FOR PUBLICATION

ATTORNEYS FOR APPELLANTS:                      ATTORNEYS FOR APPELLEE:

DENNIS R. BROWN                                KARL L. MULVANEY
DENNIS H. GEISLEMAN                            NANA QUAY-SMITH
Geisleman & Brown LLP                          BRIANA L. CLARK
Fort Wayne, Indiana                            Bingham Greenebaum Doll LLP
                                               Indianapolis, Indiana

                                                                         FILED
                                                                       Sep 07 2012, 8:56 am

                            IN THE
                                                                                CLERK
                  COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




KENNETH W. SMITH and                           )
DEB-ANNE SMITH,                                )
                                               )
     Appellants-Plaintiffs,                    )
                                               )
            vs.                                )       No. 02A03-1201-CT-41
                                               )
DERMATOLOGY ASSOCIATES OF                      )
FORT WAYNE, P.C. a/k/a DERMATOLOGY             )
& LASER SURGERY ASSOCIATES OF                  )
FORT WAYNE, P.C.,                              )
                                               )
     Appellee-Defendant.                       )


                   APPEAL FROM THE ALLEN SUPERIOR COURT
                       The Honorable Stanley A. Levine, Judge
                           Cause No. 02D01-0902-CT-46



                                   September 7, 2012

                              OPINION - FOR PUBLICATION

KIRSCH, Judge
        Kenneth W. Smith (“Smith”) and his wife, Deb-Anne Smith, (collectively “the

Smiths”) appeal from the trial court’s findings of fact and conclusions thereon1 after a bench

trial on their medical malpractice claim against Dermatology Associates of Fort Wayne, P.C.,

a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, P.C. (“DLSA”). The Smiths

present two issues, which we consolidate and restate as follows: Whether the trial court erred

by concluding that the Smiths had failed to present sufficient evidence to invoke the doctrine

of res ipsa loquitur.

        We affirm.

                               FACTS AND PROCEDURAL HISTORY

        Smith, who has suffered from psoriasis since the age of thirteen, sought medical

treatment for his condition. He became a patient of Dr. Alan R. Gilbert (“Dr. Gilbert”), a

dermatologist employed by DLSA, in December of 1994. As a new patient, Smith was

evaluated by Dr. Gilbert, and a treatment plan was proposed. Dr. Gilbert opined that Smith’s

psoriasis was generalized, severe in nature, and unpredictable given Smith’s history. In

addition to testing and medication therapy, Smith underwent UVA radiation treatments for

his flare-ups of psoriasis.

        In particular, his treatment plan called for Smith to periodically receive Psoralen UVA

(“PUVA”) treatments. Psoralen is a drug derived from a plant, which, in its oral form,

becomes activated when a certain wavelength of light is administered to a patient who had

previously taken Psoralen. Psoralen is activated by UVA light, and a PUVA treatment is


        1
         We commend the trial court on the thoroughness and clarity of its findings and conclusions thereon,
which greatly facilitated appellate review.

                                                     2
administered through a light box. The amount of UV light used to dose a patient is

determined by the patient’s skin type, sensitivity to the sun, and the patient’s reaction to the

initial dose of the UVA light.

        Smith received PUVA therapy using the light box at DLSA’s Lake Avenue office in

Fort Wayne. Smith underwent the PUVA treatments from December 28, 1994 through

December 8, 2004, and received a total of 147 treatments from DLSA. The most recent

treatments were administered on December 3, 2004, December 6, 2004, and December 8,

2004. When Smith would notice an outbreak of psoriasis occurring, he would contact DLSA

to schedule a treatment. Smith responded well to the PUVA treatments. However, after his

last treatment at 1:00 p.m. on December 8, 2004, Smith suffered UV burn injuries to

approximately 84% of his body.

        Although he returned to work after his last treatment, a few hours thereafter, he started

to feel an irritation to his skin. He noticed his skin getting red and started to feel a burning

sensation. Smith left work at approximately 6:00 p.m. and went to bed after going home.

