Cindy and Ron Glon v. Memorial Hospital of South Bend, Inc. and/or its Employees and agents

FILED
Sep 14 2018, 8:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
Jeffrey J. Stesiak Robert J. Palmer
Pfeifer, Morgan & Stesiak May, Oberfell, Lorber
South Bend, Indiana Mishawaka, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cindy and Ron Glon, September 14, 2018
Appellants-Plaintiffs, Court of Appeals Case No.
18A-CT-49
v. Appeal from the St. Joseph
Superior Court, Mishawaka
Memorial Hospital of South Division
Bend, Inc. and/or its Employees The Honorable Jenny Pitts Manier,
and agents, Judge
Appellees-Defendants. Trial Court Cause No.
71D05-1707-CT-000292
Mathias, Judge.
[1] The St. Joseph Superior Court entered summary judgment in favor of Memorial
Hospital of South Bend, Inc. and/or its Employees and agents (collectively “the
Hospital”), the defendants, against Cindy and Ron Glon (collectively “Glon”).
Glon appeals and raises the following two issues for our review:
I. Whether the trial court erred when it concluded that the doctrine of
res ipsa loquitur does not apply to the facts of this case; and,
Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018 Page 1 of 18
II. Whether genuine issues of material fact preclude the entry of
summary judgment.
[2] We affirm.
Facts and Procedural History
[3] On or about June 6, 2011, Glon underwent a cementless total hip replacement of
her right hip at the Hospital. The Hospital administered a spinal epidural to Glon
during the surgery, and she had no feeling or sensation from the waist down.
[4] After surgery, Glon was moved to her hospital room where a nurse and patient
care assistant rolled Glon onto her side to give them access to remove the
epidural. As they did so, Glon heard three audible pops near her right knee.
Appellant’s App. p. 51. However, Glon’s lower body was still numb from the
effects of the epidural, and she did not experience any pain at the time she
heard the popping sounds.
[5] After the effects of the epidural wore off, Glon found she was in severe pain
that would not subside. A subsequent x-ray revealed that Glon had a three-part
displaced fracture of her right femur. There had been no visible fracture on the
x-rays taken immediately after Glon’s surgery. Therefore, Dr. Robert Clemency
(“Dr. Clemency”), Glon’s surgeon, later opined that the fracture occurred at
some point after she was transferred to her hospital room for recovery. Id. at 53.
[6] On May 18, 2012, Glon submitted a claim to the medical review panel as
required by Indiana’s Medical Malpractice Act, arguing that the Hospital
breached the standard of care and that its negligence caused the fracture in her
Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018 Page 2 of 18
right leg.1 Almost five years later, in April 2017, the panel, which was
composed of three orthopedic surgeons, unanimously agreed that the Hospital
did not fail to meet the applicable standard of care. See e.g., Appellant’s App. p.
25 (“The evidence does not support the conclusion that the defendant,
MEMORIAL HOSPITAL OF SOUTH BEND, INC., failed to meet the
applicable standard of care as charged in the complaint.”).
[7] On July 7, 2017, Glon filed a complaint against the Hospital in St. Joseph
Superior Court. Glon alleged that her injuries were a result of negligent care
rendered by the Hospital, and that but for this negligence, she would not have
suffered the fracture to her femur. Glon also argued that the doctrine of res ipsa
loquitur supported her claim.
[8] On August 10, 2017, the Hospital filed a motion for summary judgment. In
support of its motion, the Hospital designated the opinion of the medical review
panel and an affidavit from orthopedic surgeon Dr. Phillip H. Ireland, M.D.
(“Dr. Ireland”), who had also served on Glon’s medical review panel, which
states in pertinent part:
6. According to the medical records, [Glon] had a three-part
displaced fracture, spiral type, of her right femur following
a cementless right hip replacement surgery. This is a “high
impact” injury.
1
Glon did not name Dr. Clemency as a party and did not allege that he breached the standard of care while
performing the cementless hip replacement surgery.
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7. It is not physically possible that the act by the nurse and
patient care assistant of turning [Glon] on her side caused
the injury to the femur.
