                                                                             FILED
                                                                        Jul 25 2019, 8:33 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jeffrey J. Stesiak                                          PROMPT MEDICAL
Jerome W. McKeever                                          TRANSPORTATION, INC.
James P. Barth                                              Sharon L. Stanzione
Pfeifer, Morgan & Stesiak                                   Alan M. Kus
South Bend, Indiana                                         Johnson & Bell, P.C.
                                                            Crown Point, Indiana
                                                            ATTORNEY FOR APPELLEE
                                                            ST. JOSEPH REGIONAL MEDICAL
                                                            CENTER
                                                            Robert J. Palmer
                                                            May Oberfell Lorber
                                                            Mishawaka, Indiana
                                                            ATTORNEYS FOR APPELLEE
                                                            HUMANA INSURANCE COMPANY
                                                            Kirstin B. Ives
                                                            Falkenberg Ives LLP
                                                            Chicago, Illinois
                                                            Michael P. Misch
                                                            Anderson Agostino &
                                                            Keller, P.C.
                                                            South Bend, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019                                Page 1 of 24
      Steve Snyder, as Personal                                   July 25, 2019
      Representative of the Estate of                             Court of Appeals Case No.
      Kimberly Snyder, Deceased,                                  18A-CT-3112
      Appellant-Plaintiff,                                        Appeal from the St. Joseph County
                                                                  Superior Court
              v.                                                  The Honorable Jenny Pitts Manier,
                                                                  Judge
      Prompt Medical Transportation,                              Trial Court Cause No.
      Inc.; Humana Insurance                                      71D05-1311-CT-303
      Company; and St. Joseph
      Regional Medical Center,
      Appellees-Defendants



      Baker, Judge.


[1]   In 2013, Kimberly Snyder, a critically ill patient in need of a lung transplant,

      was transported by ambulance from Indiana to Pennsylvania. Along the way,

      the ambulance crew got lost, and the lengthened trip caused the crew to run out

      of Kimberly’s sedation medication. She ultimately contracted pneumonia and

      died a week later.


[2]   Her husband, Steve Snyder, as personal representative of her estate (the Estate),

      filed a lawsuit against St. Joseph Regional Medical Center (SJRMC), Prompt

      Medical Transportation, Inc. (Prompt), and Humana Insurance Company

      (Humana), alleging that their respective negligence resulted in Kimberly’s

      wrongful death. A medical review panel unanimously found that Kimberly’s

      death was not caused by the actions of SJRMC and Prompt.



      Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019                       Page 2 of 24
[3]   The trial court dismissed the Estate’s claims against Humana and granted

      summary judgment in favor of Prompt and SJRMC. We affirm, finding as

      follows: (1) the trial court did not err by striking the affidavits of the Estate’s

      untimely disclosed expert witnesses; (2) there is no genuine issue of material

      fact with respect to the element of causation; and (3) the Estate’s claims against

      Humana are preempted by federal law governing Medicare Part C.


                                                       Facts
                                              Underlying Incident

[4]   On January 22, 2013, Kimberly was a cystic fibrosis patient at SJRMC; she

      needed a lung transplant and SJRMC determined that she should be transferred

      to a Pittsburgh hospital for the transplant. Kimberly was insured under a

      Medicare Advantage plan issued by Humana, which denied coverage for air

      transportation to Pittsburgh. Therefore, SJRMC arranged for Prompt to

      transport her by ambulance to the University of Pittsburgh Medical Center

      (UPMC) for the transplant.


[5]   On January 23, 2013, Prompt employees arrived at SJRMC to pick up

      Kimberly, who had been sedated, intubated, and put on a ventilator in

      preparation for the trip. Throughout the journey, Prompt continued Kimberly’s

      sedation, regularly checked her vital signs, and monitored the performance of

      her ventilator.


[6]   Upon arrival to the Pittsburgh area, Prompt’s employees got lost because there

      was no hospital at the address they had been given. They called UPMC for

      Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019            Page 3 of 24
      directions but the hospital staff was unable to give directions from the

      ambulance’s location. The crew then called 911 for directions to UPMC; the

      911 operator was able to provide directions and they got back on track. Traffic

      was very slow due to rush hour. When the ambulance finally arrived at what

      the crew believed was the correct hospital, they learned that, in fact, they were

      at the wrong Pittsburgh hospital. What should have been a 334-mile trip had

      turned into a 370- to 395-mile trip.


