ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Mary A. Findling                    Gary J. Clendening
Findling, Garau, Germano &                Kendra Gowdy Gjerdingen
Pennington, P.C.                    Mallor, Clendening, Grodner & Bohrer
151 N. Delaware Street, Suite 1515            511 Woodscrest Drive
Indianapolis, Indiana 46204                P.O. Box 5787
                            Bloomington, Indiana 47407-5787

                             Karl Mulvaney
                            Bingham Summers Welsh & Spilman
                            10 West Market Street, Suite 2700
                            Indianapolis, Indiana 46204-2982

AMICUS CURIAE FOR APPELLANT        AMICUS CURIAE FOR APPELLEE
INDIANA TRIAL LAWYERS ASSOCIATION    INDIANA STATE MEDICAL                                  ASSOCIATION

Laurence H. Tribe                    David C. Jensen
1575 Massachusetts Ave.                Sherry L. Clarke    
Cambridge, Massachusetts 02138            Judith I. Snare
                            Eichhorn & Eichhorn
Roger L. Pardieck                    200 Russell Street            
Thomas C. Doehrman                P.O. Box 6328
Edgar W. Bayliff                    Hammond, Indiana 46325
Robert L. Justice
Henry J. Price                        AMICUS CURIAE FOR APPELLEE
Mary Beth Ramey                    INDIANA DEFENSE LAWYERS
Gregory Cross                    ASSOCIATION
150 West Market Street, Suite 210            
Indianapolis, Indiana 46204                Philip E. Kalamaros
                            Edward N. Kalamaros & Associates
                            129 North Michigan Avenue
                            P.O. Box 4156
                            South Bend, Indiana 46634-4156
    
                            Kevin Charles Murray
                            Todd J. Kaiser
                            Nelson D. Alexander
                            T. Joseph Wendt
                            Locke, Reynolds, Boyd & Weisell
                            1000 Capital Center South
                            201 North Illinois Street
                            Indianapolis, Indiana 46204        

MELODY MARTIN                               )
    Appellant/Respondent                         )
    (Plaintiff Below                             )            )    Supreme Court No.
                                                 )    53S04-9805-CV-271.
        v.                                       )    
                                                 )    Court of Appeals No.
ROBERT W. RICHEY, JR., M.D.,                     )    53A04-9603-CV-104
     Appellee/Petitioner                         )
    (Defendant Below                             ).              )

                                             

              

                                             
APPEAL FROM THE MONROE CIRCUIT COURT
        The Honorable Douglas R. Bridges, Judge
             Cause No. 53C05-9505-CP-585
             
                                       

        Dr. Robert W. Richey, Jr., appellee/petitioner and defendant below (“defendant”), challenges the decision of the Court of Appeals, 674 N.E.2d 1015 (Ind. Ct. App. 1997), which reversed the trial court's grant of summary judgment in favor of defendant. The Court of Appeals held, contrary to the decision of the trial court, that the doctrine of fraudulent concealment permits defendant's former patient, Melody Martin (“plaintiff”), to avoid the two-year medical malpractice statute of limitations, Indiana Code section 34-18-7-1(b) (1998) (repealing section 27-12-7-1(b) (1993)), and that the statute of limitations, in any event, is unconstitutional under Article I, Sections 23 and 12, the Privileges and Immunities and Open Courts Clauses of the

Indiana Constitution. We grant transfer because we agree with the result reached by the Court of Appeals, but reach this result by different means. We believe that summary judgment was inappropriate because the medical malpractice statute of limitations, under both Section 23 and Section 12, is unconstitutional as applied to plaintiff. We therefore reverse the trial court's grant of summary judgment in favor of defendant and remand for further proceedings not inconsistent with this opinion.    

