                                                                       Feb 01 2016, 8:25 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEES
Peter H. Pogue                                             Mary A. Findling
Kayla J. Goodfellow                                        Findling Park Conyers & Woody,
Schultz & Pogue, LLP                                       P.C.
Indianapolis, Indiana                                      Indianapolis, Indiana

Karl L. Mulvaney
Jessica Whelan
Bingham Greenbaum Doll LLP
Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Kevin T. Scripture, M.D.,                                  February 1, 2016
Richard Mangan, O.D., Judy D.                              Court of Appeals Case No.
Risch, O.D., and Whitewater                                49A02-1504-CT-211
Eye Centers, LLC,                                          Appeal from the Marion Superior
Appellants-Defendants,                                     Court
                                                           The Honorable Gary L. Miller
        v.
                                                           Trial Court Cause No.
                                                           49D03-1404-CT-13910
Julia and Steven Roberts,
Appellees-Plaintiffs



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016                    Page 1 of 15
                                           Case Summary
[1]   A unanimous medical review panel found that the defendant Doctors failed to

      comply with the appropriate standard of care and their conduct was a factor of

      the resultant damages to Julia Roberts. The Robertses filed first a complaint

      and then a motion for summary judgment against the Doctors, designating as

      evidence the opinion of the medical review panel. In their response, the

      Doctors designated as expert evidence only their own conclusory affidavits.

      Months later and the day before the hearing on the Robertses’ summary-

      judgment motion, the Doctors filed a motion for leave to supplement their

      response to the summary judgment motion, designating only their own

      “supplemental” affidavits, in which they supplemented their original affidavits

      with facts to support their conclusions. Following the hearing, the trial court

      granted the Robertses’ motion for summary judgment and denied the Doctors’

      motion to supplement. We find that the Doctors’ own affidavits failed to raise

      a genuine issue of material fact sufficient to defeat summary judgment because

      the affidavits did not explain the standard of care and include facts showing

      how the Doctors met that standard. We also find that the trial court did not

      abuse its discretion in denying the Doctors’ motion to supplement. We

      therefore affirm.



                             Facts and Procedural History
[2]   After Julia Roberts suffered an injury to her left eye requiring a corneal

      transplant, she and her husband Steven submitted their case to a medical-review

      Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 2 of 15
      panel. In March 2014, the panel unanimously found that the doctors—Kevin

      T. Scripture, M.D., Richard Mangan, O.D., and Judy Risch, O.D., in

      particular—“failed to comply with the appropriate standard of care and that

      their conduct was a factor of the resultant damages.” Appellants’ App. p. 20-

      24. In April 2014, Julia and Steven Roberts filed their complaint for damages,

      which reads in part as follows:

              4. In March 2010, plaintiff, Julia Roberts, was under the care
              and treatment of all the defendants. The defendants were
              negligent in their care and treatment of Julia Roberts.


              5. As a direct and proximate result of the defendants’
              carelessness and negligence, plaintiff, Julia Roberts, suffered a
              permanent injury to the cornea of her left eye, requiring a corneal
              transplant.


              6. As a direct and proximate result of the defendants’
              carelessness and negligence, the plaintiff, Julia Roberts, has
              incurred medical expenses and has lost wages. She has also
              experienced extreme pain and suffering, mental anguish,
              emotional distress, and permanent injury.


      Id. at 12-13.


[3]   The Doctors filed an answer denying all material allegations in the complaint.

      Thereafter, in October 2014, the Robertses filed a motion for summary

      judgment, in which the Robertses relied on the opinion of the medical-review

      panel on the issues of breach in the standard of care and causation. In early

      November 2014, the Doctors filed a response to the Robertses’ summary-


      Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 3 of 15
judgment motion, designating as medical-expert testimony only their own

affidavits—one from each of the Doctors. In these affidavits, as seen in this

excerpt from the affidavit of Kevin Scripture, M.D., the Doctors set forth their

medical credentials and then state the following concerning their care of Julia

Roberts:

        5. With regard to this matter, I provided care to Julia Roberts on
        March 14, 2010.


        6. I am familiar with the treatment provided by Richard
        Mangan, O.D., Judy Risch, O.D., and Whitewater Eye Centers,
        LLC to Ms. Roberts.