8. I am aware [Glon] allege[s] the nurse and patient care
assistant grabbed [Glon’s] right leg and twisted it. Even if
that allegation is true, it is not physically possible that such
an act could cause the injury to [Glon’s] femur.
9. [Glon’s] injury can occur for reasons other than
negligence.
10. The injury to [Glon’s] femur is a recognized complication
of a cementless hip replacement surgery. During the
surgery, a hairline fracture can develop. The hairline
fracture is not always seen in a post-operative x-ray.
11. In my opinion, it is more likely than not that a hairline
fracture led to the resulting injury in [Glon’s] case.
12. In my opinion, nothing the nurses did, or failed to do, led
to the injury in [Glon’s] case.
Id. at 28–29.
[9] In his deposition, which was designated to the trial court, Dr. Ireland stated
that a high impact injury meant “that [it] takes a lot of force to break the femur
in that location and to break it in that style.” Id. at 56. He clarified that this type
of fracture is “not something that you or I would get by falling or even falling
off a bicycle,” and “it would take . . . high force of -- in this case, the broaches
or the implantation of the hip inside that canal to cause that kind of fracture.”
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Id. at 57. Dr. Ireland agreed that a hairline fracture was not visible in the
postoperative x-ray. Id. at 58. He explained that it is likely that the fracture was
not visible on the postoperative x-ray because it was obscured by the metal
implant. Id. at 59.
[10] In response, Glon designated her own affidavit wherein she described hearing
three pops while she was being rolled onto her side by the nursing staff after her
surgery. She also designated an affidavit from Dr. Clemency, her surgeon,
which stated in pertinent part that:
1. [ . . . ] [A]ll matters and opinions stated herein are based
on my personal knowledge, are made to a reasonable
degree of medical probability, and are true and accurate to
the best of my knowledge and belief.
***
3. Based on the history given to me by [Glon], a physical
examination, x-rays which were taken in the operating
room after I performed a hip replacement, but prior to
[Glon] being sent to recovery, and my personal
knowledge, it is my opinion that the large three (3) part
displaced fracture of [Glon’s] right leg did not occur during
her hip replacement surgery which I performed on June 6,
2011, but at some point after [Glon] was returned to her
room and was being rolled over by the nursing staff.
Id. at 53.
[11] A hearing was held on December 7, 2017, and the trial court took the matter
under advisement. One week later, the trial court granted summary judgment in
favor of the Hospital, and issued the following order:
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Defendants’ expert opined that “it is not physically
possible that the act by the nurse and patient care assistant
of turning [Glon] on her side caused the injury to her
femur” and that even if the Plaintiffs’ allegations as to how
Defendants (mis)handled [Glon] are true, “it is not
physically possible that such an act could cause the
injury.”
Plaintiffs’ expert failed to counter this opinion. That is,
Plaintiffs’ expert failed either to assert that it is physically
possible that the complained of conduct of Defendants
caused or could have caused the injury to [Glon] or to
identify some other act of negligence committed by
Defendants that was a proximate cause of [Glon’s]
injuries.
Plaintiffs argue that the issue should be tried to a jury, that
a jury might not believe the testimony of Defendants’
expert that a hairline fracture occurred during the
operation and the fact that there was no radiographic
evidence of that fracture after the surgery was due to the
fact that the fracture was hidden by the implant. While a
jury might not believe this testimony, or believe that this
proposition that a hairline fracture occurred during surgery
was a necessary conclusion if Defendants’ expert was to
maintain that the conduct of Defendants could not have
cause[d] the injury, we are still left with the fact that
Plaintiffs have presented no expert testimony that asserts
or from which it can be concluded that negligence on the
part of Defendants was a cause of [Glon’s] injuries.
Plaintiffs argue that “common sense” supplies the
causative connection. The Court agrees with Defendants
that the cause of this injury in not a matter of common
sense, but of medical expertise.
