                                                                           FILED
                                                                       Dec 31 2018, 8:52 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE:
Brian J. Hurley                                           VISHNUVARDHAN RAO, D.O.
Timothy C. Krsak                                          Karl L. Mulvaney
Douglas Koeppen & Hurley                                  Nana Quay-Smith
Valparaiso, Indiana                                       Margaret M. Christensen
                                                          Bingham Greenebaum Doll LLP
                                                          Indianapolis, Indiana
                                                          Louis William Voelker
                                                          Eichhorn & Eichhorn LLP
                                                          Hammond, Indiana


                                                          ATTORNEYS FOR APPELLEES:
                                                          PORTER HOSPITAL AND
                                                          PORTER HOSPITAL PHARMACY
                                                          Sharon L. Stanzione
                                                          Alan M. Kus
                                                          Johnson & Bell, P.C.
                                                          Crown Point, Indiana


                                                          ATTORNEYS FOR APPELLEE:
                                                          KEITH ATASSI, M.D.
                                                          Michael E. O’Neill
                                                          Jeremy W. Willett
                                                          Jessica L. Mullen
                                                          O’Neill McFadden & Willett LLP
                                                          Schererville, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA


Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018                           Page 1 of 20
      Mindy (Engel) Speaks,                                     December 31, 2018
      Appellant/Cross-Appellee-Plaintiff,                       Court of Appeals Case No.
                                                                18A-CT-131
              v.                                                Appeal from the Porter Superior
                                                                Court
      Vishnuvardhan Rao, D.O.,                                  The Honorable William E. Alexa,
      Unity Physicians, Indiana                                 Senior Judge
      Physician Services, LLC, Porter                           The Honorable Thomas Webber,
      Hospital, Porter Hospital                                 Senior Judge
      Pharmacy, and Keith Atassi,                               The Honorable Jeffrey Clymer,
      M.D.                                                      Judge
      Appellees/Cross-Appellants-Defendants.                    Trial Court Cause No.
                                                                64D02-1411-CT-10090



      Robb, Judge.




                                Case Summary and Issues
[1]   Mindy (Engle) Speaks brings this interlocutory appeal of the trial court’s grant

      of summary judgment in favor of Keith Atassi, M.D. (“Dr. Atassi”); Porter

      Hospital and Porter Hospital Pharmacy (“Porter Hospital”); and

      Vishnuvardhan Rao, D.O., Unity Physicians, and Indiana Physician Services,

      LLC (“Dr. Rao”) (collectively, “Defendants”) on the issue of medical

      malpractice. The Defendants cross-appeal the denial of their motion for


      Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018                  Page 2 of 20
      summary judgment on the issue of negligence. Concluding summary judgment

      in favor of the Defendants on the issue of medical malpractice was appropriate

      but that the Defendants were also entitled to summary judgment on the issue of

      negligence, we affirm in part, reverse in part, and remand for the entry of

      summary judgment.



                             Facts and Procedural History
[2]   On the morning of November 19, 2012, Speaks, a forty-three-year-old registered

      nurse, was exercising with her daughter when she experienced a “sudden onset

      of [heart] palpitation[s] with associated shortness of breath and mild chest

      tightness.” Appellant’s Appendix, Volume 5 at 73. Speaks went to the

      emergency room at Porter Hospital in Valparaiso where she was placed under

      the care of Dr. Rao, a board-certified emergency room physician. Speaks was

      diagnosed with a condition called wide complex tachycardia, or, more simply,

      a very rapid heartbeat.


