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
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEES:

SWARAY E. CONTEH                                    ROBERT G. ZEIGLER
The Law Office of Swaray E. Conteth                 T. GRAHAM DYCUS
Indianapolis, Indiana                               Zeigler Cohen & Koch

                                                                               FILED
                                                    Indianapolis, Indiana

                                                                            Oct 04 2012, 9:25 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




JUSTINE MILLER,                                     )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )       No. 49A02-1201-CT-117
                                                    )
ANONYMOUS HEALTHCARE                                )
ORGANIZATION, DOE 1, DOE 2, DOE 3,                  )
DOE 4, and DOE 5,                                   )
                                                    )
       Appellees-Defendants.                        )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable John F. Hanley, Judge
                         The Honorable Christopher Haile, Magistrate
                              Cause No. 49D11-1101-CT-414




                                          October 4, 2012



                 MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge



                                 Case Summary and Issue

       Justine Miller appeals the trial court’s grant of summary judgment in favor of

Anonymous Healthcare Organization (“Healthcare”). On appeal, Miller raises two issues,

which we consolidate and restate as whether the trial court erred when it determined that no

genuine issues of material fact exist with respect to Miller’s claims. Concluding the trial

court did not err, we affirm.

                                Facts and Procedural History

       In September 2010, Miller accompanied her four-month-old daughter, K.M., to

Healthcare’s emergency department after Miller noticed that K.M. was having difficulty

breathing. The emergency physician record noted a clinical impression of dehydration,

bronchiolitis, and possible child endangerment and malnutrition.         K.M. was given

intravenous (“IV”) fluids, and labs were drawn. At some point, Miller became unsatisfied

with the care that K.M. was receiving, and decided that she wanted to remove K.M. from the

hospital.   The hospital records indicate that Miller was told by the doctor that he

recommended admitting K.M. based on her physical condition and did not advise that K.M.

leave the hospital.

       A longer note in the medical record demonstrates that following the exchange with the

doctor, a nurse went in to talk to Miller about Miller leaving with K.M. against medical

advice. Miller was troubled that K.M. was only receiving IV fluids when breathing problems

were the reason that K.M. was brought in. The nurse explained that K.M. had received a

                                             2
breathing treatment and that the oxygen levels in her blood were normal, but that blood work

and analysis of her urine showed that K.M. was dehydrated and needed to be kept for further

testing and observation, as well as to continue receiving IV fluids. Miller apparently became

irate and yelled that she wanted to take K.M. home so that she could be taken to her

pediatrician in the morning, and was angry that the doctor had not explained the lab work.

The nurse offered to have the doctor come back in to explain the labs, but Miller refused.

The nurse then explained that if she stayed in the hospital K.M. would be admitted to the

pediatrics department, where she would be followed by a different doctor and that doctor

could also explain the lab work to Miller.

       At that point Miller said that she wanted to call for a ride home so that she could take

K.M. to Riley Children’s Hospital. The nurse offered to make arrangements for the hospital

to transfer K.M. to Riley, but Miller refused. The nurse further explained that K.M. would

need to be transported by the hospital rather than by Miller herself, so that K.M. could

continue to receive IV fluids and could be monitored, and, if necessary, treated en route to

Riley. Miller again refused. At that point, the nurse explained to Miller that if Miller

decided to remove K.M. from the hospital against medical advice, the nurse would have to

call Child Protective Services (“CPS”) because K.M. was too sick to go home. Miller was

further upset by this, and the record shows that shortly after this conversation, CPS was

called. Miller filed suit against Healthcare, alleging multiple counts including slander and

infliction of emotional distress. Healthcare moved for summary judgment, which the trial

court granted. Additional facts will be supplied as necessary.



                                              3
                                  Discussion and Decision

                                   I. Standard of Review

       Under Indiana’s summary judgment standard, the party seeking summary judgment

must demonstrate the absence of any genuine issue of material fact, and only then is the non-

movant required to come forward with countervailing evidence. Jarboe v. Landmark Cmty.

Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994). This is in contrast to the federal

rule, which requires only that the moving party inform the court of the basis of the motion

and identify portions of the record “which it believes demonstrate the absence of a genuine

issue of material fact.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The

burden then shifts to the non-moving party to provide sufficient evidence to establish the

existence of each challenged element upon which the non-movant has the burden of proof.

