rebecca-stafford-individually-and-as-surviving-parent-of-drayden-powell ( 2014 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
MICHAEL E. SIMMONS SUSAN E. CLINE
ANDREW P. WIRICK EDWARD J. FUJAWA
Hume Smith Geddes Green & Simmons, LLP Lewis Wagner, LLP
Indianapolis, Indiana Indianapolis, Indiana
Jul 15 2014, 10:24 am
IN THE
COURT OF APPEALS OF INDIANA
REBECCA STAFFORD, Individually and as )
Surviving Parent of DRAYDEN POWELL, )
Deceased, and DRAYDEN POWELL, Deceased, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 89A01-1401-CT-48
)
JAMES E. SZYMANOWSKI, M.D. and )
GYN, LTD., INC., )
)
Appellees-Defendants, )
)
And )
)
JOSEPH B. CLEMENTE, M.D., )
)
Appellee-Defendant. )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Gregory A. Horn, Judge
Cause No. 89D02-1209-CT-33
July 15, 2014
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellants-Plaintiffs, Rebecca Stafford, Individually and as Surviving Parent of
Drayden Powell, Deceased (Stafford) and Drayden Powell, Deceased (Drayden)
(Collectively, Appellants), appeal the trial court’s summary judgment in favor of
Appellees-Defendants, Joseph B. Clemente, M.D. (Dr. Clemente) 1; James E.
Szymanowski, M.D. (Dr. Szymanowski); and GYN, Ltd., Inc. (GYN) (Collectively,
Appellees) with respect to Appellants’ medical malpractice claim.
We affirm.
ISSUES
Appellants raise three issues on appeal, which we restate as:
(1) Whether the trial court properly concluded that the testimony of Appellants’
expert witness did not create a genuine issue of material fact as to the liability of
Dr. Szymanowski;
(2) Whether the trial court properly concluded that the alleged negligence of a
physician qualified under the Indiana Medical Malpractice Act cannot be imputed
upon the corporate Appellee, GYN, under a theory of vicarious liability; and
(3) Whether the trial court properly concluded that no recovery can be had for the
2007 death of a child not born alive under the Child Wrongful Death Statute.
FACTS AND PROCEDURAL HISTORY
1
Dr. Clemente was voluntarily dismissed as a party from the action prior to the trial court’s ruling on the
Appellees’ motion for summary judgment.
2
Stafford became pregnant with her third child in 2007. She received prenatal
medical care from Appellees from approximately March of 2007 until Drayden was
stillborn on November 6, 2007. Stafford alleges that Drayden’s death in utero and
stillbirth resulted from Appellees’ negligence and medical malpractice at a time when
Drayden was a viable fetus, and specifically from certain medical acts and omissions
which occurred between October 6, 2007 and November 6, 2007.
On June 2, 2009, Stafford filed a Proposed Complaint for Medical Malpractice
with the Indiana Department of Insurance. On October 23, 2009, an amended complaint
was filed, adding Drayden, a child not born alive, as a party, and submitted to the
Medical Review Panel (Panel) pursuant to Ind. Code § 34-18-10-1. On May 30, 2012,
the Panel issued its expert opinion, concluding “that the evidence does not support the
conclusion that the [Appellees] failed to meet the applicable standard of care, and that
their conduct was not a factor of the resultant damages.” (Appellants’ App. p. 31).
On August 3, 2012, following the Panel’s opinion, Appellants filed their
Complaint for Medical Malpractice before the trial court. On September 21, 2012,
Appellees tendered a motion for summary judgment as a matter of law because
Appellants had failed to establish a genuine issue of material fact in the standard of care
exhibited by the Appellees and because Drayden’s claim under the Child Wrongful Death
Statute (CWDS) was time-barred. On December 27, 2012, Appellants responded,
designating an affidavit by its expert witness, Gary Brickner, M.D. (Dr. Brickner).
