FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEES:

JAY T. HIRSCHAUER                           JANET A. MCSHARAR
Hirschauer & Hirschauer                     ALBERT BARCLAY WONG
Logansport, Indiana                         Harrison & Moberly, LLP
                                            Indianapolis, Indiana

                                                                      FILED
                                                                    Aug 15 2012, 8:45 am
                            IN THE
                  COURT OF APPEALS OF INDIANA                              CLERK
                                                                         of the supreme court,
                                                                         court of appeals and
                                                                                tax court




MICHAEL K. CURTS, Individually and as)
Personal Representative of the Estate of
                                     )
Dorothy J. Curts, Deceased,          )
                                     )
     Appellant-Plaintiff,            )
                                     )
           vs.                       )              No. 09A02-1112-CT-1191
                                     )
MILLER’S HEALTH SYSTEMS, INC., a/k/a )
MILLER’S MERRY MANOR,                )
LOGANSPORT, LLC, d/b/a MILLER’S      )
MERRY MANOR,                         )
                                     )
     Appellees-Defendants.           )


                    APPEAL FROM THE CASS SUPERIOR COURT
                       The Honorable Thomas C. Perrone, Judge
                          Cause No. 09D01-0611-CT-00021




                                  August 15, 2012


                          OPINION - FOR PUBLICATION


ROBB, Chief Judge
                                      Case Summary and Issues

       Michael Curts, acting individually and as personal representative of the Estate of

Dorothy J. Curts, brought suit against Miller’s Merry Manor nursing home (“Manor”),

claiming wrongful death, breach of contract, and negligent infliction of emotional distress.

The trial court granted summary judgment in favor of Manor. Curts appeals, raising two

issues: 1) whether Theresa Weitkamp, as a nurse and nursing home administrator, can qualify

as an expert witness and offer an expert opinion as to whether Manor breached its standard of

care and whether such alleged breach caused Dorothy Curts’s injuries and subsequent death;

and 2) whether a genuine issue of material fact exists such that summary judgment is

inappropriate. Concluding nurses can potentially have sufficient expertise to qualify as

experts for the purposes of medical standards of care and medical causation, but that the

evidence designated does not demonstrate that Weitkamp has sufficient expertise and thus no

genuine issues of material fact exist, we affirm the trial court’s grant of summary judgment

for Manor.

                                    Facts and Procedural History1

       Dorothy Curts, an elderly woman in her eighties, was admitted to Manor. On May 7,

2006, the evidence reveals Dorothy had an accident while in Manor’s care. She was taken to

the local emergency room and treated, but approximately 24 hours after the incident she

passed away. Dorothy’s son, Michael Curts, brought suit, acting individually and as personal

representative of the Estate of Dorothy J. Curts. He raised claims of wrongful death, breach


       1
           We held oral argument in this case on July 26, 2012, at the Indiana Court of Appeals Courtroom

                                                     2
of contract, and negligent infliction of emotional distress. All three claims relied upon his

factual assertions that Manor acted negligently in providing care for Dorothy and that such

negligence caused Dorothy to fall out of her bed, hit her head, and die.

        Manor moved to stay the proceedings, alleging it was a qualified health care provider

that opted to be covered under the Indiana Medical Malpractice Act. A medical review panel

consisting of three medical doctors convened and ultimately determined, “[t]he evidence does

not support the conclusion that [Manor] failed to meet the appropriate standard of care as

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

damages.” Appendix to Brief of Appellant at 23.

        Thereafter, Manor moved for summary judgment, designating as evidence the medical

review panel’s decision. Curts filed a response and designated as evidence both a deposition

and report letter of Theresa Weitkamp, a registered nurse and nursing home administrator, a

portion of a deposition of Michael Curts, and the admission contract between Dorothy and

Manor. After a hearing, the trial court granted Manor’s motion for summary judgment.

        In her report letter, Weitkamp summarized the clinical records relating to the care and

services provided to Dorothy at Manor and at area hospitals when such medical care was

necessary. Dorothy was admitted to Manor for nursing care after she suffered a stroke and

made at least one trip to an emergency room. Her medical issues were varied, including

weakness and contusions on her left side, fatigue, and diabetes. Dorothy had a history of

falling, and her physician ordered a sensor alarm and bed and chair alarms for her room.


in Indianapolis. We thank counsel for their capable advocacy.