Id. Indiana does not adhere to Celotex and the federal methodology. Id.

       In determining the propriety of summary judgment, we apply the same standard as the

trial court. Barnard v. Saturn Corp., a Div. of Gen. Motors Corp., 790 N.E.2d 1023, 1027

(Ind. Ct. App. 2003), trans. denied. Summary judgment is proper when there are no genuine

issues of material fact and the moving party is entitled to judgment as a matter of law. Id.;

see also Ind. Trial Rule 56(C). The purpose of summary judgment is to terminate litigation

about which there can be no material factual dispute and which can be resolved as a matter of

law. Id. A trial court’s grant of summary judgment is presumed to be valid, and the losing

party has the burden of demonstrating that the grant of summary judgment was erroneous.

Id. On appeal, we do not reweigh the evidence, but we liberally construe all designated



                                              4
evidentiary material in the light most favorable to the nonmoving party to determine whether

there is a genuine issue of material fact for trial. Id. at 1028.

                                  II. Summary Judgment Motion

        Healthcare contends, and we agree, that Healthcare’s call to CPS appears to underlie

all of Miller’s claims.1 Indiana law requires individuals who believe that a child is the victim

of abuse or neglect to report that abuse or neglect. Ind. Code § 31-33-5-1. The law further

provides immunity from civil or criminal liability to anyone who makes a report, unless the

report is made maliciously or in bad faith. Ind. Code §§ 31-33-6-1 and -2. The question here

then is whether there is any indication that Healthcare reported Miller to CPS either

maliciously or in bad faith.

        In its motion for summary judgment, Healthcare designated evidence that included its

medical records for K.M. Beyond an initial note by the emergency doctor that there might be

some concerns about K.M. that would warrant a call to CPS, the records also provide a

flowsheet of K.M.’s care. The flowsheet includes a rather lengthy note from a nurse,

detailing a conversation she had with Miller leading up to the call to CPS. The note

evidences a back-and-forth conversation between Miller and the nurse, with Miller wanting

to leave, and the nurse explaining to Miller why that would be dangerous for K.M., and

suggesting alternatives that could address Miller’s concerns, such as speaking to other

doctors or having K.M. transferred to Riley Children’s Hospital. The nurse explained to

Miller that if Miller decided to remove K.M. against medical advice, the nurse would have to


        1
           We also agree that, despite pending review before a medical review panel, the trial court had
jurisdiction to rule on a motion for summary judgment, as an issue of law, under Indiana Code section 34-

                                                    5
call CPS. The note expressly mentions that the nurse explained to Miller that she was not

trying to intimidate Miller, but rather wanted to be up-front and to let Miller know that the

situation was serious enough to warrant a call to CPS if Miller decided to remove K.M.

Unable to satisfy Miller, the nurse then called CPS.

          In her response to Healthcare’s motion for summary judgment, Miller does not rebut

Healthcare’s evidence or designate any evidence of her own that would lead one to question

Healthcare’s report to CPS.2 In reviewing the designated evidence, there is an absence of any

genuine issue of material fact; specifically, we are not left to question whether Healthcare

reported Miller to CPS for improper reasons. It appears that Healthcare did not call CPS

until Miller turned down all of the alternatives that were provided to her, and Healthcare felt

that K.M. would be endangered if Miller removed her from the hospital against medical

advice.

                                               Conclusion

          The designated evidence provided by Healthcare demonstrates an absence of any

genuine issue of material fact, and Miller did not designate any evidence that counters that

determination or leads to an inference of bad faith or maliciousness on the part of Healthcare.

Concluding that the trial court did not err in granting summary judgment to Healthcare, we

affirm.



18-11-1.

          Miller’s original complaint, which was also designated as evidence by Healthcare, implies that
          2

Miller was not offered to have K.M. transferred to Riley until after CPS had already been called.
However, we find this to be immaterial because even if that were so, there is still no evidence indicating
that Healthcare called CPS maliciously or in bad faith.

                                                     6
     Affirmed.

BAKER, J., and BRADFORD, J., concur.




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