                                                                                 FILED
                                                                             Sep 14 2018, 8:42 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANTS                                    ATTORNEY FOR APPELLEES
      Jeffrey J. Stesiak                                         Robert J. Palmer
      Pfeifer, Morgan & Stesiak                                  May, Oberfell, Lorber
      South Bend, Indiana                                        Mishawaka, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Cindy and Ron Glon,                                        September 14, 2018
      Appellants-Plaintiffs,                                     Court of Appeals Case No.
                                                                 18A-CT-49
                 v.                                              Appeal from the St. Joseph
                                                                 Superior Court, Mishawaka
      Memorial Hospital of South                                 Division
      Bend, Inc. and/or its Employees                            The Honorable Jenny Pitts Manier,
      and agents,                                                Judge
      Appellees-Defendants.                                      Trial Court Cause No.
                                                                 71D05-1707-CT-000292

      Mathias, Judge.


[1]   The St. Joseph Superior Court entered summary judgment in favor of Memorial

      Hospital of South Bend, Inc. and/or its Employees and agents (collectively “the

      Hospital”), the defendants, against Cindy and Ron Glon (collectively “Glon”).

      Glon appeals and raises the following two issues for our review:


            I.        Whether the trial court erred when it concluded that the doctrine of
                      res ipsa loquitur does not apply to the facts of this case; and,


      Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018                           Page 1 of 18
           II.     Whether genuine issues of material fact preclude the entry of
                   summary judgment.

[2]   We affirm.


                                  Facts and Procedural History
[3]   On or about June 6, 2011, Glon underwent a cementless total hip replacement of

      her right hip at the Hospital. The Hospital administered a spinal epidural to Glon

      during the surgery, and she had no feeling or sensation from the waist down.


[4]   After surgery, Glon was moved to her hospital room where a nurse and patient

      care assistant rolled Glon onto her side to give them access to remove the

      epidural. As they did so, Glon heard three audible pops near her right knee.

      Appellant’s App. p. 51. However, Glon’s lower body was still numb from the

      effects of the epidural, and she did not experience any pain at the time she

      heard the popping sounds.


[5]   After the effects of the epidural wore off, Glon found she was in severe pain

      that would not subside. A subsequent x-ray revealed that Glon had a three-part

      displaced fracture of her right femur. There had been no visible fracture on the

      x-rays taken immediately after Glon’s surgery. Therefore, Dr. Robert Clemency

      (“Dr. Clemency”), Glon’s surgeon, later opined that the fracture occurred at

      some point after she was transferred to her hospital room for recovery. Id. at 53.


[6]   On May 18, 2012, Glon submitted a claim to the medical review panel as

      required by Indiana’s Medical Malpractice Act, arguing that the Hospital

      breached the standard of care and that its negligence caused the fracture in her

      Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018         Page 2 of 18
      right leg.1 Almost five years later, in April 2017, the panel, which was

      composed of three orthopedic surgeons, unanimously agreed that the Hospital

      did not fail to meet the applicable standard of care. See e.g., Appellant’s App. p.

      25 (“The evidence does not support the conclusion that the defendant,

      MEMORIAL HOSPITAL OF SOUTH BEND, INC., failed to meet the

      applicable standard of care as charged in the complaint.”).


[7]   On July 7, 2017, Glon filed a complaint against the Hospital in St. Joseph

      Superior Court. Glon alleged that her injuries were a result of negligent care

      rendered by the Hospital, and that but for this negligence, she would not have

      suffered the fracture to her femur. Glon also argued that the doctrine of res ipsa

      loquitur supported her claim.


[8]   On August 10, 2017, the Hospital filed a motion for summary judgment. In

      support of its motion, the Hospital designated the opinion of the medical review

      panel and an affidavit from orthopedic surgeon Dr. Phillip H. Ireland, M.D.

      (“Dr. Ireland”), who had also served on Glon’s medical review panel, which

      states in pertinent part:


              6.       According to the medical records, [Glon] had a three-part
                       displaced fracture, spiral type, of her right femur following
                       a cementless right hip replacement surgery. This is a “high
                       impact” injury.




      1
       Glon did not name Dr. Clemency as a party and did not allege that he breached the standard of care while
      performing the cementless hip replacement surgery.

      Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018                          Page 3 of 18
              7.       It is not physically possible that the act by the nurse and
                       patient care assistant of turning [Glon] on her side caused
                       the injury to the femur.


              8.       I am aware [Glon] allege[s] the nurse and patient care
                       assistant grabbed [Glon’s] right leg and twisted it. Even if
                       that allegation is true, it is not physically possible that such
                       an act could cause the injury to [Glon’s] femur.


              9.       [Glon’s] injury can occur for reasons other than
                       negligence.


              10.      The injury to [Glon’s] femur is a recognized complication
                       of a cementless hip replacement surgery. During the
                       surgery, a hairline fracture can develop. The hairline
                       fracture is not always seen in a post-operative x-ray.


              11.      In my opinion, it is more likely than not that a hairline
                       fracture led to the resulting injury in [Glon’s] case.


              12.      In my opinion, nothing the nurses did, or failed to do, led
                       to the injury in [Glon’s] case.


      Id. at 28–29.


[9]   In his deposition, which was designated to the trial court, Dr. Ireland stated

      that a high impact injury meant “that [it] takes a lot of force to break the femur

      in that location and to break it in that style.” Id. at 56. He clarified that this type

      of fracture is “not something that you or I would get by falling or even falling

      off a bicycle,” and “it would take . . . high force of -- in this case, the broaches

      or the implantation of the hip inside that canal to cause that kind of fracture.”

      Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018            Page 4 of 18
       Id. at 57. Dr. Ireland agreed that a hairline fracture was not visible in the

       postoperative x-ray. Id. at 58. He explained that it is likely that the fracture was

       not visible on the postoperative x-ray because it was obscured by the metal

       implant. Id. at 59.


[10]   In response, Glon designated her own affidavit wherein she described hearing

       three pops while she was being rolled onto her side by the nursing staff after her

       surgery. She also designated an affidavit from Dr. Clemency, her surgeon,

       which stated in pertinent part that:


               1.       [ . . . ] [A]ll matters and opinions stated herein are based
                        on my personal knowledge, are made to a reasonable
                        degree of medical probability, and are true and accurate to
                        the best of my knowledge and belief.

                                                              ***

               3.       Based on the history given to me by [Glon], a physical
                        examination, x-rays which were taken in the operating
                        room after I performed a hip replacement, but prior to
                        [Glon] being sent to recovery, and my personal
                        knowledge, it is my opinion that the large three (3) part
                        displaced fracture of [Glon’s] right leg did not occur during
                        her hip replacement surgery which I performed on June 6,
                        2011, but at some point after [Glon] was returned to her
                        room and was being rolled over by the nursing staff.

       Id. at 53.


[11]   A hearing was held on December 7, 2017, and the trial court took the matter

       under advisement. One week later, the trial court granted summary judgment in

       favor of the Hospital, and issued the following order:

       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018        Page 5 of 18
                 Defendants’ expert opined that “it is not physically
                 possible that the act by the nurse and patient care assistant
                 of turning [Glon] on her side caused the injury to her
                 femur” and that even if the Plaintiffs’ allegations as to how
                 Defendants (mis)handled [Glon] are true, “it is not
                 physically possible that such an act could cause the
                 injury.”


                 Plaintiffs’ expert failed to counter this opinion. That is,
                 Plaintiffs’ expert failed either to assert that it is physically
                 possible that the complained of conduct of Defendants
                 caused or could have caused the injury to [Glon] or to
                 identify some other act of negligence committed by
                 Defendants that was a proximate cause of [Glon’s]
                 injuries.


                 Plaintiffs argue that the issue should be tried to a jury, that
                 a jury might not believe the testimony of Defendants’
                 expert that a hairline fracture occurred during the
                 operation and the fact that there was no radiographic
                 evidence of that fracture after the surgery was due to the
                 fact that the fracture was hidden by the implant. While a
                 jury might not believe this testimony, or believe that this
                 proposition that a hairline fracture occurred during surgery
                 was a necessary conclusion if Defendants’ expert was to
                 maintain that the conduct of Defendants could not have
                 cause[d] the injury, we are still left with the fact that
                 Plaintiffs have presented no expert testimony that asserts
                 or from which it can be concluded that negligence on the
                 part of Defendants was a cause of [Glon’s] injuries.
                 Plaintiffs argue that “common sense” supplies the
                 causative connection. The Court agrees with Defendants
                 that the cause of this injury in not a matter of common
                 sense, but of medical expertise.



Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018                Page 6 of 18
       Id. at 8–9.2


[12]   Glon appeals the trial court’s order granting summary judgment to the

       Hospital.3


                                             Standard of Review
[13]   When we review the entry of summary judgment, we apply the same standard

       as the trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585

       (Ind. 2017). Summary judgment is appropriate only when “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). An issue is “genuine” if a trier of fact is required to resolve the

       truth of the matter; a fact is “material” if its resolution affects the outcome of

       the case. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). “Just as the trial

       court does, we resolve all questions and view all evidence in the light most

       favorable to the non-moving party, so as to not improperly deny him his day in

       court.” Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind. 2014).


[14]   Summary judgment is a “blunt instrument” preventing the non-prevailing party

       from resolving its case at trial. Hughley, 15 N.E.3d at 1003. Because of this, our




       2
         The original order contained scrivener’s errors; therefore, the trial court issued an amended order nunc pro
       tunc to correct the order.
       3
        We held oral argument in this appeal on August 16, 2018, at the Allen County Courthouse in Fort Wayne,
       Indiana. We extend our gratitude to the Allen County Bar Association and to Jeff Leffers, the Director of
       Court Operations for Allen Superior Courts, for their hospitality. We also commend counsel for the quality
       of their written and oral advocacy.

       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018                                Page 7 of 18
       supreme court has cautioned that summary judgment “is not a summary trial”

       and courts on appeal should carefully “assess the trial court’s decision to ensure

       [a party] was not improperly denied his [or her] day in court.” Id. at 1003–04

       (citations omitted).


                                                I. Res Ipsa Loquitur

[15]   Glon argues that the doctrine of res ipsa loquitur is applicable to her case and the

       Hospital’s breach of the standard of care speaks for itself.


               The doctrine of res ipsa loquitur is a rule of evidence which allows
               an inference of negligence to be drawn from certain surrounding
               facts. The plaintiff’s evidence must include the underlying
               elements of res ipsa loquitur, showing that: (1) the injuring
               instrumentality is 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.


       Thomson v. St. Joseph Reg’l Med. Ctr., 26 N.E.3d 89, 94 (Ind. Ct. App. 2015)

       (citation and quotation omitted). See also Gary Community Sch. Corp. v. Lardydell,

       8 N.E.3d 241, 247 (Ind. Ct. App. 2014) (explaining that res ipsa loquitur “is a

       rule of evidence that permits an assumption that in some situations an

       occurrence is so unusual that, absent a reasonable justification or explanation,

       the person in control of the situation should be held responsible”), trans. denied.

       Expert opinion is not necessary to prove a negligence claim when the case fits

       within the res ipsa loquitur exception. Thomson, 26 N.E.3d at 94.




       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018       Page 8 of 18
[16]   To determine if the doctrine applies, the question is whether the incident more

       probably resulted from the defendant’s negligence than from another cause.

       Rector v. Oliver, 809 N.E.2d 887, 890 (Ind. Ct. App. 2004), trans. denied. “The

       plaintiff may show, by common knowledge or expert testimony, that the injury

       is one that would not ordinarily occur in the absence of due care on the part of

       those controlling the instrumentality.” Tucker v. Harrison, 973 N.E.2d 46, 56

       (Ind. Ct. App. 2012), trans. denied.


               [T]here are some situations in which a physician defendant’s
               allegedly negligent act or omission is so obvious as to allow
               plaintiffs to rely on the doctrine of res ipsa loquitur. Juries do not
               need an expert to help them conclude, say, that it is malpractice
               to operate by mistake on the wrong limb[.]


       Id. (quoting Wright v. Carter, 622 N.E.2d 170, 171 (Ind. 1993)). Examples of

       cases applying the doctrine include a patient’s oxygen mask catching fire during

       surgery, see Cleary v. Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008); Gold v.

       Ishak, 720 N.E.2d 1175, 1184 (Ind. Ct. App. 1999), trans. denied; or foreign

       objects left in the body following surgery, see Wright, 622 N.E.2d at 172 (wire

       left in breast following biopsy).

[17]   However, the doctrine does not apply when the injury that occurs is a known

       complication of surgery or a medical procedure that can occur even if a

       physician exercises due care. In Ross v. Olson, 825 N.E.2d 890 (Ind. Ct. App.

