      MEMORANDUM DECISION
                                                                                  FILED
      Pursuant to Ind. Appellate Rule 65(D),                                 May 25 2016, 5:32 am
      this Memorandum Decision shall not be                                       CLERK
      regarded as precedent or cited before any                               Indiana Supreme Court
                                                                                 Court of Appeals
      court except for the purpose of establishing                                 and Tax Court


      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      David Van Gilder                                         Kathleen A. Kilar
      Andrew P. Simmons                                        Andrew S. Williams
      Lindsay A. Davenport                                     Jeremy D. Lemon
      Van Gilder & Trzynka, P.C.                               Hunt Suedhoff Kalamaros LLP
      Fort Wayne, Indiana                                      Fort Wayne, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      The Estate of Diana K. Blake by                          May 25, 2016
      Nicole Walker, Personal                                  Court of Appeals Case No.
      Representative,                                          02A03-1511-PL-2030
      Appellant-Plaintiff,                                     Appeal from the
                                                               Allen Superior Court
              v.                                               The Honorable
                                                               Stanley A. Levine, Judge
      Select Specialty Hospital-Fort                           Trial Court Cause No.
      Wayne, Inc.,                                             02D03-1412-PL-469
      Appellee-Defendant.




      Kirsch, Judge.


[1]   The Estate of Diana K. Blake (“Blake”) by Nicole Walker, Personal

      Representative (“the Estate”), appeals the trial court’s grant of summary
      Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016             Page 1 of 9
      judgment in favor of Select Specialty Hospital-Fort Wayne, Inc. (“the

      Hospital”) on the Estate’s medical malpractice claim. The Estate raises two

      issues of which we find the following dispositive: whether the trial court erred

      in granting summary judgment in favor of the Hospital because the Estate

      contends that the designated evidence established a genuine issue of material

      fact that the Hospital breached its standard of care to Blake.


[2]   We reverse and remand.


                                 Facts and Procedural History
[3]   On January 26, 2011, Blake underwent a left femoral anterior tibial bypass

      surgery, which was performed by John F. Csicsko, M.D. (“Dr. Csicsko”), a

      thoracic surgeon with Lutheran Hospital. The surgery entailed a left-side groin

      wound in which a section of vein was grafted into an artery in Blake’s leg.

      Following the surgery, Blake was transferred to St. Joseph Hospital for

      continuing care. While there, she was treated for an infection due to a non-

      healing left leg wound. On February 19, 2011, Blake underwent a second

      surgery, in which a debridement was performed by Dr. Csicsko, and a section

      of Blake’s sartorius muscle was pulled and sutured over the vein graft to help

      protect the graft. To assist in healing, a Vacuum Assisted Closure (“VAC”)

      system was applied over the wound. On February 24, 2011, Blake was

      transferred to the Hospital for continuing care, including wound care which

      involved changing the VAC dressing every three days.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016   Page 2 of 9
[4]   Patricia Gerig, RN (“Nurse Gerig”), who was employed by the Hospital,

      performed the wound care on February 25, and again on February 28, by

      changing the VAC dressing. Nurse Gerig testified that, on each date, she

      applied an adaptic layer over the wound in Blake’s left groin before applying the

      black sponge, which was part of the VAC dressing. However, Blake’s medical

      records did not contain any notations indicating that the adaptic layer was

      applied during either of the VAC dressing changes. On February 28, Nurse

      Gerig completed the wound care at 11:30 a.m. At approximately 4:30 p.m. on

      February 28, a code was called due to Blake having developed an acute bleed

      from her left groin wound. Blake was not able to be resuscitated, and she died.

      During the code, Dr. Csicsko observed that the sartorius muscle was dislodged,

      and the vein graft was clearly visible in the wound.


