MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing                          Nov 21 2017, 10:19 am

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




ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEES
Matthew J. McGovern                                     Kirk R. Jocham
Anderson, Indiana                                       Jocham Law
                                                        Greenfield, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Edward E. Bell, M.D.,                                   November 21, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        22A01-1706-CT-1368
        v.                                              Appeal from the Floyd Superior
                                                        Court
Joan Barmore and Lew G.                                 The Honorable Susan L. Orth,
Barmore, Individually and as                            Judge
Husband and Wife,                                       Trial Court Cause No.
Appellees-Plaintiffs.                                   22D01-1604-CT-601




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017       Page 1 of 11
                                          Case Summary
[1]   On April 13, 2016, a unanimous medical malpractice review panel (“the

      medical review panel”) found that Appellant-Defendant Edward E. Bell, M.D.

      (“Dr. Bell”), failed to comply with the appropriate standard of care and his

      conduct was a cause of the injuries and damages suffered by Appellee-Plaintiff

      Joan Barmore. After the medical review panel issued its decision, Joan and her

      husband, Appellee-Plaintiff Lew G. Barmore (collectively, “the Barmores”)

      filed a complaint alleging that Dr. Bell had committed medical malpractice.

      The Barmores subsequently filed a motion for summary judgment. In granting

      the Barmores’ motion for summary judgment, the trial court found that no

      genuine issues of material fact remained as to whether (1) Dr. Bell’s treatment

      of Joan fell below the appropriate standard of care and (2) Dr. Bell’s actions

      were a cause of the injuries and damages suffered by Joan.


[2]   Dr. Bell appeals from the trial court’s order granting summary judgment in

      favor of the Barmores. In doing so, Dr. Bell does not contest the trial court’s

      award of summary judgment on the issue of whether his treatment of Joan fell

      below the appropriate standard of care. However, he contends that the trial

      court erred in determining that the Barmores were entitled to summary

      judgment on the issue of causation. Specifically, Dr. Bell asserts that the trial

      court erred in finding that the affidavit of George E. Quill, Jr., M.D. (“Dr.

      Quill”), was not sufficient to create a genuine issue of material fact as to

      causation. Because we disagree, we affirm the award of summary judgment in

      favor of the Barmores on the issue of causation.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017   Page 2 of 11
                            Facts and Procedural History
[3]   When Joan first visited Dr. Bell on November 14, 2011, Joan complained of

      pain in her left ankle. Joan continued to seek treatment from Dr. Bell for pain

      in her left knee and ankle until approximately October of 2012. During the

      course of her treatment by Dr. Bell, Joan underwent numerous tests and

      procedures. Eventually, Joan sought treatment for her continued left ankle and

      knee pain from a different doctor.


[4]   On July 21, 2014, the Barmores filed a proposed medical malpractice complaint

      against Dr. Bell with the Indiana Department of Insurance. On April 13, 2016,

      the appointed medical review panel unanimously determined that Dr. Bell

      “failed to comply with the appropriate standard of care.” Appellant’s App. Vol.

      II, p. 25. It also concluded that Dr. Bell’s conduct “was a factor in the injuries

      and damages of which [the Barmores] complained.” Appellant’s App. Vol. II,

      p. 25.


[5]   After the medical review panel issued its findings, the Barmores filed their

      complaint alleging that Dr. Bell committed medical malpractice. On June 30,

      2016, the Barmores filed a motion for summary judgment on the issues of

      liability and causation. The Barmores also filed a brief and designated evidence

      in support of their motion for summary judgment. Dr. Bell filed a response and

      designated materials in support thereof on August 29, 2016. The Barmores

      subsequently filed a reply to Dr. Bell’s response to their summary judgment

      motion and Dr. Bell filed a request for findings of fact and conclusions thereon.


      Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017   Page 3 of 11
[6]   The trial court conducted a hearing on the Barmores’ motion on September 7,

      2016. Following this hearing, Dr. Bell filed a sur-reply and additional

      designated evidence. The parties filed their respective proposed findings on

      October 19, 2016.


