MEMORANDUM DECISION
                                                             Aug 07 2015, 9:47 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Andrew P. Wirick                                          David G. Field
Hume Smith Geddes Green &                                 Ashlie K. Keaton
Simmons, LLP                                              Schultz & Pogue, LLP
Indianapolis, Indiana                                     Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Danny A. Lucas,                                          August 7, 2015

Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         55A01-1503-CT-93
        v.                                               Appeal from the Morgan Circuit
                                                         Court

Morgan County Memorial                                   The Honorable Matthew G. Hanson,
                                                         Judge
Hospital, Dr. Claire L. Scheele,
M.D., and Dr. Murat Polar,                               Cause No. 55C01-1406-CT-1158
M.D.,
Appellees-Plaintiffs




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 1 of 11
[1]   Danny Lucas appeals the judgment of the trial court granting summary

      judgment in favor of Morgan County Memorial Hospital, Dr. Claire Scheele,

      and Dr. Murat Polar. Finding that Lucas’s response in opposition to the

      defendants’ summary judgment motion was sufficient to raise issues of material

      fact, we reverse.



                                                    Facts
[2]   On March 7, 2010, Lucas arrived at the emergency department of Morgan

      County Hospital complaining of shortness of breath, cough, and chest

      congestion. Following an evaluation, he was diagnosed with pneumonia and

      admitted to the hospital. Throughout his stay at the hospital, Lucas received

      medical treatment from Dr. Murat Polar and Dr. Claire Scheele.


[3]   On March 10, 2010, Lucas began to complain of abdominal discomfort. Dr.

      Polar ordered an x-ray. On March 12, 2010, Lucas’s condition worsened. He

      began complaining of increased shortness of breath, abdominal gas, pain, and

      bloating. Dr. Polar ordered a CT scan. Dr. Scheele evaluated the results of this

      scan and noted that Lucas had developed increasing abdominal distension and

      constipation since he had been admitted. Dr. Scheele concluded that this could

      be the result of either a blockage or infection in Lucas’s intestine.


[4]   On March 13, 2010, Lucas’s condition had not improved and a new set of x-

      rays revealed increasing abdominal distension. Lucas requested a transfer to St.

      Francis Hospital and was transferred later that day.


      Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 2 of 11
[5]   On July 1, 2011, Lucas filed a proposed complaint for medical malpractice with

      the Indiana Department of Insurance. Lucas alleged that Morgan County

      Hospital, Dr. Polar, and Dr. Scheele (collectively, the defendants) were

      negligent in their care and treatment of Lucas, causing him bodily injury,

      additional medical expenses, pain and suffering, and mental anguish. On

      March 11, 2014, nearly three years after Lucas filed his complaint, the medical

      review panel issued a unanimous decision finding that the defendants had not

      failed to meet the standard of care and that their conduct was not a factor in

      Lucas’s damages.


[6]   On May 30, 2014, Lucas filed a complaint in the Marion Circuit Court,

      reiterating the allegations contained in his complaint to the medical review

      panel. On June 18, 2014, both parties filed a joint motion to transfer venue and

      the case was transferred to the Morgan Circuit Court. On July 10, 2014, the

      defendants moved for summary judgment, arguing that Lucas’s claim must fail

      as he had neglected to designate any expert opinion to rebut the opinion of the

      medical review panel. Lucas filed a response to this motion, in which he

      designated the affidavit of Dr. Kevin Felner. Lucas designated Dr. Felner’s

      curriculum vitae (CV) as evidence of his credentials as a medical expert.


[7]   The trial court scheduled a hearing on the motion for January 15, 2015. On the

      day of the hearing, the defendants filed a motion to strike Dr. Felner’s affidavit,

      arguing that Dr. Felner’s affidavit did not establish his credentials as an expert

      and that Lucas’s inclusion of Dr. Felner’s CV as an exhibit was not sufficient.

      The defendants also argued that Dr. Felner’s affidavit did not provide sufficient

      Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 3 of 11
       information regarding what Dr. Felner believed to be the applicable standard of

       care.


[8]    On February 12, 2015, the trial court denied the defendants’ motion to strike

       Dr. Felner’s affidavit. However, finding no genuine issues of material fact, the

       trial court granted the defendants’ motion for summary judgment. Lucas now

       appeals.


                                    Discussion and Decision
[9]    When reviewing a trial court’s ruling on a motion for summary judgment, we

       apply the same standard as the trial court. Lusk v. Swanson, 753 N.E.2d 748,

       751 (Ind. Ct. App. 2001). We will liberally construe the evidence in the light

       most favorable to the non-moving party. Id. Summary judgment is only

       appropriate when the pleadings and evidence show that there is no genuine

       issue of material fact and that the moving party is entitled to judgment as a

       matter of law. Ind. Trial Rule 56(C). Ordinarily, summary judgment is not

       appropriate in medical malpractice cases based upon negligence. Aldrich v.

       Coda, 732 N.E.2d 243, 245 (Ind. Ct. App. 2000). “This is especially true when

       the question is whether a doctor exercised the requisite standard of care under

       the circumstances.” Id.


