaintiff should have learned of the alleged malpractice and there is no obstacle to initiating litigation.” Herron v. Anigbo, 897 N.E.2d 444, 450 (Ind.2008). If there are factual issues relating to the triggering of the limitations period, they are to be resolved by the trier of fact at trial. Id. at 452.

Turning to the facts of this particular case, the date of the occurrence of malpractice would have been no later than the death of Dr. K. in 1981, meaning the statute of limitations would have expired sometime in 1988. In cases where the malpractice claim is based upon a failure to diagnose an illness or disease, the occurrence of malpractice extends to, but not beyond, the last opportunity the physician had to give a proper diagnosis. Workman v. O'Bryan, 944 N.E.2d 61, 65-66 (Ind.Ct.App.2011), trans. denied. Obviously, assuming as the parties appear to do, that Stacy remained Dr. K.’s patient until his death, he could not provide a diagnosis of Stacy’s PKU after he had died. The first question then is, should Stacy (or her parents) in the exercise of reasonable diligence have discovered the malpractice and resulting injury sometime before what would have been the running of the statute in 1983? If so, they would have been required to file suit within the two-year limitations period unless it was not reasonably possible to do so. See Booth, 839 N.E.2d at 1172.

We note the evidence in the record that Stacy began exhibiting symptoms of PKU in early childhood, including developmental delays and severe diaper rash. Such evidence leaves open the possibility that Stacy could have been diagnosed with PKU at some point during her childhood, in which case Dr. K’s alleged failure to inform Mary and Brent of the newborn PKU test could or should have been discovered much, much earlier than it was — possibly before 1983. The evidence most favorable to Stacy as the non-movant, however, is that her parents did in fact exercise reasonable diligence in attempting to determine the cause of the symptoms they were noticing. Mary and Brent went so far as to have Stacy examined by specialists at Riley, who failed to diagnosis her with PKU. There is no evidence that any of the doctors they visited ever mentioned PKU as a possible cause of her ailments. Instead, they were told that they just needed to “accept her cognitive impairment and help her learn to live with the problems she was experiencing.” App. p. 105.

Our supreme court has stated:

Reliance on a medical professional’s words or actions that deflect inquiry into potential malpractice can also constitute reasonable diligence such that the limitations period remains open. Where the plaintiff knows of an illness or injury, but is assured by professionals that it is due to some cause other than malpractice, this fact can extend the period for reasonable discovery.

Herron, 897 N.E.2d at 451. This passage describes what allegedly happened here: Stacy exhibited symptoms of PKU, her parents exercised reasonable diligence to determine what was causing those symptoms, but medical professionals failed to diagnosis the PKU at that time and gave Stacy’s parents answers that deflected any inquiry into whether Stacy’s ailments could be the result of malpractice. Under such circumstances, the mere fact that Stacy had symptoms of PKU during childhood is not enough to establish as a matter of law that she should have discovered her claim against Dr. K. before 1983. In other words, there is a question of fact as to whether Stacy and her parents discovered or should have discovered an injury and act of malpractice before 1983 and whether they were required to file suit before that time.

We now address when, if not by 1983, Stacy or her parents did discover or in the exercise of reasonable diligence should have discovered her injury and act of malpractice, thus triggering the two-year statute of limitations for purpose of Martin. See Booth, 839 N.E.2d at 1172. We focus our attention on the series of three doctors’ visits in the summer of 2007, which finally culminated in a definitive diagnosis that Stacy has PKU. These visits occurred on June 1, July 13, and August 2, 2007. The Estate contends that Stacy gleaned sufficient information of a PKU diagnosis at any one or all of these visits, thus making her proposed complaint filed on August 4, 2009, untimely, as it was filed two years and two days after the latest appointment. We will address each appointment in turn.

The June 1, 2007, appointment was with Dr. Brei, a developmental pediatrics specialist at Riley. This appointment was focused upon possible causes of C.K.’s developmental issues. Dr. Brei seems to have recommended that both Stacy and C.K. undergo genetic testing. His notes of this appointment are unclear, but that is Mary’s recollection of the visit. There is no mention in the notes of PKU, nor does Mary recall any such mention. As a matter of law, there is no evidence of anything communicated during this visit that would have put Stacy (or her parents) on notice of any malpractice by Dr. K. or even that she was suffering from undiagnosed PKU.

The July 13, 2007 appointment was with Dr. Weaver, a geneticist at Riley. Mary recalls the visit as follows:

I remember [Dr. Weaver] telling us that [C.KJs problems were likely from a syndrome, but he did not tell us any diagnosis. I do not recall him saying that Stacy might have PKU. I do not recall him saying anything to imply that there was a missed diagnosis at birth, nor was there any mention of a possible claim against Stacy’s doctor. The primary thing I recall about that meeting is that Dr. Weaver remained unsure of a diagnosis and was planning further tests. The doctor had asked Stacy if she had had any infections during her pregnancy that might account for [C.K.] having microcephaly. She responded that she had a difficult pregnancy, but had had no infections. She did indicate that her neurologist had been treating her for severe headaches, but had not been able to determine the origin. The tests only showed that she had high amino acid levels, but he didn’t know what that meant. The doctor said that he wanted to talk to Dr. Strawsburg about this. Nothing definitive was concluded. We were not provided a diagnosis or an explanation at that time, but we were advised that further testing would be done. It seemed we were closer to getting an answer.

App. pp. 106-07. Mary’s recollection of the appointment with Dr. Weaver does not reflect that she or Stacy acquired sufficient information at this visit to alert them that Stacy had been suffering for the previous thirty-three years from undiagnosed PKU.

The Estate directs our attention to Dr. Weaver’s notes of this visit. In particular, Dr. Weaver states, “The possibility of the patient’s mother having PKU ... should be ruled out....” Id. at 145. The notes also recommend, “Obtain phenylalanine levels on the mother to rule out maternal PKU.... ” Id. The notes also contain two paragraphs discussing the cause of and treatment for PKU and maternal PKU. Regardless of what is stated in Dr. Weaver’s notes, however, it is unclear that everything written in the notes was communicated verbatim to Stacy and Mary. Certainly, on summary judgment, we decline to assume that the content of the notes was repeated verbatim to Stacy and Mary, as opposed to merely relating Dr. Weaver’s thoughts on the case. The evidence most favorable to Stacy as summary judgment non-movant, reflected in Mary’s affidavit, is that there was no definitive mention of PKU by Dr. Weaver during the July 13, 2007 visit.

