FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                    ATTORNEYS FOR APPELLEES:

J. KEVIN KING                               CHRISTOPHER L. RIEGLER
PETER CAMPBELL KING                         KIMBERLY A. EMIL
Cline, King & King, P.C.                    Hall, Render, Killian, Heath & Lyman, P.C.
Columbus, Indiana                           Indianapolis, Indiana

GEORGE HOFFMAN, III
Hoffman & Newcomb
Franklin, Indiana
                                                                   Jul 21 2014, 10:01 am




                             IN THE
                   COURT OF APPEALS OF INDIANA

JAMES GILES, Individually and as Executor   )
Of the Estate of RUTH GILES, deceased.      )
                                            )
      Appellant/Plaintiff,                  )
                                            )
             vs.                            )      No. 03A01-1306-CT-257
                                            )
ANONYMOUS PHYSICIAN I,                      )
ANONYMOUS CORPORATION I,                    )
ANONYMOUS HOSPITAL I,                       )
ANONYMOUS PHYSICIAN II,                     )
ANONYMOUS CORPORATION II,                   )
ANONYMOUS PHYSICIAN III,                    )
ANONYMOUS CORPORATION III,                  )
ANONYMOUS PHYSICIAN IV,                     )
ANONYMOUS CORPORATION IV,                   )
ANONYMOUS PHYSICIAN V,                      )
ANONYMOUS CORPORATION V.                    )
                                            )
      Appellees/Defendants.                 )


               APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
                     The Honorable Kathleen Tighe Coriden, Judge
                          Cause No. 03D02-1207-CT-3827
                                              July 21, 2014

                                 OPINION – FOR PUBLICATION

PYLE, Judge


                                   STATEMENT OF THE CASE

        This appeal involves a preliminary determination in a medical malpractice case

filed in the county court while the case was pending before the Indiana Department of

Insurance (“IDOI”).            Anonymous Physician I (“Hospitalist”)1 and Anonymous

Corporation I (“Medical Corporation”)—after being sued by James Giles (“Giles”),

individually and as executor of the estate of Ruth Giles, deceased (“Ruth”)—moved for

summary judgment on the basis that Hospitalist owed no duty to Ruth because he did not

treat her or have a physician-patient relationship with her. Giles now appeals the trial

court’s order granting summary judgment to Hospitalist and Medical Corporation.2

        We affirm.


1
  A hospitalist is a “physician who specializes in the practice of hospital medicine[,]” which is a “medical
specialty dedicated to the delivery of comprehensive medical care to hospitalized patients.” (App. 243).
2
  There are other anonymous parties named as defendants in this medical malpractice action. Although,
pursuant to Indiana Appellate Rule 17, they are considered parties on appeal, they are not participating in
this appeal as summary judgment was filed by and entered in favor of Hospitalist and Medical
Corporation only. See Ind. Appellate Rule 17(A) (providing that “[a] party of record in the trial court . . .
shall be a party on appeal”).
   INDIANA CODE § 34-18-8-7 provides that a medical malpractice “claimant may commence an action in
court for malpractice at the same time the claimant’s proposed complaint is being considered by a medical
review panel” in the IDOI as long as the complaint filed in the trial court does “not contain any
information that would allow a third party to identify the defendant[.]” In his summary judgment motion,
Hospitalist referred to himself and Medical Corporation by name and agreed to let Giles do the same.
The other defendants allowed Giles to refer to them by their areas of specialty. Thus, during the summary
judgment proceedings, the parties and the trial court referred to Hospitalist and Medical Corporation by
name. On appeal, the parties do the same. We, however, will refer to all parties generically by their areas
of specialty.

                                                     2
                                        ISSUE

      Whether the trial court erred by granting summary judgment to Hospitalist
      based on a determination that there was no physician-patient relationship
      and, thus, no duty.

                                        FACTS

      The facts most favorable to Giles, the non-moving party in this summary judgment

proceeding, reveal that on August 1, 2010, fifty-seven-year-old Ruth fell and broke her

nose. On August 4, 2010, she consulted Anonymous Physician IV (“ENT Surgeon”)

about her nose.   ENT Surgeon diagnosed Ruth with a deviated nasal fracture and

recommended that she have a closed nasal reduction surgery.

