ATTORNEYS FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
John Morris                                                  HENDRICKS REGIONAL
Stan Brown                                                   HEALTH
Morris Law Firm                                              Ronald A. Mingus
Lafayette, Indiana
                                                                                                 FILED
                                                             Nicholas G. Brunette
                                                                                             Feb 21 2019, 5:26 am
                                                             Katherine M. Haire
                                                             Reminger Co., LPA                   CLERK
                                                                                             Indiana Supreme Court
                                                             Indianapolis, Indiana              Court of Appeals
                                                                                                  and Tax Court



                                                             ATTORNEY FOR APPELLEE
                                                             IAN JOHNSTON, M.D.
                                                             James W. Brauer
                                                             Katz Korin Cunningham PC
                                                             Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Marigold Overshiner and Earl                                 February 21, 2019
Overshiner, Individually and as                              Court of Appeals Case No.
Parents and Guardians of their                               18A-CT-582
Minor Daughter, Kaitlyn                                      Appeal from the Putnam Circuit
Overshiner, and Kaitlyn                                      Court
Overshiner,                                                  The Honorable Matthew L.
Appellants-Plaintiffs,                                       Headley, Judge
                                                             Trial Court Cause No.
        v.                                                   67C01-0610-CT-321

Hendricks Regional Health and
Ian Johnston, M.D.,
Appellees-Defendants.




Brown, Judge.

Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019                     Page 1 of 18
[1]   Marigold Overshiner and Earl Overshiner, Individually and as Parents and

      Guardians of their Minor Daughter, Kaitlyn Overshiner, and Kaitlyn Overshiner

      (collectively, the “Overshiners”) appeal the trial court’s directed verdict in favor

      of Hendricks Regional Health (“Hendricks Regional”) and Ian Johnston, M.D.

      (“Dr. Johnston” and together with Hendricks Regional, “Providers”). We

      affirm. 1


                                        Facts and Procedural History

[2]   On September 27, 2006, the Overshiners filed a complaint for damages against

      Providers and other defendants in the Putnam Circuit Court, after having filed a

      proposed complaint with the Indiana Department of Insurance pursuant to the

      Indiana Medical Malpractice Act. The medical review panel, consisting of a

      board-certified pediatrician, a board-certified obstetrician-gynecologist, and a

      neonatologist, unanimously decided that Providers and other defendants did not

      breach the standard of care or cause the claimed injuries. The complaint alleged

      that Marigold presented in active labor on October 26, 2004, at Hendricks

      Regional Hospital in Danville, Indiana, that “Marigold was admitted to the

      hospital under the care, treatment and supervision of [Dr. Johnston],” and that

      Dr. Johnston “was Marigold’s obstetrician during this pregnancy, beginning on

      or about March 11, 2004” and “[k]new that Marigold was blood type O negative

      and anti-D positive” early on in her pregnancy and prior to October 26, 2004.




      1
       We heard oral argument in this case on January 23, 2019, in Indianapolis, and thank counsel for their oral
      advocacy and written presentations in this matter.

      Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019                            Page 2 of 18
      Appellee Hendricks Regional’s Appendix Volume II at 5. It stated that, within

      the first twenty-four hours following her birth the night of October 26, 2004,

      Kaitlyn’s cord blood indicated that she was RH positive, which was indicative of

      hemolytic disease of the newborn; that on the morning of October 27, 2004, 2

      Kaitlyn’s newborn Total Serum Bilirubin (“TSB”) was 9.2; and that she

      developed jaundice and was treated with phototherapy on the same day. The

      complaint further alleged that Kaitlyn’s risk factors for severe neonatal

      hyperbilirubinemia were present prior to, during, and after her birth, and that she

      suffered hyperbilirubinemia and other medical conditions and physical injuries,

      including, but not limited to, blindness.