        The facts viewed in the light most favorable to nonmovant Melody Martin reveal that on March 13, 1991, Martin went to the office of Dr. Robert Richey, who is a gynecologist practicing in Bloomington, Indiana, and complained that she had a lump in her right breast. She reported that the lump had been there for a while and that she had had it checked before, but recently she had experienced some “shooting pains” from the lump. (R. at 195.) Because Dr. Richey was out of town on March 13, Rose Seguin (“Seguin”), Dr. Richey's nurse practitioner, examined Martin. Seguin made arrangements for Martin to have a mammogram at Bloomington Hospital on the same day.
        The radiologist who read Martin's mammogram noted in his report that there was a benign cyst just above the nipple in the right breast and that there also was a “[s]olid echogenic mass in the lower outer quadrant of the right breast.” (R. at 202.) As to the solid mass, he advised that a “[b]iopsy may be indicated based on the patient's history of enlargement of this lump.” (R. at 202.)
        On the next day, March 14, 1991, Seguin called Martin to tell her that the mammogram revealed a solid mass in the lower outer quadrant of her right breast, and that the

radiologist who had reviewed her mammogram and ultrasound recommended that she get a biopsy of the mass. Seguin also advised Martin that she not wait to schedule an excisional biopsy with a general surgeon. The following day, Martin telephoned Seguin and told her that she had scheduled an appointment for an excisional biopsy with Dr. Topolgus, a general surgeon, on Tuesday, March 19, 1991. This information is noted on the patient's chart. Martin also asked that Dr. Richey call her when he returned to the office because she had some questions about the mammogram and the biopsy procedure.
        When Dr. Richey returned to his office on Monday, March 18, 1991, Seguin reported that, upon her examination of Martin, she felt a firm solid mass in the right outer quadrant of her right breast, that the mammogram and ultrasound revealed a solid mass, and that the radiologist recommended an excisional biopsy. Seguin also advised him that Martin already had scheduled an excisional biopsy for the next day. Dr. Richey did not consult with the radiologist regarding his findings and recommendation regarding the need for a biopsy. He called Martin on Monday evening and told her to cancel her appointment for the excisional biopsy. Dr. Richey advised her that he would perform a needle aspiration in his office instead. Martin testified that Dr. Richey did not inform her that, even if the results of the needle biopsy were negative for malignancy, there would be a need for further follow-up with Dr. Topolgus.See footnote 1

not tell her that she needed to follow-up with an excisional biopsy regardless of the results of the needle aspiration.See footnote 2 Martin also testified that Dr. Richey assured her that the mass was probably fibrocystic breast disease,See footnote 3 and that she had nothing to worry about. She further testified that Dr. Richey did not tell her at the time of the aspiration or later that she needed to follow-up with Dr. Topolgus or to get an excisional biopsy. Regarding his communication with Martin at the time of the procedure, Dr. Richey testified as follows:
        The discussion I had with Melody at the time of the aspiration was that we would get the aspiration, and once those results were available that I wanted her to carry on, at least discuss the matter with Dr. Topolgus, either discuss it over the phone or better yet plan to have an office visit with him and go over all these results and determine at that point in time whether she should proceed with a breast biopsy.

(R. at 171.) Again, although Dr. Richey maintains that he discussed follow-up care with Martin in Seguin's presence, there is no note in the chart to this effect, and, in fact, there were no notes regarding Dr. Richey's needle aspiration on Martin or any of his conversations with her.
        After the needle aspiration, Dr. Richey maintains that he discussed Martin's case with Dr. Topolgus. Neither Martin nor Dr. Richey's office, however, scheduled a follow-up consultation with Dr. Topolgus at that time. After March of 1991, Martin did not consult with

Dr. Richey or any other health care provider regarding the lump until April of 1994.See footnote 4
        In April of 1994, Martin experienced increased pain from the lump in her breast and pain under her right arm. She had a mammogram, which revealed an abnormal mass in the lower outer quadrant of her right breast. A core biopsy resulted in a diagnosis of adenocarcinoma of the breast. On April 15, 1994, Dr. Topolgus performed a right modified radical mastectomy of Martin's right breast. Because there was extensive lymph node involvement, Martin underwent a course of chemotherapy from May of 1994 through September of 1994.
        On October 14, 1994, Martin filed her complaint against Dr. Richey for damages with the Indiana Department of Insurance. She alleged that Dr. Richey was negligent in his care and treatment due to his failure to diagnose and treat her breast cancer in a timely manner. Martin requested review by the Medical Review Panel pursuant to Indiana's Medical Malpractice Act, specifically, Indiana Code section 34-18-7-1 (1998) (repealing section 27-12-8-4 (1993)). On May 19, 1995, Dr. Richey filed a Motion for Preliminary Determination of a Question of Law and Motion to Dismiss with the court below, pursuant to Indiana Code section 34-18-11-1(a) (1998) (repealing section 27-12-11-1(a) (1993)), and argued that Martin's complaint was time- barred by the applicable two-year statute of limitations set out in Indiana Code section 34-18-7- 1(b). Martin's opposition to this motion, which was supported by affidavits of Martin and Seguin as well as excerpts from Dr. Richey's deposition and other materials, asserted that the equitable

