MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                           Dec 26 2018, 8:35 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
court except for the purpose of establishing                                   Court of Appeals
                                                                                 and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
A. David Hutson                                          Clay A. Edwards
HUTSON LEGAL                                             Rachel K. Dalton
Jeffersonville, Indiana                                  O’BRYAN, BROWN & TONER, PLLC
                                                         Louisville, Kentucky



                                          IN THE
    COURT OF APPEALS OF INDIANA

April L. Tipton, et al.,                                 December 26, 2018
Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                         18A-PL-1749
        v.                                               Appeal from the Floyd Circuit
                                                         Court
Physicians Medical Center, LLC,                          The Honorable Maria D. Granger,
Appellee-Defendant.                                      Special Judge
                                                         Trial Court Cause No.
                                                         22C01-1801-PL-128



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1749 | December 26, 2018                   Page 1 of 7
                                          Case Summary
[1]   April L. Tipton (“April”) and Maurice A. Tipton (collectively, the “Tiptons”)

      filed a lawsuit alleging that Physicians Medical Center, LLC (“Provider”)

      committed medical malpractice. The Tiptons now appeal the grant of summary

      judgment in favor of Provider, arguing only that Provider failed to properly

      authenticate certain designated evidence. We affirm.



                            Facts and Procedural History
[2]   In 2017, the Tiptons filed a Proposed Complaint for Damages with the Indiana

      Department of Insurance, alleging that Provider—and others—had committed

      medical malpractice in treating April, and that the Tiptons had been injured as

      a result. During the pendency of that proceeding, the Tiptons filed a lawsuit in

      Floyd County as pro-se litigants. They sued only Provider and made the same

      allegations of medical malpractice, alleging that April sustained a spinal injury

      as a result of a medical procedure. The trial court held the lawsuit in abeyance

      pending the issuance of an opinion by the Medical Review Panel (the “Panel”).


[3]   On May 15, 2018, the Panel issued a unanimous opinion that the defendants

      had complied with the applicable standard of care. Provider then moved for

      summary judgment in the Floyd County action, designating the opinion. The

      Tiptons moved to dismiss Provider’s motion for summary judgment. They

      asserted—inter alia—that the opinion of the Panel “was irrelevant because the

      Panel was not allowed to see but a minor part of [the] claim” and that “[a]ll


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1749 | December 26, 2018   Page 2 of 7
      evidence can and will be a part of [the] case in state court.” Appellants’ App.

      Vol. 2 at 51. The Tiptons also asserted that “Summary Judgment is proper only

      when the pleadings, depositions, answers to interrogatories and admissions on

      file, together with affidavits have been submitted. . . . This case has had no

      pleadings, no depositions, no answers to interrogatories, no admissions and or

      [sic] affidavits. Discovery in this case is just beginning.” Id.


[4]   On June 8, 2018, the trial court entered an order treating the Tiptons’ motion as

      a request for additional time to respond to Provider’s motion for summary

      judgment. The court observed that the request was “not supported by affidavit

      and, therefore, [did] not comply with Indiana Trial Rule 56(F).” Id. at 57. The

      court ordered “that Plaintiffs shall file a timely response to Defendant[’s]

      motion for summary judgment that complies with Indiana Trial Rule 56, or else

      summary judgment will likely be granted in Defendant’s favor.” Id.


[5]   On June 13, 2018, the Tiptons filed a cross-motion for summary judgment

      alleging that the doctrine of res ipsa loquitur “makes a prima facie case.” Id. at

      59. In support of their motion, the Tiptons designated certain medical records,

      discharge instructions, and insurance claims. The Tiptons did not designate the

      opinion of the Panel or any other expert medical opinion. Rather, the Tiptons

      again asserted that “the Panel’s opinion is irrelevant to [their] claim.” Id. at 60.


[6]   On June 27, 2018, the trial court entered an order granting Provider’s motion

      for summary judgment. The Tiptons now appeal.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1749 | December 26, 2018   Page 3 of 7
                                 Discussion and Decision
[7]   Summary judgment is appropriate only “if the designated evidentiary matter

      shows that there is no genuine issue as to any material fact and that the moving

      party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We

      review de novo whether the trial court properly granted summary judgment,

      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Moreover, “Indiana’s

      distinctive summary judgment standard imposes a heavy factual burden on the

      movant to demonstrate the absence of any genuine issue of material fact on at

      least one element of the claim.” Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d

      1184, 1187 (Ind. 2016). Summary judgment is inappropriate if the movant fails

      to carry this burden. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).