[7]   During the lengthy ambulance transport, Kimberly’s condition had worsened

      significantly. She was not receiving enough oxygen and began gagging on her

      breathing tube; there is some evidence that they ran out of her sedation

      medication. When Prompt arrived at the wrong hospital, a physician on site

      evaluated Kimberly and decided to admit her to the intensive care unit (ICU) at

      that location. The ICU physician discovered a clot clogging Kimberly’s

      breathing tube and removed the clot; Kimberly then returned to stable

      condition. The ICU staff told Prompt that they would arrange for Kimberly’s

      transfer to UPMC. Kimberly eventually contracted pneumonia and died one

      week later, on January 30, 2013.


                                                  The Litigation

[8]   On November 26, 2013, the Estate filed a complaint for wrongful death against

      Prompt. In its response, Prompt named SJRMC and Humana as nonparties

      who may have contributed to the Estate’s damages. On May 12, 2014, the

      Estate filed an amended complaint adding SJRMC and Humana as defendants.

      The trial court stayed the litigation while a medical review panel considered the
      Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019          Page 4 of 24
       Estate’s claims against Prompt and SJRMC.1 On September 14, 2016, the

       medical review panel unanimously found that SJRMC complied with the

       applicable standard of care and was not a factor in the resultant damages. With

       respect to Prompt, one panel member opined that Prompt breached the

       standard of care, but the panel concluded unanimously that Prompt was not a

       factor in the resultant damages.


[9]    On October 3, 2016, the trial court granted the Estate’s request to reinstate the

       court case. In October and November 2016, respectively, Prompt and SJRMC

       filed motions for summary judgment. As part of its responses to these motions,

       the Estate attached the affidavit of Dr. Joseph Pilewski, who was one of

       Kimberly’s treating physicians in Pittsburgh, to rebut the opinion of the medical

       review panel. In December 2016, Humana filed a motion to dismiss, arguing

       that the Estate’s state law claim was preempted by the Medicare Advantage

       preemption provision and that Humana was entitled to official immunity.


[10]   On May 4, 2017, the trial court summarily granted Humana’s motion to

       dismiss and summarily denied the motions for summary judgment. The Estate,

       Prompt, and SJRMC sought to have the order certified for interlocutory appeal,

       but this Court denied those requests.




       1
        Humana did not participate in the medical review panel process because it was not a qualified healthcare
       provider pursuant to the Indiana Medical Malpractice Act. I.C. § 34-18-1-1 et seq.

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019                               Page 5 of 24
[11]   The parties began preparing for a trial. On September 26, 2017, the trial court

       entered a pretrial order that included a number of case management deadlines

       but did not include any expert disclosure deadlines. On February 7, 2018,

       Prompt filed a motion asking that expert disclosure deadlines be put in place.

       The next day, the trial court entered an order setting the Estate’s expert

       disclosure deadline for April 12, 2018, and the defendants’ expert disclosure

       deadline for June 12, 2018. On April 12, 2018, the Estate disclosed Dr.

       Pilewski as its only trial expert.


[12]   In the meantime, SJRMC and Prompt had filed a joint motion to continue the

       trial; the Estate opposed the request. After hearing argument, on May 3, 2018,

       the trial court vacated the trial date, vacated the September 2017 pretrial order,

       and reset the trial for April 2019. The order made no mention of the expert

       disclosure deadlines. SJRMC and Prompt disclosed their respective trial

       experts by the June 12 deadline.


[13]   In August 2018, Prompt and SJRMC both filed renewed motions for summary

       judgment.2 The Estate opposed both motions. In its response briefs, the Estate

       included affidavits of experts that had not previously been disclosed to Prompt

       and SJRMC. Prompt moved to strike those affidavits. On November 15, 2018,

       the trial court granted the motion to strike, noting that “[n]o request from relief




       2
         Prompt acknowledged that, given the opinion of one of the medical review panel members that it had
       breached the standard of care, the issue of breach was not ripe for resolution by summary judgment. Instead,
       the basis of its argument on summary judgment was the unanimity of the medical review panel’s conclusion
       that its conduct—whether a breach or not—did not cause Kimberly’s death.

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019                               Page 6 of 24
       from the Court’s February 8, 2018 Order was filed by any party. That Order

       remains in effect.” Appellant’s App. Vol. II p. 20. Therefore, Dr. Pilewski’s

       affidavit was the Estate’s only remaining expert evidence in opposition to

       summary judgment.