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Id. at 8–9.2
[12] Glon appeals the trial court’s order granting summary judgment to the
Hospital.3
Standard of Review
[13] When we review the entry of summary judgment, we apply the same standard
as the trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585
(Ind. 2017). Summary judgment is appropriate only when “the designated
evidentiary matter shows that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Ind.
Trial Rule 56(C). An issue is “genuine” if a trier of fact is required to resolve the
truth of the matter; a fact is “material” if its resolution affects the outcome of
the case. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). “Just as the trial
court does, we resolve all questions and view all evidence in the light most
favorable to the non-moving party, so as to not improperly deny him his day in
court.” Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind. 2014).
[14] Summary judgment is a “blunt instrument” preventing the non-prevailing party
from resolving its case at trial. Hughley, 15 N.E.3d at 1003. Because of this, our
2
The original order contained scrivener’s errors; therefore, the trial court issued an amended order nunc pro
tunc to correct the order.
3
We held oral argument in this appeal on August 16, 2018, at the Allen County Courthouse in Fort Wayne,
Indiana. We extend our gratitude to the Allen County Bar Association and to Jeff Leffers, the Director of
Court Operations for Allen Superior Courts, for their hospitality. We also commend counsel for the quality
of their written and oral advocacy.
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supreme court has cautioned that summary judgment “is not a summary trial”
and courts on appeal should carefully “assess the trial court’s decision to ensure
[a party] was not improperly denied his [or her] day in court.” Id. at 1003–04
(citations omitted).
I. Res Ipsa Loquitur
[15] Glon argues that the doctrine of res ipsa loquitur is applicable to her case and the
Hospital’s breach of the standard of care speaks for itself.
The doctrine of res ipsa loquitur is a rule of evidence which allows
an inference of negligence to be drawn from certain surrounding
facts. The plaintiff’s evidence must include the underlying
elements of res ipsa loquitur, showing that: (1) the injuring
instrumentality is 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.
Thomson v. St. Joseph Reg’l Med. Ctr., 26 N.E.3d 89, 94 (Ind. Ct. App. 2015)
(citation and quotation omitted). See also Gary Community Sch. Corp. v. Lardydell,
8 N.E.3d 241, 247 (Ind. Ct. App. 2014) (explaining that res ipsa loquitur “is a
rule of evidence that permits an assumption that in some situations an
occurrence is so unusual that, absent a reasonable justification or explanation,
the person in control of the situation should be held responsible”), trans. denied.
Expert opinion is not necessary to prove a negligence claim when the case fits
within the res ipsa loquitur exception. Thomson, 26 N.E.3d at 94.
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[16] To determine if the doctrine applies, the question is whether the incident more
probably resulted from the defendant’s negligence than from another cause.
Rector v. Oliver, 809 N.E.2d 887, 890 (Ind. Ct. App. 2004), trans. denied. “The
plaintiff may show, by common knowledge or expert testimony, that the injury
is one that would not ordinarily occur in the absence of due care on the part of
those controlling the instrumentality.” Tucker v. Harrison, 973 N.E.2d 46, 56
(Ind. Ct. App. 2012), trans. denied.
[T]here are some situations in which a physician defendant’s
allegedly negligent act or omission is so obvious as to allow
plaintiffs to rely on the doctrine of res ipsa loquitur. Juries do not
need an expert to help them conclude, say, that it is malpractice
to operate by mistake on the wrong limb[.]
Id. (quoting Wright v. Carter, 622 N.E.2d 170, 171 (Ind. 1993)). Examples of
cases applying the doctrine include a patient’s oxygen mask catching fire during
surgery, see Cleary v. Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008); Gold v.
Ishak, 720 N.E.2d 1175, 1184 (Ind. Ct. App. 1999), trans. denied; or foreign
objects left in the body following surgery, see Wright, 622 N.E.2d at 172 (wire
left in breast following biopsy).
[17] However, the doctrine does not apply when the injury that occurs is a known
complication of surgery or a medical procedure that can occur even if a
physician exercises due care. In Ross v. Olson, 825 N.E.2d 890 (Ind. Ct. App.