[3]   Pursuant to Dr. Rao’s orders, nursing staff started an IV to administer

      medications to slow Speaks’ heartbeat. At 9:20 a.m., Dr. Rao ordered, and a

      nurse administered, six milligrams of Adenosine by an IV “push.” A “push” is

      a large saline bolus which follows the medication to help it move through the

      IV and into the blood stream and heart. Dr. Rao also ordered two

      electrocardiogram tests to monitor Speaks’ heart function. After the first dose

      of Adenosine proved ineffective, Dr. Rao ordered a second, higher dose of

      Adenosine. A nurse administered twelve milligrams by IV push. This too

      Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018      Page 3 of 20
      proved ineffective and Dr. Rao ordered the administration of 150 milligrams of

      Amiodarone, another medication that treats tachycardia through a different

      methodology. Sixty-four minutes after entering the emergency room, Speaks’

      heart rate returned to a stable sinus rhythm as the Amiodarone appeared

      effective. Dr. Rao ordered Speaks receive 325 milligrams of aspirin and the

      nurses again carried out the order. In addition to the medications listed above,

      which are uncontested by the parties, a computerized chart documenting

      Speaks’ vital signs and fluid intake also included a mention of

      “SOTRADECOL 3%[.]” Id. at 74.


[4]   At 11:08 a.m., Speaks was discharged from the emergency room and

      transported to the telemetry floor where she was placed under the care of Dr.

      Atassi. Speaks’ IV site was assessed and it showed no signs of redness, edema,

      tenderness, or drainage. Dr. Atassi completed a Deep Vein Thrombosis Risk

      Assessment and Therapy Order (“DVT Risk Form”) and scored her at “2”

      based on the total of “1” for “Age 40-80 years” and “1” for “Overweight (BMI

      25-30)[,]” placing her at a “moderate risk[.]” Id. at 69. Dr. Atassi ordered a

      consultation with an electrophysiologist and labs to determine Speaks’ Factor V

      Leiden1 status, which were collected and sent to Mayo Clinic Laboratories for

      testing. Thereafter, Dr. Atassi prepared Speaks’ discharge summary with a

      diagnosis of proximal tachycardia, tobacco use disorder, history of transient




      1
        Factor V Leiden is a genetic mutation of one of the clotting factors in the blood. This mutation can increase
      a patient’s chance of developing abnormal blood clots, most commonly in the legs or lungs.

      Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018                              Page 4 of 20
      ischemic attack/stroke without residual effects, long-term use of aspirin, and a

      family history of blood disorder. The next day, as a nurse removed Speaks’ IV

      in preparation for her release, there appeared a “long stringy clot that had

      attached itself to the catheter being withdrawn.” Id. at 77.


[5]   After Speaks returned home, she noticed some swelling, redness, and pain in

      her right arm where the IV had been placed. Five days later, on November 25,

      Speaks returned to the emergency room and was readmitted to Porter Hospital.

      Speaks refused the placement of an IV and a venous doppler study revealed that

      Speaks had a basilic vein DVT, or a blood clot, where her IV had been placed

      on November 20. Speaks was treated with blood thinners. The next day, Dr.

      Atassi saw Speaks for a cardiac consultation and again noted her family history

      of blood disorders. Dr. Atassi had not yet received the results from Speaks’

      Factor V Leiden test. Speaks was eventually released to return home but her

      treatment entailed several return visits to the hospital.


[6]   On January 15, 2013, Speaks filed a proposed complaint with the Indiana

      Department of Insurance, and subsequently amended her complaint to include

      all of the present Defendants. Prior to the ruling by the medical review panel,

      Speaks filed a complaint in state court on November 18, 2014. Speaks’

      amended complaint alleged the Defendants had been negligent with respect to

      Speaks’ evaluation and treatment while at Porter Hospital in November 2012.

      Pursuant to statute, Speaks’ amended complaint also revealed the action of the

      medical review panel. The medical review panel’s unanimous opinion was that



      Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018     Page 5 of 20
      the evidence did not support a conclusion that the Defendants failed to meet the

      applicable standard of care.


[7]   Following the Defendants’ initial filing of motions for summary judgment, the

      trial court issued an order granting the Defendants leave to amend their

      motions to address Speaks’ third amended complaint, which had been filed in

      the interim. The court also granted Speaks until April 11, 2017, to respond to

      the same. The Defendants’ motions highlighted Speaks’ lack of expert

      testimony to contradict the unanimous opinion of the medical review panel.

