FOR PUBLICATION
ATTORNEYS FOR APPELLANTS:                      ATTORNEYS FOR APPELLEES:

MICHAEL E. SIMMONS                             SUSAN E. CLINE
ANDREW P. WIRICK                               EDWARD J. FUJAWA
Hume Smith Geddes Green & Simmons, LLP         Lewis Wagner, LLP
Indianapolis, Indiana                          Indianapolis, Indiana
                                                                       Jul 15 2014, 10:24 am


                             IN THE
                   COURT OF APPEALS OF INDIANA

REBECCA STAFFORD, Individually and as          )
Surviving Parent of DRAYDEN POWELL,            )
Deceased, and DRAYDEN POWELL, Deceased,        )
                                               )
      Appellants-Plaintiffs,                   )
                                               )
             vs.                               )      No. 89A01-1401-CT-48
                                               )
JAMES E. SZYMANOWSKI, M.D. and                 )
GYN, LTD., INC.,                               )
                                               )
      Appellees-Defendants,                    )
                                               )
      And                                      )
                                               )
JOSEPH B. CLEMENTE, M.D.,                      )
                                               )
      Appellee-Defendant.                      )


                   APPEAL FROM THE WAYNE SUPERIOR COURT
                        The Honorable Gregory A. Horn, Judge
                            Cause No. 89D02-1209-CT-33


                                      July 15, 2014

                               OPINION - FOR PUBLICATION

RILEY, Judge
                                  STATEMENT OF THE CASE

        Appellants-Plaintiffs, Rebecca Stafford, Individually and as Surviving Parent of

Drayden Powell, Deceased (Stafford) and Drayden Powell, Deceased (Drayden)

(Collectively, Appellants), appeal the trial court’s summary judgment in favor of

Appellees-Defendants, Joseph B. Clemente, M.D. (Dr. Clemente) 1; James E.

Szymanowski, M.D. (Dr. Szymanowski); and GYN, Ltd., Inc. (GYN) (Collectively,

Appellees) with respect to Appellants’ medical malpractice claim.

        We affirm.

                                                ISSUES

        Appellants raise three issues on appeal, which we restate as:

    (1) Whether the trial court properly concluded that the testimony of Appellants’

        expert witness did not create a genuine issue of material fact as to the liability of

        Dr. Szymanowski;

    (2) Whether the trial court properly concluded that the alleged negligence of a

        physician qualified under the Indiana Medical Malpractice Act cannot be imputed

        upon the corporate Appellee, GYN, under a theory of vicarious liability; and

    (3) Whether the trial court properly concluded that no recovery can be had for the

        2007 death of a child not born alive under the Child Wrongful Death Statute.

                            FACTS AND PROCEDURAL HISTORY



1
 Dr. Clemente was voluntarily dismissed as a party from the action prior to the trial court’s ruling on the
Appellees’ motion for summary judgment.


                                                    2
      Stafford became pregnant with her third child in 2007. She received prenatal

medical care from Appellees from approximately March of 2007 until Drayden was

stillborn on November 6, 2007. Stafford alleges that Drayden’s death in utero and

stillbirth resulted from Appellees’ negligence and medical malpractice at a time when

Drayden was a viable fetus, and specifically from certain medical acts and omissions

which occurred between October 6, 2007 and November 6, 2007.

      On June 2, 2009, Stafford filed a Proposed Complaint for Medical Malpractice

with the Indiana Department of Insurance. On October 23, 2009, an amended complaint

was filed, adding Drayden, a child not born alive, as a party, and submitted to the

Medical Review Panel (Panel) pursuant to Ind. Code § 34-18-10-1. On May 30, 2012,

the Panel issued its expert opinion, concluding “that the evidence does not support the

conclusion that the [Appellees] failed to meet the applicable standard of care, and that

their conduct was not a factor of the resultant damages.” (Appellants’ App. p. 31).

      On August 3, 2012, following the Panel’s opinion, Appellants filed their

Complaint for Medical Malpractice before the trial court.       On September 21, 2012,

Appellees tendered a motion for summary judgment as a matter of law because

Appellants had failed to establish a genuine issue of material fact in the standard of care

exhibited by the Appellees and because Drayden’s claim under the Child Wrongful Death

Statute (CWDS) was time-barred.        On December 27, 2012, Appellants responded,

designating an affidavit by its expert witness, Gary Brickner, M.D. (Dr. Brickner).