[14]   The Estate filed a motion to reconsider the order granting the motion to strike

       the affidavits. The trial court denied, reasoning as follows:


               The Court’s September 26, 2017 Pre-Trial Entry Order did not
               contain deadlines for the disclosure of experts. . . . [That order is]
               this Court’s standard scheduling order. This Court has used this
               template for over twenty (20) years and “borrowed” it wholesale
               from the judge previously occupying this office who, herself, used
               that template for years. Plaintiff’s counsel is familiar with the
               template. Among its features is that . . . it does not set expert
               disclosure deadlines. The Court will set expert disclosure
               deadlines if asked. . . . By entering its separate order of February
               8, 2018, the Court established the manner in which expert
               disclosures—and any request to [modify] expert disclosure
               deadlines—would be addressed by the Court: by way of separate
               order.


               Moreover, the April 18, 2018 [fn 2] hearing on Defendants’ Joint
               Motion to Continue makes clear that Plaintiff had one expert
               (whom Defendant’s counsel referred to at least twice at that
               hearing as “Plaintiff’s one expert”), without any suggestion from
               Plaintiff that he intended to retain additional experts. . . . Plaintiff
               argued repeatedly about the need to get the matter tried, noting
               that the case had been pending for a number of years. One
               would not have concluded, listening to the arguments at that
               hearing, that Plaintiff sought what would likely be further delay
               of a trial by the addition of more experts.



       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019             Page 7 of 24
                        [fn 2] It is noted that as of the date of this hearing,
                        Plaintiff’s expert disclosure deadline had passed and
                        the Court had not entered its May 3, 2018 Order
                        which . . . Plaintiff argues vacated the expert
                        disclosure deadline. Thus, as of the April 18, 2018
                        hearing, Plaintiff had no reason to believe he would
                        be in a position to name additional experts and
                        made no request of the Court that he be granted
                        leave to do so.


                                                          ***


               . . . If Plaintiff sought . . . to bolster Dr. Pilewski’s testimony, and
               if Plaintiff believed the Court’s orders provided him yet with the
               time to disclose experts, one would have expected Plaintiff to
               disclose those experts in the manner that is typically done, not by
               first designating their affidavits in his Opposition to the Renewed
               [Summary Judgment] Motion[s].


       Appellant’s App. Vol. II p. 24-26 (emphasis original).


[15]   After briefing and argument was complete, on December 6, 2018, the trial court

       granted summary judgment in favor of SJRMC and Prompt. In pertinent part,

       as to Prompt, the trial court found that Dr. Pilewski’s deposition testimony was

       inadmissible with respect to the issue of causation because it was speculative

       and unreliable. It also found that the deposition testimony negated the

       existence of the necessary foundation to support the opinions offered in his

       affidavit, rendering that evidence also inadmissible. The trial court focused on

       the following exchanges:




       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019              Page 8 of 24
        Exchange 1


                                                   ***


        Dr. Pilewski testified to a period of instability experienced by
        Kimberly [] as a result of the sedative, the Versed, wearing
        off. . . . Counsel, bringing Dr. Pilewski back to the question of
        whether any period of instability on the ventilator had “any effect
        or cause that led to her death,” draws the following response
        from Dr. Pilewski: “Can I say that period of instability made her
        pneumonia worse? No. I can speculate that it may have, but I
        cannot say that there is a clear-cut causal relationship.”


        Exchange 2


        . . . Dr. Pilewski was asked whether [the fact that Prompt
        transported Kimberly to the wrong hospital] was a breach of a
        standard of care, an issue not at issue in Prompt’s [summary
        judgment motion]. In responding, Dr. Pilewski presumes
        Prompt’s attorney’s follow-up question about causation and
        proffers an opinion: “And your next question is probably going
        to be would the outcome have been any different if she was
        delivered directly to [the correct Pittsburgh hospital]? And the
        answer is, I don’t know. My guess is that the same thing would
        have happened.” He speculates as to what might have happened
        if her Versed did not run out (“maybe things turn out differently”
        and additional testimony about what “may” have been the
        outcome). When asked[] pointedly whether the likelihood of a
        different, better outcome had Kimberly Snyder been delivered to
        the [correct Pittsburgh hospital] without the delay experienced,
        he responds: “That’s speculation.”


        Exchange 3



Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019         Page 9 of 24
               Finally, Prompt designates testimony of Dr. Pilewski that denies
               Prompt caused the death of Kimberly [] and testimony that he
               could only speculate that any conduct on the part of Prompt “led
               to a decreased change of survival” for Kimberly [].


       Id. at 30-31 (internal footnote omitted). In the end, the trial court found that

       Prompt showed the absence of any genuine issue of material fact as to whether

       Prompt’s conduct caused Kimberly’s death or was a substantial factor in her

       loss of a chance of survival. Given that it found Dr. Pilewski’s testimony

       related to causation inadmissible, the trial court concluded that the Estate did

       not present evidence sufficient to show a question of fact or competing

       inferences regarding causation.