      Speaks argued that the common knowledge exception allowed her case to

      survive summary judgment without such testimony.


[8]   The trial court granted partial summary judgment to the Defendants on the

      issue of medical malpractice on October 10, 2017. However, the trial court

      interpreted Speaks’ third amended complaint to have asserted new claims of

      medical negligence against the Defendants that were independent of her claims

      for medical malpractice. In so doing, the trial court found that Speaks’ medical

      negligence claims—which were based on the same facts and circumstances as

      her medical malpractice claims—did not have to be supported by expert

      testimony regarding the standard of care and could proceed as claims of

      ordinary negligence.


[9]   Speaks now appeals the trial court’s grant of summary judgment on the issue of

      medical malpractice and the Defendants cross-appeal the trial court’s denial of

      summary judgment on the issue of medical negligence.


      Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018   Page 6 of 20
                                  Discussion and Decision
                                       I. Standard of Review
[10]   Summary judgment is a tool which allows a trial court to dispose of cases where

       only legal issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The

       moving party has the initial burden to show the absence of any genuine issue of

       material fact as to a determinative issue. Id. An issue is “genuine” if a trier of

       fact is required to resolve the truth of the matter; a fact is “material” if its

       resolution affects the outcome of the case. Id. As opposed to the federal

       standard which permits the moving party to merely show the party carrying the

       burden of proof lacks evidence on a necessary element, Indiana law requires the

       moving party to “affirmatively negate an opponent’s claim.” Id. (quotation

       omitted). The burden then shifts to the non-moving party to come forward with

       contrary evidence showing an issue to be determined by the trier of fact. Id.

       Although this contrary evidence may consist of as little as a non-movant’s

       designation of a self-serving affidavit, summary judgment may not be defeated

       by an affidavit which creates only an issue of law—the non-movant must

       establish that material facts are in dispute. AM Gen. LLC v. Armour, 46 N.E.3d

       436, 441-42 (Ind. 2015).


[11]   We review a summary judgment order with the same standard applied by the

       trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind.

       2017). Summary judgment is appropriate only when “the designated

       evidentiary matter shows that there is no genuine issue as to any material fact


       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018          Page 7 of 20
       and that the moving party is entitled to a judgment as a matter of law.” Ind.

       Trial Rule 56(C). As our supreme court has cautioned, however, summary

       judgment is a “blunt instrument” by which the non-prevailing party is

       prevented from resolving its case at trial and therefore we must carefully “assess

       the trial court’s decision to ensure [a party] was not improperly denied [his or

       her] day in court.” Hughley, 15 N.E.3d at 1003-04 (citations omitted). “Indiana

       consciously errs on the side of letting marginal cases proceed to trial on the

       merits, rather than risk short-circuiting meritorious claims.” Id. at 1004.


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

       that the physician 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 physician to summary judgment. Stafford v.

       Szymanowski, 31 N.E.3d 959, 961 (Ind. 2015). Thereafter, the burden shifts to

       the plaintiff, who may rebut with expert testimony. Id. “Failure to provide

       expert testimony will usually subject the plaintiff's claim to summary

       disposition.” Bhatia v. Kollipara, 916 N.E.2d 242, 246 (Ind. Ct. App. 2009).


                                      II. Summary Judgment
                                       A. Medical Malpractice
[13]   Like other negligence actions, a medical malpractice plaintiff must prove that

       the defendant owed her a duty and that the defendant breached that duty,

       which proximately caused the plaintiff’s injury. Narducci v. Tedrow, 736 N.E.2d

       1288, 1292 (Ind. Ct. App. 2000). “Physicians are not held to a duty of perfect

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018      Page 8 of 20
       care[,]” but a “doctor 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. As noted above, expert testimony is

       generally required to establish the applicable standard of care and to show a

       breach of that standard. Id. “Because medicine is an inexact science, an

       inference of negligence will not arise simply because there is a bad result

       without proof of some negligent act.” Id.


