MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                                FILED
any court except for the purpose of                                        Nov 19 2018, 9:55 am

establishing the defense of res judicata,                                       CLERK
                                                                            Indiana Supreme Court
collateral estoppel, or the law of the                                         Court of Appeals
                                                                                 and Tax Court
case.


APPELLANT PRO SE                                     ATTORNEYS FOR APPELLEES
Mary N. Poole                                        Robert G. Zeigler
Anderson, Indiana                                    Marilyn A. Young
                                                     Erin E. Meyers
                                                     Zeigler Cohen & Koch
                                                     Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Mary N. Poole,                                        November 19, 2018
Appellant-Plaintiff,                                  Court of Appeals Case No.
                                                      48A02-1706-CT-1376
        v.
                                                      Appeal from the Madison Circuit
Anonymous D.P.M., Anonymous                           Court
Medical Group, Anonymous                              The Honorable Mark K. Dudley,
M.D., Anonymous Network, and                          Judge
Anonymous Hospital,                                   Trial Court Cause No.
Appellees-Defendants.                                 48C06-1403-CT-37




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018            Page 1 of 14
[1]   Mary N. Poole appeals the trial court’s entry of summary judgment in favor of

      Anonymous M.D., Anonymous Network, and Anonymous Hospital

      (collectively, “Health Care Providers”) in a medical malpractice action. Poole

      raises several issues, which we revise and restate as whether the court erred in

      entering summary judgment in favor of Health Care Providers. We affirm.


                                          Facts and Procedural History

[2]   After filing a proposed complaint with the Indiana Department of Insurance

      (“IDOI”),1 Poole filed a complaint on March 10, 2014, against Health Care

      Providers and Anonymous D.P.M.,2 in which she alleged:


                 4. Defendant, Anonymous, M.D. is a partially covered Qualified
                 Health Care Provider under the [Indiana Malpractice Act (“the
                 Act”)] per the IDOI.

                 5. Defendant, Anonymous Hospital is a Qualified Health Care
                 Provider under the Act. It also employs other health care
                 providers who were integrally involved in [Poole’s] care.

                 6. On or about February 29, 2012, on the referral of Wa’el
                 Bakdash, M.D. for a diabetic foot exam, [Poole] first visited
                 Anonymous, D.P.M. at which time he noted her current
                 medications included Plavix.




      1
          The record does not contain a copy of the proposed complaint filed with IDOI.
      2
       Poole later amended her complaint to include Anonymous Medical Group as a defendant. Anonymous
      D.P.M. and Anonymous Medical Group are represented separately from Health Care Providers, who filed a
      motion for summary judgment. Anonymous D.P.M. and Anonymous Medical Group did not join the
      motion for summary judgment.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018   Page 2 of 14
        7. On or about December 5, 2012, Anonymous, D.P.M.
        recommended surgery to [Poole], but did not instruct her to stop
        taking Plavix.

        8. [On] December 12, 2012, Anonymous, D.P.M. performed
        arthroplasty flexor tendon transfer of Plaintiff’s 2nd, 3rd, and 4th
        right toes and arthroplasty of 5th right toe with .035 K-wire.
        Immediately prior to this surgery, Anonymous, D.P.M. was
        informed that [Poole] had not stopped taking Plavix.

        9. Anonymous, M.D. was the anesthesiologist for the
        arthroplasty surgery performed on December 12, 2012 by
        Anonymous, D.P.M. on [Poole]. He was aware immediately
        before surgery that [Poole] was taking Plavix.

        10. On or about December 12, 2012, Marcaine with epinephrine
        was injected as local anesthesia by Anonymous, D.P.M. prior to
        and after performing surgery, which local anesthesia was
        contraindicated in this patient.

        11. By December 25, 2012, [Poole] had necrotic tips of her digits
        with Anonymous, D.P.M. advising it was either due to
        congestion with severe ecchymosis or an ischemic event.

                                             *****

        13. The conduct of Anonymous, M.D. fell below the applicable
        standard of care including, but not limited to, going forward with
        surgery after learning that [Poole] had not stopped taking Plavix.

        14. The conduct of the nurse employees of Anonymous Hospital
        fell below the applicable standards of care including, but not
        limited to, providing Marcaine with epinephrine to Anonymous,
        D.P.M. for administration as a local during [Poole’s] toe surgery
        and failing to be an advocate for the patient.