        7. I am familiar with the standard of care to be exercised by a
        treating ophthalmologist[1] under the same or similar
        circumstances in 2010.


        8. The care and treatment I provided Ms. Roberts met the
        applicable standard of care and was not a responsible cause of
        her alleged injuries and/or damages.


Id. at 65-66. These portions of all three of the Doctors’ affidavits are virtually

identical, aside from the dates of treatment—Dr. Scripture states that he

provided treatment on March 14, whereas Dr. Mangan and Dr. Risch state that

they provided treatment from approximately March 15, 2010 through March

24, 2010—and of course the substitution of Doctor’s names in Paragraph 6. See



1
 In the affidavits of Dr. Mangan and Dr. Risch, this reads “optometrist,” rather than ophthalmologist. See
Appellants’ App. p. 68, 70.

Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016                      Page 4 of 15
      id. at 65-70. Approximately one week later, the Robertses filed a reply to the

      Doctors’ response.

[4]   The trial court set a date for the hearing on the motion for summary judgment.

      The day before the hearing, the Doctors filed a motion for leave to supplement

      their response to the summary-judgment motion and designated three

      supplemental affidavits, which included additional facts. For instance, Dr.

      Scripture’s affidavit now included the following information:

              6. Julia Roberts presented with pain in her left eye. I instructed
              Ms. Roberts to continue the use of her previously-prescribed
              Zymar, and I replaced her bandage contact lens.


                                                 *****


              10. Richard Mangan, O.D. and Judy Risch, O.D. treated Julia
              Roberts for a left corneal ulcer from approximately March 15,
              2010 through March 23, 2010. During that time, they carefully
              evaluated her, ordered a culture, instructed her on care, and
              treated her symptoms with Zymar, Lortab, artificial tears, Ung
              ointment, Neopolydex ointment, Homatrophine 5%, Ciloxan
              ointment, Tobramycin, Pred Forte, Acuvail, and Tylenol #3.


      Id. at 86.


[5]   Following the hearing, the trial court issued an order summarily denying the

      Doctors’ motion for leave to supplement their response and granting the

      Robertses’ motion for summary judgment, finding that the Doctors’ affidavits

      were “insufficient to raise or create specific facts that establish a material issue

      of fact for trial[.]” Id. at 8.
      Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 5 of 15
[6]   The trial court certified the order granting the Robertses’ motion for summary

      judgment. See id. at 10. The Doctors now appeal from the trial court’s order.



                                   Discussion and Decision
[7]   The Doctors raise two issues on appeal. First, they argue that the trial court

      committed reversible error in granting the Robertses’ motion for summary

      judgment because the Doctors claim their affidavits are sufficient to raise a

      genuine issue of material fact. Second, the Doctors contend that the trial court

      committed an abuse of discretion in denying the Doctors’ motion to supplement

      their response to the Robertses’ motion for summary judgment.


              1. The Factual Content of the Doctors’ Affidavits
[8]   Initially we note that the issue is not whether a doctor charged with malpractice

      can defeat a motion for summary judgment by filing a self-serving affidavit

      claiming he did not violate the standard of care. 2 Although the Robertses




      2
        We leave for another day the issue of whether a defendant doctor’s own affidavit standing alone is sufficient
      to defeat summary judgment. In dicta, we seemed to imply in Perry v. Anonymous Physician 1, 25 N.E.3d 103,
      107 (Ind. Ct. App. 2014), that a medical professional’s designated expert testimony must be the testimony of
      another physician. See also Simms v. Schweikher, 651 N.E.2d 348, 351 (Ind. Ct. App. 1995) (Barteau, J.,
      dissenting) (“I question whether a self-serving affidavit by the defendant, and an affidavit by a surgical
      technician amount to qualified ‘expert’ testimony sufficient to require Simms to come forward with expert
      medical testimony of her own.”). The Doctors cite to several cases in support of their argument that their
      own affidavits qualify as expert testimony and are sufficient to defeat a motion for summary judgment, even
      when no other evidence is designated as support. See Appellants’ Br. p. 7-10 (discussing Morton v. Moss, 694
      N.E.2d 1148 (Ind. Ct. App. 1998); Simms, 651 N.E.2d 348; Whyde v. Czarkowski, 659 N.E.2d 625 (Ind. Ct.
      App. 1995); Summit Bank v. Panos, 570 N.E.2d 960 (Ind. Ct. App. 1991)). But all of these cases are
      distinguishable for one of two reasons: either the defendant doctor’s affidavit was not the sole testimony, or
      the plaintiff patients—and not the defendant doctors themselves—designated portions of the defendant’s
      deposition to survive summary judgment.

      Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016                        Page 6 of 15
      mention this argument in their appellate brief and briefly in a footnote objecting

      to the motion to certify the interlocutory appeal, they make no argument on this

      issue and rest their case on their inadequacy of the factual content of the

      Doctors’ affidavits. We do the same.

[9]   Accordingly, the issue presented for our review is whether the particular facts

      alleged in the Doctors’ affidavits were specific enough to raise a genuine issue

      of material fact. 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. Ind. Trial Rule 56(C); Perry v. Anonymous Physician 1, 25 N.E.3d

      103, 105-06 (Ind. Ct. App. 2014). 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. Perry, 25

      N.E.3d at 106. Once the movant has sustained this burden, however, the

      opponent may not rest on the mere allegations or denials in his pleadings, but

      must respond by setting forth specific facts showing there is a genuine issue for

      trial. Id. In a medical malpractice action based on negligence the plaintiff must

      establish 1) a duty on the part of the defendant in relation to the plaintiff; 2)

      failure on the part of defendant to conform its conduct to the requisite standard

      of care required by the relationship; and 3) an injury to the plaintiff resulting

      from that failure. Id. It is well-settled that when a unanimous medical review

      panel opinion is designated as evidence by one party on summary judgment,

      the non-moving party must present expert testimony to rebut the medical

      review panel’s opinion. See Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct.


      Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 7 of 15
       App. 2006) (citing Bunch v. Tiwari, 711 N.E.2d 844, 850 (Ind. Ct. App. 1999)).

       If the non-movant fails to provide sufficient expert testimony, summary

       judgment should be granted in favor of the party seeking summary judgment.

       Id.


[10]   In support of their motion for summary judgment, the Robertses submitted the

       opinion of the medical review panel, which determined unanimously that the

       Doctors failed to comply with the appropriate standard of care and that their

       conduct was a factor of the resultant damages. See Appellants’ App. p. 20, 33.

       That satisfied the Robertses’ burden to show there was no genuine issue of

       material fact; it was then up to the Doctors to designate sufficient expert

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

       trial. See Mills, 851 N.E.2d at 1070.


[11]   Indiana Trial Rule 56(E) provides in pertinent part as follows:

               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.


       (Emphases added). Here the Doctors’ affidavits set forth their education and

       credentials, stated the dates on which they provided care to Julia Roberts, and

       then stated that they were familiar with the treatment provided by the other

       Doctors, that they were familiar with the standard of care to be exercised by a

       treating ophthalmologist or optometrist under the same or similar


       Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016    Page 8 of 15
       circumstances in 2010, and that the care and treatment each Provider provided

       met the applicable standard of care and was not a responsible cause of her

       alleged injuries and/or damages. See Appellants’ App. p. 65-70. The affidavits

       did not set forth specific facts regarding Julia Roberts’ care, but instead, echoed

       the denials of their pleading contrary to the requirements of Trial Rule 56(E).

       See T.R. 56(E); see also Whitlock v. Steel Dynamics, Inc., 35 N.E.3d 265, 273 (Ind.

       Ct. App. 2015) (“[T]he affiants—rather than merely setting forth conclusory

       statements—were required to give specific details which they perceived to be

       the basis for their conclusions . . . .”).

[12]   A review of cases that analyze the specificity required to defeat summary

       judgment reveals affidavits that include facts about the care provided to the

       patient. For example, in Mills, 851 N.E.2d 1066, this Court considered whether

       the affidavit of plaintiff patient’s medical expert was legally sufficient to defeat

       summary judgment where the patient’s medical records were not attached or

       designated as evidence. Noteworthy for our purposes is the content of the

       expert’s affidavit in that case. First the doctor sets forth his qualifications and

       states that he has personal knowledge of the standard of care applicable under

       the facts and circumstances of that case. See id. at 1071. The affidavit then goes

       on to provide a factual basis for the doctor’s conclusions:

               [The doctor] states that he reviewed the OrthoIndy and
               Methodist Hospital records pertaining to Mills’s surgery and
               subsequent care, as well as the July 31, 2000 photograph of her
               heel. He then sets forth the relevant facts found in these records
               and renders his expert opinion. Dr. Pohnert opines that “[t]he
               appearance and location of the wound are consistent with failure
       Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 9 of 15
               to comply with the standard of care to properly pad and protect
               [Mills]’s heel during cast application, and such failure resulted in
               the heel ulcer, which could have been prevented if the standard of
               care had been observed.”