[16]   With respect to SJRMC, the trial court focused on the standard of care, noting

       that the medical review panel unanimously concluded that SJRMC did not

       breach that standard. With respect to SJRMC’s involvement with the decision

       to transport Kimberly to Pittsburgh by ambulance, Dr. Pilewski was questioned

       about the standard of care in Indiana; he responded that he was unfamiliar with

       the standard outside of Pennsylvania. He explicitly stated, “‘I’m not a critical

       care transport expert. I don’t live in the emergency medicine transfer world. I

       would just know that when I get phone calls about patients like [Kimberly], I do

       not endorse them coming by ground.’” Id. at 36. He admitted that he would be

       unable to identify anything done by SJRMC that was a breach of the standard

       of care. The trial court concluded that Dr. Pilewski’s testimony “is an example

       of an expert declining to offer an opinion, an explanation of why he cannot

       offer an opinion, and an assertion that he knows his own experience but will

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019        Page 10 of 24
       not impose it as a standard on other locales, facilities or providers.” Id. at 37.

       It also notes that even if Dr. Pilewski’s testimony were credited, there is no

       evidence in the record showing “what [SJRMC] did or did not do in connection

       with the decision that Kimberly [] be transported by ground ambulance to

       support the opinion in his affidavit that it breached the standard of care.” Id.


[17]   Additionally, with respect to causation and SJRMC, the trial court notes that

       “Dr. Pilewski expressly testified in his deposition . . . that Kimberly [] ‘didn’t

       die from anything that [SJRMC] did or didn’t do’ and that ‘[SJRMC] didn’t do

       anything to decrease her chance of survival either.’” Id. at 38. Therefore, the

       trial court concluded that summary judgment should be entered in SJRMC’s

       favor given that there was no genuine issue of material fact related to either

       breach of standard of care or causation. The Estate now appeals.


                                      Discussion and Decision
                                       I. Summary Judgment
[18]   Our standard of review on summary judgment is well established:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, 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.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 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

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019          Page 11 of 24
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


                               A. Striking of Expert Affidavits
[19]   First, the Estate argues that the trial court erred by striking two of its expert

       affidavits offered as evidence in opposition to summary judgment. The trial

       court has the authority to enforce its pretrial orders and the parties have the

       right to insist upon the strict enforcement of those orders. Nichols v. Ind. State

       Highway Dep’t, 491 N.E.2d 227, 229 (Ind. Ct. App. 1986). A party’s failure to

       adhere to pretrial deadlines “is inexcusable and subject to sanction.” Davidson

       v. Perron, 756 N.E.2d 1007, 1013 (Ind. Ct. App. 2001). We will reverse only

       upon a showing of clear error and resulting prejudice. Cliver v. State, 666

       N.E.2d 59, 64 (Ind. 1996).


[20]   Here, the relevant timeline is as follows:


           • On September 26, 2017, the trial court entered a pretrial order that
             included a number of case management deadlines but did not include
             any expert disclosure deadlines.
           • On February 7, 2018, Prompt filed a motion asking that expert disclosure
             deadlines be put in place.
           • The next day, the trial court entered an order setting the Estate’s expert
             disclosure deadline for April 12, 2018, and the defendants’ expert
             disclosure deadline for June 12, 2018.
           • On April 12, 2018, the Estate disclosed Dr. Pilewski as its only trial
             expert. SJRMC and Prompt disclosed their respective trial experts by the
             June 12 deadline.


       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019          Page 12 of 24
           • After hearing argument on the defendants’ motion to continue the trial,
             on May 3, 2018, the trial court vacated the trial date, vacated the
             September 2017 pretrial order, and reset the trial for April 2019. The
             order made no mention of the expert disclosure deadlines.
           • On September 12, 2018, the Estate filed its response briefs to the
             defendants’ pending summary judgment motions. In support of its
             opposition to summary judgment, the Estate designated affidavits of
             experts who had not previously been disclosed.

       The Estate argues that when the trial court vacated the September 2017 pretrial

       order, it vacated the order “as amended,” meaning that it also vacated the

       expert disclosure deadlines.


[21]   We do not find the Estate’s argument persuasive, given that the February 2018

       order was a stand-alone, specific, valid order, to which the trial court never

       referred, either explicitly or implicitly, when it vacated the pretrial order.

