                                                                                 FILED
                                                                            Mar 31 2016, 8:35 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
      Robert Prescott Ford                                     Tyson P. Schroeder
      Jeffersonville, Indiana                                  Boehl Stopher & Graves, LLP
                                                               New Albany, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Robert Prescott Ford,                                    March 31, 2016
      Appellant-Plaintiff,                                     Court of Appeals Cause No.
                                                               22A04-1506-CT-575
              v.                                               Appeal from the Floyd Circuit
                                                               Court
      Dr. Shad Jawaid, M.D. and                                The Honorable Susan L. Orth,
      Floyd Memorial Hospital &                                Judge
      Health Services,                                         Trial Court Cause No.
      Appellee-Defendants.                                     22C01-1404-CT-578




      Barnes, Judge.


                                             Case Summary
[1]   Robert Ford appeals the trial court’s grant of summary judgment to Floyd

      Memorial Hospital & Healthcare Services (“Hospital”). We affirm in part,

      reverse in part, and remand.




      Court of Appeals of Indiana | Opinion 22A04-1506-CT-575 | 22A04-1506-CT-575                    Page 1 of 14
                                                     Issues
[2]   Ford raises three issues, which we restate as:


                       I.      whether the trial court properly struck portions
                               of Ford’s designated evidence;

                       II.     whether the trial court properly granted the
                               Hospital’s motion for summary judgment
                               regarding Ford’s negligence claim; and

                       III.    whether the trial court properly granted the
                               Hospital’s motion for summary judgment
                               regarding Ford’s vicarious liability claim.

                                                     Facts
[3]   On Memorial Day weekend in 2009, Ford began experiencing pain in and

      swelling of his leg, and an immediate care center sent him to the Hospital to

      receive an ultrasound. At the Hospital, Ford was diagnosed with a large blood

      clot in his leg. He was admitted to the Hospital, and his treating physician was

      Dr. Shad Jawaid, who was an independent contractor hospitalist physician at

      the Hospital. Ford was treated and released two days later. However, Ford

      continued to have problems with the blood clot and received additional

      treatment at a different hospital. He continues to have health issues as a result

      of the blood clot.


[4]   Ford filed a proposed medical malpractice complaint with the Indiana

      Department of Insurance against Jawaid and the Hospital in September 2011,

      and he amended the complaint in February 2013. The amended complaint

      alleged negligence by Jawaid, negligence by the Hospital, negligent infliction of


      Court of Appeals of Indiana | Opinion 22A04-1506-CT-575 | 22A04-1506-CT-575   Page 2 of 14
      emotional distress, and vicarious liability of the Hospital for Jawaid’s conduct.

      The medical review panel issued a unanimous opinion on January 28, 2014,

      and concluded that: (1) Jawaid failed to comply with the appropriate standard

      of care and his conduct was a factor in Ford’s injuries and damages; and (2) the

      evidence did not support the conclusion that the Hospital failed to comply with

      the appropriate standard of care and the Hospital’s conduct was not a factor in

      Ford’s injuries and damages.


[5]   In April 2014, Ford filed a medical malpractice complaint against Jawaid and

      the Hospital.       The Hospital filed a motion for summary judgment regarding

      both Ford’s negligence and vicarious liability claims. The Hospital argued that

      the medical review panel opinion was sufficient to satisfy the Hospital’s initial

      burden of demonstrating no genuine issue of material fact and that the burden

      then shifted to Ford to designate evidentiary matter to demonstrate a genuine

      issue of fact. Ford responded and argued that a genuine issue of material fact

      existed because the panel opinion was “confusing and obviously in direct

      conflict with the opinion rendered against” Jawaid. App. p. 64. Ford

      acknowledged that he did not have expert testimony from a panel member or

      another doctor but argued that the Hospital was negligent for failing to adopt an

      appropriate rule or policy regarding its hospitalists. Ford also filed a

      designation of evidence in opposition to the Hospital’s motion for summary

      judgment.