Reviewing the same records and materials previously tendered to the Panel, Dr. Brickner
concluded that the medical care and treatment rendered by Appellees to Stafford failed to
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comply with the appropriate medical standard of care and was deficient for, at least, the
following reasons:
a. On October 16, [Stafford] had an eight hour hospital stay at which time
the medical care and treatment failed to include appropriate laboratory
testing and a 24 hour urine study which could have provided indications of
impending or existing maternal/fetal complications and risk.
b. On November 1, a biophysical profile was performed which, if
performed properly, should have predicted the chances of fetal survival for
up to a week thereafter. It is my opinion that the baby most probably
expired between November 2 and November 4. Consequently, there is
medical reason to believe that the biophysical profile was performed or
interpreted, improperly.
c. On November 1, a fetal non-stress test or other appropriate evaluation of
the fetal heart rate pattern should have been performed based on
[Stafford’s] background/history and reduced fetal movement, and was not.
d. Given the condition of [Stafford] on November 1, a biophysical profile
of 8 out of 8 is a deviation from the standard of care because it left off a
critical index, the non-stress test.
e. It was a deviation from the standard of care for [Stafford] given her
report of decreased fetal movement, to have been sent home from the office
for the weekend on November 1 with an 8 out of 8 biophysical profile
without conducting a non-stress testing or other fetal heart rate evaluation.
(Appellants’ App. p. 99). Appellees deposed Dr. Brickner on June 3, 2013.2
On July 1, 2013, Appellees, besides filing a joint reply to Appellants’ Response,
also filed a second motion for summary judgment, as well as a designation of evidence,
to which Appellants responded. On November 15, 2013, the trial court conducted a
hearing on the motions for summary judgment. On January 2, 2014, the trial court
2
Appellees designated Dr. Brickner’s deposition with their motion for summary judgment as “the entire
[d]eposition of [Dr. Bickner], including, but not limited to [].” (Appellants’ App. p. 112). As Appellees
designated the complete deposition, its entirety may be available for our review. See generally Filip v.
Block, 879 N.E.2d 1076, 1081 (Ind. 2008).
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granted Appellees’ motion, concluding that there was no genuine issue of material fact as
to Dr. Szymanski and GYN, and to the extent necessary the unnamed physician, Joseph
Smith, M.D. (Dr. Smith), even though Dr. Smith had never been named as a party to the
action.
Appellants now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Summary judgment is appropriate only when there are no genuine issues of
material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial
Rule 56(C). A fact is material if its resolution would affect the outcome of the case, and
an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of
the truth . . . , or if the undisputed facts support conflicting reasonable inferences.
Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).
In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to affirm or
reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d
604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine
whether there is a genuine issue of material fact and whether the trial court has correctly
applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in
the light most favorable to the non-moving party. Id. at 608. The party appealing the
grant of summary judgment has the burden of persuading this court that the trial court’s
ruling was improper. Id. When the defendant is the moving party, the defendant must
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show that the undisputed facts negate at least one element of the plaintiff’s cause of
action or that the defendant has a factually unchallenged affirmative defense that bars the
plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be reversed if
the record discloses an incorrect application of the law to the facts. Id.We observe that, in the present case, the trial court entered findings of fact in
support of its judgment. Special findings are not required in summary judgment
proceedings and are not binding on appeal. See id. However, such findings offer this
court valuable insight into the trial court’s rationale for its decision and facilitate
appellate review. Id.II. Dr. Szymanowski
Appellants contend that the trial court improperly entered summary judgment in
favor of Dr. Szymanowski. Relying on Dr. Brickner’s affidavit and deposition,
Appellants assert that a genuine issue of material fact existed which precluded the entry
of summary judgment.
Under Indiana law, once the defending parties—as here—“designate the opinion
of the medical review panel finding that the defendants exercised the applicable standard
of care, the plaintiff must generally present expert opinion testimony to demonstrate the
existence of a genuine issue of material fact.” Boston v. GYN, Ltd., 785 N.E.2d 1187,
1190 (Ind. Ct. App. 2003), reh’g denied, trans. denied. Because of the complexity of
medical diagnosis and treatment, “substantive law requires expert opinion as to the
existence and scope of the standard of care which is imposed upon medical specialists
and as to whether particular acts or omissions measure up to the standard of care . . .
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Before the trier of fact may confront the factual question [of negligence] the issue must
be presented and placed in controversy by reference to expert opinion.” McGee v.