        15. As a direct and proximate result of Defendants’ negligence,
        certain portions of [Poole’s] toes had to be amputated, resulting
        in permanent impairment and disfigurement, significant

Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018   Page 3 of 14
              subsequent medical treatment and bills, pain and suffering,
              emotional distress, and other injuries and damages.


      Appellant’s Appendix Volume I at 64-66.


[3]   On August 23, 2016, Health Care Providers filed a motion for summary

      judgment which asserted that there was no genuine issue of material fact as to

      each of three elements of Poole’s complaint, namely “(1) expert testimony

      establishing the required standard of care, (2) expert testimony that [Health

      Care Providers] failed to observe that standard, and (3) expert testimony

      establishing the cause in fact of the alleged injuries,” and attached a copy of the

      medical review panel opinion. Id. at 72. The attached opinion displays a file-

      stamp of April 25, 2016, and states that the medical review panel was of the

      unanimous opinion that the “evidence does not support the conclusion that the

      defendants failed to meet the applicable standard of care, and that their conduct

      was not a factor of the resultant damages.” Id. at 74.


[4]   On September 20, 2016, Poole’s counsel filed a motion for leave to withdraw

      appearance and a motion for extension of time to respond to Health Care

      Providers’ motion for summary judgment, and the court granted “an extension

      of time to and including December 21, 2016.” Id. at 99. On December 21,

      2016, Poole filed a “petition for time extension (30 days)” and indicated that

      she had a lawyer who had looked at the case for thirty days and “then said she

      couldn’t take it” and that she has “a lawyer who say[s] he will help me.” Id. at

      105. The chronological case summary (“CCS”) indicates that the court granted


      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018   Page 4 of 14
      Poole’s request, “however, only until 01/06/2017. Hearing remains scheduled

      for 01/13/2017.” Id. at 9.


[5]   On January 6, 2017, Poole filed, pro se, both a memorandum in opposition to

      the summary judgment motion of Health Care Providers and her own personal

      affidavit. Poole’s memorandum states, in part:


              There is no indication, such as risks or medication instructions
              on [Poole’s] surgery consent form that specifies the risks
              associated with her pre-existing medical history and current
              medication usage. Exhibit 7. Further, in neither [Anonymous
              D.P.M.’s] answer to pre-trial interrogatory nor the attending
              Anesthesiologist, [Anonymous M.D.’s] pre-trial depositions on
              medication usage instructions that indicated any particular risks,
              other than [Anonymous D.P.M.] stating that [Poole] may have a
              little more bleeding because she had not stop[ped] taking Plavix.
              Exhibits 8, 9.[3]


      Id. at 118-119. Her personal affidavit details the alleged conduct of Anonymous

      D.P.M. and asserts that Anonymous D.P.M. “subjected [her] to a risky, non-

      emergency surgery” and that she was deprived of the opportunity to make an

      informed decision as to whether or not to undergo the surgery. Id. at 108.


[6]   On January 9, 2017, Poole filed a petition for a continuance, and the CCS

      indicates that the court continued the January 13, 2017 hearing on the motion




      3
       We note that the exhibits cited in Poole’s memorandum are not attached to the copy of her January 6, 2017
      memorandum included in the appellant’s appendix. On appeal, Poole acknowledges that “no exhibits were
      submitted with her original January 6, 2017 documents.” Appellant’s Reply Brief at 5. See also Appellant’s
      Brief at 9 (“[Poole] inadvertently omitted a portion of the documents.”).

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018      Page 5 of 14
      for summary judgment initially to March 3, 2017, and eventually to March 24,

      2017. On February 10, 2017, Poole filed a motion to amend her memorandum

      in opposition to summary judgment and asked the court to incorporate certain

      exhibits or, as she alleged, a “compilation of discovery, authoritative and . . .

      reference documents . . . relevant to the case.” 4 Id. at 127. On February 27,

      2017, the court denied the motion to amend.


[7]   After hearing argument on the motion, the trial court issued an order on April

      10, 2017, which granted summary judgment in favor of Health Care Providers

      and found that “[n]either [Poole’s] designated evidence nor . . . her stricken

      designation contain[ed] any expert opinions bearing on the care provided,” that

      there were no material issues of fact, and that “there being no just cause for

      delay such judgment shall be a final judgment.” Id. at 23, 25. On May 9, 2017,

      Poole filed a motion correct error which the trial court denied on May 23, 2017.