[6]   The Hospital filed a motion to strike portions of Ford’s designated evidence.

      Specifically, the Hospital moved to strike: (1) portions of Exhibit 4 that

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      included medical literature regarding the treatment of deep vein thrombosis; (2)

      attachments to Exhibit 5, which included copies of web pages obtained from the

      internet; (3) attachments to Exhibit 6, which included medical literature and/or

      copies of web pages; (4) Exhibit 8, which was the opinion of a medical review

      panel in an unrelated matter; (5) Exhibit 10, which was copies of web pages; (6)

      Exhibit 11, which was a web article; and (7) Exhibits 14, 15, 16, and 17, which

      are portions of a legal treatise, policies of an unrelated hospital, and other

      medical literature. The trial court granted the Hospital’s motion to strike.


[7]   Ford also filed a motion for partial summary judgment with respect to his

      vicarious liability claim. The Hospital filed a response and designated evidence

      that Jawaid was an independent contractor for the Hospital, not an employee of

      the Hospital. The Hospital then filed an additional motion to strike some of

      Ford’s evidence designated in support of his motion for partial summary

      judgment, which had also been designated in support of his response to the

      Hospital’s motion for summary judgment. Specifically, the Hospital moved to

      strike Exhibits 2, 3, 4, and 5, which are copies of web pages. The trial court

      granted the Hospital’s motion to strike.


[8]   The trial court granted the Hospital’s motion for summary judgment and

      entered final judgment in favor of the Hospital on all issues pursuant to Indiana

      Trial Rule 54(B). Ford filed a motion to correct error, which the trial court

      denied. Ford now appeals.




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                                                    Analysis
[9]    Summary judgment is appropriate when there is no genuine issue of material

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

       Rule 56. We liberally construe all designated evidentiary material in a light

       most favorable to the non-moving party to determine whether there is a genuine

       issue of material fact. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind. 2009).

       The party that lost in the trial court has the burden of persuading the appellate

       court that the trial court erred. Id. Our review of a summary judgment motion

       is limited to those materials designated to the trial court. Mangold v. Ind. Dep’t

       of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001).


                                             I. Motions to Strike

[10]   Ford first argues that the trial court abused its discretion by granting the

       Hospital’s motions to strike certain parts of his designated evidence. The trial

       court has broad discretion in ruling on the admissibility of evidence. Price v.

       Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App. 2005). This discretion extends

       to rulings on motions to strike affidavits on the grounds that they fail to comply

       with the summary judgment rules. Id.


[11]   In ruling on a motion for summary judgment, the trial court will consider only

       properly designated evidence. Seth v. Midland Funding, LLC, 997 N.E.2d 1139,

       1141 (Ind. Ct. App. 2013). Under Indiana Trial Rule 56(E),

               Supporting 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
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               competent to testify to the matters stated therein. Sworn or
               certified copies not previously self-authenticated of all papers or
               parts thereof referred to in an affidavit shall be attached thereto
               or served therewith.


       “Unsworn statements and unverified exhibits do not qualify as proper Rule 56

       evidence.” Stafford v. Szymanowski, 31 N.E.3d 959, 964 (Ind. 2015); see also

       Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154, 159 (Ind. 2014); Indiana Univ. Med.

       Ctr., Riley Hosp. for Children v. Logan, 728 N.E.2d 855, 858 (Ind. 2000).


[12]   The designated documents at issue here consist of copies of medical literature,

       copies of web pages and web articles, the opinion of a medical review panel in

       an unrelated case, portions of a legal treatise, and policies of an unrelated

       hospital. Each of these documents was unsworn and unverified.

