Mary N. Poole v. Anonymous D.P.M., Anonymous Medical Group, Anonymous M.D., Anonymous Network, and Anonymous Hospital (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
FILED
any court except for the purpose of Nov 19 2018, 9:55 am
establishing the defense of res judicata, CLERK
Indiana Supreme Court
collateral estoppel, or the law of the Court of Appeals
and Tax Court
case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Mary N. Poole Robert G. Zeigler
Anderson, Indiana Marilyn A. Young
Erin E. Meyers
Zeigler Cohen & Koch
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mary N. Poole, November 19, 2018
Appellant-Plaintiff, Court of Appeals Case No.
48A02-1706-CT-1376
v.
Appeal from the Madison Circuit
Anonymous D.P.M., Anonymous Court
Medical Group, Anonymous The Honorable Mark K. Dudley,
M.D., Anonymous Network, and Judge
Anonymous Hospital, Trial Court Cause No.
Appellees-Defendants. 48C06-1403-CT-37
Brown, Judge.
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[1] Mary N. Poole appeals the trial court’s entry of summary judgment in favor of
Anonymous M.D., Anonymous Network, and Anonymous Hospital
(collectively, “Health Care Providers”) in a medical malpractice action. Poole
raises several issues, which we revise and restate as whether the court erred in
entering summary judgment in favor of Health Care Providers. We affirm.
Facts and Procedural History
[2] After filing a proposed complaint with the Indiana Department of Insurance
(“IDOI”),1 Poole filed a complaint on March 10, 2014, against Health Care
Providers and Anonymous D.P.M.,2 in which she alleged:
4. Defendant, Anonymous, M.D. is a partially covered Qualified
Health Care Provider under the [Indiana Malpractice Act (“the
Act”)] per the IDOI.
5. Defendant, Anonymous Hospital is a Qualified Health Care
Provider under the Act. It also employs other health care
providers who were integrally involved in [Poole’s] care.
6. On or about February 29, 2012, on the referral of Wa’el
Bakdash, M.D. for a diabetic foot exam, [Poole] first visited
Anonymous, D.P.M. at which time he noted her current
medications included Plavix.
1
The record does not contain a copy of the proposed complaint filed with IDOI.
2
Poole later amended her complaint to include Anonymous Medical Group as a defendant. Anonymous
D.P.M. and Anonymous Medical Group are represented separately from Health Care Providers, who filed a
motion for summary judgment. Anonymous D.P.M. and Anonymous Medical Group did not join the
motion for summary judgment.
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7. On or about December 5, 2012, Anonymous, D.P.M.
recommended surgery to [Poole], but did not instruct her to stop
taking Plavix.
8. [On] December 12, 2012, Anonymous, D.P.M. performed
arthroplasty flexor tendon transfer of Plaintiff’s 2nd, 3rd, and 4th
right toes and arthroplasty of 5th right toe with .035 K-wire.
Immediately prior to this surgery, Anonymous, D.P.M. was
informed that [Poole] had not stopped taking Plavix.
9. Anonymous, M.D. was the anesthesiologist for the
arthroplasty surgery performed on December 12, 2012 by
Anonymous, D.P.M. on [Poole]. He was aware immediately
before surgery that [Poole] was taking Plavix.
10. On or about December 12, 2012, Marcaine with epinephrine
was injected as local anesthesia by Anonymous, D.P.M. prior to
and after performing surgery, which local anesthesia was
contraindicated in this patient.
11. By December 25, 2012, [Poole] had necrotic tips of her digits
with Anonymous, D.P.M. advising it was either due to
congestion with severe ecchymosis or an ischemic event.
*****
13. The conduct of Anonymous, M.D. fell below the applicable
standard of care including, but not limited to, going forward with
surgery after learning that [Poole] had not stopped taking Plavix.
14. The conduct of the nurse employees of Anonymous Hospital
fell below the applicable standards of care including, but not
limited to, providing Marcaine with epinephrine to Anonymous,
D.P.M. for administration as a local during [Poole’s] toe surgery
and failing to be an advocate for the patient.