Smith continued to feel poorly, began shaking uncontrollably, and started to notice blisters on

his body from his torso area down. Smith went to the emergency room and complained of

pain.   The emergency room physician noticed that Smith had a severe sunburn on

approximately 85% of his body. Smith was transferred from the emergency room to the Burn

Unit of St. Joseph Hospital in Fort Wayne.

        Dr. Gilbert received a telephone call on December 9, 2004, from the Burn Unit at St.

Joe’s Hospital informing him that Smith had been admitted early that morning with first and

second degree burns. Dr. Gilbert visited Smith at the hospital, but was not asked to assist in

                                                3
Smith’s treatment. Smith returned to work half days on December 14, 2004 and was released

to return to work full time on December 15, 2004. By March of 2005, Smith’s burns were

completely healed.

       On December 4, 2006, the Smiths filed a proposed complaint with the Indiana

Department of Insurance alleging that Smith received care from DLSA that fell below the

required standard of care, that was negligent, and that constituted malpractice. A medical

review panel convened and, on October 20, 2008, rendered its decision that the evidence did

not support the conclusion that DLSA failed to comply with the appropriate standard of care.

       On February 6, 2009, the Smiths filed a complaint against DLSA alleging medical

malpractice. In particular, the Smiths alleged that the negligence of the medical personnel or

machine malfunction created a res ipsa loquitur inference that an act of malpractice may

have occurred. On April 20, 2011, DLSA filed a motion for partial summary judgment,

claiming that the Smiths did not establish either of the two required elements of res ipsa

loquitur. More specifically, DLSA argued that the Smiths did not show that DLSA

employees were in exclusive control of the ultraviolet exposure level from the PUVA

machine or that the injuries Smith sustained could not have occurred without negligence.

After the Smiths filed their response, the trial court denied the motion for summary judgment,

finding the existence of genuine issues of material fact.

       A three-day bench trial began on June 21, 2011. At the close of the Smiths’ case-in-

chief, DLSA made an oral motion for involuntary dismissal. The trial court took the motion

under advisement and requested post-trial briefing on the issues raised by DLSA. On

January 4, 2012, the trial court entered its findings of fact and conclusions thereon. The trial

                                               4
court concluded that the Smiths had failed to establish that DLSA had exclusive control of

the PUVA machine or that the injuries allegedly suffered by Smith would not have occurred

without negligence. The trial court concluded that the doctrine of res ipsa loquitur was

inapplicable and that the Smiths had failed to meet their burden of establishing by direct or

circumstantial evidence that DLSA breached its duty of care. The trial court entered

judgment in favor of DLSA. The Smiths now appeal.

                             DISCUSSION AND DECISION

       The trial court determined that the doctrine of res ipsa loquitur did not apply to allow

the inference that an act of malpractice had occurred. The doctrine of res ipsa loquitur

literally means “the thing speaks for itself,” and we have stated the following about the

doctrine:

       Res ipsa loquitur is a rule of evidence which permits an inference of
       negligence to be drawn based upon the surrounding facts and circumstances of
       the injury. The doctrine operates on the premise that negligence, like any other
       fact or condition, may be proved by circumstantial evidence. To create an
       inference of negligence, the plaintiff must establish: (1) that the injuring
       instrumentality was within the exclusive management and control of the
       defendant or its servants, and (2) that the accident is of the type that does not
       ordinarily happen if those who have the management and control exercise
       proper care. In determining if the doctrine is applicable, the question is
       whether the incident more probably resulted from defendant’s negligence as
       opposed to another cause. A plaintiff may rely upon common sense and
       experience or expert testimony to prove that the incident more probably
       resulted from negligence. To invoke res ipsa loquitur, the plaintiff must
       demonstrate that the defendant had exclusive control of the injuring
       instrumentality at the time of injury. Exclusive control is an expansive concept
       which focuses upon who has the right or power of control and the opportunity
       to exercise it. The existence of multiple defendants or the possibility of
       multiple causes does not automatically defeat the application of res ipsa
       loquitur.