       Consequently, the trial court properly granted the Hospital’s motions to strike

       these documents.1


                                              II. Negligence Claim

[13]   Ford argues that the trial court erred by granting the Hospital’s motion for

       summary judgment on his claim that the Hospital was directly liable for




       1
         In support of his argument, Ford relies on Reeder v. Harper, 788 N.E.2d 1236 (Ind. 2003). In Reeder, our
       supreme court held “an affidavit that would be inadmissible at trial may be considered at the summary
       judgment stage of the proceedings if the substance of the affidavit would be admissible in another form at
       trial.” Reeder, 788 N.E.2d at 1241-42. We do not find Reeder applicable because the documents at issue here
       were entirely unsworn and unverified, not part of an affidavit.




       Court of Appeals of Indiana | Opinion 22A04-1506-CT-575 | 22A04-1506-CT-575                     Page 6 of 14
       negligence. In addressing the sufficiency of a medical malpractice action based

       upon negligence, the plaintiff must establish: 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. Syfu v. Quinn, 826 N.E.2d 699,

       703 (Ind. Ct. App. 2005). Health care providers must exercise the degree of

       skill and care ordinarily possessed and exercised by a reasonably skillful and

       careful practitioner under the same or similar circumstances. Id. To establish

       the applicable standard of care and to show a breach of that standard, a plaintiff

       must generally present expert testimony. Id.


[14]   In medical malpractice cases, a unanimous opinion of the medical review panel

       that health care provider did not breach the applicable standard of care is

       ordinarily sufficient to establish prima facie evidence negating the existence of a

       genuine issue of material fact entitling the health care provider to summary

       judgment. Stafford, 31 N.E.3d at 961. Consequently, in such situations, the

       burden shifts to the plaintiff, who may rebut with expert medical testimony. Id.


[15]   Here, the medical review panel found that the evidence did not support the

       conclusion that the Hospital failed to comply with the appropriate standard of

       care and the Hospital’s conduct was not a factor in Ford’s injuries and

       damages. As a result, in response to the Hospital’s motion for summary

       judgment, Ford was required to rebut this finding with expert medical

       testimony demonstrating that the Hospital breached the applicable standard of



       Court of Appeals of Indiana | Opinion 22A04-1506-CT-575 | 22A04-1506-CT-575   Page 7 of 14
       care.2 Ford failed to designate any such expert medical testimony.

       Consequently, the trial court properly granted the Hospital’s motion for

       summary judgment on Ford’s negligence claim.3 See, e.g., Boston v. GYN, Ltd.,

       785 N.E.2d 1187, 1191 (Ind. Ct. App. 2003), trans. denied.


                                              III. Vicarious Liability

[16]   Ford also brought a vicarious liability claim against the Hospital, and the trial

       court granted summary judgment to the Hospital. The Hospital argues that

       summary judgment was proper because of the medical review panel’s opinion

       in favor of the Hospital and because Jawaid was an independent contractor.


[17]   Our supreme court addressed vicarious liability of a hospital for actions of an

       independent contractor physician in Sword v. NKC Hospitals, Inc., 714 N.E.2d

       142 (Ind. 1999). “Vicarious liability is ‘indirect legal responsibility.’” Sword,

       714 N.E.2d at 147 (quoting Black’s Law Dictionary 1404 (5th ed. 1979)). “It is a

       legal fiction by which a court can hold a party legally responsible for the

       negligence of another, not because the party did anything wrong but rather

       because of the party’s relationship to the wrongdoer.” Id. Courts employ

       various legal doctrines to hold people vicariously liable, including respondeat




       2
        There is no argument that the “common knowledge” exception applies to the direct negligence claim. See
       Boston v. GYN, Ltd., 785 N.E.2d 1187, 1191 (Ind. Ct. App. 2003).
       3
         Ford argues that the Hospital’s panel submission was defective and prejudicial and that, as a result, the trial
       court should have stricken the medical review panel’s opinion in favor of the Hospital. Ford did not present
       this argument to the trial court, and it is waived. See Akiwumi v. Akiwumi, 23 N.E.3d 734, 741 (Ind. Ct. App.
       2014) (holding that a party generally waives appellate review of an issue or argument unless the party raised
       that issue or argument before the trial court).