Reviewing the same records and materials previously tendered to the Panel, Dr. Brickner

concluded that the medical care and treatment rendered by Appellees to Stafford failed to


                                            3
comply with the appropriate medical standard of care and was deficient for, at least, the

following reasons:

        a. On October 16, [Stafford] had an eight hour hospital stay at which time
        the medical care and treatment failed to include appropriate laboratory
        testing and a 24 hour urine study which could have provided indications of
        impending or existing maternal/fetal complications and risk.

        b. On November 1, a biophysical profile was performed which, if
        performed properly, should have predicted the chances of fetal survival for
        up to a week thereafter. It is my opinion that the baby most probably
        expired between November 2 and November 4. Consequently, there is
        medical reason to believe that the biophysical profile was performed or
        interpreted, improperly.

        c. On November 1, a fetal non-stress test or other appropriate evaluation of
        the fetal heart rate pattern should have been performed based on
        [Stafford’s] background/history and reduced fetal movement, and was not.

        d. Given the condition of [Stafford] on November 1, a biophysical profile
        of 8 out of 8 is a deviation from the standard of care because it left off a
        critical index, the non-stress test.

        e. It was a deviation from the standard of care for [Stafford] given her
        report of decreased fetal movement, to have been sent home from the office
        for the weekend on November 1 with an 8 out of 8 biophysical profile
        without conducting a non-stress testing or other fetal heart rate evaluation.

(Appellants’ App. p. 99). Appellees deposed Dr. Brickner on June 3, 2013.2

        On July 1, 2013, Appellees, besides filing a joint reply to Appellants’ Response,

also filed a second motion for summary judgment, as well as a designation of evidence,

to which Appellants responded. On November 15, 2013, the trial court conducted a

hearing on the motions for summary judgment. On January 2, 2014, the trial court


2
  Appellees designated Dr. Brickner’s deposition with their motion for summary judgment as “the entire
[d]eposition of [Dr. Bickner], including, but not limited to [].” (Appellants’ App. p. 112). As Appellees
designated the complete deposition, its entirety may be available for our review. See generally Filip v.
Block, 879 N.E.2d 1076, 1081 (Ind. 2008).


                                                   4
granted Appellees’ motion, concluding that there was no genuine issue of material fact as

to Dr. Szymanski and GYN, and to the extent necessary the unnamed physician, Joseph

Smith, M.D. (Dr. Smith), even though Dr. Smith had never been named as a party to the

action.

          Appellants now appeal. Additional facts will be provided as necessary.

                               DISCUSSION AND DECISION

                                    I. Standard of Review

          Summary judgment is appropriate only when there are no genuine issues of

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

Rule 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 facts support conflicting reasonable inferences.

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

          In reviewing a trial court’s ruling on summary judgment, this court stands in the

shoes of the trial court, applying the same standards in deciding whether to affirm or

reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d

604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine

whether there is a genuine issue of material fact and whether the trial court has correctly

applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in

the light most favorable to the non-moving party. Id. at 608. The party appealing the

grant of summary judgment has the burden of persuading this court that the trial court’s

ruling was improper. Id. When the defendant is the moving party, the defendant must


                                               5
show that the undisputed facts negate at least one element of the plaintiff’s cause of

action or that the defendant has a factually unchallenged affirmative defense that bars the

plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be reversed if

the record discloses an incorrect application of the law to the facts. Id.

       We observe that, in the present case, the trial court entered findings of fact in

support of its judgment.      Special findings are not required in summary judgment

proceedings and are not binding on appeal. See id. However, such findings offer this

court valuable insight into the trial court’s rationale for its decision and facilitate

appellate review. Id.

                                    II. Dr. Szymanowski

       Appellants contend that the trial court improperly entered summary judgment in

favor of Dr. Szymanowski.         Relying on Dr. Brickner’s affidavit and deposition,

Appellants assert that a genuine issue of material fact existed which precluded the entry

of summary judgment.

       Under Indiana law, once the defending parties—as here—“designate the opinion

of the medical review panel finding that the defendants exercised the applicable standard

of care, the plaintiff must generally present expert opinion testimony to demonstrate the

existence of a genuine issue of material fact.” Boston v. GYN, Ltd., 785 N.E.2d 1187,

1190 (Ind. Ct. App. 2003), reh’g denied, trans. denied. Because of the complexity of

medical diagnosis and treatment, “substantive law requires expert opinion as to the

existence and scope of the standard of care which is imposed upon medical specialists

and as to whether particular acts or omissions measure up to the standard of care . . .