                                                   3
Despite this, she fell at Manor on at least one occasion prior to the incident at issue, which

resulted in a fractured left hip.

       Dorothy “had urinary frequency and had to be toileted often” and “was also

incontinent at times.” Id. at 125. Weitkamp’s letter reports that Dorothy would regularly

turn on her call light to obtain assistance in getting to the restroom, but such attempts were

often neglected and Dorothy would either wait a lengthy period for help or try to make it to

the restroom on her own. In December 2005, this resulted in staff responding to an alarm and

finding Dorothy lying on the floor in her room. She was unable to move without pain, but

was otherwise uninjured. She was routinely reminded to ask for assistance before getting up

from her bed.

       In early 2006, nurses noted occasions where Dorothy urinated every twenty to thirty

minutes during the night. She began setting off her bed alarm in an effort to get assistance

more quickly. In April 2006, she was found sitting next to her bed after she got up so she

could “pee in the trash can.” Id. at 126. Despite all of these events, Weitkamp noted that no

new measures were implemented to reduce Dorothy’s risk of falling.

       Around 1:00 pm on May 7, 2006, a staff person responded to an alarm in Dorothy’s

room and found her lying face down on the floor. She had a large knot and a laceration about

two centimeters long on her forehead, and she was lying in a significant amount of blood.

She was taken to the emergency room within a few minutes. Doctors discovered a fractured

wrist and severe fractures to her spine. Although she was considered stable, she died at

12:15 pm on May 8, 2006.


                                              4
       Weitkamp concluded “it is my opinion that Miller’s Merry Manor . . . deviated from

commonly accepted standards of care and practice as well as from OBRA regulations, federal

law mandating care given in nursing homes.” Id. at 122. Specifically, she states Manor

breached commonly accepted standards of care by “[f]ailing to provide adequate supervision

to prevent accidents,” “[f]ailing to respond to alarms in a manner timely enough to prevent

accidents,” “[f]ailing to take measures to determine the root cause of Mrs. Curts’ urinary

problems,” “[f]ailing to provide staff in adequate numbers to meet the needs of their

residents,” and “[f]ailing to provide care and services to enable residents to attain or maintain

their highest practicable physical well-being.” Id. Weitkamp then states, “[a]s a result, Mrs.

Curts fell multiple times, finally sustaining an injury which led to her untimely death.” Id.

       In Curts’s deposition, he states that he arrived at the nursing home just after Dorothy’s

May 7 accident, and that when he came into the room he saw her lying on the floor in a large

puddle of blood. Similar to Weitkamp, he also commented upon Dorothy’s difficulties and

the nursing home’s lack of sufficient personnel to care for her in his deposition.

       After a hearing, the trial court granted Manor’s motion for summary judgment. Curts

now appeals.

                                   Discussion and Decision

                                    I. Standard of Review

       On appeal from a grant of summary judgment, our standard of review is the same as

that of the trial court. Cox v. Northern Indiana Pub. Serv. Co., Inc., 848 N.E.2d 690, 695

(Ind. Ct. App. 2006). We thus apply a de novo standard of review. Id. Summary judgment


                                               5
is appropriate when the designated evidence demonstrates there are no genuine issues of

material fact and the movant is entitled to judgment as a matter of law. Ind. Trial Rule 56(C).

“When the defendant is the moving party under T.R. 56(C), the defendant is entitled to

summary judgment when it demonstrates undisputed material facts which negate at least one

element of the plaintiff’s claim.” Nikou v. INB Nat’l Bank, 638 N.E.2d 448, 454 (Ind. Ct.

App. 1994).

                                   II. Summary Judgment

       Manor has met its initial burden of establishing a prima facie showing that no genuine

issue of material fact exists because it included in its designated evidence the unanimous

opinion of the medical review panel that “[t]he evidence does not support the conclusion that

[Manor] failed to meet the appropriate standard of care as charged in the complaint and the

conduct complained of was not a factor of the resultant damages.” App. to Br. of Appellant

at 36; see McGee v. Bonaventura, 605 N.E.2d 792, 794 (Ind. Ct. App. 1993) (stating “a

unanimous opinion of the [medical review] panel that the defendant did not breach the

applicable standard of care is sufficient to negate the existence of a genuine issue of material

fact.”). Therefore, the question we must address is whether Curts, the nonmoving party, has

met his burden of establishing that a genuine issue of material fact does exist such that

summary judgment is inappropriate.