       2005), trans. denied, during a bilateral knee replacement surgery, the surgical

       chisel partially severed the patient’s left popliteal artery. A surgeon determined

       that the artery was 90% severed and surgically reconstructed it. The patient filed
       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018         Page 9 of 18
       a medical malpractice claim against the surgeons who performed the knee

       replacement surgery, and at trial, the patient requested a jury instruction on the

       doctrine of res ipsa loquitur. The trial court refused to give the instruction.


[18]   On appeal, our court affirmed after observing that “there was no dearth of

       causation testimony” at trial. Id. at 894. The expert witnesses at trial disagreed

       whether the patient’s surgeons exercised due care. The patient’s expert opined

       that the surgeons should have taken measures during surgery to protect the

       patient’s artery. The surgeons’ experts testified that popliteal artery injury was a

       rare, but known, complication of knee replacement surgery which could result

       even if the surgeon exercised due care. Because there was direct evidence of

       causation from which “the jury could have drawn an inference that the defendant

       physicians were negligent or could have drawn a contrary conclusion that the

       physicians used the degree of care and skill ordinarily exercised by a reasonable

       practitioner under the same or similar circumstances,” our court concluded that

       the patient was not entitled to the requested res ipsa loquitur instruction. Id.


[19]   In this case, Glon argues the positioning and maneuvering of her leg post-

       surgery was within the exclusive control of the Hospital’s nursing staff, and the

       Hospital does not dispute Glon’s claim of exclusive control. Glon also argues

       that the


               designated evidence demonstrates that the accident is of the type
               that does not ordinarily happen if the hospital staff exercised
               proper care. A patient’s bones do not usually break when a
               patient is positioned, unless the staff positioning the patient [do
               not] use the proper care.

       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018         Page 10 of 18
       Appellant’s Br. at 10.


[20]   This is an attractive argument, but it ignores several things, first, the dispositive

       finding of the Panel. The Panel specifically found that, “The evidence does not

       support the conclusion that the defendant, MEMORIAL HOSPITAL OF

       SOUTH BEND, INC., failed to meet the applicable standard of care as charged

       in the complaint.” Dr. Clemency’s affidavit only spoke to when Glon’s injury

       occurred, not to whether the Hospital violated its standard of care when Glon’s

       femur suffered its displaced fractures.


[21]   In addition, in the Hospital’s designated affidavit and deposition testimony of

       Dr. Ireland, he explained that the three-part displaced fracture of Glon’s femur

       is a recognized complication of cementless hip replacement surgery. Appellant’s

       App. p. 28. Dr. Ireland stated that this type of fracture occurs only when a

       person suffers a high impact. Specifically, in this case, the “high force of . . . the

       broaches or the implantation of the hip inside that canal to cause that kind of

       fracture.” Id. at 57. Dr. Ireland also concluded that it is not physically possible

       that a nurse’s act of rolling Glon over or grabbing Glon’s right leg and twisting

       it caused the three-part displaced fracture of her right femur. Id. at 28.


[22]   Risks and complications associated with cementless hip replacement surgery

       are not commonly known to lay people. Expert testimony is required to

       establish the applicable standard of care, breach of that standard and proximate

       cause. Because the Hospital presented expert testimony that the fracture was a

       known complication of cementless hip replacement surgery which can occur


       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018         Page 11 of 18
       even if the Hospital exercised due care, we conclude that the doctrine of res ipsa

       loquitur cannot be applied in this case. See e.g. Smith v. Dermatology Associations of

       Fort Wayne, P.C., 977 N.E.2d 1, 6 (Ind. Ct. App. 2012) (concluding that the trial

       court did not err when it refused to apply the doctrine of res ipsa loquitur because

       there was contrary evidence on each element of the doctrine); Ross, 825 N.E.2d

       at 894 (affirming the trial court’s decision to refuse a res ipsa loquitur instruction

       because there was direct evidence of causation, i.e. that the injury was a known

       complication of surgery).