                                              6
Before the trier of fact may confront the factual question [of negligence] the issue must

be presented and placed in controversy by reference to expert opinion.”         McGee v.

Bonaventura, 605 N.E.2d 792, 794 (Ind. Ct. App. 1993).

       In an effort to rebut the Panel’s unanimous decision that Dr. Szymanowski met the

appropriate standard of care in his medical consultations with Stafford, Appellants point

to Dr. Brickner’s affidavit, opining that on November 1st an insufficient biophysical

profile was performed or interpreted improperly. Although the affidavit is silent on

which physician conducted the biophysical appointment, Appellants maintain that Dr.

Brickner’s designated deposition clarifies that Dr. Szymanowski was involved in

Stafford’s care on that particular day.

       In his deposition, Dr. Brickner affirmed that “[m]y basic criticism of the care is

that it was the only test done on that patient, which given her presenting situation that

day, [] was insufficient as a way of assuring fetal well-being.” (Appellants’ App. p. 137).

Specifically, Dr. Brickner laments the absence of a non-stress test that is included in the

“true biophysical profile.”      (Appellants’ App. p. 136).      Although Dr. Brickner

acknowledged that a biophysical profile can be compiled in varying ways—both with or

without a non-stress test—the inclusion of the non-stress test depends on “the problems

the patient presents with at that given point in time.” (Appellants’ App. p. 137). Not

every pregnancy requires a biophysical profile; not every pregnancy that includes a

biophysical profile necessarily mandates a non-stress test. Because Stafford presented

with “chronic hypertension” and “superimposed preeclampsia,” Dr. Brickner recognized

that “[o]n November 1st, the patient in front of you is a much different patient than the


                                            7
patient who is otherwise okay and you’re watching them twice a week with a biophysical.

And that’s why the standard of care in this particular case is different[.]” (Appellants’

App. p. 139).

“[G]iven the demise [of the fetus] shortly [after the biophysical profile was created],” Dr

Brickner felt that “there’s certainly reason to believe [the biophysical profile] might have

been misinterpreted, as the occurrence of that [demise] is pretty rare.” (Appellants’ App.

p. 141).

       Although the parties concede that Dr. Szymanowski was involved in Stafford’s

care on November 1st, the record is less conclusive on the physician in charge of the

disputed biophysical.     Specifically, the following colloquy occurred during the

deposition:

       [Appellees’ Attorney]: Is it your understanding that the biophysical profile
       was performed by Dr. Szymanowski?
       [Dr. Brickner]: It’s not clear from the records. I don’t know who
       performed it. Though he noted them, I’m not able to find any form where
       he was listed, other than the flow sheet.
       [Appellees’ Attorney]: So you’re unaware if he was actually doing it or if
       he was doing it in conjunction
       [Dr. Brickner]: Yes.
       [Dr. Brickner]: I’m only aware of the results. I do not know who
       performed it or even when it was performed actually. I’m assuming it was
       performed that day, but I’m not certain of that either.

(Appellants’ App. p. 141).

       Moreover, even though Stafford was sent home on November 1st despite

manifesting symptoms of high blood pressure and decreased fetal movement, Dr.

Brickner acknowledged that Stafford had been informed to report any decreased fetal




                                             8
movement and she had a responsibility to contact the hospital if such lack of movement

was noted during the weekend after her November 1st appointment.

       As Dr. Brickner’s testimony fails to establish that Dr. Szymanowski conducted

and interpreted the perceived insufficient biophysical or otherwise failed to apply the

appropriate standard of care in his treatment of Stafford, we conclude that the Panel’s

unanimous opinion was not rebutted and no genuine material issue of fact exists. See

Boston, 785 N.E.2d at 1190. Therefore, we affirm the trial court’s summary judgment in

favor of Dr. Szymanowski.

                              III. Corporate Appellee, GYN

       During Dr. Brickner’s deposition, it became clear that besides his comments about

Dr. Szymanowski, many of Dr. Brickner’s concerns about an insufficient standard of care

were directed towards Dr. Joseph Smith (Dr. Smith). Specifically, Dr. Brickner opined

that Dr. Smith omitted to follow up on a glucose screen ordered on October 10, 2007,

which indicated a high blood sugar level. According to Dr. Brickner, Dr. Smith’s failure

to decrease Stafford’s sugar level contributed to Drayden’s stillbirth. Even though Dr.