                                                      1. Sotradecol

[14]   First, Speaks claims the trial court erred in granting Dr. Rao and Porter

       Hospital summary judgment on the issue of medical malpractice because she

       was given the “wrong drug” while a patient in the emergency room on

       November 19, 2012.2 Corrected Appellant’s Brief at 16.


[15]   The only evidence designated by Speaks on this issue is a computerized chart

       documenting Speaks’ vital signs and fluid intake which included two mentions

       of “SOTRADECOL 3%[.]” Appellant’s App., Vol. 5 at 74. The top half of the

       chart documents Speaks’ temperature, pulse, respirations, blood pressure, pain

       levels, and oxygen saturation. Speaks’ oxygen saturation levels, “O2 SAT %,”

       were recorded as “97%” and “98% Room air[.]” Id. The bottom section of the

       chart includes two separate graphs titled “ALL MEDS[.]” Id.



       2
        Initially, Speaks alleged all of the Defendants were negligent by failing to flush her IV and by failing to take
       preventative measures to prevent DVT. Since Dr. Rao’s motion for summary judgment, however, Speaks
       has focused exclusively on her contention that she erroneously received Sotradecol while under Dr. Rao’s
       care in the emergency room.

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018                                 Page 9 of 20
       “SOTRADECOL 3%” is listed under both “ALL MEDS” graphs, with the first

       followed by “98% room” five times, and the second followed by “98% room”

       twice. Id.


[16]   The presence of “SOTRADECOL 3%” on Speaks’ computerized vital signs and

       fluid intake chart constitutes an uncontested fact. Id. However, Speaks

       argument also requires “[t]he inference . . . that the drug would have been

       ordered by Dr. Rao, come from the Porter Pharmacy and been administered by

       the nursing staff.” Corrected Appellant’s Br. at 16. Although we are mindful

       that all reasonable inferences must be construed in favor of the nonmoving

       party, AM General LLC, 46 N.E.3d at 439, those inferences must still be

       reasonable. See Fowler v. Campbell, 612 N.E.2d 596, 602 (Ind. Ct. App. 1993)

       (explaining that an “unreasonable inference” is an inference which results in

       action that is arbitrary or capricious and which is based on “speculation, guess,

       surmise, conjecture or mere possibility”).


[17]   Here, Sotradecol appears by numbers representing oxygen saturation levels, not

       a dosage. There is no other record of Dr. Rao having ordered Sotradecol, no

       record of any nurse having administered Sotradecol, and Sotradecol is

       conspicuously absent from the other records where the uncontested

       medications, namely Adenosine, Amiodarone, and Aspirin, are listed. Speaks

       remembered having received these other medications but has no memory of

       having received Sotradecol. Further, Dr. Rao testified that he would not have

       ordered Sotradecol and there were no other doctors who could have ordered the

       medication. He explained that Sotradecol 3% was “most likely entered in

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018    Page 10 of 20
       error[,]” and that, because the chart references seven distinct measurements

       within a two-hour visit, “[i]f I am following your assertion, this patient received

       Sotradecol not once, but one, two, three, four, five [times] in rapid succession

       . . . that is totally illogical, it doesn’t make any sense.” Appellant’s App., Vol. 5

       at 36.


[18]   Patricia Keith, the clinical systems analyst for Porter Hospital and a former

       nurse, testified that this charting anomaly was brought to her attention in April

       2013 when the director of the Porter Hospital Pharmacy informed her that

       Sotradecol was showing up on patient’s charts and that “the hospital does not

       carry Sotradecol.” Id., Vol. 6 at 73. Keith further testified that “Sotradecol has

       never been stocked in our pharmacy or in our Pyxis machines.” Id. at 72.

