                                                                 Feb 09 2015, 10:01 am




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Douglas E. Sakaguchi                                       SAINT JOSEPH REGIONAL
Jerome W. McKeever                                         MEDICAL CENTER
Pfeifer Morgan & Stesiak                                   Robert J. Palmer
South Bend, Indiana                                        May Oberfell Lorber
                                                           Mishawaka, Indiana
                                                          ATTORNEYS FOR APPELLEE
                                                          MICHAEL BORKOWSKI, M.D.
                                                           Louis W. Voelker
                                                           Megan C. Brennan
                                                           Eichhorn & Eichhorn, LLP
                                                           Hammond, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jamie Thomson,                                             February 9, 2015

Appellant-Plaintiff,                                       Court of Appeals Cause No.
                                                           71A04-1405-CT-246
        v.                                                 Appeal from the St. Joseph Circuit
                                                           Court.
                                                           The Honorable Michael G. Gotsch,
Saint Joseph Regional                                      Judge.
Medical Center and                                         Cause No. 71C01-1211-CT-215
Michael Borkowski, M.D.,
Appellees-Defendants




Baker, Judge.

Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015               Page 1 of 14
[1]   Jamie Thomson appeals the entry of summary judgment in favor of defendants

      St. Joseph Regional Medical Center and Michael Borkowski. Thomson claims

      to have suffered an injury to the nerves in her shoulder and arm when a board

      supporting her arm became detached during surgery, leaving her arm dangling

      towards the floor for an unknown period of time. A medical review panel

      determined that neither defendant failed to meet the applicable standard of care

      and that neither defendants’ actions were the proximate cause of Thomson’s

      injury. We find that, given the nature of this case, Thomson was not required

      to present expert testimony to rebut the panel’s conclusion as to either

      defendant’s failure to meet the standard of care. We also find that the expert

      testimony Thomson presented was sufficient to rebut the panel’s conclusion as

      to causation. Accordingly, we reverse and remand for further proceedings.


                                                      Facts
[2]   On July 20, 2009, Thomson underwent a hysterectomy at St. Joseph Regional

      Medical Center (SJRMC) for which Michael Borkowski provided anesthesia.

      Thomson was lying on an operating table with her arms out from her side and

      her palms facing upwards. Her arms were supported by padded arm boards

      that had been attached to the table. Her arms were secured to these arm boards

      by a strap.


[3]   The procedure lasted for approximately two hours, from 7:32 a.m. to 9:24 a.m.

      At approximately 8:30 a.m., Dr. Borkowski noticed that Thomson’s right arm

      was dangling towards the floor because the right arm board had become


      Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015   Page 2 of 14
      detached. Dr. Borkowski did not know how or when the arm board had

      become detached. He reattached the arm board and noted the incident in his

      record.


[4]   When she awoke from surgery, Thomson complained of pain in her right arm.

      Dr. Borkowski explained that her arm board had become detached during

      surgery and that this could have resulted in nerve damage to her arm.

      Thomson met with Dr. Zimmerman, a neurologist at SJRMC, who diagnosed

      her with a right radial nerve injury that had probably been caused by

      compression.


[5]   Thomson had two follow-ups with Dr. Zimmerman, after which Dr.

      Zimmerman reported that Thomson was experiencing residual symptoms.

      About a month after these follow-ups, on September 17, 2009, Dr. Zimmerman

      ordered an electromyogram of Thomson’s arm. The test came back indicating

      normal nerve structure and function. Thomson visited Dr. Zimmerman again

      on March 1, 2010, and reported loss of pin-prick sensation and temperature

      sensation in her right thumb. On August 31, 2010, Thomson had her final visit

      with Dr. Zimmerman, after which he told her that he had done everything he

      could.


[6]   On April 15, 2011, Thomson filed a proposed complaint against SJRMC and

      Dr. Borkowski with the Indiana Department of Insurance. On May 14, 2012,

      the case went before a medical review panel consisting of three physicians. On

      July 9, 2012, all three members of the panel determined that neither defendant


      Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015   Page 3 of 14
       failed to meet the appropriate standard of care and that their conduct was not a

       significant factor in any permanent injury Thomson may have suffered.


[7]    On November 27, 2012, Thomson filed a complaint in the trial court alleging

       that SJRMC and Dr. Borkowski failed to meet the appropriate standard of care,

       resulting in injuries to Thomson. SJRMC and Dr. Borkowski both filed

       motions for summary judgment, citing the opinion of the panel.


[8]    In response, Thomson designated as evidence the deposition testimony of Dr.

       Zimmerman, an affidavit of registered nurse Abigail Stanley, and the deposition

       testimony of anesthesiologist Robert Gill, who had been a member of the panel

       that originally found against Thomson.