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       superior, apparent or ostensible agency, agency by estoppel, and the non-

       delegable duty doctrine. Id.


[18]   The court in Sword noted that, “In the hospital setting, Indiana courts have long

       followed the general rule that hospitals could not be held liable for the negligent

       actions of independent contractor physicians.” Id. at 149. The court, however,

       observed that, “In the area of hospital liability, there has been an ongoing

       movement by courts to use apparent or ostensible agency as a means by which

       to hold hospitals vicariously liable for the negligence of some independent

       contractor physicians.” Id. at 150.


[19]   Ultimately, our supreme court adopted the formulation of apparent or

       ostensible agency set forth in the Restatement (Second) of Tort Section 429,

       which provides:


               One who employs an independent contractor to perform services
               for another which are accepted in the reasonable belief that the
               services are being rendered by the employer or by his servants, is
               subject to liability for physical harm caused by the negligence of
               the contractor in supplying such services, to the same extent as
               though the employer were supplying them himself or by his
               servants.


       Id. at 149, 152. The court held:


               Under Section 429, as we read and construe it, a trier of fact must
               focus on the reasonableness of the patient’s belief that the
               hospital or its employees were rendering health care. This
               ultimate determination is made by considering the totality of the
               circumstances, including the actions or inactions of the hospital,

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               as well as any special knowledge the patient may have about the
               hospital’s arrangements with its physicians. We conclude that a
               hospital will be deemed to have held itself out as the provider of
               care unless it gives notice to the patient that it is not the provider
               of care and that the care is provided by a physician who is an
               independent contractor and not subject to the control and
               supervision of the hospital. A hospital generally will be able to
               avoid liability by providing meaningful written notice to the
               patient, acknowledged at the time of admission. Under some
               circumstances, such as in the case of a medical emergency,
               however, written notice may not suffice if the patient had an
               inadequate opportunity to make an informed choice.


       Id. at 152 (internal citations omitted). “[I]f the patient has no special knowledge

       regarding the arrangement the hospital has made with its physicians, and if

       there is no reason that the patient should have known of these employment

       relationships, then reliance is presumed.” Id.


[20]   We first address whether Ford’s failure to designate opposing expert testimony

       in light of the medical review panel’s opinion in favor of the Hospital warranted

       a grant of summary judgment regarding his vicarious liability claim. Given the

       Sword analysis, such vicarious liability claims do not seem to fall within the

       purview of the medical review panel. See Helms v. Rudicel, 986 N.E.2d 302, 305

       n.1 (Ind. Ct. App. 2013) (addressing a vicarious liability claim by way of a

       motion for preliminary determination), trans. denied; Columbus Regional Hosp. v.

       Amburgey, 976 N.E.2d 709 (Ind. Ct. App. 2012) (discussing a vicarious liability

       claim against a hospital and noting that that medical review panel found “a

       material issue of fact, not requiring expert opinion, bearing on liability for

       consideration by the court or jury”), trans. denied; see also Harper v. Hippensteel,
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       994 N.E.2d 1233, 1236 (Ind. Ct. App. 2013) (“Where, as here, the trial court is

       asked to determine whether, given a seemingly undisputed set of facts, a

       physician-patient relationship existed, the question is a legal question for the

       court and is not reserved for the medical review panel.”). Consequently, we

       conclude that Ford’s lack of designated expert testimony was not fatal to his

       vicarious liability claim.


[21]   We next address Ford’s argument that Jawaid was an employee, not an

       independent contractor, of the Hospital. The Hospital designated the affidavit

       of Angela Mead, Accreditation and Risk Manager at the Hospital, who stated

       that Jawaid was not an employee of the Hospital. Rather, according to Mead,

       Jawaid “practiced medicine there as an independent contractor physician.”