       Id.


[13]   In Bunch v. Tiwari, 711 N.E.2d 844 (Ind. Ct. App. 1999), we considered the

       legal sufficiency of an expert affidavit designated to refute the medical-review

       panel’s opinion on the issue of proximate cause. The expert affidavit

       designated by the plaintiff in that case stated that the patient “suffers from pain

       compatible with a nerve root injury which can occur with spinal puncture or an

       injection of spinal anesthetic.” Id. at 851. The expert then went on to factually

       support his conclusion regarding proximate cause:

               [I]f Mr. Bunch was pain-free in his right leg prior to the spinal
               anesthetic and came out of surgery with immediate pain in his
               right leg and a dysesthic type of pain, then this pain was likely
               related to and caused by the spinal puncture or injection of spinal
               anesthetic.


       Id.


[14]   In Oelling v. Rao, 593 N.E.2d 189 (Ind. 1992), on which the Robertses

       particularly rely, the Indiana Supreme Court affirmed the trial court’s grant of

       summary judgment in favor of the defendant doctors, finding that the

       designated affidavit submitted by the non-movant patients’ expert was

       inadequate because it failed to set forth the applicable standard of care and a

       statement that the treatment in question fell below the applicable standard.

       Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 10 of 15
       “Dr. Meister’s affidavit states only that he would have treated Mr. Oelling

       differently, not that Dr. Rao’s treatment fell below the applicable standard.” Id.

       at 190-91. Also in Oelling, the Supreme Court explicitly noted that once the

       movant has sustained his burden, the non-movant 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. See id. at 190 (citing T.R.

       56(E)).

[15]   And finally, we address the case of Jones v. Minick, 697 N.E.2d 496 (Ind. Ct.

       App. 1998), in which this Court considered whether the plaintiffs had

       designated sufficient expert medical evidence to create a question of fact as to

       whether the doctor in that case breached the appropriate standard of care. In

       his affidavit, the plaintiff’s expert stated that he personally examined the patient

       and the site of her injury ten days post-partum, and that in his professional

       opinion the procedure had been performed upon the patient in a manner which

       fell below the commonly accepted standard of care which should have been

       exercised by a family practitioner and caused damage, “including significant

       scarring,” to the patient. Id. at 500. In that case, the expert’s affidavit, though

       rather lacking in content, nonetheless contained at least some facts in support of

       the expert’s conclusion that the doctor’s conduct fell below the applicable

       standard of care. See id. Thus in the three cases discussed above in which the

       expert affidavits were considered sufficient to defeat summary judgment, the

       affidavits set forth some factual basis to support the experts’ conclusions. And

       in the case of Oelling, the Court affirmed the grant of summary judgment in


       Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 11 of 15
       favor of the movants after determining that the affidavit of the non-moving

       party’s expert was insufficient.

[16]   Yet the Doctors contend their affidavits are sufficient to defeat summary

       judgment under the Indiana Supreme Court’s Hughley standard. Hughley

       involved a civil proceeding initiated by the State seeking forfeiture of the

       defendant’s cash and car, which the State alleged were proceeds of, or meant to

       be used to facilitate, the defendant’s dealing. See Hughley v. State, 15 N.E.3d

       1000, 1002 (Ind. 2014). The defendant’s affidavit recited his competence to

       testify and then stated in full that the currency seized during this arrest was not

       the proceeds of criminal activity nor was it intended to be used for anything

       other than legal activities, and the car was never used to transport controlled

       substances and was not the proceeds from any unlawful activity. See id. Our

       Supreme Court found that Hughley had designated facts with specificity

       sufficient to defeat summary judgment:

               [H]ere, Defendant did not merely rest on his “pleadings”—that
               is, the complaint, answer, or counter-, cross-, and third-party
               claims with answers or replies thereto. T.R. 7(A). Rather, he
               designated an affidavit—albeit a perfunctory and self-serving
               one—that specifically controverted the State’s prima facie case,
               denying under oath that the cash or car were proceeds of or used
               in furtherance of drug crimes.