Bonaventura, 605 N.E.2d 792, 794 (Ind. Ct. App. 1993).
In an effort to rebut the Panel’s unanimous decision that Dr. Szymanowski met the
appropriate standard of care in his medical consultations with Stafford, Appellants point
to Dr. Brickner’s affidavit, opining that on November 1st an insufficient biophysical
profile was performed or interpreted improperly. Although the affidavit is silent on
which physician conducted the biophysical appointment, Appellants maintain that Dr.
Brickner’s designated deposition clarifies that Dr. Szymanowski was involved in
Stafford’s care on that particular day.
In his deposition, Dr. Brickner affirmed that “[m]y basic criticism of the care is
that it was the only test done on that patient, which given her presenting situation that
day, [] was insufficient as a way of assuring fetal well-being.” (Appellants’ App. p. 137).
Specifically, Dr. Brickner laments the absence of a non-stress test that is included in the
“true biophysical profile.” (Appellants’ App. p. 136). Although Dr. Brickner
acknowledged that a biophysical profile can be compiled in varying ways—both with or
without a non-stress test—the inclusion of the non-stress test depends on “the problems
the patient presents with at that given point in time.” (Appellants’ App. p. 137). Not
every pregnancy requires a biophysical profile; not every pregnancy that includes a
biophysical profile necessarily mandates a non-stress test. Because Stafford presented
with “chronic hypertension” and “superimposed preeclampsia,” Dr. Brickner recognized
that “[o]n November 1st, the patient in front of you is a much different patient than the
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patient who is otherwise okay and you’re watching them twice a week with a biophysical.
And that’s why the standard of care in this particular case is different[.]” (Appellants’
App. p. 139).
“[G]iven the demise [of the fetus] shortly [after the biophysical profile was created],” Dr
Brickner felt that “there’s certainly reason to believe [the biophysical profile] might have
been misinterpreted, as the occurrence of that [demise] is pretty rare.” (Appellants’ App.
p. 141).
Although the parties concede that Dr. Szymanowski was involved in Stafford’s
care on November 1st, the record is less conclusive on the physician in charge of the
disputed biophysical. Specifically, the following colloquy occurred during the
deposition:
[Appellees’ Attorney]: Is it your understanding that the biophysical profile
was performed by Dr. Szymanowski?
[Dr. Brickner]: It’s not clear from the records. I don’t know who
performed it. Though he noted them, I’m not able to find any form where
he was listed, other than the flow sheet.
[Appellees’ Attorney]: So you’re unaware if he was actually doing it or if
he was doing it in conjunction
[Dr. Brickner]: Yes.
[Dr. Brickner]: I’m only aware of the results. I do not know who
performed it or even when it was performed actually. I’m assuming it was
performed that day, but I’m not certain of that either.
(Appellants’ App. p. 141).
Moreover, even though Stafford was sent home on November 1st despite
manifesting symptoms of high blood pressure and decreased fetal movement, Dr.
Brickner acknowledged that Stafford had been informed to report any decreased fetal
8
movement and she had a responsibility to contact the hospital if such lack of movement
was noted during the weekend after her November 1st appointment.
As Dr. Brickner’s testimony fails to establish that Dr. Szymanowski conducted
and interpreted the perceived insufficient biophysical or otherwise failed to apply the
appropriate standard of care in his treatment of Stafford, we conclude that the Panel’s
unanimous opinion was not rebutted and no genuine material issue of fact exists. See
Boston, 785 N.E.2d at 1190. Therefore, we affirm the trial court’s summary judgment in
favor of Dr. Szymanowski.
III. Corporate Appellee, GYN
During Dr. Brickner’s deposition, it became clear that besides his comments about
Dr. Szymanowski, many of Dr. Brickner’s concerns about an insufficient standard of care
were directed towards Dr. Joseph Smith (Dr. Smith). Specifically, Dr. Brickner opined
that Dr. Smith omitted to follow up on a glucose screen ordered on October 10, 2007,
which indicated a high blood sugar level. According to Dr. Brickner, Dr. Smith’s failure
to decrease Stafford’s sugar level contributed to Drayden’s stillbirth. Even though Dr.