       Moreover, all parties behaved as though the February 2018 order were still in

       effect—for example, the defendants disclosed their respective witnesses by June

       12, 2018, in accordance with the February 2018 order. Moreover, during the

       ensuing months of litigation and argument, the Estate never once indicated that

       it intended to call more experts or seek relief from or clarification of the expert

       disclosure deadline. Indeed, in opposing the defendants’ request to continue

       the trial, the Estate argued strenuously that the matter needed to get tried

       quickly because it had been pending for years, never hinting that it intended to

       slow down the process by disclosing more experts at that late date. Under these




       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019          Page 13 of 24
       circumstances, we find that the trial court did not err by striking the affidavits

       because the disclosure of those experts was untimely. 3


[22]   The Estate argues that even if its expert disclosures were untimely, the sanction

       of striking the affidavits is too harsh because it resulted in summary judgment

       being entered against it. We disagree. The affidavits were filed, and the experts

       disclosed, five months after the expert disclosure deadline had passed, and the

       Estate had never sought relief from that deadline. As such, the affidavits were

       subject to sanction, including being struck, and such a sanction was within the

       trial court’s broad discretion.


[23]   The Estate directs our attention to five factors set forth by this Court in Davidson

       v. Perron, to be considered by the trial court when a party seeks to use the

       testimony of an untimely disclosed witness. 756 N.E.2d 1007, 1013-14 (Ind.

       Ct. App. 2001).


           • When did the first witness become known to the opposing counsel? Here, the
             expert witnesses were wholly unknown to counsel for Prompt and
             SJRMC until the Estate filed its responses to their motions for summary
             judgment, which was five months after the expert disclosure deadline had
             passed.
           • How vital is the potential witnesses’ testimony to the case of the proponent of the
             witness—is it relevant and material or merely cumulative? Here, the Estate
             itself indicated to the trial court that it believed that the testimony of Dr.
             Pilewski was sufficient to defeat summary judgment but that, out of “an



       3
         We also note that the Estate’s expert disclosure deadline had already come and gone by the time the trial
       court entered its order in May 2018; that window had already closed. There would be no need to reset dates
       for a deadline that had already expired.

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019                              Page 14 of 24
             abundance of caution,” it also sought to designate two other experts.
             Appellant’s App. Vol. V p. 81. In other words, the evidence was merely
             cumulative.
           • What is the nature of the prejudice to the opponent—would permitting the
             witnesses to testify have a deleterious impact on the case prepared by the
             opponent? Prompt and SJRMC would be significantly prejudiced if these
             affidavits were not struck. They were unaware of the existence of the
             experts and had no opportunity to depose them, depose Dr. Pilewski
             regarding the opinions of these other experts, or otherwise respond to the
             opinions contained in the affidavits, with sufficient time to comply with
             the summary judgment schedule or case management deadlines.
           • Are less stringent alternatives appropriate and effective to protect the interests of
             the parties? Less stringent alternatives may have been available in theory,
             but they would not have been effective to protect the interests of Prompt
             and SJRMC. Moreover, the fact that less stringent alternatives were
             available does not mean that the trial court was required to use those
             alternatives.
           • Will the opponent be unduly surprised and prejudiced by the inclusion of the
             witnesses’ testimony despite the available and reasonable alternatives (e.g., a recess
             or continuance) to allow the opponent to interview the witnesses and conduct
             further investigation? The only viable alternative would have been to
             suspend summary judgment proceedings to allow Prompt and SJRMC
             time to conduct discovery regarding these newly disclosed experts. But
             the Estate had argued strenuously that the case should be tried as soon as
             possible, fighting against any delays.

       In sum, we do not find that these five factors show that the trial court erred by

       deciding that the appropriate sanction for the untimely disclosed experts was to

       strike their affidavits.


                                                B. Causation
[24]   Medical malpractice claims are no different from other kinds of negligence

       cases regarding the elements a plaintiff must prove, meaning that the plaintiff

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019               Page 15 of 24
       must show (1) the existence of a duty owed to the plaintiff by the defendant;

       (2) breach of that duty by allowing conduct to fall below the applicable standard

       of care; and (3) a compensable injury that was proximately caused by the

       defendant’s breach of duty. Hassan v. Begley, 836 N.E.2d 303, 307 (Ind. Ct.

       App. 2006). When a unanimous medical review panel opinion is designated as

       evidence by a party on summary judgment, the non-movant must present expert

       testimony to rebut the medical review panel’s opinion. Scripture v. Roberts, 51

       N.E.3d 248, 252 (Ind. Ct. App. 2016).