      On August 11, 2010, Ruth went to Anonymous Hospital (“Hospital”) to have the

outpatient nasal surgery. The surgery lasted ten minutes, starting at 12:29 p.m. and

ending at 12:39 p.m.      Anonymous Physician II (“Anesthesiologist”) stopped Ruth’s

anesthesia at 12:47 p.m. The surgery was completed without any major complications.

      After the surgery, Ruth was taken to the hospital’s recovery room or post

anesthesia care unit (“PACU”). While in the PACU, Ruth had individual nursing care

from a nurse (“PACU Nurse”) and was under the general care of Anesthesiologist, who

was charged with taking care of issues with Ruth’s heart, lungs, blood pressure, and

recovery from sedation.

      Upon arriving in the PACU, Ruth had a lowered level of oxygen saturation. Later,

her blood pressure began to lower, and she complained to PACU Nurse of chest pain.

Anesthesiologist ordered an EKG, which showed a “normal rhythmic beat” and did not



                                           3
show any sign of “ischemia.” (App. 130).3 Ruth’s blood pressure remained low, and

Anesthesiologist ordered the administration of increased fluids and ephedrine to help

increase her blood pressure. Due to Ruth’s continued low oxygen saturation levels,

Anesthesiologist also gave an order for Ruth, who had a history of asthma, to have an

albuterol breathing treatment.

        Ruth’s condition did not substantially improve. Around 2:20 p.m., PACU Nurse

updated ENT Surgeon, who was the attending physician, about Ruth’s condition. ENT

Surgeon told PACU Nurse that he would have a hospitalist see Ruth. Thereafter, ENT

Surgeon spoke by phone with Hospitalist, who was the on-call hospitalist. ENT Surgeon

told Hospitalist that he had a patient who had had a closed nasal reduction surgery and

was having low oxygen saturations, and he asked Hospitalist to see Ruth in the PACU.

        Hospitalist was a hospitalist physician and employed by Medical Corporation,

which is a hospitalist group.            Hospitalist and his hospitalist group do not have a

traditional office; instead, the hospital is their practice site. Hospitalist’s hospitalist group

provided hospitalist care to only those hospital patients whose primary care physician or

family doctor had previously agreed to let the hospitalist group care for the family

doctor’s patients while these patients were in the hospital. In other words, once a family



3
  Ischemia is a “deficient supply of blood to a body part (as the heart or brain) that is due to obstruction of
the inflow of arterial blood (as by the narrowing of arteries by spasm or disease).” MedlinePlus Medical
Dictionary, http://www.merriam-webster.com/medlineplus/ischemia (last visited June 30, 2014). See also
WebMD Dictionary, http://www.webmd.com/a-to-z-guides/ischemia-topic-overview (last visited June 30,
2014) (“Ischemia is the medical term for what happens when your heart muscle doesn’t get enough
oxygen. Ischemia usually happens because of a shortage of blood and oxygen to the heart muscle.”).



                                                      4
doctor agreed to pass or defer the hospital care of his/her patients to the hospitalist

program, the family doctor would defer hospital care of all his/her patients to the

hospitalist group and would no longer go to the hospital to see his or her patients while

they were in the hospital. At the time of Ruth’s surgery, Ruth’s primary care physician,

Anonymous Physician III (“Family Doctor”), had not deferred hospital care of his

patients, including Ruth, to the hospitalist group.

       At 2:35 p.m., Hospitalist went into the PACU. Once he checked Ruth’s chart and

saw that her Family Doctor had not authorized the hospitalist group to treat the Family

Doctor’s patients, he told Ruth that he could not treat her because she was not a

hospitalist patient. The PACU Nurse’s notes indicate:

       NOTES: [Hospitalist] AT BEDSIDE TO SEE PT UPON QUESTIONING
       PT [Hospitalist] STATES HE CAN NOT SEE PT R/T [related to]
       PRIMARY DR NOT CONTRACTING WITH HOSPITALISTS. Paged
       [ENT Surgeon] AND HE RETURNED PAGE UPDATED ON
       CONDITION, AND HOSPITALIST UNABLE TO TREAT PT

(App. 241).4 Hospitalist did not examine or treat Ruth and did not submit a billing charge

for Ruth. Hospitalist then informed ENT Surgeon that he would not be able to see Ruth

“based on the protocol” because Ruth’s Family Doctor wanted to see his own patients at

the hospital and did not want the hospitalists to see them. (App. 56). Hospitalist told

ENT Surgeon that he would need to contact Family Doctor.