                                                    Discussion

[8]   The issue is whether the trial court erred in entering summary judgment in

      favor of Health Care Providers. Before we address Poole’s arguments, we note

      that pro se litigants, like Poole, are held to the same standards as trained

      attorneys and are afforded no inherent leniency simply by virtue of being self-




      4
        While Poole’s motion to amend contained within the record does not include copies of the exhibits it
      discussed, the “evidentiary exhibit list” attached to the motion states, in part, “Medical History Report
      (2012),” “Medical History Report (2013),” “Operative Report and Marcaine/Epinephrine Information,”
      “Additional Allegation List Submittal to Medical Review Panel,” “Excerpt of Defendant ([Anonymous
      M.D.’s]) Deposition,” and “Defendant ([Anonymous D.P.M.’s]) Interrogatory.” Appellant’s Appendix
      Volume I at 129. The appellant’s appendix on appeal does not contain the deposition of Anonymous M.D.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018       Page 6 of 14
      represented. Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014) (citing Matter of

      G.P., 4 N.E.3d 1158 (Ind. 2014)). Pro se litigants are required to follow

      procedural rules, Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans.

      denied, and “must be prepared to accept the consequences of their failure to do

      so.” Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016), reh’g denied. This

      Court will further “not become an advocate for a party, or address arguments

      that are inappropriate or too poorly developed or expressed to be understood.”

      Id. at 984 (internal quotation marks omitted).


[9]   When reviewing the grant or denial of summary judgment, we apply the same

      standard as the trial court. Estate of McGoffney v. Anonymous Skilled Nursing

      Facility, 93 N.E.3d 1104, 1110 (Ind. Ct. App. 2018) (citing Anonymous Physician

      v. Wininger, 998 N.E.2d 749, 751 (Ind. Ct. App. 2013)), trans. denied.

      Summary judgment is proper only when the designated evidence shows that

      there is no genuine issue of material fact and the moving party is entitled

      to judgment as a matter of law. Id. All facts and reasonable inferences

      therefrom are construed in a light most favorable to the nonmovant and any

      doubts as to the existence of a material issue are resolved in favor of the

      nonmovant. Id. Our review of a summary judgment motion is limited to those

      materials designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of

      Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). In reviewing a trial court’s ruling

      on a motion for summary judgment, we may affirm on any grounds supported

      by the Indiana Trial Rule 56 materials. Catt v. Bd. of Comm’rs of Knox Cnty., 779

      N.E.2d 1, 3 (Ind. 2002).

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018   Page 7 of 14
[10]   In medical malpractice cases, a unanimous opinion of the medical review panel

       that the physician did not breach the applicable standard of care is ordinarily

       sufficient to establish prima facie evidence negating the existence of a genuine

       issue of material fact entitling the physician to summary judgment. Stafford v.

       Szymanowski, 31 N.E.3d 959, 961 (Ind. 2015) (citing Boston v. GYN, Ltd., 785

       N.E.2d 1187, 1191 (Ind. Ct. App. 2003), trans. denied. See also Bhatia v.

       Kollipara, 916 N.E.2d 242, 245 (Ind. Ct. App. 2009) (“In medical malpractice

       cases, it is well-established that when the medical review panel opines that the

       plaintiff has failed to make a prima facie case, she must then come forward with

       expert medical testimony to rebut the panel’s opinion in order to survive

       summary judgment.”) (quoting Brown v. Banta, 682 N.E.2d 582, 584 (Ind. Ct.

       App. 1997), trans. denied). Consequently, in such situations, the burden shifts to

       the plaintiff, who may rebut with expert testimony. Stafford, 31 N.E.3d at 961.

       “Failure to provide expert testimony will usually subject the plaintiff’s claim to

       summary disposition.” Bhatia, 916 N.E.2d at 245 (citing Widmeyer v. Faulk, 612

       N.E.2d 1119, 1122 (Ind. Ct. App. 1993)).


[11]   Poole argues that a “principle issue . . . in this appeal is [the] lack of Informed

       Consent,” cites Ind. Code §§ 34-18-12-2(3), -3, and asserts that “explanations

       for items 1, 3, 4, and 5 [of Ind. Code. § 34-18-12-3] are missing from her

       consent form and that had she been aware of the risks, she would not have




       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018   Page 8 of 14
       consented to the surgery.”5 Appellant’s Brief at 14-15. She also argues that the

       res ipsa loquitur doctrine applies to this case and that the need for expert opinions

       in medical malpractice cases is dispensed with “when a case fits within the

       ‘common knowledge’ or res ipsa loquitur exception.” Id. at 15 (citation omitted).

