MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 FILED
this Memorandum Decision shall not be                                     Aug 30 2018, 9:34 am

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.


APPELLANTS PRO SE                                        ATTORNEYS FOR APPELLEES
Paul Michael Wildridge, Sr.                              Christopher L. Riegler
Cheryl L. Wildridge                                      Kathryn Elias Cordell
Columbus, Indiana                                        Katz Korin Cunningham, P.C.
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paul Michael Wildridge, Sr. and                          August 30, 2018
Cheryl L. Wildridge,                                     Court of Appeals Case No.
Appellants-Plaintiffs,                                   18A-CT-464
                                                         Appeal from the Morgan Superior
        v.                                               Court
                                                         The Honorable Brian H. Williams,
Franciscan Alliance, Inc.,                               Judge
Franciscan St. Francis Health,                           Trial Court Cause No.
St. Francis Hospital and Health                          55D02-1704-CT-607
Centers, Mooresville, Indiana,
Appellees-Defendants.



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-464 | August 30, 2018                     Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellants-Plaintiffs, Paul Michael Wildridge, Sr. (Paul), and Cheryl L.

      Wildridge (collectively, Wildridge), appeal the trial court’s summary judgment

      in favor of Appellees-Defendants, Franciscan Alliance, Inc., Franciscan St.

      Francis Health, St. Francis Hospital and Health Centers, Mooresville, Indiana

      (collectively, St. Francis), on Wildridge’s allegation of medical malpractice.


[2]   We affirm.


                                                    ISSUE
[3]   Wildridge presents six issues on appeal, which we consolidate and restate as the

      following single issue: Whether the trial court properly granted summary

      judgment to St. Francis when Wildridge failed to file a response or seek an

      extension of time within the thirty-day period allotted under Indiana Trial Rule

      56(C).


                      FACTS AND PROCEDURAL HISTORY
[4]   On March 16, 2011, Paul was admitted to St. Francis Hospital in Mooresville,

      Indiana, for a total bilateral knee replacement. Following his surgery, Paul

      became hypotensive and was transferred to the Intensive Care Unit (ICU)

      where he remained until the next afternoon. On March 18, 2011, while still

      admitted at the hospital, Paul developed the onset of a posterior-left heel

      pressure ulcer. He was discharged two days later, on March 20, 2011.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-464 | August 30, 2018   Page 2 of 8
[5]   On February 26, 2013, Wildridge filed a proposed complaint with the Indiana

      Department of Insurance alleging that St. Francis had negligently provided

      medical services to Paul. As required by the Medical Malpractice Act, Ind.

      Code § 34-18-1 et seq, the allegations were submitted to the Medical Review

      Panel. On January 19, 2017, the Medical Review Panel unanimously opined

      that St. Francis “failed to comply with the appropriate standard of care as

      charged in the complaint, and that the conduct complained of was not a factor

      in the resultant damages.” (Appellee’s App. Vol. II, p. 24).


[6]   On April 5, 2017, Wildridge filed a Complaint for Damages with the trial court.

      On October 31, 2017, St. Francis filed a motion for summary judgment,

      together with a memorandum of law and designation of evidence. On

      November 1, 2017, the trial court scheduled the hearing on St. Francis’ motion

      to take place on January 19, 2018. On December 19, 2017, Wildridge filed a

      verified motion to continue the scheduled hearing for sixty days. The trial court

      granted the motion for continuance and rescheduled the hearing on St. Francis’

      summary judgment motion for April 2, 2018.


[7]   On December 28, 2017, St. Francis filed a motion for entry of judgment due to

      Wildridge’s failure to respond to its motion for summary judgment within the

      specified time period. On December 29, 2017, the trial court summarily

      granted judgment to St. Francis. Thereafter, on January 5, 2018, Wildridge

      filed a motion to deny summary judgment and a motion to reconsider

      dismissal. On January 23, 2018, the trial court denied both motions,

      concluding, in pertinent part:

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-464 | August 30, 2018   Page 3 of 8
              The court now reviews [Wildridge’s] submitted materials and
              motions, and finds and rules:


              A. The response submitted is untimely and no request for
                 extension of time to respond was timely filed.


              B. The materials submitted are not in proper form for
                 consideration by the court.


              C. Upon review of the materials, the court cannot discern that
                 the issue of causation is addressed as to controvert the panel
                 decision and opinion


              Procedurally, and on the merits, the court cannot find the
              untimely response to be a basis for reinstatement of the case or
              reversal of the previously issued summary judgment order.


      (Appellant’s App. Vol. IV, p. 11).


[8]   Wildridge now appeals. Additional facts will be provided if necessary.