[7]   On November 4, 2016, the trial court issued an order granting the Barmores’

      motion for summary judgment. In doing so, the trial court found that no issues

      of material fact remained as to whether (1) Dr. Bell’s treatment of Joan fell

      below the appropriate standard of care and (2) Dr. Bell’s actions were a cause of

      the Barmores’ claimed injuries and damages. The trial court indicated that the

      case would proceed to trial on the issue of damages only. The trial court

      subsequently entered its summary judgment ruling as a final appealable order

      and this appeal follows.



                                Discussion and Decision
                                      I. Relevant Authority
                    A. Summary Judgement Standard of Review
[8]   “Summary judgment is appropriate only if ‘there is no genuine issue as to any

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

      law.’” Oelling v. Rao, 593 N.E.2d 189, 190 (Ind. 1992) (quoting Ind. Trial Rule

      56(C)).


              The burden is on the moving party to prove the nonexistence of a
              genuine issue of material fact; if there is any doubt, the motion
              should be resolved in favor of the party opposing the motion.
      Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017   Page 4 of 11
              Once the movant has sustained this burden, however, the
              opponent may not rest upon the mere allegations or denials in his
              pleadings, but must respond by setting forth specific facts
              showing that there is a genuine issue for trial. T.R. 56(E).


      Id. “At the time of filing the motion or response, a party shall designate to the

      court all parts of pleadings, depositions, answers to interrogatories, admissions,

      matters of judicial notice, and any other matters on which it relies for purposes

      of the motion.” Simms v. Schweikher, 651 N.E.2d 348, 349 (Ind. Ct. App. 1995)

      (citing T.R. 56(C)).


[9]   “When reviewing an order granting summary judgment, an appellate court

      faces the same issues that were before the trial court and follows the same

      process.” Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct.

      App. 2005), trans. denied. However, “[a] trial court’s grant of summary

      judgment is clothed with a presumption of validity, and the party who lost in

      the trial court has the burden of demonstrating that the grant of summary

      judgment was erroneous.” Sony DADC U.S. Inc. v. Thompson, 56 N.E.3d 1171,

      1178 (Ind. Ct. App. 2016), trans. denied sub nom. Sony DADC US, Inc. v.

      Thompson, 60 N.E.3d 1039 (Ind. 2016) (citing Troxel, 833 N.E.2d at 40).


              Where a trial court enters specific findings and conclusions, they
              offer insight into the rationale for the trial court’s judgment and
              facilitate appellate review, but are not binding upon this court.
              [Troxel, 833 N.E.2d at 40]. We will affirm upon any theory or
              basis supported by the designated materials. Id. When a trial
              court grants summary judgment, we carefully scrutinize that
              determination to ensure that a party was not improperly
              prevented from having his or her day in court. Id.

      Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017   Page 5 of 11
       Id.


                               B. Medical Malpractice Actions
[10]   In 1975, the Indiana Medical Malpractice Act was adopted by the General

       Assembly “in an effort to maintain the availability of healthcare services in

       Indiana … and to help control the costs of medical liability insurance, litigation,

       settlements, and excessive judgments against healthcare providers.” Mayhue v.

       Sparkman, 653 N.E.2d 1384, 1386 (Ind. 1995).


               To prevail in a medical malpractice action, the plaintiff must
               prove three elements: “(1) a duty on the part of the defendant in
               relation to the plaintiff; (2) a failure to conform his conduct to the
               requisite standard of care required by the relationship; and (3) an
               injury to the plaintiff resulting from that failure.” [Oelling, 593
               N.E.2d at 190]. The physician has a duty to conform to the
               standard of care of a reasonably prudent physician in providing
               care to a patient. Bowman v. Beghin, 713 N.E.2d 913, 916 (Ind.
               Ct. App. 1999). More specifically, the physician is “required to
               possess and exercise that degree of skill and care ordinarily
               possessed and exercised by a reasonably careful, skillful and
               prudent practitioner in the same class to which he belongs
               treating such maladies under the same or similar circumstances.”
               McIntosh v. Cummins, 759 N.E.2d 1180, 1184 (Ind. Ct. App.
               2001), trans. denied (2002). Care that falls below the requisite
               standard establishes a breach of the physician’s duty. Bowman,
               713 N.E.2d at 916.


       Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct. App. 2006).


[11]   A unanimous opinion of the medical review panel establishing that the doctor

       failed to comply with the appropriate standard of care and that the doctor’s


       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017   Page 6 of 11
       conduct was a factor in causing the patients resultant damages is “ordinarily

       sufficient” to meet the patient’s initial burden to show that there was no

       genuine issue of material fact. See Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d

       1184, 1187-88 (Ind. 2016); Scripture v. Roberts, 51 N.E.3d 248, 252 (Ind. Ct.

       App. 2016). The burden then shifts to the doctor to designate sufficient expert

       testimony “setting forth specific facts showing the existence of a genuine issue”

       of material fact. Scripture, 51 N.E.3d at 252.


                                                    II. Analysis
[12]   With respect to Dr. Quill’s tendered affidavit, the trial court found as follows:


                46. In an apparent attempt to establish there is a material issue
                of fact as to Dr. Bell’s negligence being a causative factor in
                Plaintiffs’ injuries and damages, Dr. Bell provided this Court
                only with the affidavit of Dr. Quill.
                47. Under Perry,[1] Dr. Quill’s affidavit is insufficient, as he
                fails to state [that] he has reviewed the relevant medical records.
                48. Furthermore, Dr. Quill’s affidavit does not defeat summary
                judgment in Plaintiffs’ favor on the issue of causation for
                Plaintiffs’ injuries, rather it is only relevant to the amount of
                Plaintiffs’ damages.
                49. Injuries and damages are not synonymous, as they are
                different legal considerations.
                                                   *****
                52. A review of Dr. Quill’s affidavit reveals it discusses only
                the amount of damages incurred by Plaintiffs and does not speak



       1
         Prior to this point in the trial court’s order, the trial court cites to both Perry v. Anonymous Physician 1, 25
       N.E.3d 103 (Ind. Ct. App. 2014) and Perry v. Driehorst, 808 N.E.2d 765 (Ind. Ct. App. 2004), trans. denied, in
       its order. Although the trial court does not specify to which “Perry” decision it is referring in this finding, we
       believe the trial court was referring to our opinion in Perry v. Driehorst.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017             Page 7 of 11
               to whether Dr. Bell’s actions caused Plaintiffs’ injuries, such as
               was determined by the Medical Review Panel.
               53. In particular, Dr. Quill’s affidavit states, “Damages from
               the care rendered by Dr. Bell are speculative,” and, “even before
               [Joan] had her arthroscopic procedure in September 2012…she
               had significant and severe degenerative arthritis that probably
               would require eventual arthrodesis anyway.” (underline added).
                                               *****
               55. Nowhere in his affidavit, does Dr. Quill state it is his
               opinion [that] Dr. Bell’s care did not cause Joan’s arthrodesis;
               rather, what is implicitly stated in his vague affidavit is [that] it
               his opinion that the arthrodesis occurred sooner than it may
               otherwise have occurred due to Dr. Bell’s care.
               56. Although Dr. Quill’s affidavit and testimony may be
               appropriate at the damages stage of these proceedings, as he
               disagrees with the amount of Plaintiffs’ damages, (i.e., his
               opinion as to how soon the arthrodesis would have eventually
               occurred), his affidavit does not rebut the Opinion of the Medical
               Review Panel that Dr. Bell’s substandard [care] was a factor in
               Joan’s injuries, including the ankle arthrodesis, of which
               Plaintiffs complained.
               57. Dr. Quill’s affidavit does not create a material issue of fact as
               to whether or not Dr. Bell’s care was a factor in the injuries of
               which Plaintiffs complained.