Rector v. Oliver, 809 N.E.2d 887, 889-90 (Ind. Ct. App. 2004) (internal citations omitted).

                                              5
       Because the Smiths did not prevail at trial, they appeal from a negative judgment. A

judgment entered against a party who bore the burden of proof at trial is a negative judgment.

Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d 409, 411 (Ind. Ct. App. 2002). On appeal,

we will not reverse a negative judgment unless it is contrary to law. Mominee v. King, 629

N.E.2d 1280, 1282 (Ind. Ct. App. 1994). To determine whether a judgment is contrary to

law, we consider the evidence in the light most favorable to the appellee, together with all the

reasonable inferences to be drawn therefrom. J.W. v. Hendricks Cnty. Office of Family &

Children, 697 N.E.2d 480, 482 (Ind. Ct. App. 1998). A party appealing from a negative

judgment must show that the evidence points unerringly to a conclusion different than that

reached by the trial court. Mominee, 629 N.E.2d at 1282.

       We have stated the following about medical malpractice actions:

       To prevail in a medical malpractice action, the plaintiff must prove three
       elements: “(1) a duty on the part of the defendant in relation to the plaintiff;
       (2) a failure to conform his conduct to the requisite standard of care required
       by the relationship; and (3) an injury to the plaintiff resulting from that
       failure.” The physician has a duty to conform to the standard of care of a
       reasonably prudent physician in providing care to a patient. More specifically,
       the physician is “required to possess and exercise that degree of skill and care
       ordinarily possessed and exercised by a reasonably careful, skillful and prudent
       practitioner in the same class to which he belongs treating such maladies under
       the same or similar circumstances.” Care that falls below the requisite
       standard establishes a breach of the physician’s duty.

       When a medical review panel issues an opinion in favor of the physician, the
       plaintiff must present expert medical testimony to negate the panel’s opinion.
       If the plaintiff fails to provide sufficient expert testimony, summary judgment
       should be granted in favor of the defendants. However, 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.

                                               6
Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct. App. 2006) (internal citations omitted).

       Furthermore,

       [I]n order for the plaintiff to carry [his] burden of proof, [he] must present
       evidence of probative value based on facts, or inferences to be drawn from the
       facts, establishing both that the wrongful act was the cause in fact of the
       occurrence and that the occurrence was the cause in fact of [his] injury. The
       plaintiff’s burden may not be carried with evidence based merely upon
       supposition or speculation. Standing alone, evidence establishing a mere
       possibility of cause or which lacks reasonable certainty or probability is not
       sufficient evidence by itself to support a verdict. Civil liability may not be
       predicated purely upon speculation.

Daub v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994) (internal citations omitted).

       In this case, the Smiths presented the expert testimony of Dr. Jeffery

Sassmannshausen (“Dr. Sassmannshausen”), a board certified dermatologist, who agreed

with the medical review panel that DLSA did not breach the standard of care owed to Smith

and did not breach the standard of care in controlling the setting for the PUVA machine.

Furthermore, while the Smiths did establish that Smith received serious burns to his body, at

most, the trial court was left to speculate that the PUVA machine may have malfunctioned

and that the malfunctioning may have caused his injuries.

       The Smiths were not able to establish that Smith received both UVA and UVB

treatment on December 8, 2004, which was their theory of how Smith’s burns occurred.

Smith testified that there was nothing different about his treatment on that day as compared

to any of his prior treatments. He did not perceive that anything different happened during

his treatment and could not state that both the UVA and UVB bulbs were on during that

treatment.