2005), trans. denied, during a bilateral knee replacement surgery, the surgical
chisel partially severed the patient’s left popliteal artery. A surgeon determined
that the artery was 90% severed and surgically reconstructed it. The patient filed
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a medical malpractice claim against the surgeons who performed the knee
replacement surgery, and at trial, the patient requested a jury instruction on the
doctrine of res ipsa loquitur. The trial court refused to give the instruction.
[18] On appeal, our court affirmed after observing that “there was no dearth of
causation testimony” at trial. Id. at 894. The expert witnesses at trial disagreed
whether the patient’s surgeons exercised due care. The patient’s expert opined
that the surgeons should have taken measures during surgery to protect the
patient’s artery. The surgeons’ experts testified that popliteal artery injury was a
rare, but known, complication of knee replacement surgery which could result
even if the surgeon exercised due care. Because there was direct evidence of
causation from which “the jury could have drawn an inference that the defendant
physicians were negligent or could have drawn a contrary conclusion that the
physicians used the degree of care and skill ordinarily exercised by a reasonable
practitioner under the same or similar circumstances,” our court concluded that
the patient was not entitled to the requested res ipsa loquitur instruction. Id.[19] In this case, Glon argues the positioning and maneuvering of her leg post-
surgery was within the exclusive control of the Hospital’s nursing staff, and the
Hospital does not dispute Glon’s claim of exclusive control. Glon also argues
that the
designated evidence demonstrates that the accident is of the type
that does not ordinarily happen if the hospital staff exercised
proper care. A patient’s bones do not usually break when a
patient is positioned, unless the staff positioning the patient [do
not] use the proper care.
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Appellant’s Br. at 10.
[20] This is an attractive argument, but it ignores several things, first, the dispositive
finding of the Panel. The Panel specifically found that, “The evidence does not
support the conclusion that the defendant, MEMORIAL HOSPITAL OF
SOUTH BEND, INC., failed to meet the applicable standard of care as charged
in the complaint.” Dr. Clemency’s affidavit only spoke to when Glon’s injury
occurred, not to whether the Hospital violated its standard of care when Glon’s
femur suffered its displaced fractures.
[21] In addition, in the Hospital’s designated affidavit and deposition testimony of
Dr. Ireland, he explained that the three-part displaced fracture of Glon’s femur
is a recognized complication of cementless hip replacement surgery. Appellant’s
App. p. 28. Dr. Ireland stated that this type of fracture occurs only when a
person suffers a high impact. Specifically, in this case, the “high force of . . . the
broaches or the implantation of the hip inside that canal to cause that kind of
fracture.” Id. at 57. Dr. Ireland also concluded that it is not physically possible
that a nurse’s act of rolling Glon over or grabbing Glon’s right leg and twisting
it caused the three-part displaced fracture of her right femur. Id. at 28.
[22] Risks and complications associated with cementless hip replacement surgery
are not commonly known to lay people. Expert testimony is required to
establish the applicable standard of care, breach of that standard and proximate
cause. Because the Hospital presented expert testimony that the fracture was a
known complication of cementless hip replacement surgery which can occur
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even if the Hospital exercised due care, we conclude that the doctrine of res ipsa
loquitur cannot be applied in this case. See e.g. Smith v. Dermatology Associations of
Fort Wayne, P.C., 977 N.E.2d 1, 6 (Ind. Ct. App. 2012) (concluding that the trial
court did not err when it refused to apply the doctrine of res ipsa loquitur because
there was contrary evidence on each element of the doctrine); Ross, 825 N.E.2d
at 894 (affirming the trial court’s decision to refuse a res ipsa loquitur instruction
because there was direct evidence of causation, i.e. that the injury was a known
complication of surgery).