Finally, we address the appointment of August 2, 2007, which was with a neurologist treating Stacy, Dr. Strawsburg. Between July 18 and August 2, Stacy’s urine had been submitted for testing. At the August 2 visit, Mary recalls Dr. Straws-burg telling her and Stacy “that the tests indicated an elevated amino acid level. He mentioned that she could have PKU, but further testing must be done.” Id. at 107. Dr. Strawsburg’s notes for the visit state, in more definitive language than was used in Mary’s recollection, that Stacy “likely has PKU.” Id. at 148. As with Dr. Weaver, however, to the extent there is a conflict between Mary’s affidavit and Dr. Strawsburg’s appointment notes, it is Mary’s affidavit that is most favorable to Stacy as the summary judgment non-mov-ant regarding what was actually said to Mary and Stacy by Dr. Strawsburg at the August 2, 2007 appointment.

In fact, there was further confirmatory testing done after the August 2, 2007, appointment. On August 7, 2007, Dr. Strawsburg informed Mary and Stacy by phone that Stacy indeed did have PKU. After receiving this diagnosis, Mary began researching PKU on the internet and learned that Stacy should have been tested for the disease at birth. On September 18, 2007, Mary managed to locate the medical records from Stacy’s birth and discovered that Dr. K. had ordered a PKU test at that time and that it was positive.

The August 2, 2007, appointment with Dr. Strawsburg arguably comes close to having supplied Stacy with the necessary information to begin investigating whether she had been the victim of medical malpractice. We cannot conclude, however, that this appointment provided Stacy with the necessary information as a matter of law. First, we note the discrepancy between Mary’s recollection of what was actually said at the appointment as opposed to what was written in Dr. Strawsburg’s notes.

Second, and perhaps more importantly, there is no designated evidence in the record that Stacy or Mary were informed at this visit that Stacy should have been tested for PKU at birth, or that the PKU could have been controlled early in her life if a PKU diagnosis had been communicated in a timely fashion and she had been placed on an appropriate diet. In fact, Mary’s affidavit states the opposite, that even as of August 7, 2007, when it was definitively confirmed that Stacy had PKU, she was unaware that Stacy should have been tested for the disease at birth. Reasonable diligence in the context of discovering medical malpractice claims requires a patient to take action if he or she knows of both the injury and/or disease and the treatment that either caused or failed to identify or improve it. Jeffrey v. Methodist Hospitals, 956 N.E.2d 151, 159 (Ind.Ct.App.2011). Here, even if the evidence can be construed as indicating that Stacy knew or should have known she had PKU as of August 2, 2007, the evidence most favorable to her is that she did not know of the treatment that failed to identify that condition, or did not know that anything even could have been done to help her if the condition had been more timely diagnosed. The Act’s two-year statute of limitations would not have been triggered on August 2, 2007. This is entirely unlike a case in which a patient develops symptoms of an injury or illness in close conjunction with medical treatment and begins suspecting that something was wrong with the treatment, at which time the statute of limitations may be triggered. See Williams v. Adelsperger, 918 N.E.2d 440, 447 (Ind.Ct.App.2009), trans. denied.

At the very least, there is a question of fact in this case as to whether the trigger date for the statute of limitations was August 2, August 7, or September 18, 2007, or some other date and, therefore, whether Stacy’s proposed complaint filed on August 4, 2009, was timely. As such, the trial court properly denied the Estate’s summary judgment motion premised on the argument that Stacy’s proposed complaint was untimely as a matter of law.

We are, of course, fully cognizant that we are permitting a nearly four-decade old claim of malpractice to proceed at this time. Nonetheless, it is not unheard of in our jurisprudence to permit lawsuits based upon decades-old acts of negligence to proceed, under very limited circumstances. See, e.g., Jurich v. Garlock, Inc., 785 N.E.2d 1093, 1095 (Ind.2003) (holding, in case involving asbestos exposure between 1946 and 1986, that ten-year statute of repose for asbestos-related claims would be unconstitutional as applied if there was evidence a physician could have diagnosed plaintiff with asbestos-related disease within ten years of asbestos exposure but plaintiff had no reason to know of the diagnosable condition until after the ten years had passed). We believe the circumstances here are very limited and highly unlikely to be repeated. We note that this case appears to be, by an order of magnitude of several decades, the longest period of time in which the Martin analysis has been employed in an appellate decision to extend the Act’s statute of limitations. Moreover, if the allegations here are true, Stacy has been forced to suffer needlessly from a debilitating, but treatable, illness for almost forty years. Given the highly unique facts here, and given the designated evidence of diligence by Stacy and her parents with respect to her PKU diagnosis (or lack thereof for the first thirty-three years of her life), we conclude that allowing this case to proceed does not contravene public policy and is consistent with the Act’s goals of maintaining sufficient medical treatment and controlling malpractice insurance costs by, in part, encouraging the prompt presentation of claims. Van Dusen, 712 N.E.2d at 496.

II. Duty to C.K.

Next, we address whether Dr. K. owed a duty of care to C.K. As with any negligence claim, a physician must owe a duty to a plaintiff seeking damages for alleged medical malpractice in order for such a claim to proceed. Sawlani v. Mills, 830 N.E.2d 932, 938 (Ind.Ct.App.2005), trans. denied. “The existence of a duty in a negligence case is a question of law appropriate for appellate determination.” Cram v. Howell, 680 N.E.2d 1096, 1097 (Ind.1997). Generally, Indiana courts employ a three-part test derived from Webb v. Jarvis, 575 N.E.2d 992 (Ind.1991), for determining the existence of a duty, although that test is not necessarily exclusive. See Id. at 1097 n. 1. The Webb analysis considers three factors: (1) the relationship between the plaintiff and defendant; (2) the reasonable foreseeability of harm to the person injured by the defendant’s conduct; and (3) public policy concerns. Webb, 575 N.E.2d at 995. Application of this balancing test is necessarily case specific. Cram, 680 N.E.2d at 1097.

Although the trial court focused, and the Estate now focuses, on the lack of a physician-patient relationship between Dr. K and C.K. as justification for finding that there was no duty owed, our supreme court clearly has held that such a relationship is not always necessary for the existence of duty in a medical malpractice action. In Cram, for example, our supreme court held that a doctor owed a duty to a third party killed by the doctor’s patient in a car crash caused by the patient passing out behind the wheel after seeing the doctor. The doctor had given the patient immunizations that the doctor knew repeatedly caused the patient to lose consciousness, but the doctor failed to monitor the patient for a sufficient amount of time before permitting him to leave the office and failed to warn the patient of the dangers of operating a motor vehicle after receiving the shots. Cram, 680 N.E.2d at 1097-98. In Webb, by contrast, our supreme court held that a physician owed no duty to a third party shot by a patient to whom the physician had prescribed steroids, leading to the patient’s psychosis that led to the shooting. Webb, 575 N.E.2d at 997.

