michael-k-curts-individually-and-as-personal-representative-of-the-estate ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JAY T. HIRSCHAUER JANET A. MCSHARAR
Hirschauer & Hirschauer ALBERT BARCLAY WONG
Logansport, Indiana Harrison & Moberly, LLP
Indianapolis, Indiana
FILED
Aug 15 2012, 8:45 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
MICHAEL K. CURTS, Individually and as)
Personal Representative of the Estate of
)
Dorothy J. Curts, Deceased, )
)
Appellant-Plaintiff, )
)
vs. ) No. 09A02-1112-CT-1191
)
MILLER’S HEALTH SYSTEMS, INC., a/k/a )
MILLER’S MERRY MANOR, )
LOGANSPORT, LLC, d/b/a MILLER’S )
MERRY MANOR, )
)
Appellees-Defendants. )
APPEAL FROM THE CASS SUPERIOR COURT
The Honorable Thomas C. Perrone, Judge
Cause No. 09D01-0611-CT-00021
August 15, 2012
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Michael Curts, acting individually and as personal representative of the Estate of
Dorothy J. Curts, brought suit against Miller’s Merry Manor nursing home (“Manor”),
claiming wrongful death, breach of contract, and negligent infliction of emotional distress.
The trial court granted summary judgment in favor of Manor. Curts appeals, raising two
issues: 1) whether Theresa Weitkamp, as a nurse and nursing home administrator, can qualify
as an expert witness and offer an expert opinion as to whether Manor breached its standard of
care and whether such alleged breach caused Dorothy Curts’s injuries and subsequent death;
and 2) whether a genuine issue of material fact exists such that summary judgment is
inappropriate. Concluding nurses can potentially have sufficient expertise to qualify as
experts for the purposes of medical standards of care and medical causation, but that the
evidence designated does not demonstrate that Weitkamp has sufficient expertise and thus no
genuine issues of material fact exist, we affirm the trial court’s grant of summary judgment
for Manor.
Facts and Procedural History1
Dorothy Curts, an elderly woman in her eighties, was admitted to Manor. On May 7,
2006, the evidence reveals Dorothy had an accident while in Manor’s care. She was taken to
the local emergency room and treated, but approximately 24 hours after the incident she
passed away. Dorothy’s son, Michael Curts, brought suit, acting individually and as personal
representative of the Estate of Dorothy J. Curts. He raised claims of wrongful death, breach
1
We held oral argument in this case on July 26, 2012, at the Indiana Court of Appeals Courtroom
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of contract, and negligent infliction of emotional distress. All three claims relied upon his
factual assertions that Manor acted negligently in providing care for Dorothy and that such
negligence caused Dorothy to fall out of her bed, hit her head, and die.
Manor moved to stay the proceedings, alleging it was a qualified health care provider
that opted to be covered under the Indiana Medical Malpractice Act. A medical review panel
consisting of three medical doctors convened and ultimately determined, “[t]he evidence does
not support the conclusion that [Manor] failed to meet the appropriate standard of care as
charged in the complaint and the conduct complained of was not a factor of the resultant
damages.” Appendix to Brief of Appellant at 23.
Thereafter, Manor moved for summary judgment, designating as evidence the medical
review panel’s decision. Curts filed a response and designated as evidence both a deposition
and report letter of Theresa Weitkamp, a registered nurse and nursing home administrator, a
portion of a deposition of Michael Curts, and the admission contract between Dorothy and
Manor. After a hearing, the trial court granted Manor’s motion for summary judgment.
In her report letter, Weitkamp summarized the clinical records relating to the care and
services provided to Dorothy at Manor and at area hospitals when such medical care was
necessary. Dorothy was admitted to Manor for nursing care after she suffered a stroke and
made at least one trip to an emergency room. Her medical issues were varied, including
weakness and contusions on her left side, fatigue, and diabetes. Dorothy had a history of
falling, and her physician ordered a sensor alarm and bed and chair alarms for her room.
in Indianapolis. We thank counsel for their capable advocacy.
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Despite this, she fell at Manor on at least one occasion prior to the incident at issue, which
resulted in a fractured left hip.
