MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Aug 23 2016, 9:25 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEY FOR APPELLEES
Michael Hale                                             J. Richard Moore
Michigan City, Indiana                                   Bleeke Dillon Crandall, P.C.
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Hale,                                            August 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         77A04-1507-CT-1025
        v.                                               Appeal from the Sullivan Superior
                                                         Court
Dr. Lolit Joseph, Nurse Lesa                             The Honorable J. Blaine Akers,
Wolfe, and Nurse Teresa                                  Special Judge
Lennings,                                                Trial Court Cause No.
Appellees-Plaintiffs.                                    77D01-1310-CT-575




Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016   Page 1 of 10
                                          Case Summary
[1]   Michael Hale, a prisoner in the custody of the Indiana Department of

      Correction, appeals the trial court’s grant of summary judgment in favor of Dr.

      Lolit Joseph, M.D., Lesa Wolfe, LPN, and Teresa Lennings, LPN, on his

      complaint alleging an Eighth Amendment violation based on deficient medical

      care and separately alleging medical malpractice. Hale, pro se, contends that

      the trial court should have held a hearing on the parties’ opposing summary-

      judgment motions and should not have granted the defendants’ motion for

      summary judgment. However, there was no request for a summary-judgment

      hearing by either party, and summary judgment was proper because Hale failed

      to raise a genuine issue of material fact. We therefore affirm the trial court.



                             Fact and Procedural History
[2]   Michael Hale was a prisoner housed at Wabash Valley Correctional Facility

      when, on November 10, 2011, he fell while cleaning his cell and hit the back of

      his neck on a metal desk. According to Hale’s complaint, he told Nurse

      Lennings about the accident and his pain later that night, while she was

      walking through his housing unit, but she did not help him. Hale submitted a

      request for health care on Friday, November 11, indicating that he was “in a lot

      of pain.” Appellees’ App. p. 14. Over the weekend, Hale was seen by a nurse

      at 2:14 a.m. on Saturday and given ibuprofen. He was seen again, later the

      same day, by Nurse Wolfe, who made a note that Hale was being treated with

      ibuprofen and that Hale “was able to move the neck/shoulders without

      Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016   Page 2 of 10
      difficulty” when he was angry. Id. at 18. Nurse Wolfe also contacted a

      physician and obtained a verbal order for an X-ray. Id.


[3]   The following Monday, November 14, Hale saw Dr. Joseph. She confirmed

      the order for an X-ray from the weekend, ordered ice and naproxen, and

      prescribed Vicodin for three days. Hale saw Dr. Joseph for his neck again on

      December 7, when she ordered physical therapy and naproxen. Hale continued

      seeing Dr. Joseph frequently over the next three months: (1) on December 28

      for an old knee injury; (2) on January 11 for knee pain and a prescription for

      Mobic to treat the knee pain; (3) on January 12 for a Kenalog injection to treat

      the knee; and (4) on March 7 for constipation. On April 18, Dr. Joseph again

      saw Hale specifically for his neck. She noted that the X-ray did not indicate an

      injury, and she re-ordered four physical-therapy visits—Hale did not receive the

      physical therapy she ordered on December 7.

[4]   During the same time period, from November to April, the nursing staff

      responded to more than two dozen requests for health care from Hale.

      Relevant to this appeal, Nurse Wolfe saw Hale a second time, on November 21,

      when Hale refused the naproxen that was ordered for his neck pain. By the

      time Nurse Wolfe documented Hale’s refusal of the non-prescription pain




      Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016   Page 3 of 10
      medication, he had been rejecting it for four days, since the day his prescription

      for Vicodin ended.1

[5]   Hale filed a complaint in Sullivan Superior Court. Pursuant to 42 U.S.C. §

      1983, Hale alleged deficient medical care in violation of the Eighth

      Amendment. He also stated a separate claim for medical malpractice.2 Both

      parties moved for summary judgment, and the trial court granted summary

      judgment to Dr. Joseph, Nurse Wolfe, and Nurse Lennings without first

      holding a hearing.

[6]   Hale appeals.



                                  Discussion and Decision
[7]   Hale contends that the trial court erred in granting summary judgment to Dr.