The case that requires our scrutiny, because of its similarity to this case, is Walker v. Rinck, 604 N.E.2d 591, 595 (Ind.1992). In Walker, a woman pregnant with a child who had Rh positive blood was diagnosed as having Rh positive blood herself, when in fact the mother’s blood was Rh negative. The mother should have been given, but was not, an injection of RhoGAM to prevent the formation of antibodies that arise when an Rh negative mother is carrying an Rh positive fetus and which antibodies can be harmful to fetuses conceived during future pregnancies. The mother gave birth to three additional children, who alleged that they suffered injuries due to antibodies that could have been prevented from forming if the mother had received a RhoGAM injection at the time of the first pregnancy. The three children sued the lab that tested mother’s blood during the first pregnancy and the doctor who had treated her for medical malpractice. The trial court granted summary judgment to the doctor and lab, finding no duty owed to the children, and this court affirmed.

Our supreme court reversed, holding that it was appropriate to recognize a “preconception” tort in those circumstances to permit “a person not yet conceived at the time of the negligent act to sue the negligent actor.” Walker, 604 N.E.2d at 594. Employing the Webb balancing test, the court first addressed the relationship between the doctor and lab and the injured children. It noted that the only purpose of the RhoGAM injection would have been for the benefit of the children, as the mother’s well-being would not have been affected either way if the injection had or had not been given. Thus, the court found that the children “were the beneficiaries of the consensual relationship between their mother” and the doctor. Id. at 595. Regarding foreseeability, the court stated, “It can hardly be argued that the injuries suffered by the Walker children were not foreseeable when the medical reason to give RhoGAM to their mother was to prevent the exact injuries which they allege occurred.” Id. Finally, with respect to public policy considerations, the court noted that the administration of RhoGAM neither harms nor benefits the mother and has no direct relation to her personal health and that there is a “well-established medical practice of giving RhoGAM to an Rh negative mother who has given birth to an Rh positive child in order to protect future children of such mother from injury.” Id. Balancing these three factors, the court found the doctor and lab owed a duty to the children. Id. Chief Justice Shepard dissented from this holding, finding in part that it had an “extremely unattractive” feature of potentially exposing “medical providers to decades or even generations of potential liability.” Id. at 597 (Shepard, C.J., dissenting).

Because the question of duty is case sensitive and thus may differ from case to case, we do not read Walker as requiring the imposition of a duty upon Dr. K. with respect to C.K. and the PKU testing of Stacy. Regarding the relationship between Dr. K and C.K., the first thing to note is that unlike in Walker, where the three subsequent children were born within one decade of their older sibling and the original negligence, C.K. was born thirty-one years after the alleged negligent act and twenty-four years after Dr. K.’s death. The time span is much more remote than in Walker. Additionally, the Walker majority placed much emphasis on the fact that a RhoGAM injection is solely for the benefit of a mother’s future children, not the mother herself. Here, a PKU diagnosis, and a failure to convey such a diagnosis, has a direct and immediate impact on the health of the original patient. In the case of a female patient, such missed diagnosis may have a devastating impact upon a future child, but such impact is more speculative, remote, and secondary than is the case with a missed RhoGAM injection.

Turning to foreseeability, the risk that untreated PKU poses to a fetus is well-documented. We acknowledge that it should have been foreseeable to Dr. K. that if he failed to convey the positive PKU test result to Stacy’s parents, that she might someday grow up to have children of her own, who could have maternal PKU. The foreseeability factor is not as strong as in Walker, given the time period involved. There is also the fact that Stacy exhibited symptoms of PKU beginning in early childhood, apart from the blood test, that arguably could have led to a PKU diagnosis well before she had children, but such diagnosis unfortunately did not occur here.

Finally, turning to public policy concerns, we conclude they weigh against a finding of duty. Recognizing duty in a case such as this could extend a physician’s potential liability for several decades after an alleged negligent act. This would contravene the Act’s purpose of placing reasonable limits upon a physician’s exposure to malpractice claims. Additionally, there is no doubt a strong public policy in favor of ensuring that infants are properly tested for PKU and that any such test results be expeditiously conveyed to the infant’s parents. However, the original patient him- or herself is directly harmed and sustains injury if a positive PKU test result is not conveyed and the patient may state a claim for malpractice against the doctor. In the Walker/ RhoGAM scenario, there is no malpractice-based incentive for the doctor to provide correct treatment if an injured child could not sue, because the alleged malpractice would have no impact on the patient, i.e. the mother, but only the mother’s children; if only the mother could sue, she would have no damages or injury of her own of which to complain. By contrast, the public policy of encouraging PKU testing and conveying of test results is protected by permitting the original patient to pursue a claim against the doctor for improper testing or failing to convey test results.

In balancing the relationship of the parties, the foreseeability of harm, and public policy, we conclude the trial court correctly ruled that Dr. K. owed no duty to C.K. with respect to the PKU testing of Stacy. We acknowledge some tension between our holding on this issue and on the statute of limitations issue, particularly with respect to our concerns regarding the time period between the alleged original negligence and the filing of this lawsuit. Nevertheless, the two issues are governed by different legal standards and, as such, has led to two different results.

Conclusion

We affirm the trial court’s denial of the Estate’s summary judgment motion to the extent it sought to bar Stacy’s claim under the Act’s statute of limitations. We also affirm its granting of summary judgment to the Estate with respect to Dr. K. owing no duty to C.K.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.

      . Stacy’s parents, Mary and Brent Kaufman, also are named plaintiffs in this case. However, the alleged injuries here were sustained by Stacy and her son, C.K. For the sake of simplicity, we will refer only to Stacy and C.K. as the parties.

      . The Kaufmans did not attempt to sue the doctors they visited during Stacy’s childhood who failed to diagnose that she has PKU.

      . The Act “does not apply to an act of malpractice that occurred before July 1, 1975.” Ind.Code § 34-18-1-1. Dr. K.’s original failure to communicate the PKU diagnosis allegedly occurred in 1974, but Stacy alleges that his malpractice continued for so long as he treated her and failed to inform her or Mary and Brent of the PKU diagnosis, up until the time of his death in 1981. No party contends that the Act does not govern this case.

      . We note the Estate seems to argue that Stacy's claim was not tolled by the common law equitable doctrine of fraudulent concealment and, therefore, her claim is barred as a matter of law and we need not engage in the Martin analysis. In cases pre-dating Martin, our supreme court established that the Act's statute of limitations could be tolled if there was evidence a doctor either actively or constructively concealed an act of malpractice. See Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind.1995). Because the Martin analysis is one of constitutional dimension, we need not address whether the fraudulent concealment doctrine applies in this case. Even if Stacy's claim could not be saved by the fraudulent concealment doctrine, we are still obligated to determine whether the statute can be applied to bar her claim in a manner consistent with the Indiana Constitution. Stacy clearly made an argument based upon Martin and its progeny to the trial court and repeats that argument on appeal. We limit our analysis of this case to the requirements of the Indiana Constitution as outlined in Martin and its progeny.