doctrines of either active or constructive fraudulent concealment precluded the application of the statute of limitations, and that, in any event, the statute was an unconstitutional violation of the Due Process and Equal Protection Clauses of the U.S. Constitution and the Privileges and Immunities Clause of the Indiana Constitution. Dr. Richey filed a reply in support of summary judgment in his favor.
        After reviewing the motion, opposition, and supporting documents and hearing oral argument, the trial court found that Dr. Richey's conduct in performing a needle aspiration on Martin's breast and his reporting of a negative result did not amount to active fraudulent concealment. The trial court also declined to hold that the two-year statute of limitations was unconstitutional. The trial court then granted summary judgment for Dr. Richey.
        Martin appealed and the Court of Appeals reversed the trial court. The Court of Appeals held that there were genuine issues of material fact regarding the doctrine of active fraudulent concealment and also held that the statute of limitations contained in the Medical Malpractice Act violated Article I, Section 23 and Section 12 of the Indiana Constitution. 674 N.E.2d 1015 (Ind. Ct. App. 1997). We grant transfer in this case to address the constitutionality of these Sections 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.

of the Indiana Constitution, the Privileges and Immunities Clause, and also violates Article I, Section 12 of the Indiana Constitution, the Open Courts Clause.See footnote 5
        The relevant statute of limitations provides in pertinent part as follows:
        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) (1998). This Court previously has construed this medical malpractice statute of limitations as an “occurrence” rather than a “discovery” statute. See Hospital Corp. of America v. Hiland, 547 N.E.2d 869, 872 (Ind. Ct. App. 1989), adopted in Cacdac v. Hiland, 561 N.E.2d 758 (Ind. 1990). 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.See footnote 6

other Court of Appeals' decisions reached the constitutional questions, and these cases are now pending before the court. See Harris v. Raymond, 680 N.E.2d 551 (Ind. Ct. App. 1997) (holding statute unconstitutional), trans. granted, opinion vacated, __ N.E.2d __ (1998); and Johnson v. Gupta, 682 N.E.2d 827 (Ind. Ct. App. 1997) (holding statute constitutional), trans. granted, opinion vacated, __ N.E.2d __ (Ind. 1998). A third case, which raises constitutional and related issues and is before this Court on direct appeal from the trial court, is Van Dusen v. Stotts, Cause No. 03D02-9609-CP-193, (holding statute unconstitutional as applied) [hereinafter Van Dusen], and we decide that case today together with this case.
    Although we agree with the Court of Appeals that the statute of limitations contained in Indiana Code section 34-18-7-1(b) cannot operate to bar Martin's claim, we do so without striking down the statute as unconstitutional on its face. Rather, we hold that it is unconstitutional as applied to plaintiff. This Court has upheld the facial constitutionality of this statute in previous cases. See, e.g. Rohrabaugh v. Wagoner, 274 Ind. 661, 413 N.E.2d 891 (1980); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585 (1980) . However, a facially constitutional statute may be unconstitutional as applied to a particular plaintiff. See City of Fort Wayne v. Cameron, 267 Ind. 329, 334, 370 N.E.2d 338, 341 (1977) (finding notice provision contained in Indiana Code section 18-2-2-1 (1977), while facially constitutional, was unconstitutional as applied to plaintiff). In neither Rohrabaugh nor Johnson did the plaintiffs allege that the statute of limitations contained in the Medical Malpractice Act violated the constitution because the long latency period of their medical disease or condition prevented them from discovering the alleged malpractice during the statutory limitations period. The plaintiff in today's case, Melody Martin, suffers from breast cancer, a medical condition with a long latency

period which prevented her from discovering her doctor's malpractice within the statutory two- year period.     
    We find that the statute of limitations as applied to the plaintiff in this case 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 resulting injury, and, therefore, it imposes an impossible condition on her access to the courts and pursuit of her tort remedy.