15. As a direct and proximate result of Defendants’ negligence,
certain portions of [Poole’s] toes had to be amputated, resulting
in permanent impairment and disfigurement, significant
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subsequent medical treatment and bills, pain and suffering,
emotional distress, and other injuries and damages.
Appellant’s Appendix Volume I at 64-66.
[3] On August 23, 2016, Health Care Providers filed a motion for summary
judgment which asserted that there was no genuine issue of material fact as to
each of three elements of Poole’s complaint, namely “(1) expert testimony
establishing the required standard of care, (2) expert testimony that [Health
Care Providers] failed to observe that standard, and (3) expert testimony
establishing the cause in fact of the alleged injuries,” and attached a copy of the
medical review panel opinion. Id. at 72. The attached opinion displays a file-
stamp of April 25, 2016, and states that the medical review panel was of the
unanimous opinion that the “evidence does not support the conclusion that the
defendants failed to meet the applicable standard of care, and that their conduct
was not a factor of the resultant damages.” Id. at 74.
[4] On September 20, 2016, Poole’s counsel filed a motion for leave to withdraw
appearance and a motion for extension of time to respond to Health Care
Providers’ motion for summary judgment, and the court granted “an extension
of time to and including December 21, 2016.” Id. at 99. On December 21,
2016, Poole filed a “petition for time extension (30 days)” and indicated that
she had a lawyer who had looked at the case for thirty days and “then said she
couldn’t take it” and that she has “a lawyer who say[s] he will help me.” Id. at
105. The chronological case summary (“CCS”) indicates that the court granted
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Poole’s request, “however, only until 01/06/2017. Hearing remains scheduled
for 01/13/2017.” Id. at 9.
[5] On January 6, 2017, Poole filed, pro se, both a memorandum in opposition to
the summary judgment motion of Health Care Providers and her own personal
affidavit. Poole’s memorandum states, in part:
There is no indication, such as risks or medication instructions
on [Poole’s] surgery consent form that specifies the risks
associated with her pre-existing medical history and current
medication usage. Exhibit 7. Further, in neither [Anonymous
D.P.M.’s] answer to pre-trial interrogatory nor the attending
Anesthesiologist, [Anonymous M.D.’s] pre-trial depositions on
medication usage instructions that indicated any particular risks,
other than [Anonymous D.P.M.] stating that [Poole] may have a
little more bleeding because she had not stop[ped] taking Plavix.
Exhibits 8, 9.[3]
Id. at 118-119. Her personal affidavit details the alleged conduct of Anonymous
D.P.M. and asserts that Anonymous D.P.M. “subjected [her] to a risky, non-
emergency surgery” and that she was deprived of the opportunity to make an
informed decision as to whether or not to undergo the surgery. Id. at 108.
[6] On January 9, 2017, Poole filed a petition for a continuance, and the CCS
indicates that the court continued the January 13, 2017 hearing on the motion
3
We note that the exhibits cited in Poole’s memorandum are not attached to the copy of her January 6, 2017
memorandum included in the appellant’s appendix. On appeal, Poole acknowledges that “no exhibits were
submitted with her original January 6, 2017 documents.” Appellant’s Reply Brief at 5. See also Appellant’s
Brief at 9 (“[Poole] inadvertently omitted a portion of the documents.”).
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for summary judgment initially to March 3, 2017, and eventually to March 24,
2017. On February 10, 2017, Poole filed a motion to amend her memorandum
in opposition to summary judgment and asked the court to incorporate certain
exhibits or, as she alleged, a “compilation of discovery, authoritative and . . .
reference documents . . . relevant to the case.” 4 Id. at 127. On February 27,
2017, the court denied the motion to amend.
[7] After hearing argument on the motion, the trial court issued an order on April
10, 2017, which granted summary judgment in favor of Health Care Providers
and found that “[n]either [Poole’s] designated evidence nor . . . her stricken
designation contain[ed] any expert opinions bearing on the care provided,” that
there were no material issues of fact, and that “there being no just cause for
delay such judgment shall be a final judgment.” Id. at 23, 25. On May 9, 2017,
Poole filed a motion correct error which the trial court denied on May 23, 2017.