      . Maty and Brent filed affidavits in opposition to the Estate's summary judgment motion but Stacy did not.

      . The Estate asserts in its brief that Stacy admits that Dr. Weaver told her and Mary that she could have PKU. We see no such admission, especially given Mary’s affidavit to the contrary.

      . We observe that if Dr. K. did owe a duty to C.K., C.K.'s cause of action against Dr. K. is timely and it is governed by a different statute of limitations than Stacy’s claim. Indiana Code Section 34-18-7-1 (b) provides that although generally a medical malpractice suit must be filed within two years of the alleged act, omission, or neglect, "a minor less than six (6) years of age has until the minor's eighth birthday to file.” C.K. was three when the proposed complaint was filed.

      . The Estate does not, at this time anyway, deny that this was well-documented in 1974.


source: Caselaw Access Project

author: CRONE, Judge.

license: Public Domain

text:
    E.J., a minor by his mother and father Victor and Lynell JEFFREY, and Victor and Lynell Jeffrey, individually, Appellants-Plaintiffs, v. Paul OKOLOCHA, M.D., Okolocha Medical Corp., and Okolocha Medical, Pain and Weight, Appellees-Defendants.
    No. 45A03-1201-CT-15.
    Court of Appeals of Indiana.
    Aug. 13, 2012.

      Robert Montgomery, Munster, IN, Attorney for Appellants.
    Robert F. Parker, Daniel A. Gioia, Burke Costanza & Carberry LLP, Merrill-ville, IN, Attorneys for Appellees.
   OPINION

CRONE, Judge.

Case Summary

This case involves a very unfortunate set of circumstances. A New York couple adopted what they thought was a healthy baby boy from Indiana who, unbeknownst to them prior to the adoption, has profound neurological deficits which cause significant and permanent learning and physical abnormalities. A prenatal sonogram performed by the birth mother’s doctor revealed significant brain abnormalities in the unborn baby. Prior to finalizing the adoption, the adoptive parents sought the prenatal records of the birth mother from her doctor as well as postnatal records of the birth mother and the baby from the hospital. Although they received the postnatal records from the hospital, which revealed no problems, the adoptive parents did not receive any prenatal records, including the sonogram report, because the birth mother’s doctor did not send them those records. Nevertheless, the adoption was finalized. The adoptive parents subsequently learned of the baby’s neurological deficits and resulting learning and physical abnormalities.

The adoptive parents filed a complaint for negligence against the birth mother’s doctor alleging that the doctor was negligent in failing to provide them the prenatal records when they requested them. The doctor filed a motion for summary judgment contending that he had no legal duty to release the prenatal records to the adoptive parents because the medical records authorization submitted to him did not comply with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The adoptive parents responded with a motion for partial summary judgment contending, as a matter of law, that the doctor owed them a duty to provide them with the prenatal records at the time they requested them. The trial court agreed with the doctor and entered summary judgment in his favor. On appeal, the adoptive parents argue that the trial court erred in entering summary judgment in favor of the doctor on the issue of duty and in failing to enter partial summary judgment in their favor on the same issue. Concluding as a matter of law that the doctor owed no duty to the adoptive parents, we affirm the judgment of the trial court.

Facts and Procedural History

The undisputed facts indicate that in February 2006, Paul Okolocha, M.D. (“Dr. Okolocha”), a family practice physician from Gary, provided prenatal care to V.S. As part of that prenatal care, on February 1, 2006, Dr. Okolocha ordered that a sonogram be performed on V.S. The sonogram report showed that V.S.’s unborn baby had significant brain abnormalities. The report indicated abnormalities associated with brain development delay, profound retardation, paralysis on one or more sides of the body, spasticity, and other severe neurological deficits that would preclude the baby from ever leading a normal life and would require the baby to receive a lifetime of medical care and assistance. On February 12, 2006, Dr. Okolocha delivered a baby boy for V.S. at Methodist Hospital.

Around that same time, Victor and Ly-nell Jeffrey began proceedings to adopt V.S.’s baby. The Jeffreys hired New York attorney Aaron Britvan to represent them in the adoption process. Two days prior to the birth, on February 10, 2006, Brit-van’s legal assistant faxed Dr. Okolocha a cover letter and a medical records authorization to obtain V.S.’s prenatal records. Specifically, the cover letter was addressed to Dr. Okolocha and advised him that Brit-van’s office represented the prospective adoptive parents of V.S.’s baby. The cover letter indicated that enclosed was an authorization to obtain V.S.’s prenatal medical records inclusive of lab test results and sonograms. Appellant’s App. at 61. The enclosed authorization, signed by V.S. on February 1, 2006, was directed “TO WHOM IT MAY CONCERN” and requested the release to “AARON BRIT-VAN, or his medical representative, with a copy of the physician and/or hospital medical records and any other information which he may request in relation to the pre-natal or post-placement care of the child born to me.” Id. at 62. The authorization further provided that “this consent will authorize the office of Aaron Britvan to forward my medical records to the adoptive parents and/or their pediatrician or other medical professionals.” Id. Dr. Okolocha did not send Britvan any records. On August 25, 2006, despite having had no access to V.S.’s prenatal medical records, the Jeffreys completed the adoption process and adopted V.S.’s baby, E.J.

By December 2006, the Jeffreys had become concerned that E.J. was not developing as other children his age. Doctors later clinically confirmed the existence of brain abnormalities and profound neurological deficits in E.J. that resulted in learning and physical abnormalities of a significant and permanent nature. Had the Jeffreys known of the catastrophic birth defects of E.J. prior to finalizing the adoption process, they would not have completed the adoption.

In April 2007, Dr. Okolocha sent Britvan a letter stating that he would release V.S.’s prenatal records after his bill for medical services was paid. Indeed, the reason Dr. Okolocha did not release the records to Britvan when originally presented with the authorization signed by V.S. was because a $15 record copying fee was not paid to his office and his outstanding bill for newborn services in the amount of $450 remained unpaid. On April 25, 2007, the Jeffreys paid the outstanding bill and Dr. Okolocha released the prenatal records to Britvan, including the sonogram report.