       Id. at 1004. Thus, the Doctors argue, even if their affidavits are self-serving and

       conclusory, under Hughley they are still sufficient to defeat summary judgment.




       Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 12 of 15
[17]   Unlike in Hughley, however, here the Doctors cited no facts that would support

       that they met the standard of care or that their conduct did not cause the

       Robertses’ damages. The Doctors merely restated the denials in their pleadings.

       Hughley is inapposite. For the reasons set forth above, we find that the trial

       court did not err in finding that the Doctors’ affidavits do not raise a genuine

       issue of material fact precluding summary judgment. See T.R. 56(E).  


                            2. Doctors’ Motion to Supplement
[18]   Next, the Doctors argue that the trial court abused its discretion in denying

       their motion to supplement their response to the Robertses’ motion for

       summary judgment. The admission of evidence is left to the sound discretion

       of the trial court, and we will not reverse that decision except for an abuse of

       that discretion. Fort Wayne Lodge, LLC v. EBH Corp., 805 N.E.2d 876, 882 (Ind.

       Ct. App. 2004). An abuse of discretion occurs when the trial court’s decision is

       against the logic and effect of the facts and circumstances before it. Id.


[19]   Here, the Doctors attempted to file supplemental affidavits eighty-one days after

       the Robertses’ reply to the Doctors’ response to the summary-judgment motion,

       and the day before the hearing on the Robertses’ motion. These affidavits set

       forth facts of Roberts’ care. Dr. Scripture’s supplemental affidavit, for instance,

       now included the following factual information:

               6. Julia Roberts presented with pain in her left eye. I instructed
               Ms. Roberts to continue the use of her previously-prescribed
               Zymar, and I replaced her bandage contact lens.



       Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 13 of 15
                                                  *****


               10. Richard Mangan, O.D. and Judy Risch, O.D. treated Julia
               Roberts for a left corneal ulcer from approximately March 15,
               2010 through March 23, 2010. During that time, they carefully
               evaluated her, ordered a culture, instructed her on care, and
               treated her symptoms with Zymar, Lortab, artificial tears, Ung
               ointment, Neopolydex ointment, Homatrophine 5%, Ciloxan
               ointment, Tobramycin, Pred Forte, Acuvail, and Tylenol #3.


       Appellants’ App. p. 86.


[20]   On appeal the Robertses contend that the Doctors have waived this issue

       because they only petitioned for certification of the grant of summary judgment,

       and not the denial of their motion to supplement their response. We find that

       the trial court’s order on this issue is ambiguous, stating only that “the Court’s

       order of February 4, 2015, granting Plaintiffs’ motion for summary judgment is

       hereby certified for interlocutory appeal.” See Appellants’ App. p. 10.

       However, Indiana Appellate Rule 14(B) provides that an appeal may be taken

       from other interlocutory orders if the trial court certifies its order and the Court

       of Appeals accepts jurisdiction over the appeal. Thus we cannot say that the

       Doctors have waived this issue for appeal.

[21]   But we also cannot say that the trial court abused its discretion in denying the

       Doctors’ motion to supplement. 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. Miller v. Yedlowski, 916 N.E.2d 246, 250 (Ind. Ct.

       App. 2009), trans. denied. Here the Doctors timely filed the initial, factually

       Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 14 of 15
       inadequate affidavits discussed above as designated evidence to their response

       to the Robertses’ motion for summary judgment, but then waited months, until

       the day before the summary-judgment hearing, to step up their efforts to defeat

       the summary judgment by filing supplemental affidavits with “additional

       information which cured the alleged deficiencies in the Doctors’ original

       affidavits, including further detail on the care provided by each Doctor and how

       that care met the applicable standard of care.” Appellants’ Br. p. 16. The trial

       court’s denial was not against the logic and effect of the facts and circumstances

       before it. See Fort Wayne Lodge, LLC, 805 N.E.2d at 882.


[22]   Affirmed.

       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1504-CT-211 | February 1, 2016   Page 15 of 15