[3]   On November 27, 2017, an eight-day jury trial commenced. On November 30,

      2017, the Overshiners began four days of testimony by Dr. Robert Shuman, a

      retired neuropathologist who currently provides “mostly medical-legal

      consultations.” 3 Transcript Volume II at 39. He testified that he decided to be a

      pediatric neuropathologist and “wanted to be a person who looked at the brains

      of children we lost and reason, or figure out, or explore, or determine why we

      lost those children” in medical school. Id. at 10. He indicated that, when he

      started his pediatric neuropathology training, he “changed from the bedside to




      2
       The complaint states that Kaitlyn was born on October 26, 2004, but then alleges events involving her
      “newborn” Total Serum Bilirubin to have occurred in October 2006. Appellee Hendricks Regional’s
      Appendix Volume II at 5. This appears to be a scrivener’s error.
      3
       When prompted, Dr. Shuman testified that all of the charges in this case to date for his services as an expert
      witness for the Overshiners amounted to $120,900.

      Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019                               Page 3 of 18
      the autopsy room” and from 1971 to 1975 autopsied “4,300 brains, of which

      1,500 were infants and children.” Id. at 13-14. He testified he did not engage in

      direct patient practice from the period of 1970 through 1975 “when we still had

      Rh disease.” Id. at 15.


[4]   Dr. Shuman stated that he has a board certification in neuropathology and that

      he was “board-certified in neurology with special competence in neurology.” Id.

      at 30. He later indicated he was not, nor eligible to be, a member of the

      American Academy of Pediatrics and that he was “not an active member but . . .

      retired” from the American Academy of Neurology. Supplemental Transcript

      Volume II at 103. He testified that he had been licensed to practice medicine

      “[s]ince 1990, or 1991” and, from 1991 until 2014, was in South Bend, Indiana,

      where he “practiced child neurology, founding a . . . clinical practice of child

      neurology . . . which [he] then maintained until [his] retirement in 2006,” 4 and

      he later testified that upon retiring he moved to California. Transcript Volume II

      at 4, 26.


[5]   At a later point during cross-examination, Dr. Shuman answered affirmatively

      when he was asked “we’ve already gone over that you’re not a pediatrician and

      not an obstetrician, correct[?]” Supplemental Transcript Volume II at 130. He




      4
        Dr. Shuman later stated that, at his clinic, he developed a close relationship with his pediatricians, who he
      “trained for a number of emergency situations, and . . . when to call” him. Transcript Volume II at 38. He
      explained further that he “could even go out of town for a week every six months, and if they were in trouble,
      they called me, and the mothers would call me, and I’d be able to take care of the issue over the telephone, or
      tell them where to go, when to go, where to go, very important.” Id.

      Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019                              Page 4 of 18
      answered affirmatively when he was asked whether the guidelines of the

      American Academy of Neurology provided “[i]f a medical expert is not in active

      clinical practice when offering an expert opinion,” the expert “should be

      prepared to demonstrate competence to provide such an opinion,” and that

      evidence of competence may include “active clinical practice,” “relevant

      publications in medical or scientific journals,” and “active teaching or

      supervision of medical students, residents, or fellows in an area relevant to the

      expertise opinion . . . .” Id. at 104. Dr. Shuman agreed that he did not meet the

      American Academy of Neurology’s guidelines for testifying because he was not

      in active clinical practice, did not teach, and had no publications “since you

      returned.” Id. at 104-105. He also indicated that he had never been involved in

      the handover between the obstetrician and the pediatrician after a child is born,

      “[e]xcept in [his] training as a pediatrician,” which he subsequently admitted he

      did not complete. Id. at 130.


[6]   When counsel for the Overshiners moved to submit Dr. Shuman “as qualified to

      be an expert,” the following exchange occurred:


              THE COURT: Any statement from the defense? I thought we –

              [Counsel for Hendricks Regional]: Your Honor, I’m sorry. Don’t
              we have a motion in limine already –

              THE COURT: Right.

              [Counsel for Hendricks Regional]: – that the Court has already
              addressed.

              THE COURT: Right. Ladies and gentlemen, we’ll show that the
              doctor – it [sic] obviously is a doctor. You’ll hear from a lot of
      Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019       Page 5 of 18
              doctors here the next few days, okay? And we’ve already heard
              what his areas of his practice were in.