[10]   Here, Lucas designated the affidavit of Dr. Felner to rebut the opinion of the

       medical review panel. The affidavit reads as follows:

               1.       I am over 18 years of age and I have personal knowledge of all
                        facts stated herein.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 4 of 11
        2.       There was a deviation in the standard of care with regards to
                 use of timely antibiotic. In addition, if there was pleural fluid
                 present in setting of pneumonia with persistently elevated white
                 blood cell count, that would need to be sampled if there was
                 sufficient amount of fluid; if there was evidence of sufficient
                 pleural fluid on chest X-ray of abdominal ct scan, then it would
                 have been a deviation to not sample it.
        3.       The patient according to the records reflect the patient had a
                 high fever (102.9) and elevated white blood cell count 19k and
                 left lower lobe pneumonia.
        4.       The first issue is that the patient did not get antibiotics until the
                 day after admission which is the first issue, delayed antibiotics
                 for a patient with sepsis.
        5.       The second issue is that with persistently elevated white blood
                 cell count, several issues needs to be considered.
        6.       Is the patient on the correct antibiotics—this was partly
                 addressed by the addition of clindamycin, though I am not sure
                 that is what most practitioners would have added.
        7.       The more important issue is whether there was the
                 development of a complication causing the white blood cell
                 count to stay elevated implying that the infection was not being
                 controlled with the antibiotics alone.
        8.       A pleural fluid collection is not uncommon and usually needs
                 to be assessed for if a patient is not completely improving—
                 persistent fever (not sure if this was present, I believe not from
                 one note) or persistently elevated white blood cell count.
        9.       This fluid collection count be assessed for with chest X-ray,
                 ultrasound (not as commonly used in 2010 as it is today) or
                 chest CT.
        10.      Of particular interest to me is the abdominal chest CT the
                 patient had at the first hospital—the top of the abdominal CT
                 usually includes lower cuts of the chest and if a significant
                 amount of fluid was visible on that scan, then that would have
                 triggered either a dedicated chest CT or an ultrasound and
                 sampling of the fluid (if significant amount present) to assess for
                 parapneumonic effusion (fluid that would usually improve with
                 antibiotics alone) vs an empyema (fluid that would require

Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 5 of 11
                        drainage with a chest tube versus removal in the operating
                        room by thoracic surgery).
               11.      I hold all of the opinions above to a reasonable degree of
                        medical certainty.

       Appellant’s App. p. 189-90.


[11]   The defendants first argue that this affidavit is insufficient to defeat summary

       judgment because it does not meet the requirements of Indiana Trial Rule

       56(E). This rule provides that, upon a motion for summary judgment,

       “[s]upporting and opposing affidavits shall be made on personal knowledge,

       shall set forth such facts as would be admissible in evidence, and shall show

       affirmatively that the affiant is competent to testify to the matters stated

       therein. ” T.R. 56(E). The defendants argue that Dr. Felner’s affidavit does not

       comport with this rule because it “fails to establish his credentials as a medical

       expert qualified to provide opinion testimony regarding standard of care and

       causation.” Appellee’s Br. p. 12.


[12]   Lucas attempted to establish Dr. Felner’s credentials by designating Dr.

       Felner’s CV as an exhibit. However, the defendants argue that Dr. Felner’s CV

       is insufficient as it “is not a sworn statement—it contains no verification,

       certification, or oath, nor does it bear Dr. Felner’s signature.” Appellee’s Br. p.

       13. The defendants point out that “[u]nsworn statements and unverified

       exhibits do not qualify as proper Rule 56 evidence.” Ind. Univ. Med. Ctr. v.

       Logan, 728 N.E.2d 855, 858 (Ind. 2000).




       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 6 of 11
[13]   The defendants are correct to point out that the requirements of Trial Rule 56

       are mandatory and that, when an affidavit does not meet these requirements,

       “the court may disregard it upon its own motion.” Miller v. Monsanto, 626

       N.E.2d 538, 543 (Ind. Ct. App. 1993). However, the trial court may also

       permit affidavits to be supplemented. T.R. 56(E). In this case, the defendants

       filed a motion to strike Dr. Felner’s affidavit on the morning of the summary

       judgment hearing, allowing Lucas no time to supplement his response. The

       trial court denied the defendants’ motion, noting that “the late motion filed by

       the Defendants to strike the affidavit is troubling and they should not be

       rewarded for waiting until the last minute to file their motion so that no

       response could be provided.” Appellant’s App. p. 7.


[14]   We agree with the trial court. Here, the defendants do not contest the accuracy

       of Dr. Felner’s CV, nor do they assert that Dr. Felner is not qualified to testify

       on such matters.1 While they are correct that Lucas has failed to strictly comply

       with the requirements of Rule 56(E), it is for the trial court to determine how

       best to deal with this situation. Here, the trial court denied the defendants’

       motion to strike because it had been filed at the last minute. We have every

       reason to believe that, had the trial court not disposed of this case by granting

       the defendants’ motion for summary judgment, it would have allowed Lucas an




       1
        Dr. Felner’s CV indicates that he has an extensive educational and professional background in medicine
       and that he is currently certified in internal, pulmonary, and critical care medicine. Appellant’s App. p. 183-
       86.