      Joseph, Nurse Wolfe, and Nurse Lennings. Hale first argues that he was

      entitled to a hearing on his motion for summary judgment. However, while

      Indiana Trial Rule 56(C) permits a hearing on a motion for summary judgment,

      it does not require one unless a party requests it. Ind. Trial Rule 56(C). Hale’s

      brief cites no motion for a hearing on the summary-judgment motions, and we




      1
        In response to the defendants’ motion for summary judgment, Hale submitted a medication refusal form to
      the trial court that was dated February 17, 2011, nine months before the neck injury at issue here, and the
      refusal form indicated that naproxen hurt Hale’s stomach. After Hale began rejecting the naproxen for his
      neck injury in November, Dr. Joseph added omeprazole to her order for naproxen to address Hale’s stomach
      complaints.
      2
       The complaint included two additional parties and additional claims, but those were dismissed early in the
      proceedings, so we do not address them here.

      Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016          Page 4 of 10
      did not find one in our review of the record. The trial court indicated in its

      orders that there was no request for a hearing. Appellant’s App. p. 11-12. In

      the absence of a motion for a hearing, no hearing was required, and the trial

      court did not err.

[8]   Hale next argues that summary judgment was improperly granted with respect

      to his Eighth Amendment and medical-malpractice claims. We review an order

      granting summary judgment de novo. Adams v. ArvinMeritor, Inc., 48 N.E.3d 1,

      9 (Ind. Ct. App. 2015). Summary judgment is appropriate if, after reviewing

      the designated evidence, “there is no genuine issue as to any material fact and

      . . . the moving party is entitled to a judgment as a matter of law.” 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 undisputed material facts support conflicting

      reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).

      When the trial court has granted summary judgment, the nonmoving party has

      the burden on appeal of persuading us that the grant of summary judgment was

      in error. Adams, 48 N.E.3d at 9.


[9]   Where, as here, cross-motions for summary judgment were filed, our standard

      of review does not change. Secura Supreme Ins. Co. v. Johnson, 51 N.E.3d 356,

      359 (Ind. Ct. App. 2016), reh’g denied. We consider each motion separately to

      determine whether the moving party is entitled to judgment as a matter of law.

      Id. Indiana’s summary-judgment procedure requires the movant to

      affirmatively negate the non-movant’s claim. Hughley v. State, 15 N.E.3d 1000,

      Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016   Page 5 of 10
       1003 (Ind. 2014). If the movant succeeds, then the non-movant must come

       forward with evidence that presents the court with a genuine issue of material

       fact in order to preclude summary judgment. Id.


[10]   Beginning with Hale’s Eighth Amendment claim, two elements are required to

       establish an Eighth Amendment violation based on deficient medical care: (1)

       an objectively serious medical condition and (2) an official’s deliberate

       indifference to that condition. Estelle v. Gamble, 429 U.S. 97, 106 (1976). An

       objectively serious medical condition is one “that has been diagnosed by a

       physician as mandating treatment or one that is so obvious that even a lay

       person would easily recognize the necessity for a doctor’s attention.” Greeno v.

       Daley, 414 F.3d 645, 653 (7th Cir. 2005). Deliberate indifference requires that

       the official is “aware of facts from which the inference could be drawn that a

       substantial risk of serious harm exists, and he must also draw the inference.”

       Farmer v. Brennan, 511 U.S. 825, 837 (1994). In the context of medical

       professionals, medical malpractice, negligence, or even gross negligence does

       not equate to deliberate indifference. Johnson v. Doughty, 433 F.3d 1001, 1012-

       13 (7th Cir. 2006). Mere dissatisfaction or disagreement with a course of

       treatment is generally insufficient. Id. at 1013.


[11]   In this case, Nurse Wolfe, Nurse Lennings, and Dr. Joseph submitted records

       of the ongoing care Hale received from November 11, 2011, until April 2012.

       The records indicate that Hale was seen promptly and repeatedly by medical

       staff—nurses responded to more than two dozen requests from Hale, and Dr.

       Joseph saw him six times after he injured his neck. Hale’s neck was X-rayed,

       Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016   Page 6 of 10
       finding nothing. Among other things, Hale was given ibuprofen over the

       weekend before he was examined by the doctor, prescribed Vicodin for three

       days, and then treated with naproxen and Mobic for pain in his neck and a knee

       injury. He was also prescribed omeprazole to address his stomach pain. This is

       sufficient to negate the element of “deliberate indifference.”

[12]   Hale argued that the delay in providing the physical therapy ordered by Dr.