      Transcript Volume II at 40.


[7]   Dr. Shuman indicated that he “really [thought] that there’s a tremendous

      amount of variability” to dealing with Rh disease with respect to the standards of

      practice. Id. at 114. In comparing himself to a typical practitioner, he testified:


              I am less aggressive than neonatologists. I am as aggressive as
              those whom I consider to be very good pediatricians. I am much
              more aggressive than many pediatricians. And then, I qualify that
              by telling you that I’ve only known good pediatricians.

              I’m terribly proactive. Aggressive has a bad connotation. I’m
              terribly proactive in my practice of pediatric neurology. I would
              rather prevent seizures than treat seizures.


      Id. at 114. In explaining the standard of care when dealing with an Rh baby, he

      stated that “from the moment of first visit to the obstetrician, the obstetrician’s

      standard of care is one of hypervigilance and diligence.” Id. at 201.


[8]   He indicated that the obstetrician must consult a fellow physician in hematology

      to ensure coverage on the anti-Rh antibody and its course, that “you really have

      to recruit a fetal and maternal medicine person,” and that “you’re going to need

      sophisticated nursing care.” Id. at 202. When asked to address the care

      provided by Dr. Johnston, Dr. Shuman testified in part that there was no

      evidence that a pediatric team was contacted or formed and that Kaitlyn was

      delivered into a hospital “where the blood bank was not prepared, where the


      Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019        Page 6 of 18
      pediatric staff were not informed, a team had not been made, and the resources

      were not available to take care of her in crisis.” Id. at 212. At a later point,

      during cross-examination, Dr. Shuman acknowledged that Dr. Johnston had

      recommended to Marigold that a high-risk specialist should be brought on

      board, and that she had refused, which Dr. Shuman characterized as “wrong-

      headed”; that Marigold should have accepted Dr. Johnston’s advice; that Dr.

      Johnston’s recommendation to involve a high-risk specialist was “the start of

      putting together a team”; and that a high-risk specialist could be a maternal fetal

      specialist or a neonatologist or both. Supplemental Transcript Volume II at 150.


[9]   Concerning the nursing staff’s performance following Kaitlyn’s birth, Dr.

      Shuman stated in part:


              I certainly object to the nurses’ lack of education[ 5] about the
              treatment of hyperbilirubinemia and the influence of breastfeeding
              on hyperbilirubinemia in the neonate and blaming mother for
              being a bad mother because she refused to breastfeed. That
              certainly falls below my standard of nursing care.

      Id. at 146. He testified that the normal newborn nursing staff behaved


              as casually about this normal newborn delivery which is not of
              course a normal newborn delivery, but instead a high risk . . . a
              delivery of a high risk infant with hemolytic disease of the
              newborn. And off she goes to the nursery without any warning




      5
       During cross-examination, Dr. Shuman testified that he had not met any of the Hendricks County nurses or
      been to Hendricks County Hospital.

      Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019                         Page 7 of 18
               signs posted – without any communication given to tighten
               observation.

               In fact, she really should not have gone to the normal newborn
               nursery. She really should have gone to the special care nursery
               where the observation could be closer and perhaps where the
               pediatric nurses are more pediatrically oriented and more
               experienced.


       Transcript Volume II at 212. When counsel for the Overshiners stated, “in your

       opinion, you know, we have here a child in the 21st century who is suffering –

       who was suffering from Rh disease, and now has been diagnosed with

       kernicterus, kernicteric CP” and asked “[s]hould this have happened,” Dr.

       Shuman answered in the negative and testified that: “This is a disease which is

       preventable by diligent attention to the bilirubin levels”; that there is no

       acceptable reason for bilirubin to approach the probability of kernicterus and

       “[i]f it does, it’s a violation of the standard of care, because the levels are

       available”; that “if it does, you’ve failed in preventing a preventable injury”; and

       “it’s an event that shouldn’t have happened. It’s an error that shouldn’t have

       happened. It’s a violation of the standard of care.” Transcript Volume III at 25-

       26.