On September 10, 2009, the Jeffreys filed their amended complaint for negligence against several defendants, including Dr. Okolocha, Okolocha Medical Corporation, and Okolocha Medical Pain, and Weight (hereinafter collectively referred to as “Dr. Okolocha”). Specifically, the Jef-freys’ theory was that Dr. Okolocha was negligent in failing to timely provide them with V.S.’s prenatal records. On January 6, 2011, Dr. Okolocha filed a motion for summary judgment arguing that he had no legal duty to provide V.S.’s medical records to the Jeffreys. The Jeffreys responded with a motion for partial summary judgment arguing that Dr. Okolocha had a duty, as a matter of law, to provide them with the records. On May 5, 2011, the trial court held a hearing on both motions for summary judgment. Then, on December 12, 2011, the trial court entered its findings of fact and conclusions thereon granting summary judgment in favor of Dr. Okolocha. Upon Dr. Okolocha’s motion pursuant to Indiana Trial Rule 56(C), and finding no just reason for delay, the trial court entered a final appealable judgment on January 12, 2012. This appeal ensued. Additional facts will be supplied in our discussion where necessary.

Discussion and Decision

The Jeffreys contend that the trial court erred in granting Dr. Okolocha’s motion for summary judgment and in denying their motion for partial summary judgment on the same issue. Our standard of review is well settled:

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. When we review a grant of summary judgment, our standard of review is the same as that of the trial court. We consider only those facts that the parties designated to the trial court. The Court must accept as true those facts alleged by the nonmov-ing party, construe the evidence in favor of the nonmovant, and resolve all doubts against the moving party.
A trial court’s order on summary judgment is cloaked with a presumption of validity; the party appealing from the grant of summary judgment must bear the burden of persuading this Court that the decision was erroneous. We may affirm the grant of summary judgment upon any basis argued by the parties and supported by the record.

Breining v. Harkness, 872 N.E.2d 155, 158 (Ind.Ct.App.2007) (citations omitted), trans. denied (2008).

Where, as here, cross-motions for summary judgment are involved, our standard of review remains unchanged. Kelley v. Med-1 Solutions, LLC, 952 N.E.2d 817, 827 (Ind.Ct.App.2011), trans. denied (2012). We consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id. Moreover, when the trial court enters findings of fact and conclusions thereon in rendering summary judgment, those findings aid in our appellate review but are not binding on this Court. Turner v. Stuck, 778 N.E.2d 429, 431 (Ind.Ct.App.2002). Indeed, our standard of review is not altered due to findings and eonclu-sions, and we will affirm a summary judgment order if it is sustainable upon any theory or basis found in the record. Id.

The Jeffreys seek to recover against Dr. Okolocha on a theory of negligence. To prevail on a negligence claim, “a plaintiff must prove: (1) that the defendant owed plaintiff a duty; (2) that [the defendant] breached the duty; and (3) that plaintiffs injury was proximately caused by the breach.” A.S. v. LaPorte Reg’l Health Sys., Inc., 921 N.E.2d 853, 856 (Ind.Ct.App.2010). The breach of duty and proximate cause elements of a negligence claim are particularly fact-sensitive and rarely suitable for resolution on summary judgment. Price v. Kuchaes, 950 N.E.2d 1218, 1235 (Ind.Ct.App.2011) (citing Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004)), tram, denied. However, the existence of a legal duty owed by one party to another in a negligence case is appropriate for summary judgment, as it is generally a pure question of law for the court to decide. Indiana Dep’t of Transp. v. Howard, 879 N.E.2d 1119, 1122 (Ind.Ct.App.2008).

The Jeffreys negligence claim centers around a duty that they allege was owed to them by virtue of the medical records authorization they submitted to Dr. Okolo-cha. The Jeffreys contend that Dr. Okolo-cha owed a duty, as a matter of law, to release V.S.’s prenatal records to them when presented with an authorization signed by V.S. Dr. Okolocha contends, and the trial court agreed, that he had no legal duty to release V.S.’s prenatal records to the Jeffreys because the medical authorization signed by V.S. and submitted to him did not comply with HIPAA or Indiana law. We begin our discussion with HI-PAA.

HIPAA protects individuals from unwarranted dissemination of medical and mental health records by restricting access to such records without the individual’s direct consent. In re C.B., 865 N.E.2d 1068, 1072 (Ind.Ct.App.2007) (citing In re A.H., 832 N.E.2d 563, 567 (Ind.Ct.App.2005)), trans. denied. In general, HIPAA requires that “covered entities,” such as Dr. Okolocha, obtain patient authorization before disclosing protected health information. State v. Eichhorst, 879 N.E.2d 1144, 1151 (Ind.Ct.App.2008) (citing 45 C.F.R. § 164.508(a)), tram, denied. Pursuant to 45 C.F.R. § 164.508(c)(1), a valid HIPAA authorization must contain “at least” the following “core elements”:

(i) A description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion.
(ii) The name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure.
(Hi) The name or other specific identification of the person(s), or class of persons, to whom the covered entity may make the requested use or disclosure.
(iv) A description of each purpose of the requested use or disclosure. The statement “at the request of the individual” is a sufficient description of the purpose when an individual initiates the authorization and does not, or elects not to, provide a statement of the purpose.
(v) An expiration date or an expiration event that relates to the individual or purposes of the use or disclosure. The statement “end of the research study,” “none,” or similar language is sufficient if the authorization is for a use or disclosure of protected health information for research, including for the creation and maintenance of a research database or research repository.
(vi) Signature of the individual and date. If the authorization is signed by a personal representative of the individual, a description of such representative’s authority to act for the individual must also be provided.

In addition to those “core elements,” a valid HIPAA authorization must contain certain “required statements.” 45 C.F.R. § 164.508(c)(2). Specifically, 45 C.F.R. § 164.508(c)(2) provides in relevant part that a valid HIPAA authorization must place the patient on notice of the following:

(i) The individual’s right to revoke the authorization in writing....
(ii) The ability or inability to condition treatment, payment, enrollment or eligibility for benefits on the authorization. ...
(Hi) The potential for information disclosed pursuant to the authorization to be subject to redisclosure by the recipient and no longer be protected by this subpart.

Similarly, patient information is also protected from unauthorized disclosure under Indiana law. Ind.Code §§ 16-89-1-1 et seq. Pursuant to Indiana law, on a patient’s written request and reasonable notice, a healthcare provider “shall” furnish the patient or the patient’s designee the patient’s health record. Ind.Code § 16 — 39—1—1 (d). However, a patient’s written consent for release of the patient’s health record to a third party must include the following:

(1) The name and address of the patient.
(2) The name of the person requested to release the patient’s record.
(8) The name of the person or provider to whom the patient’s health record is to be released.
(4) The purpose of the release.
(5) A description of the information to be released from the health record.
(6) The signature of the patient, or the signature of the patient’s legal representative if the patient is incompetent.
(7) The date on which the consent is signed.
(8) A statement that the consent is subject to revocation at any time, except to the extent that action has been taken in reliance on the consent.
(9) The date, event, or condition on which the consent will expire if not previously revoked.

Ind.Code § 16-39-1-4.

