Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                     Jan 29 2014, 10:13 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                               ATTORNEY FOR APPELLEE:

ROBERT L. NEALE                                 CAROL A. DILLON
New Castle, Indiana                             Bleeke Dillon Crandall
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT L. NEALE,                                )
                                                )
       Appellant-Plaintiff,                     )
                                                )
              vs.                               )       No. 52A05-1307-CT-361
                                                )
CORRECTIONAL MEDICAL                            )
SERVICES, INC., et al,                          )
                                                )
       Appellees-Defendants.                    )


                      APPEAL FROM THE MIAMI CIRCUIT COURT
                         The Honorable Timothy P. Spahr, Judge
                            Cause No. 52C01-1106-CT-215



                                     January 29, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       Appellant-plaintiff Robert L. Neale, an inmate at the Miami Correctional Facility,

broke several fingers while punching his cellmate in the face. Neale sued the appellee-

defendants Correctional Medical Services Company (now known as Corizon), Linda

Frye, and Nicole Pax (collectively, “the defendants”), who were employees at the Miami

Correctional Facility, alleging medical malpractice and general negligence in the

treatment of his injuries.

       The trial court granted summary judgment in the defendants’ favor when their

designated medical evidence established that they acted reasonably and within the

applicable standard of care. Neale put forth no expert testimony to the contrary and the

trial court struck various portions of his affidavit that amounted to inadmissible hearsay

evidence and conclusions. Nonetheless, Neale contends that genuine issues of material

fact remain as to whether the defendants committed medical malpractice.

       We find that the trial court properly struck portions of Neale’s affidavit and that

summary judgment was properly entered for the defendants.

                                          FACTS

       Neale was incarcerated at the Miami Correctional Facility, which had contracted

with Corizon to provide medical care for its prisoners. On November 23, 2009, Neale

and his cellmate got into a fight and Neale hit his cellmate in the face. As a result, Neale

fractured the third and fourth digits of his right hand. Neale’s hand was x-rayed that day

and examined by Dr. Anna Lambertson. Dr. Lambertson immediately requested an

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orthopedic consultation, prescribed Vicodin for Neale’s pain, and placed Neale’s fingers

in a splint.

       Although Nicole Pax, an administrative assistant in the medical department,

scheduled an appointment for Neale with the Orthopedic Clinic at Wishard Hospital on

December 8, 2009, a scheduling error occurred so she made arrangements for Neale to be

examined at Dukes Memorial Hospital (Dukes) two days later. However, Pax did not

know that Neale had a court hearing that same day. As a result, both appointments were

inadvertently cancelled in light of miscommunication by prison officials and staff. Neale

also alleged that he had informed Linda Frye, the health services administrator at the

Miami Correctional Facility and an employee of Corizon, about his injured hand. Neale

alleged that Frye ignored all of his letters and requests for treatment.

       Dr. Lambertson subsequently examined Neale on December 17, 2009, and

renewed his Vicodin prescription for seven days. Surgery was performed the next day

and Neale returned for a follow up appointment at Dukes in early February, 2010.

Pursuant to Dr. Lambertson’s orders, Neale began physical therapy in March 2010, went

to several appointments, and completed therapy on April 30, 2010.

       On June 15, 2011, Neale filed a complaint against the defendants, alleging that

while he was confined at the Miami Correctional Facility, Corizon, Frye, and Pax, were

negligent for failing to treat Neale’s broken hand in a timely, adequate, and effective

manner.



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       On April 8, 2013, the defendants filed a motion for summary judgment, claiming

that they were entitled to judgment as a matter of law because Neale could not establish

that the defendants breached the appropriate standard of care or that any action or

inaction on their part resulted in physical harm to Neale. The defendants submitted the

affidavits of Frye, Pax, and Dr. Mandaret in support of their motion for summary

judgment, alleging that no standard of care toward Neale had been breached.

       Frye averred in her affidavit that she is the Health Services Administrator at the

Miami Correctional Facility and is the liaison between the Superintendent and the

medical department.     Frye rarely treats offenders and never rendered medical care to

Neale. She also makes no treatment decisions, and had no control over Dr. Lambertson

or her staff. She also did not cancel any of Neale’s appointments with any of the

providers outside the prison.

       Pax set forth in her affidavit that she is the administrative assistant at the Miami

Correctional Facility, does not treat offenders or provide any sort of medical assessment,

and has nothing to do with prescribing medication for the prisoners. The medical staff

has no control over when any outside provider or a hospital schedules an appointment for

an offender. Pax acknowledged that there had been a communication problem regarding

Neale’s court date and the hospital appointment in December 2009. Pax averred that she

did not cancel any of Neale’s appointments, that Dukes had rescheduled the last

appointment, and that Neale missed his first two appointments because the correctional

officers had escorted him to the wrong clinic at Wishard Hospital.

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       Dr. Mandaret averred in his affidavit that he had reviewed Neale’s medical records

and concluded that the medical care that the nursing and physician staff at the Miami

Correctional Facility rendered to Neale was “reasonable, appropriate, and within the

applicable standard of care for the prison setting.”       Appellant’s App. p. 103.     Dr.

Mandaret was also of the opinion that Neale’s treatment at the Miami Correctional

Facility did not cause or contribute to his injury.        To the contrary, Dr. Mandaret

concluded that any deformity, restrictions, or pain that Neale had with his hand was the

result of the fracture itself, and not by the medical treatment he received.