[10]   On December 5, 2017, the following exchange occurred between Dr. Shuman

       and counsel for Dr. Johnston:


               [Counsel for Dr. Johnston]: As a pediatric neurologist, would you
               have treated [Marigold’s] pregnancy with Kaitlyn?

               [Dr. Shuman]: As a pediatric neurologist or as a – if I were an
               obstetrician or a neonatologist?
       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019         Page 8 of 18
               [Counsel for Dr. Johnston]: No. I’m saying, as in your specialty,
               would you be the right person to treat [Marigold’s] pregnancy?

               [Dr. Shuman]: Absolutely not.


       Supplemental Transcript Volume II at 151.


[11]   The Overshiners rested their case, and counsel for Hendricks Regional moved

       for a directed verdict with respect to the claims against it, arguing in part that Dr.

       Shuman did not articulate at any time that he was familiar with the standard of

       care “for the care and treatment of a board certified pediatrician,” the standard

       of care “for a hospital; specifically, . . . relevant to a community hospital

       setting,” or “the nursing standard of care required in 2004,” which “would give

       this Court the ability to allow the jury to decide the issue of whether or not it can

       believe the things that Dr. Shuman has to say.” Transcript Volume III at 73. He

       further argued that Dr. Shuman explained the standard of care “but . . . never

       told us that he’s familiar with the standard of care. Importantly, the standard of

       care is not what Dr. Shuman thinks it is.” Id. He explained that Dr. Shuman


               has been putting a different standard of care in this case. That
               being said, things such as, “I’m over-vigilant” or “hypervigilant,”
               which he testified to – that this is his standard of care. Dr.
               Shuman doesn’t get to sit around his pool in California, not
               practicing medicine, and get to tell this Court or your residents of
               Putnam County what the standard of care is.

               There is a standard in Indiana that requires him to come in here
               and demonstrate that he has an accurate understanding of what
               that standard of care is. That question was never asked by
               [counsel for the Overshiners]. It’s a fundamental flaw . . . .


       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019       Page 9 of 18
       Id. at 74. Dr. Johnston’s counsel integrated Hendricks Regional’s arguments

       into its own, and stated “I feel that it’s well established in the State of Indiana

       that a testifying expert for the plaintiff must . . . set forth a familiarity with the

       standard of care” in the same or similar circumstance, and argued that:


               what’s really instructive in this case is the failure to solicit from
               [Dr. Shuman] testimony that he was familiar with the standard of
               care. And the reason why I’m convinced that the plaintiffs have
               known about this is because [Dr. Shuman’s] affidavit that was
               used to defeat the summary judgment motions filed by the
               defendants after the 3-0 panel opinion . . . started with the first
               paragraph stating, I am familiar with the standard of care
               applicable to obstetricians and pediatricians. . . .

               [T]hat affidavit was never made evidence in this trial. He had to
               give that testimony from the stand and he did not.

       Id. at 77-79. After additional discussion, counsel for the Overshiners requested

       an opportunity to prepare a brief on the law, which the court granted.


[12]   On December 6, 2017, the court indicated that the standard of care in Indiana

       “was never described” by Dr. Shuman, who “said what he would have done.”

       Id. at 93. After some discussion, the court dismissed the jury. On December 13,

       2017, the court issued an order which granted Providers’ motion, directed a

       verdict in favor of Providers, and stated in part:


               [The parties’ cited] cases stand for the proposition that an expert
               must know what the standard of care is, and at least in McIntosh
               [v. Cummins, 759 N.E.2d 1180 (Ind. Ct. App. 2011), trans. denied,]
               that she/he is familiar with that standard.



       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019         Page 10 of 18
               [Dr. Shuman] was critical of the OB/GYN care, the Pediatrician’s
               care and the nurse[s’] care. However, at no time did he tell the
               jury what the applicable standard of care was. Court finds that
               Plaintiff [sic] cannot expect a jury to know what the applicable
               standard of care is. In a medical malpractice case, that is exactly
               why an expert is required – to tell the jury what the standard of
               care is and how the standard was breached. The jury cannot
               speculate what the standard is. The Court cannot instruct when
               evidence was not produced.