Discussion
[8] The issue is whether the trial court erred in entering summary judgment in
favor of Health Care Providers. Before we address Poole’s arguments, we note
that pro se litigants, like Poole, are held to the same standards as trained
attorneys and are afforded no inherent leniency simply by virtue of being self-
4
While Poole’s motion to amend contained within the record does not include copies of the exhibits it
discussed, the “evidentiary exhibit list” attached to the motion states, in part, “Medical History Report
(2012),” “Medical History Report (2013),” “Operative Report and Marcaine/Epinephrine Information,”
“Additional Allegation List Submittal to Medical Review Panel,” “Excerpt of Defendant ([Anonymous
M.D.’s]) Deposition,” and “Defendant ([Anonymous D.P.M.’s]) Interrogatory.” Appellant’s Appendix
Volume I at 129. The appellant’s appendix on appeal does not contain the deposition of Anonymous M.D.
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represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014) (citing Matter of
G.P., 4 N.E.3d 1158 (Ind. 2014)). Pro se litigants are required to follow
procedural rules, Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans.
denied, and “must be prepared to accept the consequences of their failure to do
so.” Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016), reh’g denied. This
Court will further “not become an advocate for a party, or address arguments
that are inappropriate or too poorly developed or expressed to be understood.”
Id. at 984 (internal quotation marks omitted).
[9] When reviewing the grant or denial of summary judgment, we apply the same
standard as the trial court. Estate of McGoffney v. Anonymous Skilled Nursing
Facility, 93 N.E.3d 1104, 1110 (Ind. Ct. App. 2018) (citing Anonymous Physician
v. Wininger, 998 N.E.2d 749, 751 (Ind. Ct. App. 2013)), trans. denied.
Summary judgment is proper only when the designated evidence shows that
there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Id. All facts and reasonable inferences
therefrom are construed in a light most favorable to the nonmovant and any
doubts as to the existence of a material issue are resolved in favor of the
nonmovant. Id. Our review of a summary judgment motion is limited to those
materials designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of
Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). In reviewing a trial court’s ruling
on a motion for summary judgment, we may affirm on any grounds supported
by the Indiana Trial Rule 56 materials. Catt v. Bd. of Comm’rs of Knox Cnty., 779
N.E.2d 1, 3 (Ind. 2002).
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[10] In medical malpractice cases, a unanimous opinion of the medical review panel
that the physician did not breach the applicable standard of care is ordinarily
sufficient to establish prima facie evidence negating the existence of a genuine
issue of material fact entitling the physician to summary judgment. Stafford v.
Szymanowski, 31 N.E.3d 959, 961 (Ind. 2015) (citing Boston v. GYN, Ltd., 785
N.E.2d 1187, 1191 (Ind. Ct. App. 2003), trans. denied. See also Bhatia v.
Kollipara, 916 N.E.2d 242, 245 (Ind. Ct. App. 2009) (“In medical malpractice
cases, it is well-established that when the medical review panel opines that the
plaintiff has failed to make a prima facie case, she must then come forward with
expert medical testimony to rebut the panel’s opinion in order to survive
summary judgment.”) (quoting Brown v. Banta, 682 N.E.2d 582, 584 (Ind. Ct.
App. 1997), trans. denied). Consequently, in such situations, the burden shifts to
the plaintiff, who may rebut with expert testimony. Stafford, 31 N.E.3d at 961.
“Failure to provide expert testimony will usually subject the plaintiff’s claim to
summary disposition.” Bhatia, 916 N.E.2d at 245 (citing Widmeyer v. Faulk, 612
N.E.2d 1119, 1122 (Ind. Ct. App. 1993)).
[11] Poole argues that a “principle issue . . . in this appeal is [the] lack of Informed
Consent,” cites Ind. Code §§ 34-18-12-2(3), -3, and asserts that “explanations
for items 1, 3, 4, and 5 [of Ind. Code. § 34-18-12-3] are missing from her
consent form and that had she been aware of the risks, she would not have
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consented to the surgery.”5 Appellant’s Brief at 14-15. She also argues that the
res ipsa loquitur doctrine applies to this case and that the need for expert opinions
in medical malpractice cases is dispensed with “when a case fits within the
‘common knowledge’ or res ipsa loquitur exception.” Id. at 15 (citation omitted).