Although the trial court’s findings and conclusions in entering summary judgment in favor of Dr. Okolocha are not binding on this Court, we must clarify some confusion with the trial court and the parties regarding the interplay between HIPAA and Indiana law. In its findings and conclusions, the trial court unnecessarily determined that HIPAA preempts Indiana law regarding what constitutes a valid authorization or consent for the release of medical records. This Court has recognized that the provisions of HIPAA override or preempt state law. A.H., 832 N.E.2d at 568. However, that is only if a HIPAA provision is contrary to a provision of state law. 45 C.F.R. § 160.203. Our review of the relevant statutes at issue here reveals that Indiana law is not contrary to HIPAA. As one commentator has explained, HIPAA will rarely preempt state law because in most instances, implementing HIPAA will mean complying with its procedural requirements along with the requirements of state law. Beverly Cohen, Reconciling the HIPAA Privacy Rule with State Laws Regulating Ex Parte Interviews of Plaintiffs’ Treating Physicians: A Guide to Performing HIPAA Preemption Analysis, 43 Hous. L. Rev. 1091, 1123-1134 (2006). Accordingly, instead of superseding state law, HIPAA simply imposes an additional layer of procedural requirements over the privacy law that already exists in most states. Id.

Merely because Indiana law requires that certain procedures be followed before proper disclosure of medical records can occur and HIPAA requires different procedures does not mean that the laws conflict. The Indiana procedures and the HIPAA procedures all can be performed simultaneously. Compliance with our state statute and HIPAA can be achieved by satisfying the procedural requirements of both. HIPAA merely provides additional procedural requirements with which the parties must comply when making disclosures permitted or mandated by state law. See id. Accordingly, Dr. Okolocha’s required course of action and thus, his legal duty, was action that complied with both HIPAA and Indiana law. In this case, our state statute and HIPAA are not contrary, and therefore preemption analysis is unnecessary.

The undisputed facts indicate that the authorization signed by V.S. and tendered to Dr. Okolocha by Britvan complies with neither HIPAA nor Indiana Code Section 16-39-1-4. First, as to HIPAA, the authorization signed by V.S. does not name Dr. Okolocha anywhere on the document but is directed “TO WHOM IT MAY CONCERN.” Thus, the authorization fails to include “specific identification of the person authorized to make the disclosure.” 45 C.F.R. § 164.508(c)(l)(iii). The critical nature of this core element cannot be understated. It must be apparent from the face of the authorization that the signing patient knows specifically whom she is authorizing to make disclosure of her protected health records. The authorization here fails in this regard.

The authorization is also missing a “description of each purpose of the requested use or disclosure.” 45 G.F.R. § 164.508(c)(l)(iv). The Jeffreys point to very general language of the authorization which provides that V.S. is authorizing Britvan to forward V.S.’s medical records “to the adoptive parents and/or their pediatrician or other medical professionals.” Appellant’s App. at 62. However, we agree with Dr. Okolocha that such language merely describes to whom the disclosure will subsequently be made. There is no language in the authorization which describes, for example, that the information will be used to aid in the medical treatment or assessment of V.S.’s baby or to facilitate the future adoption proceedings. The signing patient must know not simply to whom, but for what purpose her protected information will be disclosed. Moreover, we agree with the trial court that a clear description of the purpose of the disclosure is also critical because when a covered entity receives an authorization requesting disclosure of confidential information, its disclosure “must be consistent ■with such authorization.” 45 C.F.R. § 164.508(a)(1). The authorization here contains no description of purpose.

Finally, the authorization is missing the “required statement” that “the potential for information disclosed pursuant to the authorization to be subject to redisclosure by the recipient and no longer be protected.” 45 C.F.R. § 164.508(c)(2)(iii). In other words, a valid HIPAA authorization must put the signing patient on notice that her protected medical information may potentially be redisclosed by the recipient and is no longer protected information. Although the current authorization may have put V.S. on notice that the information would be forwarded to the adoptive parents and/or their pediatrician, she was not put on notice that her information is no longer protected and could potentially be redisclosed to additional individuals. The inclusion of simple boilerplate statutory language would have satisfied this required statement. Without that language, however, the authorization does not comply with HIPAA.

The Jeffreys do not fare much better when the procedural requirements of a valid authorization for medical records are considered pursuant to Indiana law. The authorization does not contain V.S.’s address as required by Indiana Code Section 16-89-1-4(1). As discussed above, the authorization similarly does not specifically name Dr. Okolocha as “the person requested to release the patient’s record.” Ind. Code § 16-39-1-4(2). Moreover, as also discussed above, the authorization does not indicate the “purpose of the release.” Ind. Code § 16-39-1-4(4). The authorization submitted to Dr. Okolocha does not comply with Indiana law.

Under the circumstances, Dr. Okolocha owed no duty to release V.S.’s medical records to the Jeffreys absent a valid authorization pursuant to both HIPAA and Indiana Code Section 16-39-1-4. Contrary to the Jeffreys’ contention, Dr. Oko-locha’s “real motive” for not releasing V.S.’s medical records is irrelevant. Appellant’s Br. at 8. The fact remains that Dr. Okolocha only has a duty to release medical records when properly authorized by a patient to do so. There was no such authorization here, and therefore no duty. The Jeffreys claim for negligence must fail.

We are mindful of the great emotional and monetary harm suffered by the Jef-freys in this case. However, it cannot be ignored that the Jeffreys and their attorneys were in the best position to avoid the harm suffered. The Jeffreys and their attorneys finalized the adoption of E.J. despite the fact that they had not received V.S.’s prenatal records from Dr. Okolocha. Unfortunately, there were tragic consequences to that gamble. Nevertheless, we cannot find a duty in negligence when none exists. Summary judgment in favor of Dr. Okolocha is appropriate. The judgment of the trial court is affirmed.

Affirmed.

VAIDIK, J., and BRADFORD, J., concur.

      . The amended complaint for negligence also named as defendants the Jeffreys' Indiana adoption attorneys and their New York adoption attorneys, including Britvan. Appellants' App. at 29-37. The Jeffreys subsequently settled their claims with those defendants. Appellants' Br. at 3.

      . We note that the Jeffreys also filed medical malpractice claims against Methodist Hospitals and Dr. Okolocha. The trial court in that case entered summary judgment in favor of Dr. Okolocha because the Jeffreys’ malpractice complaint was filed outside the two-year medical malpractice limitations period. Another panel of this Court affirmed summary judgment in favor of Dr. Okolocha in Jeffrey v. Methodist Hospitals, 956 N.E.2d 151 (Ind.Ct.App.2011).

      . It is undisputed that Dr. Okolocha, as a provider of medical services, is a "covered entity” for purposes of HIPAA. See 45 C.F.R. §§ 160.102, 160.103.