limitations, a tort claim must be filed within two years from the date the cause of action “accrues,” and that a tort claim accrues “when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another.” Wheling v. Citizens Nat'l Bank, 586 N.E.2d 840, 843 (Ind. 1992).  At the same time, this Court has interpreted section 34-18-7-1(b) as an “occurrence” rather than a “discovery” statute, that is, a statute of limitations which commences running at the time of the act of malpractice rather than from the date on which the malpractice is discovered. See supra text accompanying note 6. Thus, plaintiff asserts, while most tort victims can avail themselves of the more liberal discovery rule, only victims of medical malpractice are required to file a claim within two years of the act of malpractice, regardless of whether they have discovered the malpractice, and this is not a distinction based on reason. Plaintiff also specifically urges this Court to reject prior precedent discussing the medical malpractice statute of limitations, because the legislative goals supposedly furthered by the statute are no longer furthered by the statute, if they ever were.
        Defendant argues that the relevant classification for the purpose of Article I, Section 23 is not malpractice victims and all other tort victims but rather the health care provider and all other tortfeasors. Defendant also correctly asserts that this Court has previously upheld the statute of limitations against a challenge that it unconstitutionally granted special privileges to medical professionals. Specifically, the Court held that the statute rationally related to the legitimate legislative goal of maintaining sufficient medical treatment and controlling medical malpractice insurance costs. See Rohrabaugh v. Wagoner, 274 Ind. 661, 666-67, 413 N.E.2d 891, 894-95 (1980); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 379-80, 404, 404 N.E.2d 585, 589-90, 604 (1980).

imposes two requirements upon statutes that create classifications and that either grant privileges or impose burdens: “First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated.” Id. at 80. We emphasized that, “in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion.” Id. We also held that, unlike the federal equal protection analytical framework, the resolution of Section 23 claims does not necessarily require the application of different degrees of scrutiny depending on the class or right at issue. Id.
        In applying the Collins standard, the Court of Appeals correctly concluded that this Court already has answered the first question, that is, “whether the disparate treatment accorded by the legislation” was “reasonably related to the inherent characteristics which distinguish the unequally treated classes,” Collins, 644 N.E.2d at 80, and properly refrained from re-examining the question in this case. Martin, 674 N.E.2d at 1023. Simply put, this Court has held that a classification scheme which distinguishes between victims of medical malpractice and victims of other torts, or viewed from another perspective, between health care providers and other tortfeasors, is reasonably related to the goal of maintaining sufficient medical treatment and controlling malpractice insurance costs in Indiana, and therefore is not unreasonable. Id.; see Rohrabaugh, 413 N.E.2d at 894-95; Johnson, 404 N.E.2d at 589-90, 604; see also Havens v. Ritchey, 582 N.E.2d 792, 794-95 (Ind. 1991). Specifically, this Court has held that the medical malpractice statute of limitations rationally furthers the goal of controlling malpractice costs by encouraging the prompt presentation of claims and, in so doing, limiting unfair exposure to

defending health care providers that stems from dimmed memories or the loss of evidence over time. Rohrabaugh, 413 N.E.2d at 894-95; Johnson, 404 N.E.2d at 604.See footnote 8 Nothing in Collins changes our conclusion. Although as we stated in Collins, “a classification which was proper when enacted may later cease to satisfy the requirement of Section 23 because of intervening changes in social or economic conditions,” 644 N.E.2d at 81, nothing in the record and briefs before us in this case warrants a re-examination of the legitimacy of the legislative goal underlying the Medical Malpractice Act or its statute of limitations. See Cha v. Warnick, 476 N.E.2d 109, 112-13 (Ind. 1985).
        We disagree, however, with the Court of Appeals' analysis of the second prong of the Collins test. The Court of Appeals correctly observed that victims of medical negligence who are unable to discover their injury and the medical malpractice before the expiration of the two- year statute of limitations are treated differently than plaintiffs who are able to discover the injury and the malpractice before the expiration of the two-year period and that the treatment is not “uniformly applicable” to all malpractice victims within the meaning of Collins. 674 N.E.2d at 1022-23. The Court of Appeals then concluded that the statute must fall. Id. at 1023. While we agree that the treatment is not “uniformly applicable” to all malpractice victims as required under Collins, it is not necessary to strike down the statute to administer the justice required by the Indiana Constitution, and, in fact, to do so is to ignore the final point we emphasized in Collins, that is, that courts “must exercise substantial deference to legislative discretion.” 644 N.E.2d at