[9]    Dr. Zimmerman testified that he believed Thomson had suffered a radial nerve

       injury as a result of the arm board becoming detached. Stanley stated in her

       affidavit that employees of SJRMC failed to meet the standard of care. Dr. Gill

       gave equivocal testimony as to whether Dr. Borkowski had failed to meet the

       appropriate standard of care. When questioned by Thomson, Dr. Gill indicated

       that Dr. Borkowski had failed to meet the standard of care, but when

       questioned by Dr. Borkowski, Dr. Gill indicated that Dr. Borkowski had met

       the standard of care.


[10]   A hearing was held on February 11, 2014. With respect to Dr. Gill’s deposition

       testimony, the trial court concluded that Dr. Gill’s equivocations showed that

       he had not changed his original opinion and, therefore, his testimony was

       insufficient to rebut the panel’s conclusion as to Dr. Borkowski’s failure to meet

       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015   Page 4 of 14
       the standard of care. The trial court further found that Dr. Zimmerman’s

       testimony was insufficient to rebut the panel’s conclusion that there was no

       causal relationship between either defendants’ conduct and Thomson’s injury.

       The trial court then granted summary judgment in favor of SJRMC and Dr.

       Borkowski. Thomson now appeals.


                                     Discussion and Decision
[11]   With respect to the applicable standard of care and the defendants’ alleged

       failure to meet it, Thomson makes two arguments: (1) Dr. Gill’s equivocal

       testimony as to whether Dr. Borkowski failed to meet the standard of care

       created a question of fact; and (2) because detachment of the arm board clearly

       shows a failure to meet the standard of care, Dr. Gill’s expert opinion as to the

       standard of care was not even needed. With respect to causation, Thomson

       argues that Dr. Zimmerman’s testimony that Thomson’s injury was caused by

       the collapse of the arm board created a question of fact as to a causal

       relationship between the defendants’ conduct and the injury. Therefore,

       Thomson argues that genuine issues of material fact precluded the trial court

       from granting summary judgment in favor of SJRMC and Dr. Borkowski.


                                       I. Standard of Review
[12]   Summary judgment is appropriate “if the designated evidentiary matter shows

       that there is no genuine issue as to any material fact and that the moving party

       is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). It is initially

       the moving party’s burden to make a prima facie showing that this is the case.

       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015   Page 5 of 14
       McIntosh v. Cummins, 759 N.E.2d 1180, 1183 (Ind. Ct. App. 2001). Once the

       moving party meets this burden, the burden shifts to the non-moving party to

       present evidence showing the existence of a genuine issue of material fact. Id.

       “A medical malpractice case based upon negligence is rarely an appropriate

       case for disposal by summary judgment, particularly when the critical question

       for resolution is whether the defendant exercised the requisite degree of care

       under the circumstances.” Id. In other words, this issue is generally a question

       for the trier of fact. Id.


[13]   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 conduct to the requisite standard of care required by

       the relationship; and (3) an injury to the plaintiff resulting from that failure.

       Bunch v. Tiwari, 711 N.E.2d 844, 850 (Ind. Ct. App. 1999).


[14]   Before commencing a medical malpractice action, a plaintiff must present a

       proposed complaint to a medical review panel. Ind. Code § 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.

       Bunch, 711 N.E.2d at 850.


                                         II. Standard of Care
[15]   Health care providers must “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 [they] belong[] treating such maladies

       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015   Page 6 of 14
       under the same or similar circumstances.” Vogler v. Dominguez, 624 N.E.2d 56,

       59 (Ind. Ct. App. 1993). The medical review panel initially determines whether

       the defendant has met this standard.


[16]   In this case, after reviewing Thomson’s claim, the panel found that “[t]he

       evidence submitted does not support the conclusion that defendants . . . failed to

       meet the appropriate standard of care . . . .” Appellant’s App. p. 50 (emphasis

       original). Thomson attempted to counter this finding with the affidavit of

       registered nurse Abigail Stanley and the deposition testimony of

       anesthesiologist Robert Gill.


[17]   Stanley stated in her affidavit that, in her opinion, “the standard of care was

       breached in this case.” Appellant’s App. p. 81. Stanley concluded that “the

       operating room nurse, the anesthesiologist, and the surgeon all should have

       worked together to maintain proper positioning at the beginning of the case

       making sure the arm board was attached correctly and throughout the entire

       procedure.” Id. The trial court struck the portions of Stanley’s affidavit in

       which she gave her opinion as to the standard of care for anesthesiologists and

       surgeons. Tr. p. 4. SJRMC has conceded that “Stanley’s affidavit created a

       genuine issue of material fact regarding SJRMC’s compliance with the

       appropriate standard of care.” Appellee’s Br. p. 2.