                                   II. Genuine Issue of Material Fact

[23]   Next, we address Glon’s argument that the trial court erred when it concluded

       that there were no genuine issues of material fact and the Hospital was entitled

       to judgment as a matter of law. To establish a prima facie case of medical

       malpractice, a plaintiff must demonstrate: (1) a duty on the part of the

       defendant in relation to the plaintiff; (2) a failure to conform his or her conduct

       to the requisite standard of care required by the relationship; and (3) an injury

       to the plaintiff resulting from that failure. Sorrells v. Reid-Renner, 49 N.E.3d 647,

       651 (Ind. Ct. App. 2016) (citing Thomson, 26 N.E.3d at 93). The plaintiff must

       present expert medical testimony establishing: (1) the applicable standard of

       care required by Indiana law; (2) how the defendant doctor breached that

       standard of care; and (3) that the defendant doctor’s negligence in doing so was

       the proximate cause of the injuries complained of. Id. at 651.


[24]   Before commencing a medical malpractice action in Indiana, all plaintiffs are

       required to present a proposed complaint to a medical review panel. Ind. Code
       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018        Page 12 of 18
       § 34-18-8-4. “If the panel renders an opinion against the plaintiff, to survive

       summary judgment, the plaintiff must present expert medical testimony to rebut

       the panel’s opinion.” Thomson, 26 N.E.3d at 93. Expert opinions which conflict

       on ultimate issues necessarily defeat summary judgment. Siner v. Kindred Hosp.

       Ltd. Partnership, 51 N.E.3d 1184, 1190 (Ind. 2016) (citing Chi Yun Ho v. Frye,

       880 N.E.2d 1192, 1200–01 (Ind. 2008)). Moreover, we acknowledge that


               a medical malpractice case based upon negligence is rarely
               appropriate for disposal by summary judgment, particularly
               when the critical issue is whether the defendant exercised the
               appropriate standard of care under the circumstances. This issue
               is generally inappropriate for resolution as a matter of law and is
               a question that should be reserved for the trier of fact.


       Smith, 977 N.E.2d at 5 (quoting Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct.

       App. 2006)).


[25]   In this case, Dr. Ireland and Dr. Clemency gave conflicting testimony, but only

       as to when the fracture occurred. Dr. Ireland believes that a hairline fracture

       resulted from the impact of implanting the hip appliance and the fracture was

       obscured on the x-ray by the metal implant. Dr. Clemency believes that the

       fracture occurred post-operatively because no fracture is visible on the post-

       operative x-ray. This might seem like an important issue of fact, until Dr.

       Clemency’s affidavit is examined for what it does not say. Dr. Clemency’s

       affidavit says only that the “large three (3) part displaced fracture of Mrs.

       Glon’s right leg did not occur during her hip replacement surgery which I

       performed . . . but at some point after the patient was returned to her room and

       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018      Page 13 of 18
       was being rolled over by the nursing staff.” Appellant’s App. p. 53. The

       Hospital does not dispute these facts, and it does not need to dispute them to

       prevail on summary judgment.


[26]   If Glon had sustained the large displaced, three-part fracture in the operating

       room, this could be a different case; but the fracture at issue occurred during her

       post-operative care. Dr. Clemency’s affidavit is only a “not on my watch”

       claim. His affidavit provides no evidence that conflicts with the Panel’s

       determination as to what the Hospital’s post-operative standard of care was,

       and no evidence to conflict with the Panel’s finding that the Hospital never

       breached that standard of care in its post-operative care of Glon.


[27]   In addition, the Hospital designated evidence that the later fracture was actually

       caused by the impact of implanting the prosthetic hip. Specifically, Dr. Ireland

       testified that hairline fracturing is a known complication of the hip replacement

       surgery and that an actual hairline fracture in this case was likely obscured by

       the metal implant on the post-operative x-ray because the fracture is

       nondisplaced, i.e. it had not come apart. Id. at 59. Typically, nondisplaced

       factures “blow apart in the first few days as you start to rehabilitate people.” Id.

       at 60. Dr. Ireland concluded that because Glon’s fracture is the result of a “high

       impact” injury, it is not physically possible that the nursing staff caused the

       three-part displaced fracture by rolling Glon onto her side. Id. at 28. Instead, the

       hairline fracture, a recognized complication of the surgery, likely became

       displaced when Glon was rolled onto her side. See id.



       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018      Page 14 of 18
[28]   The Hospital met its burden as the summary judgment movant to affirmatively

       negate an element of Glon’s claim, i.e. whether the Hospital breached the

       applicable standard of care and proximately caused Glon’s injury. Because

       Glon failed to designate contrary evidence on the issues of breach and

       causation, there are no genuine issues of material fact requiring resolution by

       the trial court or a jury. For these reasons, we affirm the trial court’s grant of

       summary judgment in the Hospital’s favor.