       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015                Page 7 of 11
       opportunity to supplement Dr. Felner’s affidavit. Accordingly, the defendants’

       argument on this point fails.


[15]   The defendants next argue that the affidavit is insufficient to defeat summary

       judgment because it fails to establish a prima facie case of medical malpractice.

       To establish a prima facie case of medical malpractice based on negligence, the

       plaintiff must show: (1) a duty on the part of the defendant in relation to the

       plaintiff; (2) failure on the part of the defendant to conform to the requisite

       standard of care required by the relationship; and (3) an injury to the plaintiff

       resulting from that failure. Lusk, 753 N.E.2d at 753.


[16]   “Because of the complex nature of medical diagnosis and treatment, expert

       testimony is generally required to establish the applicable standard of care.” Id.

       When this expert testimony is presented in the form of an affidavit, “the

       affidavit must set forth that the expert is familiar with the proper standard of

       care under the same or similar circumstances, what that standard of care is, and

       that the defendant’s treatment of the plaintiff fell below that standard of care.”

       Id.


[17]   Initially, the defendants reframe their previous argument and point out that

       “Dr. Felner’s affidavit does not provide any information from which this Court

       could determine whether he is familiar with the standard of care” and that “his

       affidavit does not identify his area of practice, educational background, board

       certification, or other specialty training.” Appellee’s Br. p. 10-11. The

       defendants again overlook the fact that all of this information was included in


       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 8 of 11
       the record in Dr. Felner’s CV. Appellant’s App. p. 183. We decline their

       repeated requests to elevate form over substance.


[18]   The defendants next argue that Dr. Felner’s affidavit does not state: (1) what

       the standard of care is; (2) that the defendants’ conduct fell below that standard;

       and (3) that the defendants’ conduct caused Lucas’s injury. However, we

       believe that the defendants interpret these requirements too literally.


[19]   While it may be prudent for an affiant to include separate sentences or

       paragraphs addressing each of these issues in turn, there is no requirement that

       affidavits be broken into sentences such as: “I am familiar with the standard of

       care.”; “The standard of care in this case is . . .” and so on. We must be

       mindful that the purpose of these requirements is to ensure that the affiant is

       competent and that his opinion actually rebuts that of the medical review panel.

       However well- or poorly-drafted an affidavit may be, it is sufficient if these three

       essential points can be gleaned from it.


[20]   With this in mind, we focus on the following language from Dr. Felner’s

       affidavit:

               2.       There was a deviation in the standard of care with regards to
                        use of timely antibiotic.
                                                        ***
               4.       The first issue is that the patient did not get antibiotics until the
                        day after admission which is the first issue, delayed antibiotics
                        for a patient with sepsis.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 9 of 11
       Appellant’s App. p. 189. The following is implicit in these statements: (1) Dr.

       Felner believes the standard of care requires that a patient in Lucas’s position be

       given antibiotics shortly after arrival, and (2) Dr. Felner believes that the

       defendants failed to do this.


[21]   The only remaining requirement, that this conduct caused Lucas’s injury,

       necessarily follows from these statements when one considers the nature of the

       injury that Lucas claims. In his complaint, Lucas claimed that:

               As a result of the careless and negligent acts and/or omissions of [the
               defendants], [Lucas] suffered bodily injury, much of which may be
               permanent in nature, additional medical expenses, pain and suffering,
               mental anguish, and other losses, expenses, costs, and damages
               recoverable under Indiana law.

       Appellant’s App. p. 10. There can be little doubt that failure to give a patient

       antibiotics in a timely manner will result in that patient being in the hospital

       longer and that, as a result of this, the patient will incur medical costs which he

       would not have incurred had he received timely antibiotics. Simply put, that

       the defendants’ actions caused injury is implicit in Dr. Felner’s statements. We

       see no need to require Dr. Felner to insert a separate statement to make that

       clearer to us.


[22]   Summary judgment is not simply “a procedural device to be used to avoid weak

       claims.” Henderson v. Ind. Med. Network, Inc., 750 N.E.2d 798, 808 (Ind. Ct.

       App. 2001). Rather, “[s]ummary judgment proceedings are primarily designed

       to provide a speedy determination of whether a genuine issue of fact is present

       and must be tried.” Lindsey v. DeGroot, 898 N.E.2d 1251, 1256 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 10 of 11
       2009). That Lucas’s claim may ultimately fail or that he may not be found to be

       entitled to all the damages he seeks is of no concern at this stage of the

       proceedings. In opposing a motion for summary judgment, a plaintiff need not

       prove his case by a preponderance of the evidence. Brannon v. Wilson, 733

       N.E.2d 1000, 1001 (Ind. Ct. App. 2000).


[23]   Here, although Dr. Felner’s affidavit is far from a template for future affiants to

       follow, at the very least, it raises the question of whether the antibiotic was

       given in a timely fashion. As this is a question of material fact, summary

       judgment is inappropriate.


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

       proceedings.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015   Page 11 of 11