[18]   With respect to Dr. Borkowski’s alleged failure to meet the standard of care,

       Thomson designated Dr. Gill’s deposition testimony. During a deposition, Dr.




       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015   Page 7 of 14
       Gill gave equivocal testimony as to whether he believed Dr. Borkowski failed to

       meet the standard of care.


[19]   Thomson argues that we need not consider the relevance, or lack thereof, of Dr.

       Gill’s equivocations because “the fact that the arm board became detached

       during [her] surgery—for a long enough time for her to suffer a nerve injury—is

       enough to allow an inference that Dr. Borkowski breached the standard of

       care.” Appellant’s Br. p. 23. Therefore, Thomson argues that Dr. Gill’s

       testimony was not needed to rebut the panel’s conclusion.


[20]   We agree with Thomson’s conclusion that expert testimony was not required in

       this case. This Court has previously dispensed with the need for expert opinion

       when a case fits within the “common knowledge” or res ipsa loquitur

       exception. Malooley v. McIntyre, 597 N.E.2d 314, 318-19 (Ind. Ct. App. 1992).

       “The doctrine of res ipsa loquitur is a rule of evidence which allows an

       inference of negligence to be drawn from certain surrounding facts.” Gold v.

       Ishak, 720 N.E.2d 1175, 1180 (Ind. Ct. App. 1999). 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. Id. at 1181.


[21]   Thomson must first show that Dr. Borkowski had “exclusive control” of the

       arm board. In determining whether a defendant had exclusive control of an


       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015   Page 8 of 14
       instrumentality, we do not focus on who had actual physical control, but,

       rather, who had the right or power of control and the right to exercise it. Vogler,

       624 N.E.2d at 61. Dr. Borkowski argues that he “did not, at any time, have

       exclusive control over the arm board” because “non-exclusive control was

       shared by several people.” Appellee’s Br. p. 20, 22.


[22]   However, “[e]xclusive control may be shared control if multiple defendants

       each have a nondelegable duty to use due care.” Vogler, 624 N.E.2d at 62.

       Thus, Thomson does not need to show that Dr. Borkowski had sole control

       over the arm board. Furthermore, “[e]xclusive control is satisfied if the

       defendant had control at the time of the alleged negligence.” Id. Here, it was

       Dr. Borkowski himself who reattached the arm board after he noticed

       Thomson’s dangling arm. Appellant’s App. p. 151. Through this act, Dr.

       Borkowski demonstrated that he had the power to correctly place and maintain

       the position of the arm board at the time of the alleged negligence. Therefore,

       he had exclusive control of the arm board for the purposes of res ipsa loquitur.


[23]   Dr. Borkowski next argues that, because the surgeon was not named as a

       defendant in this case, Thomson has failed to show exclusive control because

       any negligence could be imputed solely to the surgeon. Dr. Borkowski cites this

       Court’s opinion in Vogler, in which Vogler suffered an injury as a result of his

       body being moved while his head was secured in a head frame. 624 N.E.2d 56.

       This Court held that when an anesthesiologist was not named as a defendant

       and there was a reasonable probability that any negligence may have been



       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015   Page 9 of 14
       solely attributable to the anesthesiologist, a jury could not infer that it was more

       probable than not that the defendant hospital had been negligent. Id. at 63.


[24]   Thomson’s case is distinguishable in that her injury was not the result of one

       act—such as moving a person’s body—for which one defendant could be solely

       responsible. Rather, it was potentially the result of multiple acts of negligence

       by multiple people in failing to notice Thomson’s arm hanging out of position

       for a period of time long enough to cause injury. Thus, even assuming the

       surgeon set the arm board in place, that fact would not absolve the hospital staff

       or the anesthesiologist—the named defendants in this case—who may have a

       duty to monitor the positioning of Thomson’s arm throughout the surgery. 1


[25]   Thomson must next show that 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. Gold, 720 N.E.2d at 1180. To make this

       showing, Thomson can rely upon common sense and experience. Vogler, 624

       N.E.2d at 61.


[26]   Dr. Borkowski argues that Thomson cannot rely upon common sense and

       experience in this case because “[a] lay person does not know the mechanics of

       [arm] positioning during an operation” or “how an arm board is attached to a

       surgical bed.” Appellee’s Br. p. 24. This may be, however, a lay person does




       1
        In several sections throughout his brief, Dr. Borkowski emphasizes that we do not know who attached the
       arm board. Appellee’s Br. p. 14, 21. However, if Dr. Borkowski had a duty to monitor the positioning of
       Thomson’s arm, he could have breached that duty regardless of who originally attached the arm board.