       App. p. 369. Ford cited no properly designated evidence that Jawaid was

       anything other than an independent contractor. As a result, it is necessary to

       perform the Sword analysis.


[22]   Ford next argues that he was entitled to summary judgment because the

       “emergency room” exception is applicable here. The court in Sword held,

       “Under some circumstances, such as in the case of a medical emergency,

       however, written notice may not suffice if the patient had an inadequate

       opportunity to make an informed choice.” Sword, 714 N.E.2d at 152. Ford

       argues that he was referred to the Hospital by an immediate care center, that he

       “realistically had no opportunity to seek treatment elsewhere,” and that he

       “was forced to rely” on the Hospital. Appellant’s Br. p. 21. However, as the

       Hospital points out, there is no evidence to suggest that Ford was incapacitated

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       and, in fact, drove himself to the Hospital and signed the patient registration

       form. There are no genuine issues of material fact demonstrating that Ford had

       an inadequate opportunity to make an informed choice.


[23]   Finally, Ford argues that he did not receive meaningful notice that Jawaid was

       an independent contractor. Ford designated his affidavit, which stated that he

       was unaware that Jawaid was an independent contractor and he believed

       Jawaid to be an employee of the hospital. The Hospital designated evidence

       that Ford signed a patient registration form, which provided, in part:

               I acknowledge that the health care professionals who attend to
               me, including but not limited to anesthesiologists, radiologists,
               pathologists, emergency room physicians, and provide and
               perform such medical and surgical care, tests, procedures, drugs
               and other services and supplies may be independent contractors
               and not employees or agents of Floyd Memorial Hospital and
               Health Services.


       App. p. 371. The issue is whether the patient registration form gave Ford

       meaningful notice that Jawaid was an independent contractor.


[24]   We addressed a similar issue in Helms, 986 N.E.2d at 313-14. There, on

       multiple occasions, the patient signed forms that said “many” of the physicians

       and other health care providers were independent contractors. We concluded

       that the notice “referred only to ‘many’ of the health care providers at the

       Clinic, ‘leaving the patient to guess as to which ones are and which ones are

       not’ hospital employees.” Helms, 986 N.E.2d at 311 (quoting Sword, 714

       N.E.2d at 152). We concluded there was a genuine issue regarding whether the

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       consent form provided “meaningful” notice “in light of the Sword requirement

       the hospital tell the patient ‘it is not the provider of care and that the care is

       provided by a physician who is an independent contractor and not subject to the

       control and supervision of the hospital.’” Id. at 313-14 (quoting Sword, 714

       N.E.2d at 152). We held that the hospital’s notice “that ‘many’ providers are

       independent contractors [did] not appear to satisfy that requirement, and the

       trial court correctly found there was a genuine issue as to the adequacy of

       notice.” Id. at 314.


[25]   Similarly, here, the Hospital’s notice merely provided that the physicians “may

       be independent contractors.” App. p. 371. We conclude that there are genuine

       issues of material fact regarding whether the notice to Ford was meaningful and

       whether the Hospital is vicariously liable. Consequently, the trial court erred by

       granting the Hospital’s motion for summary judgment regarding Ford’s

       vicarious liability claim. Likewise, Ford was not entitled to summary judgment

       on this issue given the genuine issues of material fact.


                                                 Conclusion
[26]   The trial court properly granted the Hospital’s motions to strike and the

       Hospital’s motion for summary judgment regarding Ford’s negligence claim.

       However, genuine issues of material fact exist regarding Ford’s vicarious

       liability claim. Consequently, the trial court erred by granting summary

       judgment to the Hospital on that claim. We affirm in part, reverse in part, and

       remand.


       Court of Appeals of Indiana | Opinion 22A04-1506-CT-575 | 22A04-1506-CT-575   Page 13 of 14
[27]   Affirmed in part, reversed in part, and remanded.


       Robb, J., and Altice, J., concur.




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