[25]   Where an affiant’s deposition and affidavit are in conflict, “the affidavit is to be

       disregarded unless it is demonstrable that the statement in the deposition was

       mistaken, perhaps because the question was phrased in a confusing manner or

       because a lapse of memory is in the circumstances a plausible explanation for

       the discrepancy.” Crawfordsville Square, LLC v. Monroe Guar. Ins. Co., 906

       N.E.2d 934, 939 (Ind. Ct. App. 2009).


[26]   As evidence supporting summary judgment, Prompt and SJRMC both

       designated the unanimous opinion of the medical review panel that the conduct

       of Prompt and SJRMC was not a factor in Kimberly’s resultant damages.

       Appellant’s App. Vol. IV p. 129-31. This constituted prima facie evidence

       negating the existence of a genuine issue of material fact regarding one of the

       negligence elements the Estate must prove—causation—thereby shifting the

       burden to the Estate to designate evidence to show that there is, indeed, an

       issue of fact, rendering summary judgment improper.



       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019         Page 16 of 24
[27]   In Dr. Pilewski’s affidavit, he attested that Prompt’s and SJRMC’s “failure to

       meet the appropriate standard of care was a substantial factor of the resultant

       harm caused to Kimberly [] resulting in her death.” Id. at 7. During his

       deposition, however, he equivocated:


           • Kimberly’s sedation medication ran out during the long ambulance ride,
             followed by a period of instability. Dr. Pilewski stated that “I can
             speculate without being able to prove or provide a causal relationship,
             but I can speculate that this [period of instability] happens when people
             become unstable on a ventilator.” Id. at 144.

           • Dr. Pilewski attested that, with respect to the pneumonia subsequently
             developed by Kimberly, “I can’t say with any certainty whether [the
             period of instability] made her pneumonia worse. Ultimately she died
             from pneumonia. Can I say that period of instability made her
             pneumonia worse? No. I can speculate that it may have, but I can’t say
             that there is a clear-cut causal relationship there.” Id. at 144-45.

           • Noting that Kimberly was difficult to properly ventilate upon being
             admitted to the ICU, Dr. Pilewski stated that “[w]e had a harder time
             managing her, and I could come up with a bunch of different reasons
             why that might be the case.” Id. at 145.

           • Dr. Pilewski attested that “your next question is probably going to be
             would the outcome have been any different if she was delivered directly
             to [the correct hospital]? And the answer is, I don’t know. My guess is
             the same thing would have happened.” Id. at 146-47.

           • Counsel asked Dr. Pilewski, “Can you say that it’s more probably true
             than not in your medical experience that [the result might have been
             different had Kimberly been timely delivered to the correct hospital], or
             again is that just speculation?” Dr. Pilewski agreed that it was just
             speculation. Id. at 148.




       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019       Page 17 of 24
           • Counsel asked Dr. Pilewski, “I’m correct in stating that it is not your
             opinion that Prompt caused Mrs. Snyder’s death; correct?” Dr. Pilewski
             responded, “That is correct.” Id. at 150.

       In other words, at his deposition, Dr. Pilewski opined implicitly that SJRMC’s

       decision to transfer Kimberly to Pittsburgh by ambulance and explicitly that

       Prompt’s conduct during that ambulance ride did not, in fact, cause Kimberly’s

       death. And while he might believe that the outcome would have been different

       had the disastrous ambulance ride not occurred, he conceded that any such

       belief is based on pure speculation.


[28]   As noted above, to the extent that the deposition testimony conflicts with the

       affidavit, we disregard the affidavit unless it appears that the witness was

       somehow mistaken in his deposition answers. Crawfordsville, 906 N.E.2d at

       939. Nothing in this record indicates that Dr. Pilewski misspoke or

       misunderstood the questions at his deposition; to the contrary, he repeatedly

       and clearly indicated that he did not believe that Prompt or, by implication,

       SJRMC, had caused Kimberly’s death. Therefore, the trial court correctly

       focused on his deposition testimony rather than his affidavit with respect to

       causation.


[29]   The Estate did not designate any other evidence disputing the medical review

       panel’s unanimous opinion that the conduct of Prompt and SJRMC was not a

       factor in Kimberly’s death. Therefore, we can only conclude that the

       undisputed evidence in the record shows that, whether or not SJRMC or

       Prompt breached the standard of care, their actions did not proximately cause

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019        Page 18 of 24
       Kimberly’s death. Consequently, the trial court did not err by granting

       summary judgment in favor of Prompt and SJRMC.