      However, if the movant succeeds, the burden shifts to the non-moving party to

      designate contrary evidence demonstrating the existence of a genuine issue of

      material fact. Id. In conducting our review, we look only to the designated

      evidence, T.R. 56(H), and construe all factual inferences in favor of the party

      who did not seek summary judgment, Manley, 992 N.E.2d at 673.


[8]   To prevail on a claim of medical malpractice, the plaintiff must show: “(1) duty

      owed to plaintiff by defendant, (2) breach of duty by allowing conduct to fall

      below the applicable standard of care, and (3) compensable injury proximately

      caused by defendant’s breach of duty.” Bader v. Johnson, 732 N.E.2d 1212, 1217

      (Ind. 2000). In moving for summary judgment, Provider focused on the

      element of breach, designating the unanimous opinion that it had complied

      with the applicable standard of care. “When the medical review panel issues a

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1749 | December 26, 2018   Page 4 of 7
       unanimous opinion that no negligence occurred, that is usually enough to show

       that there is no genuine issue of any material fact and to entitle the [provider] to

       summary judgment.” Slease v. Hughbanks, 684 N.E.2d 496, 499 (Ind. Ct. App.

       1997); see also Boston v. GYN, Ltd., 785 N.E.2d 1187, 1191 (Ind. Ct. App. 2003),

       trans. denied. The burden then shifts to the plaintiff, who “must present expert

       testimony to show that there is a dispute concerning whether the [provider]

       breached the applicable duty of care. In the absence of this testimony, there is

       no genuine issue of material fact.” Slease, 684 N.E.2d at 499.


[9]    The Tiptons assert that Provider failed to negate the element of breach—and so

       the burden never shifted—because Provider failed to properly authenticate the

       opinion of the Panel with an appropriate affidavit. According to the Tiptons,

       “[t]he trial court’s judgment must be reversed because absent the panel opinion,

       which should not be considered, there is no basis for summary judgment.” Br.

       of the Appellants at 11. Yet, assuming arguendo that the opinion was not

       properly authenticated, the Tiptons cannot present this challenge for the first

       time on appeal. Jordan v. Deery, 609 N.E.2d 1104, 1108 (Ind. 1993) (concluding

       that the appellants waived a similar challenge in a medical-malpractice action).


[10]   The Tiptons anticipate the issue of waiver, asserting that they “objected to

       consideration of the panel opinion in their responses to [Provider’s] motion for

       summary judgment.” Br. of the Appellants at 12. They rely on these references

       to affidavits in their motion to dismiss: “Summary Judgment is proper only

       when the pleadings, depositions, answers to interrogatories and admissions on

       file, together with affidavits have been submitted. . . . This case has had no

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1749 | December 26, 2018   Page 5 of 7
       pleadings, no depositions, no answers to interrogatories, no admissions and or

       [sic] affidavits. Discovery in this case is just beginning.” Appellants’ App. Vol.

       2 at 51. The Tiptons also point out that, in their cross-motion, they argued “the

       panel opinion was irrelevant to their claim.” Br. of the Appellants at 12.


[11]   Yet, in their motion to dismiss, the Tiptons focused on the amount of discovery

       that had been conducted—referring to several types of discovery tools—and

       they made no attempt to clarify or renew those arguments after the trial court

       treated their motion as seeking additional time to respond. Further, in that

       initial motion, the Tiptons did not argue that the opinion was “irrelevant”

       because it could not be considered. Rather, they argued about the amount of

       evidence that was before the Panel, asserting that “[a]ll evidence can and will be

       a part of [the] case in state court.” Appellants’ App. Vol. 2 at 50. Moreover, in

       support of their subsequent cross-motion for summary judgment, the Tiptons

       mentioned relevance but failed to articulate a specific evidentiary challenge.


[12]   The Tiptons point out that they were pro-se litigants who “walked into what

       would be, under the best of circumstances, a minefield.” Br. of the Appellants

       at 13. Yet, their status as pro-se litigants has no bearing on the preservation of

       appellate issues. See, e.g., Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014)

       (“[A] pro se litigant is held to the same standards as a trained attorney and is

       afforded no inherent leniency simply by virtue of being self-represented.”).


[13]   We conclude that the Tiptons have waived their argument.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1749 | December 26, 2018   Page 6 of 7
[14]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1749 | December 26, 2018   Page 7 of 7