Smith was not named in his individual capacity in the suit and his conduct was not

evaluated by the Panel, Stafford now relies on the principles of vicarious liability to claim

that GYN should be held responsible for Dr. Smith’s perceived failures in the appropriate

standard of care. The trial court, issuing summary judgment in favor of GYN, concluded

       [e]ven assuming that Dr. Smith should be considered to be a principle [sic],
       partner, employee, or agent of GYN, again, Dr. Smith’s conduct was never
       reviewed by a medical panel and his conduct cannot be imputed to GYN on
       the basis of Dr. Brickner’s opinions. The procedure for determining
       whether a breach of the standard of care occurred requires a review by a


                                             9
       medical review panel as to the conduct about which [Stafford] complains.
       While not liked by [Stafford] for obvious reasons, the Indiana legislature
       has established certain gatekeeper requirements that prevent pursuit of a
       medical malpractice claim in state court until the Medical Review Panel has
       made its determination. This statutory requirement not having been met, no
       liability can be established against Dr. Smith or against GYN for Dr.
       Smith’s conduct.

(Appellants’ App. pp. 19-20).

       Although we have previously recognized in Columbus Regional Hospital v.

Amburgey, 976 N.E.2d 709 (Ind. Ct. App. 2012) and Helms v. Rudicel, 986 N.E.2d 302

(Ind. Ct. App. 2013) that an agency relationship between a physician provider and a

hospital or health care group can establish vicarious liability under a theory of respondeat

superior, these cases are readily distinguishable as the individual physicians in Helms and

Amburgey had been individually named as defendants and their actions had been

evaluated by the Panel. Here, we are asked to analyze whether a health care provider can

be held vicariously liable for the perceived acts of medical malpractice committed by its

agent-physician when the physician’s conduct was never reviewed by the medical review

panel. We hold that it cannot.

       Indiana’s Medical Malpractice Act (the Act) is a procedural mechanism for claims

of medical malpractice. Ind. Patient’s Compensation Fund v. Patrick, 929 N.E.2d 190,

193-94 (Ind. 2010). The Act requires, absent certain exceptions not applicable herein,

that before a malpractice claim is pursued in court, it must be presented to a medical

review panel in a proposed complaint. I.C. § 34-18-8-4. The panel is directed to issue an

expert opinion “as to whether or not the evidence supports the conclusion that the

defendant or defendants acted or failed to act within the appropriate standards of care in


                                            10
the complaint.” I.C. § 34-18-10-22(a). Until the panel issues its opinion, the trial court

has no jurisdiction to hear and adjudicate the claim. Putnam Cnty. Hosp. v. Sells, 619

N.E.2d 968, 970 (Ind. Ct. App. 1993). As such, the review and expert opinion by a

medical review panel is a pre-requisite for filing a medical malpractice claim.

        In their proposed complaint to the Panel, Appellants asserted that Dr.

Szymanowski and GYN were negligent in the care they had provided Stafford during her

pregnancy. A medical review panel was convened and on May 30, 2012, the Panel

issued its opinion that Appellees did not fail to meet the applicable standard of care and

that their conduct was not a factor in the resultant damages claimed by Appellants.

Although aware of Dr. Smith’s involvement in Stafford’s care, Appellants never

requested the Panel to review Dr. Smith’s treatment of Stafford during her pregnancy and

no claim as to Dr. Smith’s liability was ever tendered for evaluation.3

        In an effort to now place Dr. Smith’s treatment in controversy, Appellants rely on

respondeat superior to hold GYN, who was presented to the Panel, liable for the conduct

of a physician that was not analyzed by the Panel. To allow the introduction of a

perceived breach in Dr. Smith’s standard of care by virtue of his association with the

named corporate health care provider, GYN, would enable Appellants to bypass the

procedural requirements of the Act and would create a potential avenue for patients to sue

their physicians for medical negligence by simply presenting the perceived lack of care in


3
  Although we agree with Appellants that in reaching his conclusion that Dr. Smith’s standard of care was
insufficient, Dr. Brickner relied on the same materials that were tendered to the Panel, neither the Panel,
nor Dr. Brickner’s affidavit indicate that they reviewed the materials in light of a contested liability with
respect to Dr. Smith. Rather, the first time Dr. Smith’s standard of care is questioned is during Appellees’
deposition of Dr. Brickner.