                                     II. Dismissal of Humana
[30]   The trial court granted Humana’s motion to dismiss for failure to state a claim

       under Trial Rule 12(B)(6). When reviewing such a ruling, we must consider the

       complaint in the light most favorable to the nonmovant. Greer v. Buss, 918

       N.E.2d 607, 614 (Ind. Ct. App. 2009). A complaint should be dismissed

       pursuant to this rule only if it is apparent that the facts alleged in the complaint

       are incapable of supporting relief under any set of circumstances. Lawson v.

       First Union Mortg. Co., 786 N.E.2d 279, 281 (Ind. Ct. App. 2003).


[31]   This portion of the appeal calls upon us to review and interpret federal statutes.

       The interpretation of a statute is a question of law to which we apply a de novo

       standard of review. Kaser v. Barker, 811 N.E.2d 930, 932 (Ind. Ct. App. 2004).


                                          A. Medicare Part C
[32]   Medicare is a federally subsidized healthcare program that is primarily for

       people over the age of sixty-five and individuals who have a disability. 42

       U.S.C. § 1395c. Medicare has four parts; relevant to this case is Part C, which

       was added by Congress in 1997. Under Part C, Medicare beneficiaries may

       sign up for a privately administered healthcare plan (originally called a

       “Medicare + Choice” plan but later renamed a “Medicare Advantage” plan),

       which provides all of the benefits included in Parts A and B as well as

       additional benefits. 42 U.S.C. §§ 1395w.
       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019          Page 19 of 24
[33]   If a beneficiary elects to participate in a Part C plan, the government pays the

       plan’s administrator (here, Humana) a flat monthly fee to provide all Medicare

       benefits for that beneficiary. Because Part C limits the government’s

       responsibility to the monthly fee, the private health plan assumes the risk

       associated with insuring the beneficiary. E.g., In re Avandian Mktg., 685 F.3d

       353, 357-58 (3rd Cir. 2012). Part C plans must comply with “national coverage

       determinations” and “[g]eneral coverage guidelines included in original

       Medicare manuals and instructions . . . .” 42 C.F.R. § 422.101(b).


[34]   In 1997, when Congress first enacted Medicare Part C, the statute included a

       preemption provision. As originally enacted, the statute provided that “[t]he

       standards established under this subsection shall supersede any State law or

       regulation . . . with respect to Medicare + Choice plans . . . to the extent such law

       or regulation is inconsistent with such standards.” 42 U.S.C. § 1395s-26(b)(3) (2000)

       (emphasis added). The statute also identified certain specific areas of state law

       that were “superseded under this paragraph.” Id.


[35]   In 2003, Congress amended the statute, making the preemption provision much

       broader. That provision now provides that “[t]he standards established under

       this part shall supersede any State law or regulation (other than State licensing

       laws or State laws relating to plan solvency) with respect to [Medicare

       Advantage] plans which are offered by [Medicare Advantage] organizations

       under [Part C].” 42 U.S.C. § 1395w-26(b)(3) (2005). The phrase regarding

       “inconsistent” state laws and regulations and the subsection identifying specific

       standards that were superseded have been deleted.

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019          Page 20 of 24
                                               2. Preemption
[36]   The supremacy clause of the United States Constitution vests Congress with the

       power to preempt state law. U.S. Const., art VI, cl. 2. Preemption of state law

       can be express or implied. It is express “when Congress positively enacts a

       preemption clause displacing state law; it is implied when courts infer a

       congressional intent to displace state law under one of three doctrines of

       ‘implied preemption’—namely, ‘field, conflict, or obstacle preemption.’”

       Roberts v. United Healthcare Servs., Inc., 206 Cal. Rptr. 3d 158, 164 (Cal. Ct. App.

       2016) (quoting Quesada v. Herb Thyme Farms, Inc., 361 P.3d 868, 512 (Cal.

       2015)). When preemption is implied, we employ a presumption against

       preemption when assessing Congress’s intent. Id. at 164. But the United States

       Supreme Court has made it clear that when a statute includes an express

       preemption clause, “we do not invoke any presumption against pre-emption but

       instead ‘focus on the plain wording of the clause, which necessarily contains the

       best evidence of Congress’ pre-emptive intent.’” Puerto Rico v. Franklin Cal. Tax-

       Free Trust, 136 S.Ct. 1938, 1946 (2016) (quoting Chamber of Commerce v. Whiting,

       563 U.S. 582, 594 (2011)).


[37]   Here, as noted above, Medicare Part C includes an express preemption clause.

       Consequently, we must focus on the plain wording of that clause. And that

       wording could not be clearer: “[t]he standards established under [Part C] shall

       supersede any State law or regulation (other than State licensing laws or State

       laws relating to plan solvency) with respect to [Medicare Advantage] plans

       which are offered by [Medicare Advantage] organizations under [Part C].”