       Health Care Providers argue that the grant of summary judgment is proper

       because Poole failed to create a genuine issue of material fact.


[12]   To the extent that Poole argues that the trial court erred in not considering all

       the evidence she wished to designate, we observe that 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.” HomEq Servicing Corp. v. Baker,

       883 N.E.2d 95, 98 (Ind. 2008) (citing Trial Rule 56(C)). See also Trial Rule

       56(C) (“A party opposing the motion shall also designate to the court each

       material issue of fact which that party asserts precludes entry of summary




       5
         Ind. Code § 34-18-12-2(3) provides: “If a patient’s written consent is . . . explained, orally or in the written
       consent, to the patient or the patient’s authorized representative before a treatment, procedure, examination,
       or test is undertaken . . . a rebuttable presumption is created that the consent is an informed consent.” Ind.
       Code § 34-18-12-3 provides that the explanation given in accordance with Ind. Code § 34-18-12-2(3) must
       include: “(1) The general nature of the patient’s condition. (2) The proposed treatment, procedure,
       examination, or test. (3) The expected outcome of the treatment, procedure, examination, or test. (4) The
       material risks of the treatment, procedure, examination, or test. (5) The reasonable alternatives to the
       treatment, procedure, examination, or test.”
       Insofar as Poole “further asserts that the absence of this information constitutes a statutory violation of the
       code, referencing 410Ind. [sic] Admin. Code IAC 15-1.6-8, § 8(a)(3),” Appellant’s Brief at 15, we observe
       that 410 Ind. Admin. Code 15-1.6-8(c) provides, in part: “Surgical services shall have policies governing
       surgical care designed to assure the achievement and maintenance of standards of medical practice and
       patient care, as follows: . . . (3) A properly executed informed consent form for the operation shall be in the
       patient’s chart before surgery, except in extreme emergencies.”

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018              Page 9 of 14
judgment and the evidence relevant thereto.”). Trial Rule 56(E) provides in

part:


        The court may permit affidavits to be supplemented or opposed
        by depositions, answers to interrogatories, or further affidavits.
        When a motion for summary judgment is made and supported as
        provided in this rule, an adverse party may not rest upon the
        mere allegations or denials of his pleading, but his response, by
        affidavits or as otherwise provided in this rule, must set forth
        specific facts showing that there is a genuine issue for trial. If he
        does not so respond, summary judgment, if appropriate, shall be
        entered against him.


We review the trial court’s decision on a request to supplement under Trial

Rule 56(E) for an abuse of discretion. See Estate of Collins v. McKinney, 936

N.E.2d 252, 258 (Ind. Ct. App. 2010) (“Rule 56(E) permits supplementing

affidavits with ‘further affidavits,’ and that (as with most evidentiary matters)

such a decision lies ‘within the trial court’s discretion.’”) (quoting Ind. Univ.

Med. Ctr., Riley Hosp. for Children v. Logan, 728 N.E.2d 855, 858 (Ind. 2000) (“It

is within the trial court’s discretion to accept an affidavit filed later than the date

specified in the rule.”)), trans. denied. An abuse of discretion occurs when the

trial court’s decision is against the logic and effect of the facts and

circumstances before it. Scripture v. Roberts, 51 N.E.3d 248, 254 (Ind. Ct. App.

2016) (citing Fort Wayne Lodge, LLC v. EBH Corp., 805 N.E.2d 876, 882 (Ind. Ct.

App. 2004)). Here, Health Care Providers filed a motion for summary

judgment and designated evidence on August 23, 2016. Accounting for the two

time extensions granted by the trial court, giving Poole until January 6, 2017, to

file her response, Poole was provided an additional 106 days from the time that
Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018 Page 10 of 14
       she was required to respond to the summary judgment motion under Trial Rule

       56(C). Poole’s motion to amend, to which she purports to have attached

       certain exhibits, was eventually filed on February 10, 2017. Under these

       circumstances, we cannot say that the trial court abused its discretion by

       denying Poole’s request to supplement her designated evidence. See Scripture,

       51 N.E.3d at 249-250 (holding that the trial court did not abuse its discretion in

       denying a motion for leave to supplement).


