                                                             FILED
                                                        Apr 28 2016, 8:12 am

                                                             CLERK
                                                         Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
John P. Young                                               Daniel R. Fagan
Young & Young                                               Karl L. Mulvaney
Indianapolis, Indiana                                       Nana Quay-Smith
                                                            Bingham Greenebaum Doll LLP
                                                            Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Susan Stewart, Personal                                     April 28, 2016
Representative of the Estate of                             Court of Appeals Case No.
Joanne Hatton, deceased,                                    16A04-1507-CT-760
Appellant-Plaintiff,                                        Appeal from the Decatur Superior
                                                            Court
        v.                                                  The Honorable Matthew D.
                                                            Bailey, Judge
Arthur Alunday, M.D.,                                       Trial Court Cause No.
Appellee-Defendant.                                         16D01-1206-CT-334




Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016                Page 1 of 19
                                            Case Summary
[1]   In this medical-malpractice case, the plaintiff filed a motion for judgment on the

      evidence claiming that Dr. Arthur Alunday, M.D., made a judicial admission

      during his testimony that he breached the standard of care, thereby leaving only

      the issues of causation and damages for the jury. Although the trial court found

      that Dr. Alunday judicially admitted that he breached the standard of care, the

      court concluded that the judicial admission was not conclusive and binding but

      rather should be considered and weighed as other evidence. We clarify that,

      contrary to a line of authority that has developed in this Court, judicial

      admissions—as opposed to evidentiary admissions, which can be accepted or

      rejected by the trier of fact—are conclusive and binding on the trier of fact.

      Nevertheless, considering Dr. Alunday’s trial testimony as a whole, we find

      that he did not unequivocally admit that he breached the standard of care. We

      affirm the jury’s verdict in his favor.



                             Facts and Procedural History
[2]   Dr. Alunday is an internist in Greensburg with over twenty years of experience,

      including treating infectious diseases. In March 2008, Joanne Hatton—who

      was eighty-five-years old with osteoporosis and scoliosis—was living in a

      nursing home in Greensburg; Dr. Alunday was her doctor. On March 10,

      Hatton was admitted to Decatur County Memorial Hospital (“the hospital”) in

      Greensburg with flu-like symptoms. Hatton received intravenous fluids to



      Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016     Page 2 of 19
      prevent dehydration. She was discharged on March 14 and returned to the

      nursing home.

[3]   The next day, March 15, the nursing home called Dr. Alunday to tell him that

      the area where the IV had been inserted into Hatton’s arm was red and tender.

      Suspecting it was a skin infection, Dr. Alunday ordered a blood culture and

      gave Hatton a shot of the antibiotic Rocephin.

[4]   On March 16, Hatton went to the emergency room complaining of left hip and

      back pain. X-rays did not show any fractures, so Hatton returned to the nursing

      home.


[5]   Hatton’s preliminary blood-culture results came back on Sunday, March 17;

      they showed that Hatton had a Staphylococcus (staph) infection. Dr.

      Alunday’s partner was on call that day and admitted Hatton to the hospital,

      where she began receiving intravenous cefazolin, another antibiotic.

[6]   Dr. Alunday resumed Hatton’s care on Monday. That morning, additional

      blood-culture results showed that Hatton’s staph infection was methicillin-

      resistant Staphylococcus aureus (MRSA)1 and that the infection was sensitive to

      the antibiotic vancomycin. Dr. Alunday immediately started Hatton on

      intravenous vancomycin, which was later delivered through a PICC




      1
       MRSA is a staph germ that does not respond to the type of antibiotics that usually cure staph infections.
      MedlinePlus, MRSA, available at https://www.nlm.nih.gov/medlineplus/ency/article/007261.htm (last
      visited Apr. 5, 2016).

      Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016                         Page 3 of 19
      (peripherally inserted central catheter) line. Dr. Alunday planned to keep

      Hatton on vancomycin for four weeks, which was the standard course of

      treatment for MRSA blood infections.2 Hatton stabilized, and on March 22 she

      was transferred from an acute-care bed to a “swing bed” in the hospital. Tr. p.