       Appellant’s App. Vol. III, pp. 50-51 (underlining in original, third set of

       bracketed material in original, all other bracketed material added). We cannot

       agree with the trial court’s conclusion that Dr. Quill’s affidavit is insufficient to

       create an issue of material fact as to causation.


[13]   While the trial court correctly states that Dr. Quill’s affidavit does not contain

       an explicit statement that he reviewed the specific medical records pertinent to

       this case, it is clear from his statements that he did so. To find his affidavit

       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017   Page 8 of 11
       insufficient for failing to make the explicit statement that he reviewed the

       relevant medical records when it is clear that he did so would be to elevate form

       over substance, which we prefer not to do. See generally Hoosier Health Sys., Inc.

       v. St. Francis Hosp. & Health Ctrs., 796 N.E.2d 383, 387 (Ind. Ct. App. 2003)

       (providing that “[w]here the purpose of a rule is satisfied, this Court will not

       elevate form over substance”); Aldrich v. Coda, 732 N.E.2d 243, 246 (Ind. Ct.

       App. 2000) (providing that while it would have been preferable if the doctor had

       stated in his affidavit that he was familiar with the applicable standard of care

       for podiatrists, it was evident from the content of the affidavit that the doctor, as

       an orthopedic surgeon, was indeed familiar with the applicable standard of care

       and, as a result, the affidavit was sufficient to establish a genuine issue of fact

       and preclude summary judgment).


[14]   However, as to the question of causation, we again highlight the following

       finding by the trial court:


               55. Nowhere in his affidavit, does Dr. Quill state it is his
               opinion [that] Dr. Bell’s care did not cause Joan’s arthrodesis;
               rather, what is implicitly stated in his vague affidavit is [that] it
               his opinion that the arthrodesis occurred sooner than it may
               otherwise have occurred due to Dr. Bell’s care.


       Appellant’s App. Vol. III, p. 51.


[15]   Dr. Quill stated the following regarding causation in his affidavit:


               1.     I am a board certified orthopaedic surgeon.
               2.     I disagree with the opinion that subsequent damages
               resulted from the treatment rendered by Dr. Bell for Mrs.
       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017   Page 9 of 11
               Barmore at the arthroscopy performed for her left ankle on
               09/21/2012.
               3.      Damages from the care rendered by Dr. Bell are
               speculative, as polyarticular arthritis, the claimed result of Dr.
               Bell’s treatment, was already present before his index
               arthroscopic procedure.
               4.      Furthermore, Dr. Bell’s notes all indicate that arthritis was
               the indication for all her office-based care, injections, and
               surgical care.
               5.      The records would indicate that the patient underwent a
               subsequent left ankle arthrodesis by the podiatrists on 01/25/13
               after irrigation and debridement of this ankle and completion of
               parenteral antibiotic therapy.
               6.      All of the notes would indicate that, even before she had
               her arthroscopic procedure in September 2012, that she had
               significant and severe degenerative arthritis that probably would
               require eventual arthrodesis anyway.


       Appellant’s App. Vol. II, p. 100.


[16]   In reviewing Dr. Quill’s affidavit, we agree with the trial court’s determination

       that Dr. Quill did not explicitly make any statements that would give rise to a

       genuine issue of material fact as to causation. Dr. Quill’s statements seem to

       refer to the amount of monetary damages that should be received by the

       Barmores as he believed that she would have probably required arthrodesis at

       some point in the future regardless of the care provided by Dr. Bell. As the trial

       court properly stated, Dr. Quill’s affidavit can properly be considered during the

       still-to-come damages phase of trial.



                                               Conclusion

       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 10 of 11
[17]   Because we agree that Dr. Quill’s affidavit did not raise a genuine issue of

       material fact a to the question of causation, we affirm the judgment of the trial

       court.


[18]   The judgment of the trial court is affirmed.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 11 of 11