      . The Jeffreys argue that the cover letter faxed with the authorization specifically identifies Dr. Okolocha as the person authorized to make the disclosure. First, the Jeffreys direct us to no authority, and we are unaware of any, which would permit us to construe the two documents together to satisfy the requirements of HIPAA or Indiana law. Significantly, the cover letter was signed by neither V.S. nor Britvan as her representative. The only document signed' by the protected person, V.S., was an authorization directed to an unspecified person or entity. Under the Jef-freys' interpretation of the law, nothing would prevent third parties from randomly attaching cover letters to signed, yet generically directed, authorizations, thus permitting basically anyone access to the patient's protected health information unbeknownst to the patient. Such a result would be absurd. The Jeffreys also make a spurious argument that because the authorization was faxed to Dr. Okolocha with a cover letter addressed to him, he knew that the authorization was specifically directed to him. The Jeffreys ignore the only relevant inquiry as to the specific identification requirement: that is, the knowledge of the authorizing patient.

      . The Jeffreys maintain that Dr. Okolocha cannot now claim that he owed no duty to release the records because he eventually released the records to them without requiring a valid authorization. However, the unauthorized release of V.S.'s records by Dr. Okolo-cha is of no moment to the case at bar. The unauthorized disclosure of V.S.’s protected health information by Dr. Okolocha, in violation of HIPAA and Indiana law, is not an issue properly before this Court.


author: MAY, Judge.

text:
    Anastazia SCHMID, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 79A04-1110-PC-618.
    Court of Appeals of Indiana.
    Aug. 13, 2012.

      Michael B. Troemel, Lafayette, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Anastazia Schmid appeals the denial of her petition for post-conviction relief. She raises four issues:

1. Whether her trial counsel was ineffective for failing to raise the defense of “Justified Reasonable Force” pursuant to Ind.Code § 35-41-3-11;
2. Whether her trial counsel was ineffective for failing to demand a second competency hearing after the court found Schmid competent to stand trial;
3. Whether her trial counsel was ineffective for failing to communicate an alleged plea offer to Schmid; and
4. Whether her trial counsel was ineffective for failing to call Schmid to testify in her own defense.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts of Schmid’s crimes were set forth in the opinion issued in response to her direct appeal of her convictions of Class C felony battery by means of a deadly weapon, Class C felony criminal recklessness by means of a deadly weapon, Class B felony aggravated battery, Class C felony battery resulting in serious injury, murder, a felony, and two counts of Class D felony criminal recklessness:

Schmid has an extensive history of psychological problems that began when she was a young girl. By 2001, when she was twenty-eight years of age, she had been married and divorced and was living with her boyfriend, Tony Heath-cote (Heathcote), the victim. Schmid’s prior marriage had produced a daughter, and, on March 2, 2001, Schmid was informed that Heathcote allegedly had molested her daughter. Upon receiving this news, Schmid became very upset. Two days later, on March 4, 2001, Schmid and Heathcote were having sexual relations at their home using restraints, a dog collar, a leash, and a blindfold when Heathcote suggested that Schmid play the part of the little girl and Heathcote would play the part of the daddy. This statement caused Schmid to think of her daughter. At that time, Schmid obtained a knife and began stabbing Heathcote who was blindfolded and restrained at the ankles. Heathcote was stabbed thirty-nine (39) times and died. Later, Schmid indicated that at the time of the stabbing she had heard a voice telling her that she was the messiah and that Heathcote was evil and needed to be eliminated. Following a jury trial, Schmid was convicted with verdicts of guilty but mentally ill. This appeal ensued.

Schmid v. State, 804 N.E.2d 174, 177 (Ind.Ct.App.2004), trans. denied.

In her direct appeal, Schmid argued the trial court erred when it denied her motion to continue due to the addition of private counsel, there was insufficient evidence to support her convictions, the trial court erred when it admitted testimony of the State’s expert witness who testified regarding Schmid’s sanity, and the trial court erred by “refusing to give her tendered instruction on the consequences of the different verdicts from which the jury could choose.” Id. at 182. We affirmed.

On February 7, 2005, Schmid filed a pro se petition for post conviction relief. She amended the petition five years later. The post-conviction court held a hearing and on August 18, 2011, denied Schmid’s petition.

DISCUSSION AND DECISION

Post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.2002). As post-conviction proceedings are civil in nature, the petitioner must prove her grounds for relief by a preponderance of the evidence. Id. A party appealing a negative post-conviction judgment must establish the evidence is without conflict and, as a whole, unerringly points to a conclusion contrary to that reached by the postconviction court. Id. Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the court’s legal conclusions, but “the findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (quoting State v. Moore, 678 N.E.2d 1258, 1261 (Ind.1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1528, 140 L.Ed.2d 678 (1998)). The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004).

All the arguments Schmid raises in this appeal assert her trial attorneys were ineffective. We review claims of ineffective assistance of counsel under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, a claimant must show counsel’s performance fell below an objective level of reasonableness based on prevailing professional norms, Taylor v. State, 882 N.E.2d 777, 781 (Ind.Ct.App.2008), and that deficient performance resulted in prejudice. Id.

“Prejudice occurs when the defendant demonstrates that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). We need not consider whether counsel’s performance fell below the objective standard if that performance would have not changed the outcome. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

1. Justified Reasonable Force Defense

At trial, Schmid’s defense team offered the insanity defense, see Ind.Code § 35-41-3-ll(b)(l), and presented evidence Schmid experienced auditory and visual hallucinations when committing the crimes. Schmid argues counsel should have raised the “Justified Reasonable Force” defense and she was prejudiced because, if counsel had done so, she would have been found not guilty.

The “Justified Reasonable Force” defense, also known as the “Battered Women’s Syndrome” defense and the “effects of battery” defense, is also codified in Ind. Code § 35-41-3-11:

(b) This section applies under the following circumstances when the defendant in a prosecution raises the issue that the defendant was at the time of the alleged crime suffering from the effects of battery as a result of the past course of conduct of the individual who is the victim of the alleged crime:
(1) The defendant raises the issue that the defendant was not responsible as a result of mental disease or defect under section 6 of this chapter, rendering the defendant unable to appreciate the wrongfulness of the conduct at the time of the crime.
(2) The defendant claims to have used justifiable reasonable force under section 2 of this chapter. The defendant has the burden of going forward to produce evidence from which a trier of fact could find support for the reasonableness of the defendant’s belief in the imminence of the use of unlawful force or, when deadly force is employed, the imminence of serious bodily injury to the defendant or a third person or the commission of a forcible felony.
(c) If a defendant proposes to claim the use of justifiable reasonable force under subsection (b)(2), the defendant must file a written motion of that intent with the trial court not later than:
(1) twenty (20) days if the defendant is charged with a felony; or
(2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors;
before the omnibus date. However, in the interest of justice and upon a showing of good cause, the court may permit the filing to be made at any time before the commencement of the trial.

