MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                   Jul 17 2018, 9:11 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael D. Conner                                         Karl L. Mulvaney
Spitzer Herriman Stephenson Holderead                     Margaret M. Christensen
Conner & Persinger, LLP                                   Bingham Greenebaum Doll LLP
Marion, Indiana                                           Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anonymous N.P.,                                           July 17, 2018
Appellant-Third-Party Defendant,                          Court of Appeals Case No.
                                                          03A04-1712-MI-3006
        v.                                                Appeal from the Bartholomew
                                                          Superior Court
Anonymous Physician,                                      The Honorable Kathleen Tighe
Appellee-Defendant.                                       Coriden, Judge
                                                          Trial Court Cause No.
                                                          03D02-1708-MI-4652



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018                Page 1 of 11
                                                Case Summary
[1]   Anonymous Parents (“Parents”) filed—individually and as next friends of their

      minor son, A.D.— a proposed complaint with the Indiana Department of

      Insurance alleging that Anonymous Physician (“Physician”), Anonymous N.P.

      (“N.P.”), and Anonymous Hospital (“Hospital”) committed medical

      malpractice. Thereafter, Physician sought from the Bartholomew Superior

      Court a preliminary determination of an issue of law, and filed a motion for

      summary judgment, asserting that he lacked a physician-patient relationship

      with A.D. The court granted Physician’s motion, and N.P. now appeals,

      presenting the sole issue of whether the court erred in granting the motion.1


[2]   We reverse and remand for further proceedings.



                                 Facts and Procedural History
[3]   On September 1, 2015, Parents brought three-year-old A.D. to Hospital,

      reporting that A.D. put a watch battery in his nose. N.P., a nurse practitioner,

      confirmed through x-ray imaging that the battery was not in A.D.’s stomach or

      colon, but N.P. was unable to see the battery in A.D.’s nose. N.P. called

      Physician, the on-call specialist, who was on his way to a different hospital to

      see a patient. Physician told N.P. that he could see A.D. in a few hours or in

      his office the next morning, and Physician gave N.P. a message to relay to




      1
          Parents do not actively participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018   Page 2 of 11
      Parents: “to call his office at 8 a.m. and . . . that [Physician] wanted to see

      [A.D.] that day.” Appellant’s App. Vol. II at 55. Physician also ordered that

      A.D. be “NPO, which means to have nothing by mouth.” Id.


[4]   Parents wanted A.D. to be seen that evening, and asked if they could be seen at

      an Indianapolis children’s hospital. N.P. then confirmed with an emergency

      medicine physician that there was no need to medically transport A.D., and

      that Parents could take him to the other hospital. Before Parents left, they

      received a copy of Physician’s instructions not to give A.D. anything to eat or

      drink after midnight, to “call [Physician’s] office at 8 am and let them know

      that he wanted your child to be seen in the am,” and “to return . . . if any

      significant respiratory distress before then.” Id. at 57.


[5]   On April 19, 2017, Parents filed a proposed complaint with the Department of

      Insurance alleging that Physician, N.P., and Hospital committed medical

      malpractice. Parents alleged that at some point after leaving Hospital, white

      discharge began running from A.D.’s nose. Parents alleged that they then

      drove A.D. to an Indianapolis hospital, where a specialist removed a lithium

      battery approximately six hours after it became lodged in A.D.’s nose. Parents

      alleged that the delayed treatment caused severe injury to A.D.’s nasal tissue

      that led to the perforation of his septum, requiring surgery.


[6]   Pursuant to Indiana Code Section 34-18-11-1, Physician sought a preliminary

      determination of a dispositive issue of law—namely, whether Physician had a

      physician-patient relationship with A.D.—and filed a motion for summary


      Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018   Page 3 of 11
      judgment with the trial court. N.P. opposed the motion, and the court held a

      hearing. Following the hearing, the court granted the motion for summary

      judgment, determining that there was no physician-patient relationship.

      Thereafter, the court disposed of all malpractice claims against Physician by

      entering a final, appealable judgment pursuant to Indiana Trial Rule 54(B).


[7]   N.P. now appeals.



                                 Discussion and Decision
[8]   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 move for summary judgment, Manley, 992 N.E.2d at 673.

      Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018   Page 4 of 11
[9]    The elements of a claim of medical malpractice “are ‘(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, 51 N.E.3d at

       1187 (quoting Mayhue v. Sparkman, 653 N.E.2d 1384, 1386 (Ind. 1995)). In the

       instant case, Physician sought to demonstrate that he owed no duty to A.D.

       because there was no physician-patient relationship between them. “[T]he

       existence of a duty is ordinarily a question of law for the court to decide, but it

       may turn on factual issues that must be resolved by the trier of fact.” Kopczynski

       v. Barger, 887 N.E.2d 928, 931 (Ind. 2008).