80.
        The second prong of the Collins test is not a test that goes only to the facial validity of the statute, as the Court of Appeals apparently assumed. In fact, when, as here, the language of the relevant statutory provisions creates the primary classifications of medical malpractice victims and the victims of other torts but does not by its terms expressly create the assertedly unfair or disadvantaged subclassification of medical malpractice plaintiffs, the question presented by the second prong of Collins is whether the statute is unconstitutional as applied. In the context of this case, we agree with plaintiff that, under the second prong of Collins, the medical malpractice statute of limitations is not “uniformly applicable” to all medical malpractice victims. Moreover, this is not a case where the subclassification itself furthers the statutory goal of lowering medical costs by encouraging the prompt filing of claims, because plaintiffs who are unable to discover their injury and the malpractice are not empowered to file a claim at all.See footnote 9 Effectively, the doors of the courthouse are forever closed to them.
         Section 23 does not permit an application of the statute of limitations that would

deprive plaintiff of the two-year statutory period for identifying and pursuing a claim against her doctor simply because she has a disease which may not manifest significant pain or debilitating symptoms until several years after the initial diagnosis or misdiagnosis. Stated another way, consistent with Section 23, plaintiff cannot be foreclosed from bringing her malpractice suit when, unlike many other medical malpractice plaintiffs, she could not reasonably be expected to discover the asserted malpractice and resulting injury within the two-year period given the nature of the asserted malpractice and of her medical condition. Accordingly, under Section 23, the medical malpractice statute of limitations is unconstitutional as applied to plaintiff.

is an “unconstitutional abrogation of the right to a complete tort remedy as guaranteed by [A]rticle I, [Section]12 of the Indiana Constitution,” 674 N.E.2d at 1026, and declared that the statute of limitations was unconstitutional. Id. at 1027.
        We reject plaintiff's invitation to explore the outer bounds of Section 12 in this case. We also reject defendant's invitation to hold that the legislature can abolish any cause of action for any reason without violating Section 12. Rather, consistent with applicable jurisprudential principles, we decline to formulate a rule of constitutional law broader than is required by the precise facts at issue. See Indiana Wholesale Wine & Liquor Co. v. State ex rel. Indiana Alcoholic Beverage Comm'n, 695 N.E.2d 99, 108 (Ind. 1998) (citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). Moreover, although we agree with the Court of Appeals that plaintiff was deprived of the protections afforded her under Section 12, we, again, do not find it necessary to strike down the statute. Giving due deference to the function of the legislature and to its enactment, we simply conclude that, under Section 12, the medical malpractice statute of limitations is unconstitutional as applied.
        Section 12 provides that “All courts shall be open; and every person for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely and without denial; speedily, and without delay.” Ind. Const. art. I, § 12. This Court has analyzed the Article 1, Section 12 language “all courts shall be open,” and “every person, for an injury done to him . . . shall have remedy by due course of law,” in a number of cases referenced in the briefs of the

parties and their amici.See footnote 10 Contrary to plaintiff's assertion, we have not held that there is a “fundamental right” of access to the courts or to bring a particular cause of action to remedy an asserted wrong. See Rohrabaugh, 413 N.E.2d at 893. Moreover, the legislature has the authority to modify or abrogate common law rights provided that such change does not interfere with constitutional rights. See, e.g., State v. Rendleman, 603 N.E.2d 1333, 1336 (Ind. 1992) (upholding Tort Claims Act; reasoning that the right to sue the State arose under the common law, not the Constitution); Sidle v. Majors, 341 N.E.2d 763, 773-74 (Ind. 1976) (upholding automobile guest statute which limited a guest's right to sue to situations involving misconduct). We also have specifically upheld the medical malpractice statute of limitations against a facial challenge that it is unconstitutional under both Section 23 and Section 12, and, in so doing, we have emphasized that, although the statute of limitations may limit the substantive right that gives rise to a claim, it does not abrogate the right to seek redress in court because the bar does not fall until a reasonable time for filing has expired. See Rohrabaugh, 413 N.E.2d at 893.
        This Court has acknowledged, however, that there is a right of access to the courts, and that the legislature cannot unreasonably deny citizens the right to exercise this right. See State ex rel. Hurd v. Davis, 226 Ind. 526, 533, 82 N.E.2d 82, 85 (1948); Square D. Co. v. O'Neal, 225 Ind. 49, 55-56, 72 N.E.2d 654, 657 (1947). Similarly, we have reasoned that the