               The Plaintiff [sic] cannot just tell the jury what her/his
               procedure/standards are – the standard must be, at least, told to the
               jury by the Plaintiff. And the only person able to do that in this trial
               was Dr. Shuman. As the Court foud [sic], he did not do so.

       Appellants’ Appendix Volume II at 49-50. The Overshiners filed a motion to

       correct error, which the court denied.


                                                      Discussion

[13]   The issue is whether the trial court erred or abused its discretion in granting a

       directed verdict in favor of Providers and denying the Overshiners’ motion to

       correct error. The Overshiners contend that “[t]here is no requirement for a

       medical expert to testify he is familiar with the standard of care” and that,

       instead, if the expert does so testify, that statement provides a safe harbor against

       a challenge of unfamiliarity. Appellant’s Brief at 22. The Overshiners further

       argue that Dr. Shuman testified multiple times to what the standard of care was,

       that it was violated, and that Kaitlyn was damaged as a result. They contend

       that he testified very specifically to what the proper treatment for a child in

       Kaitlyn’s situation was, what the treatments actually given were, and what the



       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019        Page 11 of 18
       consequences of those treatments were; and that he thus illustrated on a practical

       basis what the standard of care meant when applied to Kaitlyn’s situation.


[14]   Hendricks Regional maintains that, in his four days of testimony, Dr. Shuman

       testified “regarding his personal preferences and how he believed that Katilyn

       should have received different treatment,” which “does not equate to evidence

       that he was familiar with the standard of care, as to what the standard of care

       was, or that the standard of care was breached,” and argues that he did not

       articulate what the standard of care actually required of it and its staff or how the

       standard of care was breached. Appellee Hendricks Regional’s Brief at 19. Dr.

       Johnston contends in part that Dr. Shuman’s training and experience in pediatric

       neurology and neuropathology did not qualify him to offer opinions in the

       specialty of obstetrics; that Dr. Shuman admitted he had no practice experience,

       training, or education in obstetrics; and that an expert must show a level of

       competence in a specialty that is not his or her own specialty to offer opinions in

       that specialty, i.e., Dr. Shuman was to “provide the jury with testimony . . . that

       he had sufficient skill and experience in the specialty of obstetrics before he could

       support his criticisms” of Dr. Johnston’s care. Appellee Dr. Johnston’s Brief at

       14.


[15]   Ind. Trial Rule 50 provides that a motion for judgment on the evidence shall be

       granted “[w]here all or some of the issues in a case tried before a jury . . . are not

       supported by sufficient evidence or a verdict thereon is clearly erroneous as

       contrary to the evidence because the evidence is insufficient to support it . . . .”

       Ind. Trial Rule 50(A). The purpose of a Trial Rule 50(A) motion for judgment

       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019       Page 12 of 18
       on the evidence is to test the sufficiency of the evidence presented by the non-

       movant. Stewart v. Alunday, 53 N.E.3d 562, 568 (Ind. Ct. App. 2016) (citing

       Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 839 (Ind. 2012)). The grant or denial

       of a motion for judgment on the evidence is within the broad discretion of the

       trial court and will be reversed only for an abuse of that discretion. Hill v.

       Rhinehart, 45 N.E.3d 427, 435 (Ind. Ct. App. 2015) (citing Levee v. Beeching, 729

       N.E.2d 215, 223 (Ind. Ct. App. 2000)), trans. denied. Upon appellate review of a

       trial court’s ruling on such a motion, the reviewing court must consider only the

       evidence and reasonable inferences most favorable to the nonmoving party.