       ENT Surgeon then called Family Doctor, informed him that Ruth was having

some issues with oxygen saturation and blood pressure, and requested him to manage

4
 Both parties on appeal have each filed an appellate appendix. We will refer to Giles’s Appendix as
“App.” and Hospitalist’s Appendix as “Appellee’s App.” Additionally, we note that the content of
Giles’s Appendix did not fully comply with our appellate rules and direct Giles’s counsel to Indiana
Appellate Rule 50(A)(2).
                                                 5
these issues. Family Doctor, who was in his office, stated that he would go see Ruth after

seeing his office appointments.

       In the meantime, PACU Nurse updated Anesthesiologist on Ruth’s condition, and

he went to the PACU to check on her. At 3:30 p.m., Anesthesiologist told the PACU

Nurse that Ruth was ready to be admitted to the hospital when a bed was ready.

Anesthesiologist thought Ruth needed to be admitted based on her low blood pressure

and low oxygen saturation, but he apparently did not have admitting privileges.

       At 4:00 p.m., Family Doctor spoke with PACU Nurse and informed her that he

was not comfortable giving telephone orders. At 4:15 p.m., PACU Nurse called ENT

Surgeon and informed him of the situation with Family Doctor.           Thereafter, ENT

Surgeon called in an order for Ruth to be admitted to the hospital.

       Later that day, when Family Doctor went to the hospital to see Ruth, he transferred

her to the ICU. Ruth tested positive for influenza, and her condition deteriorated. Ruth

died on August 14, 2010. Ruth’s certificate of death indicates that her cause of death was

cardiopulmonary arrest due to respiratory failure and pneumonia.

       Approximately two years later, on July 27, 2012, Giles filed a proposed complaint

with the IDOI and contemporaneously filed a complaint in the Bartholomew Superior

Court. In both complaints, Giles generally alleged that the hospital, various doctors

(including Hospitalist), and these doctors’ corresponding medical corporations had,

“rendered care” to Ruth “and as such, . . . owed [her] a duty to render competent and

timely care[.]” (Appellee’s App. 14, 18). Giles’s two complaints also generally alleged

that the hospital, doctors, and medical corporations had “breached their duty and rendered

                                             6
medical treatment below the standard of care and, as such, were negligent” and that their

“negligence was the responsible cause of Ruth Giles[‘s] injuries, harms, damages, and

death[.]” (Appellee’s App. 14, 18).

       On August 22, 2012, Hospitalist and his Medical Corporation filed a motion for

summary judgment, seeking a preliminary determination of law on the issue of whether

Hospitalist owed a duty to Ruth. In the summary judgment motion, Hospitalist argued

that he did not owe a legal duty to Ruth because he did not treat her and did not have a

physician-patient relationship with her. As part of his designated evidence, Hospitalist

submitted an affidavit, in which he averred that he “did not participate in any course of

[Ruth’s] treatment[,]” had informed Ruth that he “could not treat her and would not

participate in her care[,]” and had “expressly declined” to enter a physician-patient

relationship with Ruth. (Appellee’s App. 26-27).      Hospitalist also submitted an affidavit

from his billing manager to show that he did not submit any billing charges related to

Ruth. Hospitalist argued that he was entitled to summary judgment because Ruth’s claim

against him was “barred under the clear precedent” of Miller v. Martig, 754 N.E.2d 41,

46 (Ind. Ct. App. 2001), which held that “[g]enerally, where a doctor does not treat, see,

or in any way participate in the care or diagnosis of the plaintiff-patient prior to or during

surgery, a doctor-patient relationship will not be found to exist.”