Health Care Providers argue that the grant of summary judgment is proper
because Poole failed to create a genuine issue of material fact.
[12] To the extent that Poole argues that the trial court erred in not considering all
the evidence she wished to designate, we observe that Trial Rule 56(C) provides
that “a party opposing a motion for summary judgment has thirty days to serve
a response or any other opposing affidavits.” HomEq Servicing Corp. v. Baker,
883 N.E.2d 95, 98 (Ind. 2008) (citing Trial Rule 56(C)). See also Trial Rule
56(C) (“A party opposing the motion shall also designate to the court each
material issue of fact which that party asserts precludes entry of summary
5
Ind. Code § 34-18-12-2(3) provides: “If a patient’s written consent is . . . explained, orally or in the written
consent, to the patient or the patient’s authorized representative before a treatment, procedure, examination,
or test is undertaken . . . a rebuttable presumption is created that the consent is an informed consent.” Ind.
Code § 34-18-12-3 provides that the explanation given in accordance with Ind. Code § 34-18-12-2(3) must
include: “(1) The general nature of the patient’s condition. (2) The proposed treatment, procedure,
examination, or test. (3) The expected outcome of the treatment, procedure, examination, or test. (4) The
material risks of the treatment, procedure, examination, or test. (5) The reasonable alternatives to the
treatment, procedure, examination, or test.”
Insofar as Poole “further asserts that the absence of this information constitutes a statutory violation of the
code, referencing 410Ind. [sic] Admin. Code IAC 15-1.6-8, § 8(a)(3),” Appellant’s Brief at 15, we observe
that 410 Ind. Admin. Code 15-1.6-8(c) provides, in part: “Surgical services shall have policies governing
surgical care designed to assure the achievement and maintenance of standards of medical practice and
patient care, as follows: . . . (3) A properly executed informed consent form for the operation shall be in the
patient’s chart before surgery, except in extreme emergencies.”
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judgment and the evidence relevant thereto.”). Trial Rule 56(E) provides in
part:
The court may permit affidavits to be supplemented or opposed
by depositions, answers to interrogatories, or further affidavits.
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the
mere allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial. If he
does not so respond, summary judgment, if appropriate, shall be
entered against him.
We review the trial court’s decision on a request to supplement under Trial
Rule 56(E) for an abuse of discretion. See Estate of Collins v. McKinney, 936
N.E.2d 252, 258 (Ind. Ct. App. 2010) (“Rule 56(E) permits supplementing
affidavits with ‘further affidavits,’ and that (as with most evidentiary matters)
such a decision lies ‘within the trial court’s discretion.’”) (quoting Ind. Univ.
Med. Ctr., Riley Hosp. for Children v. Logan, 728 N.E.2d 855, 858 (Ind. 2000) (“It
is within the trial court’s discretion to accept an affidavit filed later than the date
specified in the rule.”)), trans. denied. An abuse of discretion occurs when the
trial court’s decision is against the logic and effect of the facts and
circumstances before it. Scripture v. Roberts, 51 N.E.3d 248, 254 (Ind. Ct. App.
2016) (citing Fort Wayne Lodge, LLC v. EBH Corp., 805 N.E.2d 876, 882 (Ind. Ct.
App. 2004)). Here, Health Care Providers filed a motion for summary
judgment and designated evidence on August 23, 2016. Accounting for the two
time extensions granted by the trial court, giving Poole until January 6, 2017, to
file her response, Poole was provided an additional 106 days from the time that
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she was required to respond to the summary judgment motion under Trial Rule
56(C). Poole’s motion to amend, to which she purports to have attached
certain exhibits, was eventually filed on February 10, 2017. Under these
circumstances, we cannot say that the trial court abused its discretion by
denying Poole’s request to supplement her designated evidence. See Scripture,
51 N.E.3d at 249-250 (holding that the trial court did not abuse its discretion in
denying a motion for leave to supplement).