       Belork v. Latimer, 54 N.E.3d 388, 394-395 (Ind. Ct. App. 2016). A motion for

       judgment on the evidence should be granted “only when there is a complete

       failure of proof because there is no substantial evidence or reasonable inference

       supporting an essential element of the claim.” Stewart, 53 N.E.3d at 568

       (quoting Raess v. Doescher, 883 N.E.2d 790, 793 (Ind. 2008) (quotation omitted),

       reh’g denied). Likewise, judgment on the evidence is proper if the inference

       intended to be proven by the evidence cannot logically be drawn from the

       proffered evidence without undue speculation. Hill, 45 N.E.3d at 435 (citing

       Levee, 729 N.E.2d at 223. Also, we review rulings on motions to correct error for

       an abuse of discretion. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265,

       1270 (Ind. 2008), reh’g denied.


[16]   In general, “[t]o prevail in a medical malpractice action, the plaintiff

       must prove three elements: ‘(1) a duty on the part of the defendant in relation to

       the plaintiff; (2) failure to conform his conduct to the requisite standard of care

       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019       Page 13 of 18
       required by the relationship; and (3) an injury to the plaintiff resulting from that

       failure.’” Whitfield v. Wren, 14 N.E.3d 792, 797 (Ind. Ct. App. 2014) (quoting

       Blaker v. Young, 911 N.E.2d 648, 651 (Ind. Ct. App. 2009) (quoting Oelling v.

       Rao, 593 N.E.2d 189, 190 (Ind. 1992)), reh’g denied, trans. denied). “Physicians are

       not held to a duty of perfect care.” Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct.

       App. 2005) (citing Slease v. Hughbanks, 684 N.E.2d 496, 498 (Ind. Ct. App. 1997)).

       Rather, health care providers in malpractice cases must exercise that degree of

       care, skill, and proficiency exercised by reasonably careful, skillful, and prudent

       practitioners in the same class acting under the same or similar circumstances. See

       Dughaish ex rel. Dughaish v. Cobb, 729 N.E.2d 159, 164 (Ind. Ct. App. 2000) (citing

       Vergara v. Doan, 593 N.E.2d 185, 187 (Ind. 1992)), trans. denied. See also Thomson v.

       Saint Joseph Reg’l Med. Ctr., 26 N.E.3d 89, 93 (Ind. Ct. App. 2015) (observing that

       “[h]ealth care providers must ‘possess and exercise that degree of skill and care

       ordinarily possessed and exercised by a reasonably careful, skillful, and prudent

       practitioner in the same class to which [they] belong [ ] treating such maladies

       under the same or similar circumstances.’”) (quoting Vogler v. Dominguez, 624

       N.E.2d 56, 59 (Ind. Ct. App. 1993), reh’g denied, trans. denied).


[17]   Unless satisfied by the rule of res ipsa loquitur, a medical malpractice plaintiff is

       ordinarily required to present expert opinion that a defendant health care

       provider’s conduct fell below the applicable standard of care. Chi Yun Ho v. Frye,

       880 N.E.2d 1192, 1201 (Ind. 2008) (citing Perry, 808 N.E.2d at 768). “This is

       generally so because the technical and complicated nature of medical treatment

       makes it impossible for a trier of fact to apply the standard of care without the

       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019        Page 14 of 18
       benefit of expert opinion on the ultimate question of breach of duty.” Bader v.

       Johnson, 732 N.E.2d 1212, 1217-1218 (Ind. 2000). “Medical negligence is thus

       not generally a conclusion that may be reached by a jury without such an expert

       opinion among the evidence presented.” Chi Yun Ho, 880 N.E.2d at 1201. Such

       expert opinion takes on the character of an evidentiary fact in medical

       malpractice cases. Id.


[18]   In a medical malpractice claim, a medical review panel initially determines

       whether the defendant has met the applicable standard of care. See Thomson, 26

       N.E.3d at 93 (citing Ind. Code § 34-18-8-4). Here it does not appear that the

       report of the medical review panel was admitted as evidence. See Ind. Code §

       34-18-10-23 (providing that a “report of the expert opinion reached by the

       medical review panel is admissible as evidence in any action subsequently

       brought by the claimant in a court of law”). To the extent that the medical

       review panel report unanimously found that Providers did not breach the

       standard of care or cause the injuries being claimed, we find cases involving the

       summary judgment context instructive on this point and observe that in that

       context, this Court has found “[w]hen a medical review panel renders an opinion

       in favor of the physician, the plaintiff must come forward with expert medical

       testimony to rebut the panel’s opinion,” Robertson v. Bond, 779 N.E.2d 1245,

       1249 (Ind. Ct. App. 2002), trans. denied, and that the Indiana Supreme Court has

       found that an affidavit which “states only that [the expert witness] would have

       treated [the plaintiff] differently, not that the [the defendant physician’s]