       On February 1, 2013, Giles responded to Hospitalist’s motion for summary

judgment. Giles did not dispute that Hospitalist did not treat Ruth. Instead, Giles argued

that the trial court should impose a duty on Hospitalist. Giles designated a portion of the

Hospital’s rules and regulations regarding medical consultations and argued that these

                                              7
rules required Hospitalist to provide a consult. Giles argued that Hospitalist had a duty to

treat Ruth because ENT Surgeon had requested a consultation. Giles also argued that the

Miller case, upon which Hospitalist relied, was distinguishable. Giles argued that Ruth’s

case involved the need to determine an issue that the Miller court did not decide,

specifically, the issue of when and if a physician-patient relationship could be established

for an on-call physician absent a contractual relationship between the physician and

patient.   Giles argued that Ruth had a physician-patient relationship as a result of

Hospitalist’s status as the on-call hospitalist. Giles also designated evidence that Family

Doctor had signed, in May 2008, a letter of authorization, in which Family Doctor

“agree[d] to assign to the hospitalist program the care of: Patients who present for

admission when [Family Doctor was] the responsible emergency department unassigned

call (ER backup) physician[,]” and Family Doctor authorized the “Hospital’s Emergency

Department staff to directly contact the hospitalist program for the patients identified

above.” (App. 39). However, on the date that Ruth had her surgery, Family Doctor was

not the emergency department unassigned call (ER backup) physician, and Ruth was not

an unassigned patient as she was a patient of Family Doctor.5

        Thereafter, Hospitalist filed a reply in support of his summary judgment motion

and supplemental designated evidence. Hospitalist argued that Giles had not shown a



5
  Giles also argued that the trial court should determine whether a duty could be found to exist under the
three factors in Webb v. Jarvis (relationship between the parties; reasonable foreseeability of harm; and
public policy concerns). See Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), reh’g denied. Giles argued that
the balancing of these three factors favored the imposition of a duty on Hospitalist despite a lack of a
physician-patient relationship.

                                                    8
genuine issue of material fact, and he asserted that the trial court should reject Giles’s

invitation to create a duty where none existed.6

        On March 22, 2013, the trial court issued the following order granting Hospitalist

and Medical Corporation’s motion for summary judgment:

               The court finds no genuine issue of fact exists as to whether a
        patient-physician relationship existed between [Hospitalist and Ruth]. The
        patient-physician relationship is a consensual one where the patient
        knowingly seeks the physician’s assistance and the physician knowingly
        accepts the potential physician [sic]. Indiana law has consistently required
        that the physician perform some type of affirmative action on the patient’s
        behalf before a patient-physician relationship has been established.
        [Hospitalist] made no such affirmative act on behalf of the decedent [Ruth].
        [Giles] has failed to provide any legal authority to suggest the doctor had a
        duty to act on behalf of someone not his patient. In the absence of a
        patient-physician relationship this [sic] is no liability on the part of the
        physician.

(Appellee’s App. 187). On May 14, 2013, the trial court entered final judgment pursuant

to Trial Rule 54(B). Giles now appeals.

                                                DECISION

        Giles argues that the trial court erred by granting Hospitalist’s motion for

summary judgment on Giles’s medical malpractice claim.

        When reviewing a trial court’s order granting summary judgment, we apply the

same standard as that used in the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930

(Ind. 2008). Summary judgment is appropriate only where the designated evidence


6
  Hospitalist also argued that Webb was not applicable to the facts of this case because the Indiana
Supreme Court had clarified that the application of the analysis in Webb was reserved for unique cases
where the issue of duty was not articulated under existing case law. Hospitalist asserted that Webb was
not relevant because that case involved a determination of whether a physician’s already established duty
to a patient could be extended to third party and not in a case such as this where first party liability was at
issue and where the applicable duty at issue was already articulated.
                                                      9
shows “that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). The moving party “bears

the initial burden of making a prima facie showing that there are no genuine issues of

material fact and that it is entitled to judgment as a matter of law.” Gill v. Evansville

Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). If the moving party meets this

burden, then the non-moving party must designate evidence demonstrating a genuine

issue of material fact. Id. “[A]n 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.” T.R.