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019         Page 21 of 24
       U.S.C. § 1395w-26(b)(3) (emphasis added). Adding even more clarity to that

       language is the previous version of the statute, which was far narrower

       regarding what state laws were preempted by Part C. The current version of the

       statute clearly shows that Congress intended to preempt a broad swath of state

       laws and regulations with Part C.


[38]   As a result, state standards are preempted when they implicate “conduct that

       was governed by federal Medicare standards.” Haaland v. Presbyterian Health

       Plan, Inc., 292 F. Supp. 3d 1222, 1231 (D.N.M. 2018). Put another way, “as

       long as a federal standard exists regarding the conduct at issue,” state law must

       yield. Morrison v. Health Plan of Nev., 328 P.3d 1165, 1169 (Nev. 2014).

       Multiple courts have found that the broad language of the Part C preemption

       provision extends to claims that are grounded in state common law. See, e.g.,

       Uhm v. Humana, Inc., 620 F.3d 1134, 1156 (9th Cir. 2010) (concluding that

       some state common law claims fall under Part C’s preemption clause); Haaland,

       292 F. Supp. 3d at 1230-31 (finding that negligence claims were preempted);

       Morrison, 328 P.3d at 1171-72 (same).4




       4
         The Estate directs our attention to two cases reaching a different result, but both are inapposite. See Ardary
       v. Health Plans of Cal., Inc., 98 F.3d 496 (9th Cir. 1996) (decided before Part C and its preemption provision
       were enacted); Woodruff v. Humana Pharmacy, Inc., 65 F. Supp. 3d 588 (N.D. Ill. 2014) (analyzing whether
       “complete preemption,” a jurisdictional doctrine allowing certain cases to be removed to federal court, which
       is not at issue in this case, applies to Part C).

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019                                 Page 22 of 24
                                                   3. This Case
[39]   In this case, the Estate alleged in its amended complaint that Kimberly’s

       injuries and death were a “direct and proximate result of the carelessness and

       negligence” of Humana. Appellant’s App. Vol. II p. 87. In its response to

       Humana’s motion to dismiss, the Estate emphasized that its claims against

       Humana are state law negligence claims under Indiana’s Wrongful Death Act,

       clarifying that its claims are based on Humana’s denial of coverage for

       Kimberly’s air transportation to Pittsburgh. Appellant’s App. Vol. III p. 224,

       232-34.5


[40]   To evaluate these tort claims, therefore, a court would have to turn to the

       Medicare rules as to coverage of patient transportation. Medicare “covers

       ambulance services, including [airplane] and [helicopter] ambulance services,

       only if they are furnished to a beneficiary whose medical condition is such that

       other means of transportation are contraindicated.” 42 C.F.R. § 410.40(d)(1).

       In other words, the beneficiary’s “condition must require both the ambulance

       transportation itself and the level of service provided.” Id. This determination,

       therefore, is individualized and based on the facts of each case.


[41]   Consequently, to decide whether air transportation was required in Kimberly’s

       case, Humana had to conduct a case-specific inquiry to determine whether air




       5
        To the extent that the Estate implies in its brief that it has also raised a breach of contract claim against
       Humana, appellant’s br. p. 35-36, we note that its complaint clearly and explicitly raises only claims that
       sound in negligence.

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019                                    Page 23 of 24
       transportation was medically necessary—in other words, whether ground

       transportation would have endangered her health. Id. The Estate argues that

       the result reached by Humana—that ground transportation was not

       contraindicated—was negligent under Indiana law. But to resolve this

       argument, a court would have to apply a state law standard of care to a

       coverage determination governed by federal law. Indeed, if allowed to stand,

       the Estate’s complaint could theoretically allow Humana to be found negligent

       even if it fully complied with all federal laws and regulations. Under these

       circumstances, we can only conclude that the Estate’s claims, which sound in

       state law that must be applied with respect to Medicare Part C, are preempted

       pursuant to Part C’s express preemption provision. 6 Therefore, the trial court

       did not err by granting Humana’s motion to dismiss.7


[42]   The judgment of the trial court is affirmed.


       Najam, J., and Robb, J., concur.




       6
        The Estate neither sets forth the federal standard nor argues that Humana failed to meet that standard in its
       coverage determination.
       7
        Because we find that the claims against Humana are preempted, we need not and will not consider its
       argument that it is entitled to official immunity for its actions in this case.

       Court of Appeals of Indiana | Opinion 18A-CT-3112 | July 25, 2019                                Page 24 of 24