                                             7
       Additionally, the evidence presented to the trial court showed that there were no

maintenance issues which could have caused both the UVA and UVB bulbs to come on

during Smith’s treatment. The Smiths were not able to establish that a lack of maintenance

or some other defect with the PUVA machine contributed to or caused Smith’s burns. DLSA

employees inspected the machine after learning of Smith’s injuries and could not determine

the cause of Smith’s burns. They could not decide which of the possibilities had led to

Smith’s injuries. Those possibilities included, a machine malfunction, burns as a result of the

treatment, or a problem with the doors of the machine increasing the time remaining for the

pre-treatment warm-up of the machine.

       The Smiths were also unable to establish that DLSA breached the standard of care by

failing to evaluate Smith during his PUVA treatments. Dr. Gilbert routinely saw Smith

following his treatments and would discuss them with him.

       While the Smiths were able to point to a specific instrumentality, the PUVA machine,

as the cause of Smith’s burn injuries, they were unable to establish that DLSA had exclusive

control of the PUVA machine. Smith was alone in the room with the PUVA machine during

and after his treatment on December 8, 2004 with keys to both the UVA and UVB control

panels. Smith had the opportunity and ability to turn on the UVB lights, but denied doing so.

None of the other patients who used the PUVA machine at DLSA’s Lake Avenue office on

December 8, 2004 experienced a reaction such as Smith’s to the treatment.

       In sum, the Smiths were unable to establish the first element of the doctrine of res ipsa

loquitur, that DLSA had exclusive control of the PUVA machine. The trial court in this

bench trial, in its fact-finding role, was the sole judge of the credibility of the witnesses.

                                               8
There was contrary evidence on this element, and the trial court was left to resolve those

differences. We cannot say that the evidence leads unerringly to a conclusion that is different

than that reached by the trial court.

       Moreover, the Smiths were unable to establish the second element of the doctrine of

res ipsa loquitur, that Smith’s injuries would not have occurred without negligence. Dr.

Sassmannshausen testified that a patient who experiences UV burns does not necessarily

receive those burns as a result of malpractice. He testified that while a properly functioning

machine should not cause a UV burn to a patient, a UV burn could be caused by a patient

receiving too much of a dose, which is not necessarily evidence of malpractice. A UV burn

is one of the risks of light treatment.

       Dr. Jeffrey Moore (“Dr. Moore”), a dermatologist who served on the medical review

panel in this matter, testified that a UV burn could have occurred without negligence. Dr.

Moore testified that he has had patients of his own become phototoxic, or adversely reacting

to treatment due to light sensitivity, after receiving a treatment in a PUVA machine that was

properly functioning, properly maintained, and properly set. Further, he testified that patients

with unstable psoriasis, as was Smith’s condition, may have reactions to treatment that are

described as idiosyncratic, or unexpected, and beyond explanation.             In his opinion,

phototoxicity is a known complication of PUVA treatment for psoriasis, and in his

vernacular, a burn injury such as Smith’s, was a phototoxic reaction.

       The Smiths were unable to establish that Smith’s injuries would not have occurred

without negligence. The trial court in this bench trial, in its fact-finding role, was the sole

judge of the credibility of the witnesses. “The trier of fact must resolve conflicts in the

                                               9
evidence and determine which witness testimony to credit.” Bradley v. State, 765 N.E.2d

204, 212 (Ind. Ct. App. 2002). There was contrary evidence on this element. and the trial

court was left to resolve those differences. We cannot say that the evidence leads unerringly

to a conclusion that is different than that reached by the trial court.

       We further conclude that the Smiths’ substantial rights were not adversely affected as

a result of the trial court’s refusal to apply the doctrine of res ipsa loquitur. The inference

was not applied because there was contrary evidence on each of the elements of the doctrine.

The trial court, as trier of fact, was left to resolve the conflicts in the evidence and to

determine which testimony was more credible. Although the Smiths’ sole theory of recovery

was res ipsa loquitur, they did not meet their burden of persuasion, and have failed to

establish on their appeal from a negative judgment that the evidence leads unerringly to a

conclusion that is different from that reached by the trial court.

       Affirmed.

NAJAM, J., and MAY, J., concur.




                                              10