       Keith’s job responsibilities included building and supporting screens used for

       Porter Hospital’s clinical charting systems, specifically for the nurses and

       ancillary charting. Porter Hospital uses the software platform McKesson and

       after McKesson was alerted to the charting error, it determined that the error

       occurred due to a “mismatched label sequence between the clinical charting and

       the emergency room charting systems.” Id. at 74. When a nurse in the

       emergency room would chart a patient’s oxygen saturation level, therefore, the

       software generated the name “Sotradecol” in error. Id. at 76. Keith further

       testified that the computerized vital signs and fluid intake chart is not the

       “correct charting that would appear if a drug were given.” Id. at 77.


[19]   Speaks refused to have an IV administered when she returned to the hospital on

       November 25, 2012, for fear of developing another blood clot. Despite the fact

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018       Page 11 of 20
       that Sotradecol is a drug administered intravenously, Sotradecol once again

       appeared on Speaks’ computerized vital signs and fluid intake chart next to her

       oxygen saturation levels. Speaks admitted that this must have been an error,

       unrelated to the medications or treatment that she received.


[20]   In light of the evidence and circumstances presented, we conclude the only

       reasonable inference is that Sotradecol’s presence on Speaks’ computerized vital

       signs and fluid intake chart was a charting error; Sotradecol was not even a

       drug available at Porter Hospital on November 19, 2012. Therefore, although

       we agree that whether Speaks received Sotradecol is a “material” fact because it

       could affect the outcome of her case, we nevertheless conclude that Speaks has

       failed in her burden to demonstrate that this issue is “genuine.” Hughley, 15

       N.E.3d at 1003 (explaining that an issue is only “genuine” if a trier of fact is

       required to resolve the truth of the matter). Accordingly, summary judgment in

       favor of Dr. Rao and Porter Hospital on this issue was appropriate. 3




       3
         We disagree with Speaks’ contention that the only issue raised by the Defendants on summary judgment
       was the standard of care. Specifically, Speaks argues, “[s]ince the Defendants failed to present any evidence
       as to duty, causation, and/or damages those issue [sic] remain unaddressed and the Plaintiff may rest on her
       complaint and other pleadings.” Corrected Appellant’s Br. at 20. Whether Speaks received Sotradecol was
       addressed on reply, see Spudich v. Northern Ind. Public Serv. Co., 745 N.E.2d 281, 285-87 (Ind. Ct. App. 2001)
       (holding new arguments can be made in a reply brief on summary judgment), trans. denied, argued at the
       summary judgment hearing, and thoroughly litigated on appeal.
       The trial court granted summary judgment to Dr. Rao and Porter Hospital on this issue by concluding Speaks
       had failed to proffer expert testimony contradicting the medical review panel. Appealed Order at 5. It is well
       established, however, that we may affirm the trial court’s grant of summary judgment upon any basis
       supported by the record. Kumar v. Bay Bridge, LLC, 903 N.E.2d 114, 115 (Ind. Ct. App. 2009).



       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018                             Page 12 of 20
                                                 2. DVT Risk Form

[21]   Next, Speaks claims the trial court erred in granting Dr. Atassi and Porter

       Hospital summary judgment on the issue of medical malpractice relating to the

       completion of her DVT Risk Form. Specifically, Speaks claims that she does

       not need an expert opinion to refute a unanimous medical review panel because

       of the “common knowledge” exception.4 Corrected Appellant’s Br. at 25.


[22]   A plaintiff is not required to present expert testimony in cases where deviation

       from the standard of care is a matter commonly known to lay persons. Perry v.

       Driehorst, 808 N.E.2d 765, 768 (Ind. Ct. App. 2004), trans. denied. This

       “common knowledge” exception applies where:


                the complained-of conduct is so obviously substandard that one
                need not possess medical expertise in order to recognize the
                breach. It is otherwise when the question involves the delicate
                inter-relationship between a particular medical procedure and the
                causative effect of that procedure upon a given patient’s
                structure, endurance, biological makeup, and pathology. The
                sophisticated subtleties of the latter question are not susceptible
                to resolution by resort to mere common knowledge.