       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015                   Page 10 of 14
       not need to know the precise contours of arm positioning during surgery to

       understand that an arm should not be left dangling towards the floor. As for

       how the board became detached, Dr. Borkowski does not argue that this

       incident was something that could ordinarily be expected to happen in the

       course of surgery. Therefore, it suffices to say that common sense and

       experience lead us to conclude that an arm board should not become detached

       leaving a patient’s arm dangling for such a period of time that the patient suffers

       nerve injury.


[27]   We reiterate that res ipsa loquitur only allows for an inference of negligence.

       Cleary v. Manning, 884 N.E.2d 335, 340 (Ind. Ct. App. 2008). We have not

       found conclusively that Dr. Borkowski or SJRMC were negligent nor have we

       found conclusively that either failed to meet the standard of care. Both

       defendants are free to present evidence and argue all issues before the trier of

       fact. Id. Our finding that the res ipsa loquitur exception applies in this case

       means only that expert testimony was not needed to rebut the panel’s

       conclusion and summary judgment was inappropriate.2


                                               III. Causation
[28]   After reviewing Thomson’s claim, the medical review panel found that “[t]he

       conduct complained of against defendants . . . was not a significant factor in any




       2
         Because we find that the exception applies here, we do not need to address whether Dr. Gill’s equivocal
       testimony was sufficient to create a question of material fact.

       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015                      Page 11 of 14
       permanent injury.” Appellant’s App. p. 50 (emphasis original). Thomson

       attempted to counter this finding by designating the testimony of Dr.

       Zimmerman, the neurologist who treated Thomson after her injury. During

       Dr. Zimmerman’s deposition, the following exchange took place:

               Q:       Doctor, based on your treatment of Jamie, her complaints, the
                        history that was presented to you, and based on your
                        experience, can you say within a reasonable degree of medical
                        certainty that she sustained an injury to her radial nerve during
                        her hysterectomy when the arm board collapsed?
               A:       Yes.
       Id. at 108.


[29]   On appeal, SJRMC argues that this testimony does not create an issue of

       material fact because the statement “does not even address the concept of

       causation, [and] at best, establishes a temporal relationship.” Appellee’s Br. p.

       28.


[30]   In support of this argument, SJRMC cites Gresser v. Dow Chemical Co., 989

       N.E.2d 339 (Ind. Ct. App. 2013), trans. denied. In Gresser, the Gressers moved

       into a home that had been chemically treated for termites thirteen months

       earlier. The Gressers became ill and filed a lawsuit. The defendants sought to

       exclude expert testimony that the chemical treatment had caused the illness.

       This Court noted that “[a]n expert’s opinion is insufficient to establish

       causation when it is based only upon a temporal relationship between an event

       and a subsequent medical condition.” Id. at 347 (quotations omitted) (emphasis

       original).


       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015       Page 12 of 14
[31]   Here, assuming solely for the sake of argument that the analysis in Gresser

       applies outside of the products liability context, 3 we find that Dr. Zimmerman’s

       opinion is based on more than the temporal relationship between the collapse of

       the arm board and Thomson’s injury. Dr. Zimmerman performed an initial

       examination of Thomson following the incident and noted Thomson had

       sustained injury “probably from compression.” Appellant’s App. p. 107.

       When questioned further, Dr. Zimmerman clarified:

                  A:       Well, based on the description that is in the note here that when
                           the arm board collapsed, her arm would’ve been hanging on the
                           OR bed with pressure in this area, in the radial . . . in the
                           triceps, nerve radial spiral groove area.
                  Q:       And the spiral groove is what?
                  A:       It’s the groove where the nerve travels right near the bone.
                  Q:       The . . . that type of mechanism of injury, would that be
                           consistent with the complaints that she presented with, as well
                           as your physical examination findings?
                  A:       Yes.
       Id.




       3
           In Gresser, this Court prefaced the above quoted statement by noting:

                  In particular, we have held that when an expert witness testifies in a chemical exposure case
                  that the exposure has caused a particular condition because the plaintiff was exposed and
                  later experienced symptoms, without having analyzed the level,
                  concentration or duration of the exposure to the chemicals in question, and without
                  sufficiently accounting for the possibility of alternative causes, the expert's opinion is
                  insufficient to establish causation.
       989 N.E.2d at 347 (quotations omitted) (emphasis added).



       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015                              Page 13 of 14
[32]   Thus, Dr. Zimmerman based his conclusion on what he believes was likely to

       have happened to Thomson’s nerves when her arm was hanging in that

       position, not merely on a temporal relationship between the collapse of the arm

       board and her injuries. This expert opinion was sufficient to rebut the opinion

       of the medical review panel and, consequently, create a question of fact.

       Summary judgment was therefore inappropriate.


[33]   The judgment of the trial court is reversed and the cause is remanded for further

       proceedings.




       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 71A04-1405-CT-246 | February 9, 2015   Page 14 of 14