legislature cannot deprive a person of a complete tort remedy arbitrarily and unreasonably, consistent with the protections Section 12 affords, and that legislation which restricts such a right must be a rational means to achieve a legitimate legislative goal. See Johnson, 404 N.E.2d at 598-600 (upholding the constitutionality of provisions of the Medical Malpractice Act; citing Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 82-92 (1978)). We also have suggested that to construe the medical malpractice statute as precluding “all malpractice actions under all circumstances unless commenced within two years from the act complained of (discoverable or otherwise) would raise substantial questions under the Article I, Section 12 guarantee of open courts and redress for injury to every man, not to mention the offense to lay concepts of justice.” Chaffin v. Nicosia, 261 Ind. 698, 703-04, 310 N.E.2d 867, 870 (1974). Moreover, we have squarely held that, under Section 12, an occurrence-based notice provision, which requires, as a prerequisite to filing suit against the city, that plaintiff give notice to the city within sixty days of the incident, was unconstitutional as applied to a plaintiff who was mentally and physically incapacitated during the statutory notice period. City of Fort Wayne v. Cameron, 267 Ind. 329, 334, 370 N.E.2d 338, 341 (1977).
        We need not fully explore the nature and the extent of the right of access to the courts or any other rights conferred by Section 12, because, in this case, it cannot be questioned that, had plaintiff filed her medical malpractice claim within the two-year period, she could have pursued her otherwise valid tort claim. Certainly defendant points to nothing in the Medical Malpractice Act that would preclude her from doing so. The sole question here, then, is whether, given the existence of a tort cause of action, the medical malpractice statute of limitations can be applied to deprive plaintiff of her otherwise valid claim.

negligence claim, and this indeed would be boarding the bus to topsy-turvy land.See footnote 12
        This approach to analyzing plaintiff's claim is consistent with the approach taken in other jurisdictions which have provisions similar to Section 12 in their state constitutions.
See, e.g., McCullum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (Ky. 1990); Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709 (Ohio 1987); Hardy v. VerMeulen, 512 N.E.2d 626 (Ohio 1987); Hellman v. Mateo, 772 S.W.2d 64, 66 (Tex. 1989); Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985); Nelson v. Krusen, 678 S.W.2d 918 (Texas 1984); Felan v. Ramos, 857 S.W.2d 113 (Tex. App. 1993).See footnote 13
        There can be no question here that plaintiff was unaware that she had a malignancy and that the cancer had spread to her lymph nodes until April 1994, over three years after

defendant performed the needle aspiration and informed her that she had fibrocystic breast disease and was fine and approximately eighteen months after her last visit to his office. To require plaintiff under these circumstances to file her claim before the expiration of the two-year medical malpractice statute of limitations would require her to file a claim before she was aware of the malpractice and the resulting injury and would impose an impossible condition on her access to the courts and pursuit of a tort remedy. In other words, it would require her to file a claim before such claim existed. This application of the medical malpractice statute of limitations is so unreasonable as to violate Section 12. We therefore conclude that, under Section 12, the medical malpractice statute of limitations is unconstitutional as applied to plaintiff.

Attorneys for Appellant

Mary A. Findling
Findling, Garau, Germano & Pennington, P.C.
Indianapolis, Indiana

Attorneys for Appellee

Karl L. Mulvaney
Bingham, Summers, Welsh & Spilman
Indianapolis, Indiana

Gary J. Clendening
Kendra Gowdy Gjerdingen
Mallor, Clendening, Grodner & Bohrer
Bloomington, Indiana Amicus Curiae

Indiana Trial Lawyers Association

Laurence H. Tribe
Cambridge, Massachusetts

Roger L. Pardieck
Thomas C. Doehrman
Edgar W. Bayliff
Robert L. Justice
Henry J. Price
May Beth Ramey
P. Gregory Cross
Indianapolis, Indiana Amicus Curiae-cont'd

Indiana State Medical Association

David C. Jensen
Sherry L. Clarke
Judith I. Snare
Eichorn & Eichorn
Hammond, Indiana

Indiana Defense Lawyers Association

Philip E. Kalamaros
Edward N. Kalamaros & Associates
South Bend, Indiana

Kevin Charles Murray
Todd J. Kaiser
Nelson D. Alexander
T. Joseph Wendt
Locke, Reynolds, Boyd & Weisell
Indianapolis, Indiana