II. Genuine Issue of Material Fact
[23] Next, we address Glon’s argument that the trial court erred when it concluded
that there were no genuine issues of material fact and the Hospital was entitled
to judgment as a matter of law. To establish a prima facie case of medical
malpractice, a plaintiff must demonstrate: (1) a duty on the part of the
defendant in relation to the plaintiff; (2) a failure to conform his or her conduct
to the requisite standard of care required by the relationship; and (3) an injury
to the plaintiff resulting from that failure. Sorrells v. Reid-Renner, 49 N.E.3d 647,
651 (Ind. Ct. App. 2016) (citing Thomson, 26 N.E.3d at 93). The plaintiff must
present expert medical testimony establishing: (1) the applicable standard of
care required by Indiana law; (2) how the defendant doctor breached that
standard of care; and (3) that the defendant doctor’s negligence in doing so was
the proximate cause of the injuries complained of. Id. at 651.
[24] Before commencing a medical malpractice action in Indiana, all plaintiffs are
required to present a proposed complaint to a medical review panel. Ind. Code
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§ 34-18-8-4. “If the panel renders an opinion against the plaintiff, to survive
summary judgment, the plaintiff must present expert medical testimony to rebut
the panel’s opinion.” Thomson, 26 N.E.3d at 93. Expert opinions which conflict
on ultimate issues necessarily defeat summary judgment. Siner v. Kindred Hosp.
Ltd. Partnership, 51 N.E.3d 1184, 1190 (Ind. 2016) (citing Chi Yun Ho v. Frye,
880 N.E.2d 1192, 1200–01 (Ind. 2008)). Moreover, we acknowledge that
a medical malpractice case based upon negligence is rarely
appropriate for disposal by summary judgment, particularly
when the critical issue is whether the defendant exercised the
appropriate standard of care under the circumstances. This issue
is generally inappropriate for resolution as a matter of law and is
a question that should be reserved for the trier of fact.
Smith, 977 N.E.2d at 5 (quoting Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct.
App. 2006)).
[25] In this case, Dr. Ireland and Dr. Clemency gave conflicting testimony, but only
as to when the fracture occurred. Dr. Ireland believes that a hairline fracture
resulted from the impact of implanting the hip appliance and the fracture was
obscured on the x-ray by the metal implant. Dr. Clemency believes that the
fracture occurred post-operatively because no fracture is visible on the post-
operative x-ray. This might seem like an important issue of fact, until Dr.
Clemency’s affidavit is examined for what it does not say. Dr. Clemency’s
affidavit says only that the “large three (3) part displaced fracture of Mrs.
Glon’s right leg did not occur during her hip replacement surgery which I
performed . . . but at some point after the patient was returned to her room and
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was being rolled over by the nursing staff.” Appellant’s App. p. 53. The
Hospital does not dispute these facts, and it does not need to dispute them to
prevail on summary judgment.
[26] If Glon had sustained the large displaced, three-part fracture in the operating
room, this could be a different case; but the fracture at issue occurred during her
post-operative care. Dr. Clemency’s affidavit is only a “not on my watch”
claim. His affidavit provides no evidence that conflicts with the Panel’s
determination as to what the Hospital’s post-operative standard of care was,
and no evidence to conflict with the Panel’s finding that the Hospital never
breached that standard of care in its post-operative care of Glon.
[27] In addition, the Hospital designated evidence that the later fracture was actually
caused by the impact of implanting the prosthetic hip. Specifically, Dr. Ireland
testified that hairline fracturing is a known complication of the hip replacement
surgery and that an actual hairline fracture in this case was likely obscured by
the metal implant on the post-operative x-ray because the fracture is
nondisplaced, i.e. it had not come apart. Id. at 59. Typically, nondisplaced
factures “blow apart in the first few days as you start to rehabilitate people.” Id.
at 60. Dr. Ireland concluded that because Glon’s fracture is the result of a “high
impact” injury, it is not physically possible that the nursing staff caused the
three-part displaced fracture by rolling Glon onto her side. Id. at 28. Instead, the
hairline fracture, a recognized complication of the surgery, likely became
displaced when Glon was rolled onto her side. See id.