       Malooley v. McIntyre, 597 N.E.2d 314, 319 (Ind. Ct. App. 1992).




       4
         Speaks further argues that “[r]es ipsa loquitur may be, but is not necessarily, an element of the use of the
       ‘common knowledge’ exception to the need for expert testimony.” Corrected Appellant’s Br. at 25.
       However, Speaks never advances an argument regarding res ipsa loquitur and this issue is waived for our
       review. See, e.g., D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119, 1126 (Ind. Ct. App. 2018), trans. denied.

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018                                Page 13 of 20
[23]   The common knowledge exception typically arises in instances such as

       physicians leaving foreign objects in a patient’s body, because a jury does not

       require expert testimony that the object should have been removed. See Balfour

       v. Kimberly Home Health Care, Inc., 830 N.E.2d 145 (Ind. Ct. App. 2005). We

       have also permitted the common knowledge exception to be applied where

       physicians were using an instrument near a source of oxygen and a fire

       occurred during a surgery, Gold v. Ishak, 720 N.E.2d 1175 (Ind. Ct. App. 1999),

       trans. denied, or where a chiropractor broke a patient’s ribs during treatment for

       migraine headaches, Stumph v. Foster, 524 N.E.2d 812 (Ind. Ct. App. 1988).


[24]   Here, the record reveals Dr. Atassi completed a DVT Risk Form which omitted

       Speaks’ “characteristic of coagulapathy [sic], a blood disorder that is Factor V

       Leiden[,] tobacco use disorder (risk factor), stroke at the age of 25 (a risk factor)

       and family history of a blood disorders [sic] (another risk factor).” Corrected

       Appellant’s Br. at 11. Had the form been properly completed, Speaks argues,

       “the score should have shown very high risk of DVT. Instead, due to the

       mistakes by Dr. Atassi, [Speaks’] score, despite her Factor V Leiden a clotting

       disorder, only revealed a moderate threat.”5 Id. at 27.




       5
         Speaks makes several references to her Factor V Leiden diagnosis as a fact Dr. Attassi would have, or
       should have, been aware of on the date he completed the DVT Risk Form. However, the record reveals that
       Dr. Attassi ordered the Factor V Leiden test on November 19, 2012, and he did not receive the results of that
       test until November 28, 2012, nine days later, and three days after Speaks’ second admission to Porter
       Hospital. See Appellant’s App., Vol. 6 at 37.

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018                            Page 14 of 20
[25]   The thrust of Speaks’ argument is that the DVT Risk Form is a “simple form

       with simple instructions.” Id. at 28. Therefore, according to Speaks, the

       common knowledge exception should be applied because a jury would not need

       expert testimony to understand Dr. Atassi’s breach. As we explained in

       Malooney, however, the common knowledge exception is inapplicable “when

       the question involves the delicate inter-relationship between a particular

       medical procedure and the causative effect of that procedure upon a given

       patient’s structure, endurance, biological makeup, and pathology.” 597 N.E.2d

       at 319. That is the case presented here. Although a sophisticated lay person’s

       completion of the form is within the realm of possibility, the relevant inquiry is

       whether a lay person could understand the form’s medical significance. We

       therefore agree with the trial court’s conclusion that this was a complex medical

       issue “not susceptible to resolution by resort to common knowledge[.]”

       Appealed Order at 6. And we conclude the trial court properly granted

       summary judgment in favor of Dr. Atassi and Porter Hospital because Speaks

       failed to bring forth expert testimony contradicting a unanimous medical review

       panel.


                                                 3. IV Flushing

[26]   Speaks also claims her testimony precluded summary judgment in favor of

       Porter Hospital relating to the monitoring and flushing of her IV. Porter

       Hospital, in turn, argues that Speaks’ assertions are factually inaccurate, that

       Speaks relies on evidence not in the record, and that even if Speaks’ allegations

       were true, Speaks has once again failed to present expert testimony

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018     Page 15 of 20
       contradicting a unanimous medical review panel. We agree with Porter

       Hospital.