[10]   “[T]he duty owed by a physician arises from the physician-patient

       relationship,” Harper v. Hippensteel, 994 N.E.2d 1233, 1237 (Ind. Ct. App. 2013),

       the existence of which is a “legal prerequisite to a medical malpractice cause of

       action,” Miller v. Martig, 754 N.E.2d 41, 46 (Ind. Ct. App. 2001). “Generally,

       where a doctor does not treat, see, or in any way participate in the care or

       diagnosis” of a patient, there is no physician-patient relationship. Id. Rather,

       the existence of a physician-patient relationship turns on whether the physician

       “perform[ed] some affirmative act regarding the patient.” Giles v. Anonymous

       Physician I, 13 N.E.3d 504, 511 (Ind. Ct. App. 2014), trans. denied. Ultimately,

       where the physician has made no affirmative act directed toward the patient’s

       care, there is no physician-patient relationship. See id.


[11]   According to N.P., the designated evidence indicates that Physician acted

       affirmatively toward A.D. and participated in his care, creating the requisite

       physician-patient relationship. N.P. focuses on designated evidence indicating

       Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018   Page 5 of 11
       that Physician entered an NPO order, and asked N.P. to tell Parents that

       Physician “wanted” to see A.D. the following morning. Appellant’s App. Vol.

       II at 57. N.P. also focuses on evidence indicating that Physician set forth

       options—treating A.D. that evening or the following morning; N.P. asserts that

       giving the options reflected a medical decision that treatment could wait.2


[12]   In arguing that the designated evidence does not support a physician-patient

       relationship, Physician characterizes his interaction with N.P. as scheduling

       steps related to communicating his availability. Moreover, Physician asserts

       that the NPO order was “no more than an instruction as to the conditions

       under which he would be able to treat A.D. if the visit would occur the

       following day.” Appellee’s Br. at 17-18. Physician argues that such

       preliminary steps and communications concerning “the conditions of care”

       should not give rise to a physician-patient relationship.3 Id. at 18. Physician

       also asserts that this case is factually analogous to Giles, in which we




       2
         N.P. also focuses on Physician’s contractual relationship with Hospital as an on-call physician, relying on a
       portion of a Hospital rulebook that addresses the creation of a physician-patient relationship. As we resolve
       this case on other grounds, we do not reach the contractual aspect of N.P.’s argument.
       3
         To the extent Physician relies on Johnson v. Padilla, 433 N.E.2d 393 (Ind. Ct. App. 1982), for the proposition
       that ancillary involvement in patient care does not create a physician-patient relationship, Physician
       overstates the holding. In Johnson, the plaintiff alleged that the defendant physician had negligently
       performed a medical procedure. The physician sought summary judgment, designating evidence indicating
       that she was not the physician who performed the procedure, and that her involvement was limited to
       concurring with the care plan of the chief resident who performed the procedure. Johnson, 433 N.E.2d at 396.
       The plaintiff did not respond to the physician’s motion for summary judgment, and “no negligence was
       alleged as to the decision to perform” the procedure. Id. Thus, in Johnson, this Court “merely held that a
       supervising physician who did no more than approve a subordinate’s decision to operate was entitled to
       summary judgment on a complaint which alleged that the operation was negligently performed.” Walters v.
       Rinker, 520 N.E.2d 468, 471 (Ind. Ct. App. 1988), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018               Page 6 of 11
       determined that no physician-patient relationship was formed between a patient

       and an on-call hospitalist where the hospitalist—before ever examining the

       patient—checked a chart, realized his group did not have a contract with the

       patient’s primary physician, told the patient he could not treat her, and

       suggested that her surgeon contact the primary physician. 13 N.E.3d at 506-11.


[13]   Yet, the designated evidence most favorable to the non-movants indicates that

       Physician entered the NPO order, and gave specific instructions to Parents

       relating to when he “wanted” to see A.D. Appellant’s App. Vol. II at 57. This

       evidence indicates that Physician affirmatively acted toward A.D. to personally

       participate in his care, thereby creating a physician-patient relationship and

       giving rise to a duty to A.D. We therefore conclude that Physician did not

       meet his burden in moving for summary judgment, and the trial court erred in

       granting Physician’s motion. We reverse and remand for further proceedings.



                                               Conclusion
[14]   The trial court erred in granting summary judgment because Physician failed to

       negate an element of the medical malpractice claim.


[15]   Reversed and remanded.


       Crone, J., concurs.
       Brown, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018   Page 7 of 11
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Anonymous N.P.,                                           Court of Appeals Case No.
                                                                 03A04-1712-MI-3006
       Appellant-Third-Party Defendant,

               v.

       Anonymous Physician,
       Appellee-Defendant.




       Brown, Judge, dissenting.

[16]   I respectfully dissent from the majority’s conclusion that a physician-patient

       relationship was established and gave rise to a duty owed from Physician to

       A.D. I do not agree with the majority that Physician’s conduct constitutes an

       “affirmative act” toward A.D. indicating that he would personally participate in

       A.D.’s care. Nor can I agree with the characterization by N.P. that Physician

       “participated in the course of A.D.’s treatment when he had the discussion with

       [N.P.] as to when he could see A.D.” Appellant’s Brief at 12.