56(E). When the defendant is the moving party, the defendant must show that the

undisputed facts negate at least one element of the plaintiff’s cause of action or that the

defendant has a factually unchallenged affirmative defense that bars the plaintiff’s claim.

Dible v. City of Lafayette, 713 N.E.2d 269, 272 (Ind. 1999). A trial court’s grant of

summary judgment is “‘clothed with a presumption of validity,’” and an appellant has the

burden of demonstrating that the grant of summary judgment was erroneous. Williams v.

Tharp, 914 N.E.2d 756, 762 (Ind. 2009) (quoting Rosi v. Bus. Furniture Corp., 615

N.E.2d 431, 434 (Ind. 1993)).

       Before addressing the parties’ arguments, we note that in a medical malpractice

action such as the one before us on appeal—where a medical review panel has yet to

issue a written opinion—a trial court has limited jurisdiction. Harper v. Hippensteel, 994

N.E.2d 1233, 1236 (Ind. Ct. App. 2013) (citing Dixon v. Siwy, 661 N.E.2d 600, 605 (Ind.

Ct. App. 1996)). “This limited jurisdiction includes the jurisdiction to rule upon issues

                                            10
not preserved for the medical review panel[] [that] can be preliminarily determined under

. . . a Trial Rule 56 motion for summary judgment.” Id. See also IND. CODE § 34-18-11-

1 (providing that a trial court may “preliminarily determine an affirmative defense or

issue of law or fact that may be preliminarily determined under the Indiana Rules of

Procedure” and that is not an issue reserved for written opinion by a medical review

panel). 7

        “Medical malpractice cases are no different from other kinds of negligence actions

regarding that which must be proven.” Bader v. Johnson, 732 N.E.2d 1212, 1216-17

(Ind. 2000). Specifically, a plaintiff in a medical malpractice action must prove: (1) duty

owed to the plaintiff by the defendant; (2) breach of duty by allowing conduct to fall

below the applicable standard of care; and (3) compensable injury proximately caused by

the defendant’s breach of duty. Id. at 1217. This case involves only the first element

relating to the existence of a duty; more specifically, this case involves the question of

whether Hospitalist owed a duty to Ruth. The question of whether a duty exists is a

question of law and appropriate for summary judgment. Harper, 994 N.E.2d at 1237.

See also Rhodes v. Wright, 805 N.E.2d 382, 386 (Ind. 2004) (“Generally, whether a duty

exists is a question of law for the court to decide.”). But see Kopczynski v. Barger, 887

N.E.2d 928, 931 (Ind. 2008) (“[T]he existence of a duty is ordinarily a question of law for

the court to decide, but it may turn on factual issues that must be resolved by the trier of



7
  “Issues preserved for the medical review panel include those pertaining to whether the defendant failed
to meet the requisite standard of care in treating the patient.” Harper, 994 N.E.2d at 1236 n.1 (citing
Dixon, 661 N.E.2d at 605).

                                                   11
fact.”). “Absent a duty there can be no negligence or liability based upon the breach.”

Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010).

       In a medical malpractice case, “[t]he duty of a physician to a patient arises from

the contractual relationship entered into between the two of them.” Walker v. Rinck, 604

N.E.2d 591, 594 (Ind. 1992) (citing Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991),

reh’g denied). We have previously discussed the interaction between issue of duty and

the physician-patient relationship as follows:

       Our supreme court has observed that the duty owed by a physician arises
       from the physician-patient relationship.          Thus, a physician-patient
       relationship is a legal prerequisite to a medical malpractice cause of action.
       See Dixon v. Siwy, 661 N.E.2d 600, 607 (Ind. Ct. App. 1996).
       Additionally, that duty arises from the contractual relationship entered into
       between the doctor and patient. Walker v. Rinck, 604 N.E.2d 591, 594 (Ind.
       1992). Generally, where a doctor does not treat, see, or in any way
       participate in the care or diagnosis of the plaintiff-patient prior to or during
       surgery, a doctor-patient relationship will not be found to exist. Dixon, 661
       N.E.2d at 607. As noted in Dixon, our research has revealed “no authority
       for the proposition that a physician-patient relationship may be established
       without the physician performing some affirmative act with regard to the
       patient and without the physician’s knowledge.” Id. In the absence of a
       physician-patient relationship, there can be no liability on the part of the
       defendant physician, and the entry of summary judgment is appropriate. Id.