      46.

[7]   On March 26, eight days after starting vancomycin, Hatton complained of

      “worsening low back pain.” Id. This pain was worse than the chronic back

      pain that she was taking narcotics for. Because Hatton’s bones were weakened

      and she had been in a hospital bed since March 17, Dr. Alunday suspected that

      Hatton had a spinal-compression fracture. And because 40% of eighty-year-

      olds with osteoporosis have spinal-compression fractures, this was the “first

      thing” that entered his mind. Id. at 47. Accordingly, Dr. Alunday ordered an

      MRI to find out the cause of Hatton’s back pain.

[8]   Hatton underwent an MRI on March 27, and it showed scoliosis and extensive

      degenerative changes but no spinal-compression fracture. It also did not show

      any infection. Dr. Alunday performed a physical examination and did not

      observe any of the typical signs that MRSA had spread, or “seeded,” to

      Hatton’s back. After completing the examination, Dr. Alunday discharged

      Hatton from the hospital to continue her four-week course of vancomycin at the




      2
          In fact, the record shows that Hatton received vancomycin for thirty-one days. See Tr. p. 205.


      Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016                             Page 4 of 19
       nursing home. Dr. Alunday visited Hatton at the nursing home on April 3 and

       performed a short examination.

[9]    In the meantime, Dr. Alunday referred Hatton to Dr. Edward Negovetich, a

       physiatrist, to determine how to manage her back pain. Dr. Negovetich

       ordered a bone scan of Hatton’s spine. The bone scan, which was performed

       on April 8, showed evidence of an acute L2 compression fracture. Dr.

       Negovetich then referred Hatton to Dr. Andrew Trobridge, a pain-management

       specialist, for a possible kyphoplasty, and Hatton saw Dr. Trobridge on April

       11.3


[10]   That same day, Dr. Trobridge asked Dr. Alunday to clear Hatton for the

       kyphoplasty; Dr. Alunday was familiar with the process of clearing a patient for

       surgery. In determining whether to clear Hatton, Dr. Alunday noted that

       Hatton had no other health issues—such as cardiovascular or pulmonary

       problems—and good labs and vital signs. But because she was still receiving

       antibiotics for MRSA, Dr. Alunday wanted to “make sure whether or not she

       still had MRSA in the blood stream” because he knew that if Hatton still had

       MRSA, the procedure would kill her. Id. at 54, 74. So Dr. Alunday ordered a

       new blood culture, which came back negative for MRSA on April 17.




       3
        “Kyphoplasty is used to treat painful compression fractures in the spine.” MedlinePlus, Kyphoplasty,
       available at https://www.nlm.nih.gov/medlineplus/ency/article/007511.htm (last visited Apr. 5, 2016).
       During the procedure, the doctor places a needle through the skin and into the spine bone. Real-time x-ray
       images are used to guide the doctor to the correct area. Id. A balloon is placed through the needle, into the
       bone, and inflated, which restores the height of the vertebrae. Id. Cement is then injected into the space to
       make sure it does not collapse again. Id.

       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016                          Page 5 of 19
       According to Dr. Alunday, even though Hatton was on a therapeutic dose of

       vancomycin, which can sometimes mask MRSA, if there was a “strong”

       MRSA infection, it would have shown up in her blood culture. Id. at 54. Based

       on the negative blood culture, Hatton’s good vital signs, the fact that the March

       27 MRI showed no infection, and the fact that Hatton was in debilitating back

       pain with no relief from narcotics, Dr. Alunday cleared Hatton for the

       outpatient procedure.


[11]   Dr. Trobridge performed the kyphoplasty on April 17. Dr. Trobridge found no

       signs of infection in Hatton’s spine. Although Hatton was initially stable

       following the procedure, by mid-May she developed a widespread MRSA

       infection. Hatton died on May 26.