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[28] The Hospital met its burden as the summary judgment movant to affirmatively
negate an element of Glon’s claim, i.e. whether the Hospital breached the
applicable standard of care and proximately caused Glon’s injury. Because
Glon failed to designate contrary evidence on the issues of breach and
causation, there are no genuine issues of material fact requiring resolution by
the trial court or a jury. For these reasons, we affirm the trial court’s grant of
summary judgment in the Hospital’s favor.
Conclusion
[29] The trial court was correct when it concluded that the doctrine of res ipsa loquitur
is not applicable to the facts of this case. There is also no genuine issue of
material fact on the issues of breach of the applicable standard of care and
causation. For these reasons, we affirm the trial court’s grant of summary
judgment to the Hospital.
[30] Affirmed.
Najam, J., concurs.
Crone, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Cindy and Ron Glon, Court of Appeals Case No.
18A-CT-49
Appellants-Plaintiffs,
v.
Memorial Hospital of South
Bend, Inc. and/or its Employees
and agents,
Appellees-Defendants.
Crone, Judge, dissenting.
[31] I respectfully disagree with my colleagues’ determinations that the doctrine of
res ipsa loquitur is inapplicable and that no genuine issues of material fact exist
as to breach and causation. Those determinations are predicated on the
affidavit and deposition of Dr. Ireland, who opined that Mrs. Glon’s displaced
fracture “more likely than not resulted from a hairline fracture.” Appellants’
App. at 29 (Ireland aff. ¶ 11). He also averred that the type of fracture Mrs.
Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018 Page 16 of 18
Glon had was a “high impact injury.” Id. at 28 (Ireland aff. ¶ 6). Dr. Ireland
testified in his deposition that he did not believe that such an injury could have
been caused by the nursing staff and only could have resulted from the presence
of a hairline fracture occurring during the surgery. Id. at 91 (Ireland depo. at
15). Dr. Clemency, who performed the surgery, submitted an affidavit which
stated that “the large three (3) part displaced fracture of Mrs. Glon’s right leg
did not occur during her hip replacement surgery … but at some point after the
patient was returned to her room and was being rolled over by the nursing
staff.” Id. at 53 (Clemency aff. ¶ 3). No one disputes that the displaced fracture
occurred while the nursing staff was rolling Mrs. Glon over and that she heard
three loud pops at that time.
[32] The real dispute is as to the efficient cause of the displaced fracture at that time.
Dr. Ireland’s opinion is premised upon the assumption that such an injury
could not have occurred without the presence of a hairline fracture occurring
during the surgery. Without the presence of a hairline fracture, he has no
explanation for the injury. Even the trial court acknowledges that a jury is free
to disregard Dr. Ireland’s testimony. I believe that a material issue of fact exists
as to whether a hairline fracture was present post-surgery. We must remember
that at this stage of the proceedings all inferences must be indulged in favor of
the nonmoving party. Kottlowski v. Bridgestone/Firestone, Inc., 670 N.E.2d 78, 83
(Ind. Ct. App. 1996), trans. denied (1997). Again, there is no dispute that the
post-op x-rays do not show any fractures, hairline or otherwise. Dr. Ireland’s
position is that they must be there, but we just can’t see them, and studies
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suggest that in forty percent of the cases the prosthetic device hides them. The
majority treats this testimony as if it were dispositive of the issue. I disagree.
[33] By way of example, if the predicate factual issue was the color of a car on a
certain date and time, and a photograph taken at the pertinent time depicted the
car as red, and subsequently an opposition expert testified that forty percent of
the time atmospheric conditions make blue cars appear red on photographs,
would anyone have trouble acknowledging that a material issue of fact was in
dispute? I suggest that an x-ray showing no hairline fractures and Dr. Ireland’s
testimony that they are visible in sixty percent of cases at least creates an issue
of fact. It is not for us to weigh the evidence but merely to determine the
existence of an issue of fact. Summary judgment is appropriate only when the
moving party is entitled to judgment as a matter of law. Cramer v. Edwards, 97
N.E.3d 624, 626 (Ind. Ct. App. 2018). I believe that the Hospital has failed to
make that showing here, and therefore I would reverse and remand for trial.
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