Dorothy “had urinary frequency and had to be toileted often” and “was also
incontinent at times.” Id. at 125. Weitkamp’s letter reports that Dorothy would regularly
turn on her call light to obtain assistance in getting to the restroom, but such attempts were
often neglected and Dorothy would either wait a lengthy period for help or try to make it to
the restroom on her own. In December 2005, this resulted in staff responding to an alarm and
finding Dorothy lying on the floor in her room. She was unable to move without pain, but
was otherwise uninjured. She was routinely reminded to ask for assistance before getting up
from her bed.
In early 2006, nurses noted occasions where Dorothy urinated every twenty to thirty
minutes during the night. She began setting off her bed alarm in an effort to get assistance
more quickly. In April 2006, she was found sitting next to her bed after she got up so she
could “pee in the trash can.” Id. at 126. Despite all of these events, Weitkamp noted that no
new measures were implemented to reduce Dorothy’s risk of falling.
Around 1:00 pm on May 7, 2006, a staff person responded to an alarm in Dorothy’s
room and found her lying face down on the floor. She had a large knot and a laceration about
two centimeters long on her forehead, and she was lying in a significant amount of blood.
She was taken to the emergency room within a few minutes. Doctors discovered a fractured
wrist and severe fractures to her spine. Although she was considered stable, she died at
12:15 pm on May 8, 2006.
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Weitkamp concluded “it is my opinion that Miller’s Merry Manor . . . deviated from
commonly accepted standards of care and practice as well as from OBRA regulations, federal
law mandating care given in nursing homes.” Id. at 122. Specifically, she states Manor
breached commonly accepted standards of care by “[f]ailing to provide adequate supervision
to prevent accidents,” “[f]ailing to respond to alarms in a manner timely enough to prevent
accidents,” “[f]ailing to take measures to determine the root cause of Mrs. Curts’ urinary
problems,” “[f]ailing to provide staff in adequate numbers to meet the needs of their
residents,” and “[f]ailing to provide care and services to enable residents to attain or maintain
their highest practicable physical well-being.” Id. Weitkamp then states, “[a]s a result, Mrs.
Curts fell multiple times, finally sustaining an injury which led to her untimely death.” Id.
In Curts’s deposition, he states that he arrived at the nursing home just after Dorothy’s
May 7 accident, and that when he came into the room he saw her lying on the floor in a large
puddle of blood. Similar to Weitkamp, he also commented upon Dorothy’s difficulties and
the nursing home’s lack of sufficient personnel to care for her in his deposition.
After a hearing, the trial court granted Manor’s motion for summary judgment. Curts
now appeals.
Discussion and Decision
I. Standard of Review
On appeal from a grant of summary judgment, our standard of review is the same as
that of the trial court. Cox v. Northern Indiana Pub. Serv. Co., Inc., 848 N.E.2d 690, 695
(Ind. Ct. App. 2006). We thus apply a de novo standard of review. Id. Summary judgment
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is appropriate when the designated evidence demonstrates there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. Ind. Trial Rule 56(C).
“When the defendant is the moving party under T.R. 56(C), the defendant is entitled to
summary judgment when it demonstrates undisputed material facts which negate at least one
element of the plaintiff’s claim.” Nikou v. INB Nat’l Bank, 638 N.E.2d 448, 454 (Ind. Ct.
App. 1994).
II. Summary Judgment
Manor has met its initial burden of establishing a prima facie showing that no genuine
issue of material fact exists because it included in its designated evidence the unanimous
opinion of the medical review panel that “[t]he evidence does not support the conclusion that
[Manor] failed to meet the appropriate standard of care as charged in the complaint and the
conduct complained of was not a factor of the resultant damages.” App. to Br. of Appellant
at 36; see McGee v. Bonaventura, 605 N.E.2d 792, 794 (Ind. Ct. App. 1993) (stating “a
unanimous opinion of the [medical review] panel that the defendant did not breach the
applicable standard of care is sufficient to negate the existence of a genuine issue of material
fact.”). Therefore, the question we must address is whether Curts, the nonmoving party, has
met his burden of establishing that a genuine issue of material fact does exist such that
summary judgment is inappropriate.