Smith was not named in his individual capacity in the suit and his conduct was not
evaluated by the Panel, Stafford now relies on the principles of vicarious liability to claim
that GYN should be held responsible for Dr. Smith’s perceived failures in the appropriate
standard of care. The trial court, issuing summary judgment in favor of GYN, concluded
[e]ven assuming that Dr. Smith should be considered to be a principle [sic],
partner, employee, or agent of GYN, again, Dr. Smith’s conduct was never
reviewed by a medical panel and his conduct cannot be imputed to GYN on
the basis of Dr. Brickner’s opinions. The procedure for determining
whether a breach of the standard of care occurred requires a review by a
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medical review panel as to the conduct about which [Stafford] complains.
While not liked by [Stafford] for obvious reasons, the Indiana legislature
has established certain gatekeeper requirements that prevent pursuit of a
medical malpractice claim in state court until the Medical Review Panel has
made its determination. This statutory requirement not having been met, no
liability can be established against Dr. Smith or against GYN for Dr.
Smith’s conduct.
(Appellants’ App. pp. 19-20).
Although we have previously recognized in Columbus Regional Hospital v.
Amburgey, 976 N.E.2d 709 (Ind. Ct. App. 2012) and Helms v. Rudicel, 986 N.E.2d 302(Ind. Ct. App. 2013) that an agency relationship between a physician provider and a
hospital or health care group can establish vicarious liability under a theory of respondeat
superior, these cases are readily distinguishable as the individual physicians in Helms and
Amburgey had been individually named as defendants and their actions had been
evaluated by the Panel. Here, we are asked to analyze whether a health care provider can
be held vicariously liable for the perceived acts of medical malpractice committed by its
agent-physician when the physician’s conduct was never reviewed by the medical review
panel. We hold that it cannot.
Indiana’s Medical Malpractice Act (the Act) is a procedural mechanism for claims
of medical malpractice. Ind. Patient’s Compensation Fund v. Patrick, 929 N.E.2d 190,
193-94 (Ind. 2010). The Act requires, absent certain exceptions not applicable herein,
that before a malpractice claim is pursued in court, it must be presented to a medical
review panel in a proposed complaint. I.C. § 34-18-8-4. The panel is directed to issue an
expert opinion “as to whether or not the evidence supports the conclusion that the
defendant or defendants acted or failed to act within the appropriate standards of care in
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the complaint.” I.C. § 34-18-10-22(a). Until the panel issues its opinion, the trial court
has no jurisdiction to hear and adjudicate the claim. Putnam Cnty. Hosp. v. Sells, 619
N.E.2d 968, 970 (Ind. Ct. App. 1993). As such, the review and expert opinion by a
medical review panel is a pre-requisite for filing a medical malpractice claim.
In their proposed complaint to the Panel, Appellants asserted that Dr.
Szymanowski and GYN were negligent in the care they had provided Stafford during her
pregnancy. A medical review panel was convened and on May 30, 2012, the Panel
issued its opinion that Appellees did not fail to meet the applicable standard of care and
that their conduct was not a factor in the resultant damages claimed by Appellants.
Although aware of Dr. Smith’s involvement in Stafford’s care, Appellants never
requested the Panel to review Dr. Smith’s treatment of Stafford during her pregnancy and
no claim as to Dr. Smith’s liability was ever tendered for evaluation.3
In an effort to now place Dr. Smith’s treatment in controversy, Appellants rely on
respondeat superior to hold GYN, who was presented to the Panel, liable for the conduct
of a physician that was not analyzed by the Panel. To allow the introduction of a
perceived breach in Dr. Smith’s standard of care by virtue of his association with the
named corporate health care provider, GYN, would enable Appellants to bypass the
procedural requirements of the Act and would create a potential avenue for patients to sue
their physicians for medical negligence by simply presenting the perceived lack of care in
3
Although we agree with Appellants that in reaching his conclusion that Dr. Smith’s standard of care was
insufficient, Dr. Brickner relied on the same materials that were tendered to the Panel, neither the Panel,
nor Dr. Brickner’s affidavit indicate that they reviewed the materials in light of a contested liability with
respect to Dr. Smith. Rather, the first time Dr. Smith’s standard of care is questioned is during Appellees’
deposition of Dr. Brickner.