                                                    11
the corporate entity before the Panel and, upon completion of the Panel process, pursue

an action against any individual physicians. Such a procedure, which would strip a

physician’s protections against the escalation of malpractice claims under the Act, was

neither intended nor anticipated by the legislature. See, e.g., Detterline v. Bonaventura,

465 N.E.2d 215, 217-18 (Ind. Ct. App. 1984), reh’g denied, trans. denied (“The obvious

purpose of the [Act] is to provide some measure of protection to health care providers

from malpractice claims, thus to preserve the availability of such professional health care

services to the community.”). We affirm the trial court’s summary judgment in favor of

GYN.4

                                  IV. Child Wrongful Death Statute

          In addition to her own injuries, Stafford also seeks to recover for the wrongful

death of Drayden as a viable fetus at the time of his death on November 6, 2007. Until

recently, the CWDS only permitted recovery for a child born alive, not for a viable fetus

that died in utero. See, e.g., Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002). Effective July

1, 2009, the legislature modified this established rule and re-defined “Child” under the

statute to include any fetus that had attained viability.5 In addition to the modification of

“Child” under the CWDS, the legislature also included a new section which specifically

stated that the 2009 amendment only applied to claims which accrued after June 30,




4
  Because we decide this issue on the fact that the Panel never reviewed Dr. Smith’s conduct, we do not
decide whether the designated evidence established a genuine issue of material fact that an agency
relationship existed between Dr. Smith and GYN.
5
    See P.L. 129-2009, sec. 8, 2009, Ind. Acts 1172 (codified as amended at Ind. Code § 34-23-2-1).


                                                     12
2009. See I.C. § 34-23-2-0.1. As such, the amendment became effective two years after

the death of Drayden and a month after Stafford filed her initial proposed complaint.

        Combining the Medical Malpractice Act and the statutory limitations of the

CWDS, Appellants maintain that

        the explicit provisions of the Indiana Medical Malpractice Act expressly
        state that [Stafford] had no legal right to file a cause of action for CWDS in
        the Indiana court system until after she had (1) presented the claim to a
        medical review panel and (2) an opinion had been rendered by that panel.
        In this case, the opinion of the medical review panel was not issued until
        May 30, 2012, which is nearly three years after the new definition of
        “child” became effective under the CWDS.

(Appellants’ Br. p. 20) (citing to I.C. § 34-18-8-4).

        However, the Medical Malpractice Act does not create or establish the medical

malpractice claim; rather, it only imposes procedural requirements on the prosecution of

them.    Chamberlain v. Walpole, 822 N.E.2d 959, 961 (Ind. 2005).               One of the

requirements of the Act is that a proposed medical malpractice complaint first be filed

with the Department of Insurance for review by a medical panel before the complaint is

filed in court. See I.C. § 34-18-8-4. The substantive claim or cause of action at stake in

medical malpractice cases is the common law claim of negligence by a health care

provider proximately causing personal injury or death. Ellenwine v. Fairley, 846 N.E.2d

657, 660 (Ind. 2006).

        Turning to these substantive requirements of the claim, our supreme court clarified

in Ellenwine that any wrongful death claim under the CWDS must be brought no later

than two years after the date of death. Ellenwine, 846 N.E.2d at 667; I.C. § 34-23-1-1.

As such, the claim first arises or accrues at the death of the child. See id. Drayden was


                                             13
stillborn on November 6, 2007. Thus, the cause of action under the CWDS accrued that

same day, almost two years before the amendment took effect. Consequently, as the

statutory amendment was not yet in effect, Appellants cannot recover for the wrongful

death of a viable fetus.

                                    CONCLUSION

       Based on the foregoing, we conclude that (1) the trial court properly concluded

that Dr. Brickner’s testimony did not create a genuine issue of material fact as to the

liability of Dr. Szymanowski; (2) GYN cannot be held vicariously liable for the perceived

acts of medical malpractice committed by Dr. Smith when Dr. Smith’s conduct was never

reviewed by the medical review panel; and (3) the trial court properly concluded that no

recovery exists for the 2007 death of a child not born alive under the Child Wrongful

Death Statute, as amended.

       Affirmed.

ROBB, J. and BRADFORD, J. concur




                                           14