Although Curts argues in passing his claim is one of negligence rather than medical
malpractice, “[m]edical malpractice cases are no different from other kinds of negligence
actions regarding that which must be proven.” Bader v. Johnson, 732 N.E.2d 1212, 1216-17
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(Ind. 2000). To survive the summary judgment stage, Curts is therefore required to establish
the following elements: 1) Manor owed Dorothy a duty, 2) Manor breached its duty by
acting below the applicable standard of care, and 3) such breach proximately caused the
resulting harm. Id. at 1217. Curts argues the evidence establishes all three required elements
and therefore a genuine issue of material fact exists.
A. Nurses As Expert Witnesses
We have previously addressed whether nurses can testify as expert witnesses
regarding medical causation and medical standards of care in a handful of cases, and we have
generally concluded they cannot. In Nasser v. St. Vincent Hosp. & Health Servs., 926
N.E.2d 43, 44 (Ind. Ct. App. 2010), trans. denied, the plaintiff argued the hospital
“committed malpractice when the nursing staff did not respond to her repeated calls for help
and allowed her to deliver two eighteen-week stillborn fetuses alone in her hospital bed,” and
that such malpractice caused her to suffer severe emotional distress requiring medical care
and medication. A medical review panel was formed, consisting of two medical doctors and
one registered nurse. The doctors concluded the hospital did not fail to meet the applicable
standard of care and the conduct complained of was not a factor of the resultant damages, but
the nurse concluded the hospital failed to meet the standard of care and such failure was a
factor of the resultant damages.
We ultimately concluded that even though nurses are qualified to serve on medical
review panels pursuant to the Medical Malpractice Act,2 the expert opinion of a medical
2
Indiana Code section 34-18-2-14 defines “health care provider,” and includes in its definition
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review panel is admissible,3 and members of medical review panels can be called to testify,
Indiana Evidence Rule 702 prevents nurses from qualifying as experts regarding medical
causation even where they served on the medical review panel in a case. Id. at 51-52.
Because the plaintiff did not designate any evidence on the issue of causation other than the
nurse’s minority opinion from the review panel process, we affirmed the trial court’s grant of
summary judgment in favor of the hospital. Id. at 52. See also Clarian Health Partners, Inc.
v. Wagler, 925 N.E.2d 388 (Ind. Ct. App. 2010) (concluding nurse’s affidavit inadmissible
for purposes of determining the cause of plaintiff’s injuries where the plaintiff suffered leg
damage and deformity after undergoing open heart surgery during which a complication
arose and her femoral artery was compromised because of the “significant difference in the
education, training, and authority to diagnose and treat diseases between physicians and
nurses”), trans. denied; Long v. Methodist Hosp. of Indiana, Inc., 699 N.E.2d 1164 (Ind. Ct.
App. 1998) (addressing whether potential missteps during open heart surgery caused a staph
infection, we concluded “[b]ecause there is a significant difference in the education, training,
and authority to diagnose and treat diseases between physicians and nurses, we hold that the
determination of the medical cause of injuries, which is obtained through diagnosis, for
purposes of offering expert testimony is beyond the scope of nurses professional expertise”
“registered or licensed practical nurse.” Indiana Code section 34-18-10-5 states, “[e]xcept for health care
providers who are health facility administrators, all health care providers in Indiana, whether in the teaching
profession or otherwise, who hold a license to practice in their profession shall be available for selection as
members of the medical review panel.”
3
Indiana Code section 34-18-10-23 provides: “A report of the expert opinion reached by the medical
review panel is admissible as evidence in any action subsequently brought by the claimant in a court of law.
However, the expert opinion is not conclusive, and either party, at the party’s cost, has the right to call any
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and nurses are therefore not qualified to offer expert testimony as to the medical cause of
injuries), trans. denied; Stryczek v. The Methodist Hosps., 694 N.E.2d 1186 (Ind. Ct. App.
1998) (concluding nurse not qualified to testify regarding whether hospital failed to timely
communicate a proper diagnosis prior to patient undergoing a course of radiation treatment or
whether such alleged failure to timely communicate a proper diagnosis caused cardiac
damage), trans. denied.