                              DISCUSSION AND DECISION
                                            I. Standard of Review


[9]   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

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-464 | August 30, 2018   Page 4 of 8
       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

       it helps to prove or disprove an essential element of the plaintiff’s cause of

       action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

       opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

       Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

       of summary judgment has the burden of persuading this court that the trial

       court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.

       When the defendant is the moving party, the defendant must 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.


[10]   We observe that, in the present case, the trial court did not enter findings of fact

       and conclusions of law in support of its judgment. Special findings are not

       required in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale for its review and facilitate appellate review. Id.


                                                   II. Analysis




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-464 | August 30, 2018   Page 5 of 8
[11]   Wildridge contends that there are genuine issues of material fact supporting his

       claim that St. Francis breached its duty of care to Paul while an inpatient at the

       hospital, and therefore, the trial court improperly issued summary judgment to

       St. Francis.


[12]   We initially note that although Wildridge is proceeding pro se, such litigants are

       held to the same standard as trained counsel and are required to follow

       procedural rules. Ballaban v. Bloomington Jewish Community, Inc., 982 N.E.2d

       329, 334 (Ind. Ct. App. 2013). Thus, pro se litigants are bound to follow the

       established rules of procedure and must be prepared to accept the consequences

       of their failure to do so. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.

       2004), trans. denied. This court will not “indulge in any benevolent

       presumptions on [their] behalf, or waive any rule for the orderly and proper

       conduct of [their] appeal.” Ankeny v. Governor State of Ind., 916 N.E.2d 678, 679

       n.1 (Ind. Ct. App. 2009) (citation omitted), reh’g denied, trans. denied.


[13]   To establish a prima facie case of medical malpractice, a plaintiff must

       demonstrate: (1) the defendant’s duty in relation to the plaintiff; (2) the

       defendant’s failure to conform its conduct to the requisite standard of care

       required by the relationship forming the duty; and (3) an injury to the plaintiff

       resulting from that failure. Bunch v. Tiwari, 711 N.E.2d 844, 850 (Ind. Ct. App.

       1999). This generally requires expert testimony showing that the physician’s

       performance fell below the applicable standard of care and that his negligence

       was a proximate cause of the plaintiff’s injuries. Id. When, as here, a Medical

       Review Panel renders an opinion in favor of the physician, the plaintiff must

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-464 | August 30, 2018   Page 6 of 8
       then come forward with expert medical testimony to rebut the Panel’s opinion

       in order to survive summary judgment. Id. (when the medical review panel

       finds in favor of the physician on the element of proximate cause, the plaintiff

       must demonstrate the existence of a question of fact only as to proximate

       cause). Moreover, where there is a unanimous Medical Review Panel

       determination favoring the defendant and no countervailing expert opinion, the

       defendant is entitled to judgment as a matter of law. McGee v. Bonaventura, 605

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


[14]   Nevertheless, St. Francis argues, and the trial court agreed, that the merits of

       Wildridge’s contention need not be reached as Wildridge failed to timely

       designate expert testimony to oppose the Medical Review Panel’s opinion in

       order to survive summary judgment.


[15]   Indiana Trial Rule 56(C) provides that a party opposing a motion for summary

       judgment has thirty days to serve a response or any other opposing affidavits.


               When a nonmoving party fails to respond to a motion for
               summary judgment within 30 days by either filing a response,
               requesting a continuance under Trial Rule 56(I), or filing an
               affidavit under Trial Rule 56(F), the trial court cannot consider
               summary judgment filings of that party subsequent to the 30-day
               period.


       HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008) (citing Borsuk v.

       Town of St. John, 820 N.E.2d 118, 125 n.5 (Ind. 2005)). St. Francis filed its

       motion for summary judgment on October 31, 2017. Therefore, in accordance

       with T.R. 6(E) and T.R. 56(C),Wildridge’s response was due no later than
       Court of Appeals of Indiana | Memorandum Decision 18A-CT-464 | August 30, 2018   Page 7 of 8
       December 3, 2017. Wildridge ultimately filed his response to St. Francis’

       motion on January 5, 2018, more than a month late. Moreover, even if we

       consider Wildridge’s motion to continue as a request for additional time under

       T.R. 56(I), this motion was also filed outside the thirty-day period as

       Wildridge’s motion was submitted on December 19, 2017, some sixteen days

       after the time had elapsed. Accordingly, as the trial court could not consider

       Wildridge’s late filings in response to St. Francis’ motion for summary

       judgment, St Francis was entitled to summary judgment. See McGee, 605

       N.E.2d at 794.


                                             CONCLUSION
[16]   Based on the foregoing, we hold that the trial court properly granted summary

       judgment to St. Francis when Wildridge failed to file a response or seek an

       extension of time within the thirty-day period allotted under Indiana Trial Rule

       56(C).


[17]   Affirmed.


[18]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-464 | August 30, 2018   Page 8 of 8