       Although Curts argues in passing his claim is one of negligence rather than medical

malpractice, “[m]edical malpractice cases are no different from other kinds of negligence

actions regarding that which must be proven.” Bader v. Johnson, 732 N.E.2d 1212, 1216-17


                                               6
(Ind. 2000). To survive the summary judgment stage, Curts is therefore required to establish

the following elements: 1) Manor owed Dorothy a duty, 2) Manor breached its duty by

acting below the applicable standard of care, and 3) such breach proximately caused the

resulting harm. Id. at 1217. Curts argues the evidence establishes all three required elements

and therefore a genuine issue of material fact exists.

                                  A. Nurses As Expert Witnesses

       We have previously addressed whether nurses can testify as expert witnesses

regarding medical causation and medical standards of care in a handful of cases, and we have

generally concluded they cannot. In Nasser v. St. Vincent Hosp. & Health Servs., 926

N.E.2d 43, 44 (Ind. Ct. App. 2010), trans. denied, the plaintiff argued the hospital

“committed malpractice when the nursing staff did not respond to her repeated calls for help

and allowed her to deliver two eighteen-week stillborn fetuses alone in her hospital bed,” and

that such malpractice caused her to suffer severe emotional distress requiring medical care

and medication. A medical review panel was formed, consisting of two medical doctors and

one registered nurse. The doctors concluded the hospital did not fail to meet the applicable

standard of care and the conduct complained of was not a factor of the resultant damages, but

the nurse concluded the hospital failed to meet the standard of care and such failure was a

factor of the resultant damages.

       We ultimately concluded that even though nurses are qualified to serve on medical

review panels pursuant to the Medical Malpractice Act,2 the expert opinion of a medical


       2
           Indiana Code section 34-18-2-14 defines “health care provider,” and includes in its definition

                                                    7
review panel is admissible,3 and members of medical review panels can be called to testify,

Indiana Evidence Rule 702 prevents nurses from qualifying as experts regarding medical

causation even where they served on the medical review panel in a case. Id. at 51-52.

Because the plaintiff did not designate any evidence on the issue of causation other than the

nurse’s minority opinion from the review panel process, we affirmed the trial court’s grant of

summary judgment in favor of the hospital. Id. at 52. See also Clarian Health Partners, Inc.

v. Wagler, 925 N.E.2d 388 (Ind. Ct. App. 2010) (concluding nurse’s affidavit inadmissible

for purposes of determining the cause of plaintiff’s injuries where the plaintiff suffered leg

damage and deformity after undergoing open heart surgery during which a complication

arose and her femoral artery was compromised because of the “significant difference in the

education, training, and authority to diagnose and treat diseases between physicians and

nurses”), trans. denied; Long v. Methodist Hosp. of Indiana, Inc., 699 N.E.2d 1164 (Ind. Ct.

App. 1998) (addressing whether potential missteps during open heart surgery caused a staph

infection, we concluded “[b]ecause there is a significant difference in the education, training,

and authority to diagnose and treat diseases between physicians and nurses, we hold that the

determination of the medical cause of injuries, which is obtained through diagnosis, for

purposes of offering expert testimony is beyond the scope of nurses professional expertise”



“registered or licensed practical nurse.” Indiana Code section 34-18-10-5 states, “[e]xcept for health care
providers who are health facility administrators, all health care providers in Indiana, whether in the teaching
profession or otherwise, who hold a license to practice in their profession shall be available for selection as
members of the medical review panel.”
        3
         Indiana Code section 34-18-10-23 provides: “A report of the expert opinion reached by the medical
review panel is admissible as evidence in any action subsequently brought by the claimant in a court of law.
However, the expert opinion is not conclusive, and either party, at the party’s cost, has the right to call any

                                                      8
and nurses are therefore not qualified to offer expert testimony as to the medical cause of

injuries), trans. denied; Stryczek v. The Methodist Hosps., 694 N.E.2d 1186 (Ind. Ct. App.

1998) (concluding nurse not qualified to testify regarding whether hospital failed to timely

communicate a proper diagnosis prior to patient undergoing a course of radiation treatment or

whether such alleged failure to timely communicate a proper diagnosis caused cardiac

damage), trans. denied.