       Joseph, Nurse Lenning’s refusal to treat him on the night he fell, and the failure

       to renew his prescription for Vicodin created a genuine issue of material fact

       with respect to deliberate indifference. First we note that nothing in the record

       indicates the defendants were responsible for the delay in physical therapy,

       making the delay immaterial to Hale’s complaint. Relevant to this complaint,

       the Eighth Amendment does not require that prisoners receive “unqualified

       access to health care,” Hudson v. McMillian, 503 U.S. 1, 9 (1992), nor are they

       entitled to demand specific treatments, Forbes v. Edgar, 112 F.3d 262, 267 (7th

       Cir. 1997). Therefore, whether Nurse Lennings did or did not treat Hale on the

       night he fell is immaterial because Hale is not entitled to instantaneous care for

       every injury—only for actual medical emergencies. And Hale’s preference for

       Vicodin over the non-prescription pain relievers that were used to treat his neck

       pain also does not create a genuine issue of material fact with respect to

       deliberate indifference.

[13]   Finally, Hale argues his malpractice claim should have survived summary

       judgment. In a medical-malpractice action based on negligence, the plaintiff

       must establish (1) a duty on the part of the defendant in relation to the plaintiff;

       Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016   Page 7 of 10
       (2) failure on the part of the defendant to conform its conduct to the requisite

       standard of care; and (3) an injury to the plaintiff resulting from that failure.

       Scripture v. Roberts, 51 N.E.3d 248, 251-52 (Ind. Ct. App. 2016).3


[14]   At issue here is whether the defendants met the standard of care required for

       Hale’s injury. To establish the applicable standard of care and a breach of that

       standard in a medical-malpractice case, a plaintiff generally must present expert

       testimony. Methodist Hosps., Inc. v. Johnson, 856 N.E.2d 718, 721 (Ind. Ct. App.

       2006). There is a narrow exception to the requirement of expert testimony for

       cases where the defendant’s conduct is so obviously substandard that a fact-

       finder need not possess medical expertise in order to recognize the defendant’s

       breach of the applicable standard of care. Id. The exception typically arises

       when physicians leave foreign objects in a patient’s body because no

       independent explanation is required to understand that the object should have

       been removed, id., but other medical-malpractice actions have also been sent to

       the jury without the aid of expert testimony. See, e.g., Gold v. Ishak, 720 N.E.2d

       1175 (Ind. Ct. App. 1999) (expert testimony not required because fire occurring

       during surgery near an instrument that emits a spark was used in proximity to a




       3
         Ordinarily, a claim of medical malpractice must be reviewed by a medical-review panel before a medical-
       malpractice action may be commenced in court. Ind. Code § 34-18-8-4. However, there are exceptions such
       as Indiana Code section 34-18-8-5, which allows a medical-malpractice claim to be filed if there is a signed
       writing indicating that the parties agree to proceed without a medical-review panel. Because the original
       complaint submitted by Hale indicated that he filed his complaint with the Indiana Department of Insurance
       and “any responses are attached to the complaint[,]” Appellees’ App. p. 124, and neither party nor the trial
       court has indicated that there is an issue with Hale’s filing, we assume that his complaint complied with the
       statute for purposes of this appeal.

       Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016           Page 8 of 10
       source of oxygen), trans. denied; Stumph v. Foster, 524 N.E.2d 812 (Ind. Ct. App.

       1988) (expert testimony unnecessary to conclude a chiropractor negligently

       broke his patient’s rib during treatment for migraine headaches).

[15]   The defendants submitted affidavits from Dr. Joseph and Nurse Wolfe as expert

       testimony that the care Hale received complied with the applicable medical

       standards, and each of them attached the portion of Hale’s file that formed the

       basis of her opinion. The defendants also designated Hale’s relevant medical

       records as evidence. This is sufficient evidence to shift the burden to Hale to

       establish a genuine question of material fact as to whether the defendants met

       the standard of care required.

[16]   However, Hale merely asserted that “[t]he standard of care concerning a

       condition or injury causing pain is to stop or reduce [the pain] as much as

       possible.” Appellees’ App. p. 140. Hale cited no legal or medical authority to

       support this proposition, and we cannot agree with his further assertion that

       “[a]ny layman would know this to be true[.]” Id. Narcotic painkillers like

       Vicodin require a prescription precisely because the finer points of when,

       where, and how to administer them are beyond the purview of the everyman.

       Expert testimony is required to establish a genuine dispute of material fact with

       respect to whether the defendants properly managed Hale’s pain in this case,

       and he has failed to supply that.

[17]   The defendants are entitled to summary judgment as a matter of law on both

       the Eighth Amendment and malpractice claims.


       Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016   Page 9 of 10
[18]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016   Page 10 of 10