[13]   We now turn to the court’s ruling on the summary judgment motion. To

       prevail on a claim of medical malpractice, a plaintiff must demonstrate: “(1)

       that the physician owed a duty to the plaintiff; (2) that the physician breached

       that duty; and (3) that the breach proximately caused the plaintiff’s

       injuries.” Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187-1188 (Ind.

       2016) (quoting Mayhue v. Sparkman, 653 N.E.2d 1384, 1386 (Ind. 1995)).

       Medical malpractice actions are similar to other negligence actions. Narducci v.

       Tedrow, 736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000). The doctrine of res ipsa

       loquitur is a qualified exception to the general rule that the mere fact of injury

       will not create an inference of negligence. Syfu v. Quinn, 826 N.E.2d 699, 703

       (Ind. Ct. App. 2005). It recognizes that “the facts or circumstances

       accompanying an injury may be such as to raise a presumption, or at least

       permit an inference, of negligence on the part of the defendant.” Id. (citing

       Narducci, 736 N.E.2d at 1292). “Application of the doctrine does not in any

       way depend on the standard of care imposed by law but, rather, depends

       entirely upon the nature of the occurrence out of which the injury arose.” Id.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018 Page 11 of 14
[14]   Determining whether the doctrine applies in any given negligence case is a

       mixed question of law and fact, with the question of law being whether the

       plaintiff’s evidence included all of the underlying elements of res ipsa loquitur.

       Id. at 703-704.


               Under the doctrine of res ipsa loquitur, negligence may be inferred
               where 1) the injuring instrumentality is shown to be under the
               management or exclusive control of the defendant or his
               servants, and 2) the accident is such as in the ordinary course of
               things does not happen if those who have management of the
               injuring instrumentality use proper care.


       Id. at 704 (quoting Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1993),

       trans. denied). In the medical malpractice context, application of this exception

       is limited to situations in which the defendant’s conduct is so obviously

       substandard that a jury need not possess medical expertise in order to recognize

       the defendant’s breach of the applicable standard of care. Methodist Hosps., Inc.

       v. Johnson, 856 N.E.2d 718, 721 (Ind. Ct. App. 2006) (citing Syfu, 826 N.E.2d at

       703). Such negligent actions typically arise when physicians leave foreign

       objects in a patient’s body because a jury can understand without independent

       explanation that the object should have been removed. Id.


[15]   Here, we note that Poole’s personal affidavit filed on January 6, 2017,

       concerned the actions of Anonymous D.P.M. and not Health Care Providers

       and that the entirety of the allegations in Poole’s amended proposed complaint

       related to Health Care Providers were that Anonymous M.D. was “the

       anesthesiologist for the arthroplasty surgery performed on December 12, 2012,”

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018 Page 12 of 14
       that he “was aware immediately before surgery that [Poole] was taking Plavix,”

       and that his conduct “fell below the applicable standard of care including, but

       not limited to, going forward with surgery after learning that [Poole] had not

       stopped taking Plavix.” Appellant’s Appendix Volume I at 65-66. The

       designated evidence includes the unanimous opinion of the medical review

       panel, which provides that the “evidence does not support the conclusion that

       the defendants failed to meet the applicable standard of care, and that their

       conduct was not a factor of the resultant damages.” Id. at 74.


[16]   Under these circumstances, we cannot say that the doctrine of res ipsa loquitur

       applies or that the alleged conduct of Health Care Providers is so “obviously

       substandard that a jury would need not possess medical expertise in order to

       recognize a breach of the applicable standard of care.” See Methodist Hosps., 856

       N.E.2d at 721. Moreover, in light of the medical review panel’s unanimous

       decision and Poole’s failure to rebut it with expert testimony of her own, we

       cannot say that the trial court erred in entering summary judgment in favor of

       Health Care Providers. Cf. Miller v. Yedlowski, 916 N.E.2d 246, 252 (Ind. Ct.

       App. 2009) (“Because this leaves no evidence to oppose [doctor’s] motion for

       summary judgment, which includes the medical review panel’s unanimous

       decision that he did not fail to comply with the appropriate standard of care as

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

       resultant damages, we conclude that the trial court erred by denying his motion

       for summary judgment.”), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018 Page 13 of 14
                                                   Conclusion

[17]   For the foregoing reasons, we affirm the entry of summary judgment in favor of

       Health Care Providers and against Poole.


[18]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CT-1376 | November 19, 2018 Page 14 of 14