[5]   On April 27, 2012, the Estate filed a Proposed Complaint against the Hospital

      with the Indiana Department of Insurance. A Medical Review Panel was

      formed consisting of two physicians and one nurse. On September 17, 2014,

      the Medical Review Panel reached a unanimous opinion that the Hospital did

      not breach its standard of care and that the “conduct complained of was not a

      factor of the resultant damages.” Appellant’s App. at 5-10. On December 4,

      2014, the Estate filed a civil complaint in the Allen County Superior Court

      against the Hospital. The Hospital filed a motion for summary judgment based

      on the Medical Review Panel’s determination. After the Estate filed its

      response to the summary judgment motion and designated evidence, the

      Hospital moved to strike portions of the designated evidence, including an


      Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016   Page 3 of 9
      affidavit by Carol White (“White”), a registered nurse and nurse practitioner

      (“the Affidavit”). A hearing was held on the motion to strike, and the trial

      court granted the motion, striking the Affidavit. A hearing was later held on

      the Hospital’s motion for summary judgment, and on October 28, 2015, the

      trial court granted summary judgment in favor of the Hospital. The Estate now

      appeals.


                                     Discussion and Decision
[6]   When reviewing the grant of summary judgment, our standard of review is the

      same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

      1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of

      Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in

      the shoes of the trial court and apply a de novo standard of review. Id. (citing

      Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our

      review of a summary judgment motion is limited to those materials designated

      to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d

      461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate

      only where the designated evidence shows there are no genuine issues of

      material fact and the moving party is entitled to judgment as a matter of law.

      T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on

      the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view

      the pleadings and designated materials in the light most favorable to the non-

      moving party. Id. Additionally, all facts and reasonable inferences from those

      facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016   Page 4 of 9
      Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.

      denied). Under Indiana’s summary judgment procedure, the party moving for

      summary judgment has the burden of establishing that no genuine issue of

      material fact exists. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937

      N.E.2d 853, 865-66 (Ind. Ct. App. 2010) (citing Jarboe v. Landmark Cmty.

      Newspapers, 644 N.E.2d 118, 123 (Ind. 1994)). Only after the moving party has

      met this burden with a prima facie showing that no genuine issue of material

      fact exists does the burden then shift to the non-moving party to establish that a

      genuine issue of material fact does in fact exist. Id. at 866.


[7]   A trial court’s grant of summary judgment is clothed with a presumption of

      validity, and the party who lost in the trial court has the burden of

      demonstrating that the grant of summary judgment was erroneous. FLM, 973

      N.E.2d at 1173. Where a trial court enters specific findings and conclusions,

      they offer insight into the rationale for the trial court’s judgment and facilitate

      appellate review, but are not binding upon this court. Id. We will affirm upon

      any theory or basis supported by the designated materials. Id. When a trial

      court grants summary judgment, we carefully scrutinize that determination to

      ensure that a party was not improperly prevented from having his or her day in

      court. Id.


[8]   Cases involving medical malpractice are no different from other kinds of

      negligence actions regarding that which must be proven. Giles v. Anonymous

      Physician I, 13 N.E.3d 504, 510 (Ind. Ct. App. 2014), trans. denied. “Specifically,

      a plaintiff in a medical malpractice action must prove: (1) duty owed to the
      Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016   Page 5 of 9
       plaintiff by the defendant; (2) breach of duty by allowing conduct to fall below

       the applicable standard of care; and (3) compensable injury proximately caused

       by the defendant’s breach of duty.” Id.


[9]    When a medical review panel renders an opinion in favor of the physician or

       hospital, the plaintiff must then come forward with expert medical testimony to

       rebut the panel’s opinion in order to survive summary judgment. Mills v.

       Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct. App. 2006); Bunch v. Tiwari, 711

       N.E.2d 844, 850 (Ind. Ct. App. 1999). “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.” Mills, 851 N.E.2d at

       1070. 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. Id. In order to be

       sufficient to demonstrate the existence of a material fact and make summary

       judgment inappropriate, an affidavit must establish an expert’s credentials, state

       that the expert has reviewed the relevant medical records, and set forth the

       expert’s conclusion that the defendants violated the standard of care in their

       treatment which in turn caused the complained of injury. Id.