In the cases discussed above, the medical causation issues were rather complex. In
Nasser, the question was whether the hospital’s failure to respond to a patient’s calls and the
patient’s having delivered two stillborn fetuses in her hospital bed caused her severe
emotional distress such that medical care and medication were required. In Clarian Health
Partners, Inc., the question was whether a complication during open heart surgery caused the
patient’s leg damage and deformity. Similarly, in Long, the issue was whether missteps
during and/or after open heart surgery caused a staph infection. In Stryczek, the question was
whether a more timely diagnosis was possible and whether the alleged untimely diagnosis
caused cardiac damage. In cases such as these, having sufficient expertise to qualify as an
expert witness for the purpose of opining on medical causation or medical standards of care
would likely require more experience and understanding than that of even a highly-
experienced nurse. However, the case before us asks whether a nursing home failed to meet
its standard of care and whether injuries from Dorothy’s fall caused her death approximately
member of the medical review panel as a witness. If called, a witness shall appear and testify.”
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twenty-four hours later. In a scenario such as this, we cannot foreclose the possibility that
some nurses have sufficient expertise to qualify as an expert witness.
We conclude we are not prepared to declare a blanket rule that nurses cannot qualify
as expert witnesses under Indiana Evidence Rule 702 and testify as to whether a healthcare
provider breached a standard of care or whether an alleged breach caused an injury. Indiana
Evidence Rule 702(a) provides “a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or
otherwise.” Just as the Rule states, we hold a nurse could qualify as an expert regarding
medical standards of care and causation in some circumstances. The determinative question
is whether the nurse has sufficient expertise, as provided in Rule 702(a), with the factual
circumstances giving rise to the claim and the patient’s injuries.
Here, Curts has not presented sufficient evidence of Weitkamp’s expertise for us to
conclude she qualifies as an expert concerning Manor’s alleged breach of care and whether
such alleged below-standard care caused Dorothy’s demise. In her deposition she briefly
discussed her education and work history, but there is nothing in the record indicating she
regularly deals with matters of this kind, has acquired education and/or training specific to a
patient like Dorothy and her needs, has expert knowledge of the governing federal
regulations, has sufficient expertise to comment on the manner and cause of Dorothy’s death,
or anything else which could demonstrate she qualifies as an expert.
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B. Genuine Issue of Material Fact
Having concluded insufficient evidence was designated establishing Weitkamp’s
qualifications as an expert, we must also conclude Curts has failed to meet his burden of
establishing a genuine issue of material fact. Other than a doctor’s order that Dorothy’s bed
and chair should be equipped with sensor alarms, the record is void of any indication whether
a medical doctor had issued specific orders for Dorothy’s treatment and care and, if such
orders were given, whether Manor’s care for Dorothy adhered to those orders. Other than
Weitkamp’s testimony, the record is also void of evidence demonstrating Manor’s alleged
failure to provide proper care caused Dorothy’s death. Thus, the only evidence designated
concerning whether Manor breached its standard of care and whether the alleged negligent
conduct caused Dorothy’s fall and death is the unanimous medical review panel opinion,
which conclusively states Manor did not breach its standard of care and the alleged
misconduct was not a factor in the resulting injuries and death of Dorothy.
Curts’s argument that common sense supports a conclusion that Manor breached its
duty of care and caused Dorothy’s injuries and death is unpersuasive. Merely because an
elderly person falls and injures herself in a nursing home, even when it has happened before,
does not establish that it was the nursing home’s responsibility based upon professional
medical standards to protect her from such a fall. Additionally, the fact that Dorothy fell and
injured her head does not necessitate a conclusion that the fall caused her death. Dorothy
was taken to a hospital and treated after she fell from her bed. The actions or inactions of
paramedics or hospital staff which occurred after Dorothy’s fall could have caused her
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demise, or, given her age, her death could have resulted from natural causes. Curts therefore
cannot rely on common sense in arguing he has established a genuine issue of material fact.
Conclusion
While we hold it is possible for a nurse to have sufficient expertise to qualify as an
expert witness under Indiana Evidence Rule 702 and opine on whether the care of certain
healthcare providers fell below the requisite standard of care and whether such inadequate
care caused a particular medical injury, here, Curts designated insufficient evidence to
establish Weitkamp has such expertise. Curts has therefore failed to meet his burden of
establishing a genuine issue of material fact, and we conclude summary judgment is
appropriate for Manor and affirm the trial court.
Affirmed.
BAILEY, J., and MATHIAS, J., concur.
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