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the corporate entity before the Panel and, upon completion of the Panel process, pursue
an action against any individual physicians. Such a procedure, which would strip a
physician’s protections against the escalation of malpractice claims under the Act, was
neither intended nor anticipated by the legislature. See, e.g., Detterline v. Bonaventura,
465 N.E.2d 215, 217-18 (Ind. Ct. App. 1984), reh’g denied, trans. denied (“The obvious
purpose of the [Act] is to provide some measure of protection to health care providers
from malpractice claims, thus to preserve the availability of such professional health care
services to the community.”). We affirm the trial court’s summary judgment in favor of
GYN.4
IV. Child Wrongful Death Statute
In addition to her own injuries, Stafford also seeks to recover for the wrongful
death of Drayden as a viable fetus at the time of his death on November 6, 2007. Until
recently, the CWDS only permitted recovery for a child born alive, not for a viable fetus
that died in utero. See, e.g., Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002). Effective July
1, 2009, the legislature modified this established rule and re-defined “Child” under the
statute to include any fetus that had attained viability.5 In addition to the modification of
“Child” under the CWDS, the legislature also included a new section which specifically
stated that the 2009 amendment only applied to claims which accrued after June 30,
4
Because we decide this issue on the fact that the Panel never reviewed Dr. Smith’s conduct, we do not
decide whether the designated evidence established a genuine issue of material fact that an agency
relationship existed between Dr. Smith and GYN.
5
See P.L. 129-2009, sec. 8, 2009, Ind. Acts 1172 (codified as amended at Ind. Code § 34-23-2-1).
12
2009. See I.C. § 34-23-2-0.1. As such, the amendment became effective two years after
the death of Drayden and a month after Stafford filed her initial proposed complaint.
Combining the Medical Malpractice Act and the statutory limitations of the
CWDS, Appellants maintain that
the explicit provisions of the Indiana Medical Malpractice Act expressly
state that [Stafford] had no legal right to file a cause of action for CWDS in
the Indiana court system until after she had (1) presented the claim to a
medical review panel and (2) an opinion had been rendered by that panel.
In this case, the opinion of the medical review panel was not issued until
May 30, 2012, which is nearly three years after the new definition of
“child” became effective under the CWDS.
(Appellants’ Br. p. 20) (citing to I.C. § 34-18-8-4).
However, the Medical Malpractice Act does not create or establish the medical
malpractice claim; rather, it only imposes procedural requirements on the prosecution of
them. Chamberlain v. Walpole, 822 N.E.2d 959, 961 (Ind. 2005). One of the
requirements of the Act is that a proposed medical malpractice complaint first be filed
with the Department of Insurance for review by a medical panel before the complaint is
filed in court. See I.C. § 34-18-8-4. The substantive claim or cause of action at stake in
medical malpractice cases is the common law claim of negligence by a health care
provider proximately causing personal injury or death. Ellenwine v. Fairley, 846 N.E.2d
657, 660 (Ind. 2006).
Turning to these substantive requirements of the claim, our supreme court clarified
in Ellenwine that any wrongful death claim under the CWDS must be brought no later
than two years after the date of death. Ellenwine, 846 N.E.2d at 667; I.C. § 34-23-1-1.
As such, the claim first arises or accrues at the death of the child. See id. Drayden was
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stillborn on November 6, 2007. Thus, the cause of action under the CWDS accrued that
same day, almost two years before the amendment took effect. Consequently, as the
statutory amendment was not yet in effect, Appellants cannot recover for the wrongful
death of a viable fetus.
CONCLUSION
Based on the foregoing, we conclude that (1) the trial court properly concluded
that Dr. Brickner’s testimony did not create a genuine issue of material fact as to the
liability of Dr. Szymanowski; (2) GYN cannot be held vicariously liable for the perceived
acts of medical malpractice committed by Dr. Smith when Dr. Smith’s conduct was never
reviewed by the medical review panel; and (3) the trial court properly concluded that no
recovery exists for the 2007 death of a child not born alive under the Child Wrongful
Death Statute, as amended.
Affirmed.
ROBB, J. and BRADFORD, J. concur
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