[27]   Citing to her affidavit for evidentiary support, Speaks argues that she “offered

       uncontested testimony that, in violation of common flushing protocols, her

       intravenous line was never flushed for the entire time she was at the hospital.”

       Corrected Appellant’s Br. at 23.6 However, Speaks’ affidavit is no longer

       evidence in the record because the trial court granted Porter Hospital’s motion

       to strike this affidavit, providing:


                It is, therefore, considered, ordered, adjudged, and decreed by the
                Court, that the Defendants’ Motion for Summary Judgment and
                Motion to Strike is granted in part as it relates to the medical
                malpractice portion of the complaint, however, it is denied as to
                the complained reference to medical negligence and injuries
                alleged to have resulted from such negligence . . . .


       Appealed Order at 9 (emphasis added). Speaks did not file a response to Porter

       Hospital’s motion to strike Speaks’ affidavit and, with the exception of limited

       argument in Speaks’ reply brief to Porter Hospital, Speaks has not challenged

       the trial court’s decision on appeal. Because Speaks raised this issue for the first

       time in a reply brief on appeal, Speaks’ challenge to the granting of the motion

       to strike her affidavit is waived for our review. See Curtis v. State, 948 N.E.2d




       6
         Speaks further contends this allegation is “corroborated by the relevant medical records which likewise
       contained no indication that the plaintiff received appropriate flushing protocol with respect to her [IV].” Id.
       at 23. To the contrary, the record reflects Speaks’ IV was checked on at least four occasions and her IV was
       flushed at 11:17 a.m. Appellant’s App., Vol. 6 at 49.

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018                               Page 16 of 20
       1143, 1148 (Ind. 2011) (noting that parties may not raise an issue for the first

       time in a reply brief on appeal).


[28]   As Speaks’ argument regarding expert testimony relies exclusively upon an

       affidavit stricken from evidence, we conclude Speaks has failed to present

       expert testimony in order to contradict a unanimous medical review panel.7

       Therefore, summary judgment on this issue was appropriate.


                                                B. Negligence
[29]   The trial court concluded that although Speaks’ lack of expert testimony

       entitled the Defendants to summary judgment on her claim of medical

       malpractice, that had “no merit in [Speaks’] claim for negligence.” Appealed

       Order at 7. The court then ordered that the Defendants’ motions for summary

       judgment were:


               [G]ranted in part as it relates to the medical malpractice portion
               of the complaint, however, it is denied as to the complained
               reference to medical negligence and injuries alleged to have
               resulted from such negligence . . . .


       Id. at 9. On cross-appeal, the Defendants argue the trial court erred in denying

       their motion for summary judgment by sua sponte creating a distinction




       7
         Speaks also utilizes a subheading reading “Common Knowledge exception to expert witness evidence as to
       failure to flush lines or engage in DVT prophylaxis.” Corrected Appellant’s Br. at 25. Speaks then discusses
       Dr. Atassi’s failure to complete the DVT Risk Form discussed above without advancing an argument
       regarding the common knowledge exception applied to IV flushing. Therefore, Speaks has also waived this
       argument for our review. Whipple, 103 N.E.3d at 1126.

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018                           Page 17 of 20
       between Speaks’ claims of “medical negligence” and “medical malpractice.”

       We agree.


[30]   To the extent that the trial court separates Speaks’ claim of “medical

       malpractice” from her claim of “medical negligence,” we emphasize that

       Indiana law does not recognize such a distinction. These terms are one in the

       same and our courts use these terms interchangeably for claims more properly

       referred to as medical malpractice—namely, those claims falling under the

       provisions of the Indiana Medical Malpractice Act. See, e.g., Howard Reg’l

       Health Sys. v. Gordon, 952 N.E.2d 182 (Ind. 2011) (using the terms “medical

       malpractice” and “medical negligence” interchangeably throughout). In the

       context of the trial court’s discussion, however, it appears the trial court sought

       to distinguish Speaks’ claim of medical malpractice (or medical negligence) and

       a claim of ordinary negligence.