[12]   Susan Stewart, Hatton’s daughter and the personal representative of Hatton’s

       estate, filed a proposed complaint for medical malpractice against Dr. Alunday

       with the Indiana Department of Insurance. In April 2012, the Medical Review

       Panel unanimously concluded that the evidence did not support the conclusion

       that Dr. Alunday failed to meet the applicable standard of care.

[13]   Stewart then filed a complaint against Dr. Alunday in Decatur Superior Court

       in June 2012. Stewart alleged that the “medical care and treatment received by

       Joanne Hatton fell below the appropriate standard of care and was therefore




       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016   Page 6 of 19
negligent.”4 Appellant’s App. p. 19. A five-day jury trial was held in March

2015. Dr. Alunday testified extensively on direct examination about his efforts

to determine whether Hatton still had a MRSA infection before clearing her for

the kyphoplasty. He also testified that his decision in clearing Hatton was

reasonable and appropriate and that he met the standard of care. Tr. p. 62-63.

Stewart’s attorney then cross-examined Dr. Alunday, in part, as follows:

         Q. Okay. Turn to page six (6), will you please? Are you there?


         A. Yes, sir.


         Q. Do you see right in the middle of the page, everybody there?
         Right in the middle of the page, the statement, a reasonable
         physician should be concerned that MRSA would have seeded to
         compression fracture in an elderly patient with acute onset back
         pain with evidence of compression fracture on . . . Vancomycin
         (indiscernible) MRSA. Do you see that?


         A. Yes.


         Q. Is that a true statement?


         A. Yes, sir.




4
  To establish a prima facie case of medical malpractice, a plaintiff must demonstrate: (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
required by the relationship; and (3) an injury to the plaintiff resulting from that failure. Scripture v. Roberts,
No. 49A02-1504-CT-211, slip op. at 7 (Ind. Ct. App. Feb. 1, 2016).

Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016                              Page 7 of 19
        Q. And if a doctor fails to consider that, it would fall below the
        appropriate standard of care?


        A. It would be a consideration, but I had other circumstances of
        the compression fracture due to osteoporosis—


        Q. I understand—


        A. As . . . higher on the list of causing that fracture.


        Q. I understand that you want to explain that, but what I’m
        asking you is would it fall below the appropriate standard of care
        if the physician does not consider?


        A. Well, if he does not consider it, okay.


        Q. Does it fall below the appropriate standard of care?


        A. If it’s not considered, okay.


        Q. Does it fall below the appropriate standard of care?


        A. Yes, sir.


        Q. Uh, please turn back to page five (5), . . . about two-thirds
        (2/3) of the way down the page. MRSA in fracture did not cross
        your mind at all. . . . Did I read that correctly? MRSA in
        fracture did not cross your mind at all?


        A. (Indiscernible) that’s what’s written there, sir.




Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016     Page 8 of 19
       Tr. p. 110-12. The two pages that Stewart’s attorney referenced are part of Dr.

       Alunday’s submission to the Medical Review Panel and labeled as Plaintiff’s

       Exhibit 5 at trial. These are the only pages from Dr. Alunday’s panel

       submission that Stewart introduced into evidence at trial. The actual quotes

       are:


            “MRSA in fracture did not cross his mind at all.” (quote from page 5)


            “A reasonable physician should be concerned that MRSA could have

               seeded to compression fracture in an elderly patient with acute onset

               back pain with evidence of compression fracture on Vancomycin for

               treatment of MRSA.” (quote from page 6)


       Appellant’s App. p. 17-18. These “quotes,” however, are not statements made

       by Dr. Alunday; instead, they are bullet points that Dr. Alunday’s attorney

       made when summarizing Dr. Alunday’s deposition. See Tr. p. 108 (Dr.

       Alunday’s attorney objecting to the admission of Exhibit 5 because it was

       attorney work product and not made under oath). On redirect examination,

       Dr. Alunday clarified that contrary to the quote on page 5 of Exhibit 5, which

       said “MRSA in fracture did not cross his mind at all,” he in fact considered but

       then ruled out MRSA based on the March 27 MRI that showed no infection

       and Hatton’s second blood culture, which came back negative for MRSA on

       April 17. Id. at 122.


