MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Feb 04 2019, 9:09 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen B. Caplin                                        TRI-STATE ORTHOPAEDIC
Stephen B. Caplin                                        SURGEONS
  Professional Corporation                               Margaret M. Christensen
Indianapolis, Indiana                                    Karl L. Mulvaney
                                                         Bingham Greenebaum Doll LLP
                                                         Indianapolis, Indiana
                                                         ATTORNEYS FOR APPELLEE
                                                         PROREHAB, P.C.
                                                         Allyson R. Breeden
                                                         L. Katherine Boren
                                                         Ziemer, Stayman, Weitzel &
                                                         Shoulders, LLP
                                                         Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffery L. Ireland,                                      February 4, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CT-1015
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
Tri-State Orthopaedic Surgeons                           The Honorable David D. Kiely,
and ProRehab, P.C.,                                      Judge
Appellees-Defendants                                     The Honorable Michael J. Cox,
                                                         Magistrate


Court of Appeals of Indiana | Memorandum Decision 18A-CT-1015 | February 4, 2019                  Page 1 of 6
                                                               Trial Court Cause No.
                                                               82C01-1510-CT-5429




      Vaidik, Chief Judge.



                                          Case Summary
[1]   Jeffery Ireland appeals the trial court’s grant of summary judgment in favor of

      Tri-State Orthopaedic Surgeons and ProRehab, P.C., in Ireland’s action for

      medical malpractice. We affirm.



                            Facts and Procedural History
[2]   In April 2014, a Tri-State doctor performed shoulder surgery on Ireland. Tri-

      State sent Ireland to ProRehab for post-surgery therapy. During a rehab visit

      on July 8, 2014, an athletic trainer used a machine called a “BTE” on Ireland.

      Ireland complained that there was too much tension, but the trainer did not

      stop the machine. Eventually, Ireland felt a “pop” in his shoulder. At another

      rehab visit on July 17, Ireland reported that his pain was “continuing to get

      better” and that he was “ready to get back to work,” Appellant’s App. Vol. III

      p. 99, but by early August his pain had gotten worse. A note from a follow-up

      appointment with Tri-State on August 7 includes this passage: “[Ireland]

      complains of acute onset of neck pain and stiffens [sic] over the last several

      days. Prior to that he had been having trouble with his shoulder still that

      seemed to happen while he had been working on the BTE machine.” Id. at 10.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1015 | February 4, 2019   Page 2 of 6
      It was decided that Ireland would have another surgery. On September 3, 2014,

      the Tri-State surgeon discovered and repaired “a longitudinal rent in the

      interval between the posterior portion of the supraspinatus tendon and the

      anterior portion of the infraspinatus tendon[.]” Id. at 8.


[3]   Ireland later filed a proposed medical-malpractice complaint against Tri-State

      and ProRehab with the Indiana Department of Insurance as well as a lawsuit

      against Tri-State and ProRehab in the Vanderburgh Circuit Court. A medical

      review panel was convened in the Department of Insurance matter, and it

      unanimously determined that (1) the evidence did not support the conclusion

      that either Tri-State or ProRehab “failed to comply with the appropriate

      standard of care” and (2) the conduct of Tri-State and ProRehab “was not a

      factor in causing the Plaintiff resultant damage.” Appellant’s App. Vol. II pp.

      46, 50.


[4]   Shortly after the panel issued its opinions (one for each defendant), Tri-State

      moved for summary judgment in the court case. Tri-State asserted that Ireland

      “has no expert testimony to overcome the opinion of the Medical Review

      Panel,” id. at 27, and cited the well-established principle that “when the medical

      review panel opines that the plaintiff has failed to make a prima facie case, the

      plaintiff must rebut the panel’s opinion with expert medical testimony in order

      to survive summary judgment,” id. at 26 (citing Oelling v. Rao, 593 N.E.2d 189,

      190 (Ind. 1992); Perry v. Driehorst, 808 N.E.2d 765, 769 (Ind. Ct. App. 2004),

      reh’g denied, trans. denied; and Marquis v. Battersby, 443 N.E.2d 1202, 1203 (Ind.



      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1015 | February 4, 2019   Page 3 of 6
      Ct. App. 1982)). ProRehab then filed its own motion for summary judgment

      on the same ground.


[5]   In his response to the defendants’ motions, Ireland did not dispute that he

      lacked expert evidence of his own to rebut the opinions of the medical review

      panel. Instead, he argued that this is not the type of case in which expert

      testimony is necessary. After a hearing on the motions, the trial court granted

      summary judgment for the defendants.


[6]   Ireland now appeals.



                                 Discussion and Decision
[7]   Ireland contends that the trial court erred by granting the defendants’ motions

      for summary judgment. We review such motions de novo, applying the same

      standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

      That is, “The judgment sought shall be rendered forthwith if 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).


[8]   On appeal, as in the trial court, Ireland acknowledges that he has no expert

      evidence to rebut the medical review panel’s opinions but asserts that “there is

      no requirement for expert testimony because of the common knowledge

      exception.” Appellant’s Reply Br. p. 15. He cites our decision in Malooley v.

      McIntyre, where we recognized that medical malpractice might be so obvious

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1015 | February 4, 2019   Page 4 of 6
       that no expert evidence is required. 597 N.E.2d 314, 318-19 (Ind. Ct. App.

       1992). Ireland maintains that there was obvious medical malpractice in this

       case.


[9]    Without even reaching the issue of whether Tri-State and/or ProRehab

       breached the applicable standard of care, we see two fatal problems regarding

       the issue of causation. First, Ireland repeatedly says that he was “injured,” but

       he never tells us what his alleged “injury” was. He states only that he felt a

       “pop” in his shoulder during a rehab visit. But a “pop” inside a shoulder is not

       obviously or necessarily an “injury.” It is a sound or a feeling that may or may

       not be associated with an injury. Second, to the extent that the “injury” Ireland

       relies on is the “longitudinal rent in the interval between the posterior portion of

       the supraspinatus tendon and the anterior portion of the infraspinatus tendon”

       that was discovered and repaired during the second surgery in September 2014,

       we agree with Tri-State that it is by no means obvious that that injury was

       caused by or even related to the “pop” Ireland felt in July 2014. See Tri-State’s

       Br. pp. 42-43. (Notably, Ireland offers no response to this argument by Tri-

       State in his reply brief.) Therefore, the “common knowledge” exception to the

       expert-evidence requirement does not apply in this case, and because Ireland

       did not present any expert evidence to rebut the medical review panel’s

       opinions, the trial court properly granted summary judgment in favor of the

       defendants.


[10]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1015 | February 4, 2019   Page 5 of 6
Riley, J., and Kirsch, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-1015 | February 4, 2019   Page 6 of 6