       In response, Neale presented his own affidavit, attempting to establish that the

defendants were negligent. Thereafter, the defendants moved to strike several portions of

Neale’s affidavit as inadmissible. More particularly, the trial court struck portions of the

affidavit that contradicted the medical records that were produced and amounted to

hearsay. The trial court also observed that some of the statements required medical

testimony, and that Neale lacked personal knowledge about some of the issues that he set

forth in his affidavit.

       The trial court granted the defendants’ motion for summary judgment and Neale

appeals.




                                              5
                             DISCUSSION AND DECISION

                                  I. Standard of Review

       When reviewing a grant or denial of summary judgment, our standard of review is

the same as that of the trial court. Considering only those facts that the parties designated

to the trial court, we must determine whether there is a “genuine issue as to any material

fact” and whether “the moving party is entitled to a judgment as a matter of law.”

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). We

construe all factual inferences in the non-moving party’s favor and resolve all doubts as

to the existence of a material issue against the moving party. Id. The party appealing a

summary judgment decision has the burden of persuading this court that the grant or

denial of summary judgment was erroneous. Knoebel v. Clark Cnty. Superior Court No.

1, 901 N.E.2d 529, 531-32 (Ind. Ct. App. 2009).

                                   II. Neale’s Contentions

       Neale asserts that the trial court erred in granting the defendants’ motion for

summary judgment because Corizon’s staff erred in making various appointments for the

treatment of his hand, and that Frye had ignored all of his letters and requests for

treatment. Thus, Neale claims that his “bones healed improperly as mistakes were made

in scheduling his medical treatment and restraints were not replaced on his hand during

the healing process.” Appellant’s Br. p. 8.

       The plaintiff in a medical negligence case has the burden to prove (1) the

appropriate standard of medical care applicable to the medical provider; (2) the medical

                                              6
provider’s care fell below that standard of care; and (3) the medical provider’s failure to

meet the standard of care was the proximate cause of the plaintiff’s injuries. Watson v.

Med. Emergency Serv., 532 N.E.2d 1191, 1193 (Ind. Ct. App. 1989). When a physician

presents an opinion that the applicable standard of care was not breached, as Dr.

Marandet has done in this case, a patient asserting malpractice must “present expert

testimony establishing the standard of care and the [defendant’s] conduct fell below the

standard of care.” Marquis v. Battersby, 443 N.E.2d 1202, 1203 (Ind. Ct. App. 1982).

However, expert testimony is required only when the issue of care is beyond the realm of

lay persons. Stumph v. Foster 524 N.E.2d 812, 815 (Ind. Ct. App. 1988). A plaintiff is

not required to present expert testimony in cases of medical malpractice based on

negligence in order to overcome summary judgment when deviation from the standard of

care is a matter commonly known to lay persons. Chaffins v. Kauffman, 995 N.E.2d 707,

713 (Ind. Ct. App. 2013).

       As discussed above, the defendants’ affidavits set forth the course of Neale’s

medical care and explained why Neale’s scheduled appointments were missed with the

orthopedic doctor.    And Dr. Marandet concluded that the medical care that Neale

received was within the applicable standard of care for the prison setting and did not

result in any harm to Neale. Id. at 103. In other words, the problems that Neale currently

alleges to have with his hand are the result of the fractures themselves, rather than the

result of the medical care that he received from the defendants. Put another way, the

defendants’ designated evidence established that there was no causal connection between

                                            7
the medical care that Neale received at the Miami Correctional Facility and his alleged

injuries. Id.

       In her affidavit, Pax averred that she did not make an appointment for Neale with

the wrong physician. Id. at 98. Although additional mistakes were made with regard to

various appointments for Neale, Pax explained that she never cancelled the appointments

and has no control as to when an outside hospital or provider will schedule a prisoner for

an appointment. Id.      In short, Pax established that she had no direct involvement in

treating Neale or prescribing medication for him because she is not a medical provider.

       Regarding Frye, it was established that she, as the Health Services Administrator,

did not supervise or direct the nursing staff or the physicians with regard to Neale’s care.

Id. at 93. She was also not personally involved in Neale’s care because her role at the

prison is purely administrative. Id. at 94. Moreover, there was no evidence that Frye

employed, controlled, directed, or oversaw the individuals who actually treated Neale.

       The only direct allegation that Neale asserts against Frye is that he wrote her

letters to which she did not respond. However, Frye’s affidavit indicated that she had no

recollection of receiving any letters from Neale, and if she did, it is her policy to respond

to each letter the same day. Id. at 95.

       In our view, the issue as to whether Corizon and its nurses and physicians

breached the applicable standard of care by failing to properly treat Neale’s fractured

fingers is a medical one for which expert testimony is required. See Topp v. Leffers, 838

N.E.2d 1027, 1032 (Ind. Ct. App. 2005) (observing that expert medical testimony was

                                             8
required to prove causation in a personal injury action arising from an automobile

accident where a motorist complained that pre-existing injuries were aggravated by the

accident, and the discerning causal connection involved a complicated medical question

in light of the pre-existing injuries).

       As noted above, although Neale submitted his own affidavit in opposition to the

defendants’ motion for summary judgment, the trial court struck portions of it on the

grounds that it contained inadmissible hearsay evidence, contradicted the medical records

that were produced, and several of the statements that Neale made demonstrated his lack

of personal knowledge about some of the issues. Appellant’s App. p. 105-08.

       In conclusion, the defendants presented expert medical testimony that they were

not negligent and did not breach the standard of care in treating Neale. Neale failed to

present designated medical evidence to the contrary. Thus, we conclude that the trial

court properly entered summary judgment for the defendants.

       The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.




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