[10]   In support of its motion for summary judgment, the Hospital submitted the

       opinion of the Medical Review Panel, which determined unanimously that the

       Hospital did not breach its standard of care and that the challenged conduct

       was not a factor of the resultant damages. Appellant’s App. at 19-24. That

       satisfied the Hospital’s burden to show there was no genuine issue of material

       Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016   Page 6 of 9
       fact. It was then up to the Estate to designate sufficient expert testimony setting

       forth facts showing the existence of a genuine issue of material fact for trial. See

       Mills, 851 N.E.2d at 1070. In support of its response in opposition to the

       Hospital’s motion for summary judgment, the Estate designated, among other

       things, the following evidence: an affidavit by Dr. Csicsko, excerpts from the

       deposition of Dr. Csicsko, excerpts from the deposition of Nurse Gerig, and

       excerpts from the deposition of Brian Youn, M.D., who assisted in the

       attempted resuscitation of Blake. Appellant’s App. at 33-34.


[11]   Dr. Csicsko stated in his affidavit that he is a licensed and practicing physician,

       specializing in the field of thoracic surgery, and was one of the treating

       physicians of Blake. The affidavit stated that Dr. Csicsko reviewed Blake’s

       medical records from the Hospital and set forth the relevant facts of Blake’s

       surgery and hospitalization. Dr. Csicsko then stated:


               12. A properly working wound vac will not dislodge the
               sartorius muscle flap that I sutured over the vein graft site; the
               wound vac sponge sticking to the muscle could dislodge it if the
               vac sponge was not carefully removed. If an adaptic layer had
               been used the sartorius flap would not likely have been dislodged
               and the vein graft would not have been directly exposed to the
               vac pressure.


               ....


               15. Based on my review of the records and my observations: (a)
               the grafted vein was not deteriorated due to infection; (b) the
               protective sartorius muscle flap was dislodged, most likely during
               a wound vac change; (c) there is no record that an adaptic layer

       Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016   Page 7 of 9
               was applied in the wound vac dressing change on February 25 or
               February 28, 2011; (d) the vac reservoir was filled with about
               1500cc of blood; and (e) the cause of Diane [sic] Blake’s cardiac
               arrest was the acute bleeding through a hole in the grafted vein.
               It is my opinion that the responsible cause of her death on
               February 28 was more likely than not a disruption to the vein
               and subsequent bleed out through the wound vac.


               16. It is my opinion that had Ms. Blake been properly cared for
               at Select Specialty Hospital more likely than not she would have
               survived.


       Id. at 98-99.


[12]   This testimony was competent to establish that the standard of care for the use

       of a wound VAC dressing was to use an adaptic layer between the VAC sponge

       and the fragile vein graft. Additionally, the Estate designated portions of Nurse

       Gerig’s deposition testimony, in which she stated that, in her nursing judgment,

       an adaptic layer should be used because she “knew the wound vac should be

       used with caution in graft sites and that it was recommended to use a release

       layer” and that an adaptic layer should have been used in a vein graft site such

       as Blake’s “[s]o that the sponge doesn’t stick to the wound when you’re

       removing it.” Id. at 113. We find this evidence sufficient to refute the Medical

       Review Panel’s opinion and create a genuine issue of material fact as to

       whether the Hospital complied with the appropriate standard of care. The trial




       Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016   Page 8 of 9
       court, therefore, erred in granting summary judgment in favor of the Hospital. 1

       We reverse the grant of summary judgment in favor of the Hospital and remand

       for further proceedings.


[13]   Reversed and remanded.


[14]   Riley, J., and Pyle, J., concur.




       1
        Because we have concluded that the Estate designated sufficient evidence to refute the Medical Review
       Panel’s opinion and to create a genuine issue of material fact without reference to White’s affidavit, we do
       not reach the issue of whether the trial court erred in granting the Hospital’s motion to strike White’s
       affidavit.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016                 Page 9 of 9