[17]   I begin by observing the designated evidence at the center of these assertions,

       the affidavit of N.P., which is attached to her designation of evidence as Exhibit

       A and states in part:


               8. [Physician] was not in the Hospital so I contacted him via
               telephone. [Physician] told me that he was on the way to
               Johnson Memorial Hospital to see another patient.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018   Page 8 of 11
        9. I provided [Physician] with a summary of [A.D.’s]
        presentation and the fact that neither I nor [the emergency
        medicine physician] could see the battery in [A.D.’s] nose.
        10. [Physician] told me that he could either see [A.D.] at the
        Hospital in a few hours or in his office the next morning. He told
        me to tell [Parents] to call his office at 8 a.m. and tell them that
        [Physician] wanted to see [A.D.] that day.
        11. [Physician] also instructed [A.D.] to be NPO, which means
        to have nothing by mouth. I would not have issued this order
        since I would not have known what [Physician’s] needs would be
        for the procedure to remove the battery.
        12. I advised [Parents] of [Physician’s] call but they wanted
        [A.D.] to be seen that evening. They asked if he could be seen at
        Riley Hospital for Children in Indianapolis. Per [the emergency
        medicine physician], we did not need to transfer [A.D.].
        [Parents] could take him directly there.
        13. [Parents] were given [a] written copy of [Physician’s] verbal
        instructions, a copy of which are attached as [Exhibit A-1] to this
        affidavit.


Appellant’s Appendix Volume 2 at 55-56. The designated evidence

additionally includes a document labeled “Exhibit A-1” titled “Patient Visit

Summary” which states that “[A.D.] has been given the following list of patient

education materials, prescriptions and follow-up instructions,” “With:

[Physician],” “When: In 1 week 09/08/2015,” and “Comments: do not give

child anything to eat or drink after midnight, call [Physician’s] office at 8 am

and let them know that he wanted your child to be seen in the am, return here if

any significant respiratory distress before then.” Id. at 57.




Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018   Page 9 of 11
[18]   To the extent that the majority asserts that Physician entered the NPO order

       and gave specific instructions to Parents, this Court found in Dixon v. Siwy, “no

       authority for the proposition that a physician-patient relationship may be

       established without the physician performing some affirmative act with regard

       to the patient and without the physician’s knowledge.” 661 N.E.2d 600, 607

       (Ind. Ct. App. 1996). This Court interpreted the “affirmative act” requirement

       to mean:


               an act of some kind must be performed by the physician for the
               patient’s benefit in order for a physician-patient relationship to
               develop. [Walters v. Rinker,] 520 N.E.2d [468, 471 (Ind. Ct. App.
               1988)]. In Walters, the act on the part of the physician “consisted
               of examining and diagnosing the tumor removed from [the
               patient],” and noted that “[the examination and diagnosis] was
               clearly performed for the purpose of diagnosing and/or treating
               [the patient].”

       Id. (emphasis added). Physician’s acts – of informing N.P. that he could not see

       A.D. and of sharing with her future times when he would be able to provide

       care to A.D. – cannot be, as matter of law, an “act of some kind . . . performed

       by the physician for the patient’s benefit” such that a physician-patient

       relationship would develop. Id. As for the instruction for A.D. to not eat or

       drink after midnight, an affirmative act, in my view, means something more

       than advice to abstain from certain activity until seen by another physician or

       provider.


[19]   I would find that this case is analogous to Giles v. Anonymous Physician I, a case

       where the defendant, an on-call hospitalist, did not examine or treat the patient,

       Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018   Page 10 of 11
       but rather was informed of the patient’s condition over the phone by an

       attending physician and was asked by the attending physician to see the patient.

       13 N.E.3d 504, 507 (Ind. Ct. App. 2014), trans. denied. After arriving at the post

       anesthesia care unit where patient was located, the defendant hospitalist

       checked her chart, determined she was not a hospitalist patient, and indicated

       to her that he would not be able to see her. Id. In that case, this Court

       concluded that the defendant hospitalist did not treat her nor perform any

       affirmative act with regard to her and that there was no physician-patient

       relationship. Id. at 511. Giles, in fact, presented a marginally stronger factual

       scenario for the plaintiff than the case at bar, because the defendant hospitalist

       in that case traveled to the patient’s location and checked her chart – actions

       which I would find to be more akin to an “affirmative act” for the patient’s

       benefit than those found in the present case.


[20]   I conclude, on these facts, that no physician-patient relationship was formed.

       For the foregoing reasons, I respectfully dissent and would affirm the trial court.




       Court of Appeals of Indiana | Memorandum Decision 03A04-1712-MI-3006 | July 17, 2018   Page 11 of 11