                                                   Conclusion
[29]   The trial court was correct when it concluded that the doctrine of res ipsa loquitur

       is not applicable to the facts of this case. There is also no genuine issue of

       material fact on the issues of breach of the applicable standard of care and

       causation. For these reasons, we affirm the trial court’s grant of summary

       judgment to the Hospital.


[30]   Affirmed.


       Najam, J., concurs.


       Crone, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018       Page 15 of 18
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Cindy and Ron Glon,                                        Court of Appeals Case No.
                                                                  18A-CT-49
       Appellants-Plaintiffs,

               v.

       Memorial Hospital of South
       Bend, Inc. and/or its Employees
       and agents,
       Appellees-Defendants.



       Crone, Judge, dissenting.


[31]   I respectfully disagree with my colleagues’ determinations that the doctrine of

       res ipsa loquitur is inapplicable and that no genuine issues of material fact exist

       as to breach and causation. Those determinations are predicated on the

       affidavit and deposition of Dr. Ireland, who opined that Mrs. Glon’s displaced

       fracture “more likely than not resulted from a hairline fracture.” Appellants’

       App. at 29 (Ireland aff. ¶ 11). He also averred that the type of fracture Mrs.


       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018                   Page 16 of 18
       Glon had was a “high impact injury.” Id. at 28 (Ireland aff. ¶ 6). Dr. Ireland

       testified in his deposition that he did not believe that such an injury could have

       been caused by the nursing staff and only could have resulted from the presence

       of a hairline fracture occurring during the surgery. Id. at 91 (Ireland depo. at

       15). Dr. Clemency, who performed the surgery, submitted an affidavit which

       stated that “the large three (3) part displaced fracture of Mrs. Glon’s right leg

       did not occur during her hip replacement surgery … but at some point after the

       patient was returned to her room and was being rolled over by the nursing

       staff.” Id. at 53 (Clemency aff. ¶ 3). No one disputes that the displaced fracture

       occurred while the nursing staff was rolling Mrs. Glon over and that she heard

       three loud pops at that time.


[32]   The real dispute is as to the efficient cause of the displaced fracture at that time.

       Dr. Ireland’s opinion is premised upon the assumption that such an injury

       could not have occurred without the presence of a hairline fracture occurring

       during the surgery. Without the presence of a hairline fracture, he has no

       explanation for the injury. Even the trial court acknowledges that a jury is free

       to disregard Dr. Ireland’s testimony. I believe that a material issue of fact exists

       as to whether a hairline fracture was present post-surgery. We must remember

       that at this stage of the proceedings all inferences must be indulged in favor of

       the nonmoving party. Kottlowski v. Bridgestone/Firestone, Inc., 670 N.E.2d 78, 83

       (Ind. Ct. App. 1996), trans. denied (1997). Again, there is no dispute that the

       post-op x-rays do not show any fractures, hairline or otherwise. Dr. Ireland’s

       position is that they must be there, but we just can’t see them, and studies


       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018       Page 17 of 18
       suggest that in forty percent of the cases the prosthetic device hides them. The

       majority treats this testimony as if it were dispositive of the issue. I disagree.


[33]   By way of example, if the predicate factual issue was the color of a car on a

       certain date and time, and a photograph taken at the pertinent time depicted the

       car as red, and subsequently an opposition expert testified that forty percent of

       the time atmospheric conditions make blue cars appear red on photographs,

       would anyone have trouble acknowledging that a material issue of fact was in

       dispute? I suggest that an x-ray showing no hairline fractures and Dr. Ireland’s

       testimony that they are visible in sixty percent of cases at least creates an issue

       of fact. It is not for us to weigh the evidence but merely to determine the

       existence of an issue of fact. Summary judgment is appropriate only when the

       moving party is entitled to judgment as a matter of law. Cramer v. Edwards, 97

       N.E.3d 624, 626 (Ind. Ct. App. 2018). I believe that the Hospital has failed to

       make that showing here, and therefore I would reverse and remand for trial.




       Court of Appeals of Indiana | Opinion 18A-CT-49 | September 14, 2018       Page 18 of 18