[31]   The Indiana Medical Malpractice Act (“MMA”) covers “curative or salutary

       conduct of a health care provider acting within his or her professional capacity,

       but not conduct unrelated to the promotion of a patient’s health or provider’s

       exercise of professional expertise, skill, or judgment.” Id. at 185. (emphasis

       added) (citation and quotations omitted). It is uncontested that Speaks was a

       patient of the Defendants and the Defendants are qualified healthcare providers

       covered by the Act. However, the MMA is not all-inclusive as to claims against

       medical providers, and a claim against a medical provider sounding in ordinary

       negligence or premises liability rather than medical malpractice falls outside the



       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018     Page 18 of 20
       procedural and substantive provisions of the MMA. Peters v. Cummins Mental

       Health, Inc., 790 N.E.2d 572, 576 (Ind. Ct. App. 2003), trans. denied.


[32]   The “fact that the alleged misconduct occurs in a healthcare facility” or that

       “the injured party was a patient at the facility,” is not dispositive in determining

       whether the claim sounds in medical malpractice. Madison Ctr., Inc. v. R.R.K.,

       853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006), trans. denied. Rather, the test to

       determine whether a claim sounds in medical malpractice is whether the claim

       is based on the provider’s behavior or practices while acting in his professional

       capacity as a provider of medical services. Collins v. Thakkar, 552 N.E.2d 507,

       510 (Ind. Ct. App. 1990), trans. denied. By contrast, a case sounds in ordinary

       negligence when the factual issues are capable of resolution without application

       of the health care provider’s standard of care. Terry v. Cmty. Health Network,

       Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 2014). “[W]e are guided by the

       substance of a claim to determine the applicability of the Act.” Id.


[33]   In response to Dr. Rao’s motion for summary judgment, the trial court found

       “the complained-of conduct of Dr. Rao is not susceptible to resolution by resort

       to mere common knowledge,” and, in regard to Dr. Atassi and Porter Hospital,

       found “[t]his case involves complex medical issues, which are not susceptible to

       resolution by resort to mere common knowledge, therefore falling within the

       greater realm of medical malpractice cases, which require an expert opinion.”

       Appealed Order at 5-6. It is perplexing then, that the trial court simultaneously

       concluded—on the very same facts—that Speaks had presented a claim of

       ordinary negligence.

       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018      Page 19 of 20
[34]   We conclude that Speaks’ claims present a straightforward application of the

       MMA. Speaks (1) was admitted to the emergency room where she claims to

       have received the wrong medication from Dr. Rao and Porter Hospital staff; (2)

       was transported to the telemetry floor and placed under the care of Dr. Atassi

       where she claimed Dr. Atassi incorrectly completed a DVT Risk Form; and (3)

       throughout her admission at Porter Hospital, Speaks claims that her IV was not

       properly monitored or flushed. These claims boil down to a “question of

       whether a given course of treatment was medically proper and within the

       appropriate standard[,]” which is the “quintessence of a malpractice case.”

       Howard Reg’l Health Sys., 952 N.E.2d at 185. Therefore, Speaks’ claims sounded

       in malpractice, not ordinary negligence, and the trial court erred in denying the

       Defendants’ motion for summary judgment.



                                                Conclusion
[35]   For the reasons set forth above, we conclude the Defendants were entitled to

       summary judgment on the issues of medical malpractice and negligence.

       Therefore, we affirm in part, reverse in part, and remand for the entry of

       summary judgment on Speaks’ negligence claims.


[36]   Affirmed in part, reversed in part, and remanded with instructions.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018    Page 20 of 20