[13] We now turn to the court’s ruling on the summary judgment motion. To
prevail on a claim of medical malpractice, a plaintiff must demonstrate: “(1)
that the physician owed a duty to the plaintiff; (2) that the physician breached
that duty; and (3) that the breach proximately caused the plaintiff’s
injuries.” Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187-1188 (Ind.
2016) (quoting Mayhue v. Sparkman, 653 N.E.2d 1384, 1386 (Ind. 1995)).
Medical malpractice actions are similar to other negligence actions. Narducci v.
Tedrow, 736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000). The doctrine of res ipsa
loquitur is a qualified exception to the general rule that the mere fact of injury
will not create an inference of negligence. Syfu v. Quinn, 826 N.E.2d 699, 703
(Ind. Ct. App. 2005). It recognizes that “the facts or circumstances
accompanying an injury may be such as to raise a presumption, or at least
permit an inference, of negligence on the part of the defendant.” Id. (citing
Narducci, 736 N.E.2d at 1292). “Application of the doctrine does not in any
way depend on the standard of care imposed by law but, rather, depends
entirely upon the nature of the occurrence out of which the injury arose.” Id.
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[14] Determining whether the doctrine applies in any given negligence case is a
mixed question of law and fact, with the question of law being whether the
plaintiff’s evidence included all of the underlying elements of res ipsa loquitur.
Id. at 703-704.
Under the doctrine of res ipsa loquitur, negligence may be inferred
where 1) the injuring instrumentality is shown to be under the
management or exclusive control of the defendant or his
servants, and 2) the accident is such as in the ordinary course of
things does not happen if those who have management of the
injuring instrumentality use proper care.
Id. at 704 (quoting Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1993),
trans. denied). In the medical malpractice context, application of this exception
is limited to situations in which the defendant’s conduct is so obviously
substandard that a jury need not possess medical expertise in order to recognize
the defendant’s breach of the applicable standard of care. Methodist Hosps., Inc.
v. Johnson, 856 N.E.2d 718, 721 (Ind. Ct. App. 2006) (citing Syfu, 826 N.E.2d at
703). Such negligent actions typically arise when physicians leave foreign
objects in a patient’s body because a jury can understand without independent
explanation that the object should have been removed. Id.
[15] Here, we note that Poole’s personal affidavit filed on January 6, 2017,
concerned the actions of Anonymous D.P.M. and not Health Care Providers
and that the entirety of the allegations in Poole’s amended proposed complaint
related to Health Care Providers were that Anonymous M.D. was “the
anesthesiologist for the arthroplasty surgery performed on December 12, 2012,”
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that he “was aware immediately before surgery that [Poole] was taking Plavix,”
and that his conduct “fell below the applicable standard of care including, but
not limited to, going forward with surgery after learning that [Poole] had not
stopped taking Plavix.” Appellant’s Appendix Volume I at 65-66. The
designated evidence includes the unanimous opinion of the medical review
panel, which provides that the “evidence does not support the conclusion that
the defendants failed to meet the applicable standard of care, and that their
conduct was not a factor of the resultant damages.” Id. at 74.
[16] Under these circumstances, we cannot say that the doctrine of res ipsa loquitur
applies or that the alleged conduct of Health Care Providers is so “obviously
substandard that a jury would need not possess medical expertise in order to
recognize a breach of the applicable standard of care.” See Methodist Hosps., 856
N.E.2d at 721. Moreover, in light of the medical review panel’s unanimous
decision and Poole’s failure to rebut it with expert testimony of her own, we
cannot say that the trial court erred in entering summary judgment in favor of
Health Care Providers. Cf. Miller v. Yedlowski, 916 N.E.2d 246, 252 (Ind. Ct.
App. 2009) (“Because this leaves no evidence to oppose [doctor’s] motion for
summary judgment, which includes the medical review panel’s unanimous
decision that he did not fail to comply with the appropriate standard of care as
charged in the complaint and the conduct complained of was not a factor of the
resultant damages, we conclude that the trial court erred by denying his motion
for summary judgment.”), trans. denied.
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Conclusion
[17] For the foregoing reasons, we affirm the entry of summary judgment in favor of
Health Care Providers and against Poole.
[18] Affirmed.
Bailey, J., and Crone, J., concur.
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