Miller v. Martig, 754 N.E.2d 41, 46 (Ind. Ct. App. 2001). Thus, our caselaw is clear that

a physician who does not treat a patient or perform some affirmative act regarding the

patient has no physician-patient relationship and thus owes no duty to that patient. See

id. See also Harper, 994 N.E.2d at 1238; Dixon, 661 N.E.2d at 607.

       Here, Giles’s complaint alleged that Hospitalist “rendered care” to Ruth and that

he breached his duty of care when he “rendered medical treatment below the standard of

care[.]” (Appellee’s App. 18). However, it is undisputed that Hospitalist did not provide

                                             12
any treatment to Ruth and did not perform any affirmative act toward her.             When

Hospitalist moved for summary judgment, he designated evidence to show that he did not

treat Ruth and did not have a physician-patient relationship with her. In Hospitalist’s

affidavit, he explained that he was not able to see or treat Ruth as a patient because she

was a patient of Family Doctor and because her Family Doctor had not assigned

treatment of his patients to the hospitalist program. He also stated that once he saw that

Ruth was not a hospitalist program patient, he informed Ruth and ENT Surgeon of the

situation. In support of Hospitalist’s assertion that he did not examine or treat Ruth, he

submitted additional designated evidence to show that he did not submit a billing charge

for Ruth.

       Where—as here—it is clear that “a doctor does not treat, see, or in any way

participate in the care or diagnosis of the plaintiff-patient[,]” it is equally clear that “a

doctor-patient relationship will not be found to exist.” Miller, 754 N.E.2d at 46 (quoting

Dixon, 661 N.E.2d at 607). Because Hospitalist did not treat Ruth and did not perform

any affirmative act with regard to Ruth, there was no physician-patient relationship. See,

e.g., id.; Dixon, 661 N.E.2d at 607; Harper, 994 N.E.2d at 1238. Absent this physician-

patient relationship, Hospitalist owed no duty to Ruth. Accordingly, because Hospitalist

has negated the element of duty in Giles’s medical malpractice claim and because Giles

failed to show that there was a genuine issue of material fact, we affirm the trial court’s

grant of summary judgment to Hospitalist in this preliminary determination. See Mahan

v. Am. Standard Ins. Co., 862 N.E.2d 669, 676 (Ind. Ct. App. 2007) (“If the nonmovant



                                             13
fails to meet his burden, and the law is with the movant, summary judgment should be

granted.”), trans. denied.

        Affirmed.8

MATHIAS, J., and BRADFORD, J., concur.




8
   As an alternative to showing that there was a genuine issue of material fact regarding the existence of a
physician-patient relationship, Giles invokes public policy and out-of-state cases and seeks to have this
Court impose or create a duty for Hospitalist—even without the existence of a physician-patient
relationship—to have treated Ruth by virtue of the hospital rules and regulations. Giles asserts that
“[t]here are considerable public policy reasons for the Indiana Court of Appeals to recognize the
significant relationship between [Hospitalist] and [Ruth] as a matter of public policy.” (Giles’s Br. 18).
We, however, decline Giles’s invitation to create a duty for a physician based on public policy and absent
a physician-patient relationship. See Harper, 994 N.E.2d at 1242 (concluding that a physician’s
agreement entered into with a nurse practitioner to provide consultation to the nurse practitioner did not
create a physician-patient relationship with the nurse practitioner’s patients and that the physician could
only be found to have a physician-patient relationship and have acquired a duty for the nurse
practitioner’s patients if he performed an affirmative act with regard to such patients).
   Giles also argues for the first time that Hospitalist assumed a duty to Ruth. He did not raise this issue
below and cannot raise it now on appeal. See King v. Ebrens, 804 N.E.2d 821, 826 (Ind. Ct. App. 2004)
(“It is well settled that arguments not presented to the trial court on summary judgment are waived on
appeal.”).


                                                    14