        In the cases discussed above, the medical causation issues were rather complex. In

Nasser, the question was whether the hospital’s failure to respond to a patient’s calls and the

patient’s having delivered two stillborn fetuses in her hospital bed caused her severe

emotional distress such that medical care and medication were required. In Clarian Health

Partners, Inc., the question was whether a complication during open heart surgery caused the

patient’s leg damage and deformity. Similarly, in Long, the issue was whether missteps

during and/or after open heart surgery caused a staph infection. In Stryczek, the question was

whether a more timely diagnosis was possible and whether the alleged untimely diagnosis

caused cardiac damage. In cases such as these, having sufficient expertise to qualify as an

expert witness for the purpose of opining on medical causation or medical standards of care

would likely require more experience and understanding than that of even a highly-

experienced nurse. However, the case before us asks whether a nursing home failed to meet

its standard of care and whether injuries from Dorothy’s fall caused her death approximately




member of the medical review panel as a witness. If called, a witness shall appear and testify.”

                                                     9
twenty-four hours later. In a scenario such as this, we cannot foreclose the possibility that

some nurses have sufficient expertise to qualify as an expert witness.

       We conclude we are not prepared to declare a blanket rule that nurses cannot qualify

as expert witnesses under Indiana Evidence Rule 702 and testify as to whether a healthcare

provider breached a standard of care or whether an alleged breach caused an injury. Indiana

Evidence Rule 702(a) provides “a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an opinion or

otherwise.” Just as the Rule states, we hold a nurse could qualify as an expert regarding

medical standards of care and causation in some circumstances. The determinative question

is whether the nurse has sufficient expertise, as provided in Rule 702(a), with the factual

circumstances giving rise to the claim and the patient’s injuries.

       Here, Curts has not presented sufficient evidence of Weitkamp’s expertise for us to

conclude she qualifies as an expert concerning Manor’s alleged breach of care and whether

such alleged below-standard care caused Dorothy’s demise. In her deposition she briefly

discussed her education and work history, but there is nothing in the record indicating she

regularly deals with matters of this kind, has acquired education and/or training specific to a

patient like Dorothy and her needs, has expert knowledge of the governing federal

regulations, has sufficient expertise to comment on the manner and cause of Dorothy’s death,

or anything else which could demonstrate she qualifies as an expert.




                                              10
                             B. Genuine Issue of Material Fact

       Having concluded insufficient evidence was designated establishing Weitkamp’s

qualifications as an expert, we must also conclude Curts has failed to meet his burden of

establishing a genuine issue of material fact. Other than a doctor’s order that Dorothy’s bed

and chair should be equipped with sensor alarms, the record is void of any indication whether

a medical doctor had issued specific orders for Dorothy’s treatment and care and, if such

orders were given, whether Manor’s care for Dorothy adhered to those orders. Other than

Weitkamp’s testimony, the record is also void of evidence demonstrating Manor’s alleged

failure to provide proper care caused Dorothy’s death. Thus, the only evidence designated

concerning whether Manor breached its standard of care and whether the alleged negligent

conduct caused Dorothy’s fall and death is the unanimous medical review panel opinion,

which conclusively states Manor did not breach its standard of care and the alleged

misconduct was not a factor in the resulting injuries and death of Dorothy.

       Curts’s argument that common sense supports a conclusion that Manor breached its

duty of care and caused Dorothy’s injuries and death is unpersuasive. Merely because an

elderly person falls and injures herself in a nursing home, even when it has happened before,

does not establish that it was the nursing home’s responsibility based upon professional

medical standards to protect her from such a fall. Additionally, the fact that Dorothy fell and

injured her head does not necessitate a conclusion that the fall caused her death. Dorothy

was taken to a hospital and treated after she fell from her bed. The actions or inactions of

paramedics or hospital staff which occurred after Dorothy’s fall could have caused her


                                              11
demise, or, given her age, her death could have resulted from natural causes. Curts therefore

cannot rely on common sense in arguing he has established a genuine issue of material fact.

                                        Conclusion

       While we hold it is possible for a nurse to have sufficient expertise to qualify as an

expert witness under Indiana Evidence Rule 702 and opine on whether the care of certain

healthcare providers fell below the requisite standard of care and whether such inadequate

care caused a particular medical injury, here, Curts designated insufficient evidence to

establish Weitkamp has such expertise. Curts has therefore failed to meet his burden of

establishing a genuine issue of material fact, and we conclude summary judgment is

appropriate for Manor and affirm the trial court.

       Affirmed.

BAILEY, J., and MATHIAS, J., concur.




                                             12