       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019       Page 15 of 18
       treatment fell below the applicable standard” did not meet the burden to

       overcome summary judgment. Oelling, 593 N.E.2d at 190.


[19]   As the Overshiners acknowledge in their brief, Dr. Shuman “never specifically

       stated ‘I am familiar with the standard of care.’” Appellants’ Brief at 7. To the

       extent the Overshiners argue that Dr. Shuman was qualified to testify to the

       standard of care and contend specifically that “the foundation for a medical

       expert to testify to the standard of care is that he must state his credentials and

       that he has reviewed the relevant medical records,” Appellants’ Brief at 25, they

       cite to an excerpt of this Court’s decision in Aldrich v. Coda, a case concerning the

       standard of care for podiatrists at the summary judgment stage. 732 N.E.2d 243,

       244-245 (Ind. Ct. App. 2000). We note that Aldrich involved an affidavit and

       letter of opinion by Dr. Shea, a “licensed, board certified orthopedic surgeon,”

       and that, in holding that the affidavit was sufficient to establish a genuine issue

       of fact and preclude summary judgment, this Court stated:


               It would have been preferable if Dr. Shea had stated in his
               affidavit that he was familiar with the applicable standard of care
               for podiatrists. Be that as it may, it is evident from the content of
               the opinion letter that Dr. Shea, as an orthopedic surgeon, was
               indeed familiar with the standard of care required of [defendant
               physician,] Dr. Coda, as a podiatrist.


       Id. at 245-246. We find Aldrich distinguishable and, instead, find instructive this

       Court’s observation in Lusk v. Swanson:


               While it was reasonable in Aldrich to conclude that an orthopedic
               surgeon who diagnoses and corrects skeletal deformities may be

       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019       Page 16 of 18
               qualified to render an opinion on the standard of care of a
               podiatrist in such matters, it is not similarly reasonable to
               conclude that a pulmonologist is familiar with the standard of care
               required of an orthopedic surgeon.


       753 N.E.2d 748, 754 (Ind. Ct. App 2001), trans. denied.


[20]   Here, we find on the facts presented to the trial court that the Overshiners did

       not provide testimony that allowed the trier of fact to apply the appropriate

       standard of care. Dr. Shuman, a neuropathologist who had never been involved

       in the handover between the obstetrician and the pediatrician after a child is born

       and who at the time of trial was retired and provided mostly medical-legal

       consultations, did not testify to the standard of care required of Providers – i.e.,

       the standard of care applicable to obstetricians, pediatricians, and the nursing

       staff of a community hospital treating a child like Kaitlyn under the same or

       similar circumstances – but rather to his “terribly proactive . . . practice of

       pediatric neurology.” Transcript Volume II at 114. He acknowledged that, with

       regard to his specialty, he would “[a]bsolutely not” be the right person to treat

       Marigold’s pregnancy, and that he was not, nor eligible to be, a member of the

       American Academy of Pediatrics. Supplemental Transcript Volume II at 151.

       Our review of the record and Dr. Shuman’s testimony makes clear that any

       inference intended to be proven by the evidence, as pointed to by the

       Overshiners, cannot logically be drawn without undue speculation as to the

       applicable standard of care. Thus, we conclude that the trial court did not err or

       abuse its discretion in granting a directed verdict in favor of Providers and

       denying the Overshiners’ motion to correct error.

       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019       Page 17 of 18
[21]   For the foregoing reasons, we affirm the entry of the directed verdict.


       Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-582 | February 21, 2019      Page 18 of 18