The post-conviction court concluded:

[Schmid’s trial counsel] argued to the jury that Schmid did not know what she was doing at the time of [the] stabbing. In order to show the stabbing was justifiable, he would logically argue she made a conscious decision to stab [Heathcote]. The two are at least partially inconsistent, if not entirely inconsistent.
The facts did not support a defense of justifiable reasonable force because Tony was tied to a bed. There was no imminent threat to her. Schmid had not been physically abused for approximately five (5) months. Schmid did not stab Tony to prevent immediate or impending injury to herself.
Since the use of “justifiable reasonable force” defense is within the insanity defense statute, the best the defendant could hope for would be a verdict of Not Guilty By Reason of Insanity. This verdict form was given to the jury.

(App. at 91-92.)

The State argues trial counsels’ decision not to pursue the Justifiable Reasonable Force defense was a strategic decision based on the evidence available at trial. We agree. As the post-conviction court found, the State’s evidence at trial indicated Heathcote was bound when Schmid stabbed him. That would likely make it difficult for the defense to argue the “imminence of the use of unlawful force” required to show she acted with justifiable reasonable force. Therefore, Schmid has not demonstrated counsel was ineffective for declining to advance the Justified Reasonable Force defense. Nor has she demonstrated raising the defense would have changed the outcome of her trial.

2. Competency Hearing

It is a violation of due process to convict a defendant who is incompetent to stand trial. Gibbs v. State, 952 N.E.2d 214, 219 (Ind.Ct.App.2011), trans. denied. A defendant is not competent to stand trial when she is unable to understand the proceedings and assist in the preparation of her defense. Id. Schmid was initially found incompetent, but was then found competent to stand trial. She argues her trial counsel should have asked for another competency hearing. We disagree.

The post-conviction court found:

Conclusions of Law on Issue (A)U):
A. I.C. 35-86-8-2 does not require a hearing for a finding by the court after a defendant attains the ability to understand the proceedings and assist in the preparation of the defendant’s defenses.
B. Based on [the] testimony of [Schmid’s trial counsel], Schmid was able to assist and communicate with her attorneys.
C. Further, it seems this issue was or could have been raised on appeal.
Conclusions of Law on Issue (A)(6):
A. Based on the opinions of Dr. Rah-dert and Dr. DeSaii, Schmid was competent to stand trial.
B. Schmid failed to prove how a hearing on her incompetence would have resulted in a different outcome.

(App. at 96-97.)

After the court found Schmid incompetent, she was committed to a mental health facility “for a few months.” (Tr. at 439.) On January 17, 2002, after Schmid was released from the mental health facility, her trial counsel asked for an evaluation to determine competency. The court appointed two doctors to determine Schmid’s competency, and both determined she was competent to stand trial. At the PCR hearing, one of Schmid’s trial counsel, Amy Hutchinson, testified she was able to communicate with Schmid during trial and Schmid was able to understand the proceedings. Hutchinson testified she and other trial counsel were able to communicate effectively with Schmid when they visited Schmid at the jail.

In support of her contention she was incompetent to stand trial, Schmid presented evidence to the post-conviction court that she was highly medicated during trial, and often appeared “on edge” or “nervous,” (Id. at 441), during the court proceedings. Schmid’s argument on appeal is a reiteration of her argument before the post-conviction court, and we are not permitted to reweigh the evidence or judge the credibility of the witnesses before the lower court. See Fisher, 810 N.E.2d at 679 (the post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses). Accordingly, we will not disturb the post-conviction court’s decision.

3. Counsel’s Failure to Communicate Alleged Plea Offer

Counsel have a duty to “inform their clients of plea agreements proffered by the prosecution,” and “failure to do so constitutes ineffective assistance under the sixth and fourteenth amendments.” Dew v. State, 843 N.E.2d 556, 568 (Ind.Ct.App.2006), trans. denied.

Schmid claims her trial counsel did not communicate a plea offer. The postconviction court found:

Facts Relating to Issue (A) (10):
A. [Schmid’s counsel] and [prosecuting attorney] briefly discussed a resolution of the case while on break during the jury trial.
B. No firm offer was made by [prosecuting attorney].
C. No offer was reduced to writing.
D. [Schmid’s counsel] did not communicate the discussion to Schmid because he did not consider it a sincere offer and it was not in writing.
Conclusions of Law on Issue (A)(10):
A. In felony cases any plea agreement must be in writing.
B. Oral discussions of possible outcomes of a case are not a plea agreement.
C. The restroom discussions were not “developments” or “proposals” as defined in Lyles v. State, 382 N.E.2d, [sic] 991 (1978).

(App. at 98.)

Both Schmid’s counsel and the prosecutor testified during Schmid’s post-conviction hearing that there was no plea offer; instead, they discussed a possible compromise that would allow Schmid to plead guilty to Class C felony reckless homicide. Schmid’s counsel testified he “spoke informally with the judge to try [to] obtain it and it just wasn’t going to happen.” (Tr. at 370.) Schmid’s argument is an invitation to reweigh the evidence, which we may not accept. See Fisher, 810 N.E.2d at 679 (the post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses). Accordingly, we affirm the decision of the post-conviction court.

4. Schmid’s Right to Testify

Schmid claims counsel denied her the right to testify in her own defense at trial. During Schmid’s post-conviction hearing, her trial counsel conceded he and Schmid did not discuss whether she would testify. The post-conviction court found:

A. Schmid has failed to prove that she requested to testify at trial[;]
B. Schmid has failed to prove that the outcome would have been different if she had testified[; and]
C. Also, this issue was or could have been raised on appeal.

(App. at 100.)

The testimony Schmid asserted during the post-conviction hearing she would have offered at trial was cumulative of other testimony presented. It included details of the sexual games Schmid and Heathcote played the night of his murder and of her state of mind while she stabbed him. Schmid has not demonstrated she was prejudiced because she did not testify. See, e.g., McCovens v. State, 539 N.E.2d 26, 30 (Ind.1989) (error in the admission of evidence not prejudicial if the evidence is merely cumulative of other evidence in the record).

CONCLUSION

As Schmid has not demonstrated counsels’ alleged errors were prejudicial, we affirm the denial of her petition for post-conviction relief.

Affirmed.

FRIEDLANDER, J„ and BARNES, J., concur.

      . Ind.Code§ 35-42-2-1.

      . Ind.Code § 35-42-2-2.

      . Ind.Code § 35-42-2-1.5.

      .Ind.Code§ 35-42-2-1.

      . Ind.Code § 35-42-1-1.

      . Ind.Code § 35-42-2-2.