[14]   At the close of Dr. Alunday’s case in chief, Stewart’s attorney moved for

       judgment on the evidence. Id. at 277. Specifically, Stewart’s attorney, relying

       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016   Page 9 of 19
       on the above portion of Dr. Alunday’s cross-examination, alleged that Dr.

       Alunday made a judicial admission that he breached the standard of care,

       thereby leaving only the issues of causation and damages for the jury. Id. at

       278. Dr. Alunday’s attorney responded that there was other evidence that Dr.

       Alunday met the standard of care, including his testimony “from the witness

       chair that he believes he met the standard of care.” Id. After taking the matter

       under advisement, the trial court denied Stewart’s motion. Id. at 283

       (concluding that Dr. Alunday’s testimony was “very equivocal” because “on

       his direct he said he met the standard of care”). The jury returned a general

       verdict in favor of Dr. Alunday.

[15]   Stewart then filed a motion to correct errors asking the trial court to grant her

       motion for judgment on the evidence because Dr. Alunday made a judicial

       admission, which “relieve[d] the Estate of the duty to put forth any further

       evidence that Dr. Alunday breached the appropriate standard of care.”

       Appellant’s App. p. 22. In its order denying Stewart’s motion, the trial court

       found that Dr. Alunday “made a judicial admission during the course of trial”

       when he (1) “admitted that a reasonable physician would have been concerned

       that MRSA could have seeded to a compression fracture in the back of an

       elderly patient with acute onset back pain” and (2) “admitted that his conduct

       fell below the appropriate standard of care as MRSA did not cross his mind

       under these circumstances.” Id. at 12 (footnote omitted). Nevertheless, based

       upon this Court’s opinions in Weinberger v. Boyer, 956 N.E.2d 1095 (Ind. Ct.

       App. 2011), trans. denied, and Waugh v. Kelly, 555 N.E.2d 857 (Ind. Ct. App.


       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016   Page 10 of 19
       1990), the trial court concluded that “[Dr.] Alunday’s judicial admission was to

       be considered by the trier of fact who would consider it and weigh it as other

       evidence,” and the jury did weigh this evidence yet returned a verdict in favor

       of Dr. Alunday. Appellant’s App. p. 12.

[16]   Stewart now appeals.



                                   Discussion and Decision
[17]   Stewart contends that the trial court erred in denying her motion for judgment

       on the evidence. Indiana Trial Rule 50(A) governs motions for judgment on

       the evidence and provides, in pertinent part:

               Where all or some of the issues in a case tried before a jury or an
               advisory 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, the court shall withdraw
               such issues from the jury and enter judgment thereon or shall
               enter judgment thereon notwithstanding a verdict. A party may
               move for such judgment on the evidence[:]


                        (1) after another party carrying the burden of proof or of
                        going forward with the evidence upon any one or more
                        issues has completed presentation of his evidence thereon;
                        or


                        (2) after all the parties have completed presentation of the
                        evidence upon any one or more issues; or


                        (3) after all the evidence in the case has been presented and
                        before judgment; or

       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016    Page 11 of 19
                        (4) in a motion to correct errors; . . .


       The purpose of a Trial Rule 50(A) motion for judgment on the evidence is to

       test the sufficiency of the evidence presented by the non-movant. Purcell v. Old

       Nat’l Bank, 972 N.E.2d 835, 839 (Ind. 2012). 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.” Raess v. Doescher, 883 N.E.2d 790, 793 (Ind.

       2008) (quotation omitted), reh’g denied. But if there is evidence that would allow

       reasonable people to differ as to the result, judgment on the evidence is

       improper. Cavens v. Zaberdac, 849 N.E.2d 526, 529 (Ind. 2006).


[18]   The standard of review for a challenge to a trial court’s ruling on a motion for

       judgment on the evidence is the same standard that governed the trial court in

       making its decision. Id. This Court considers only the evidence and reasonable

       inferences most favorable to the nonmoving party. Raess, 883 N.E.2d at 793.

       Where the issue involves a conclusion of law based upon undisputed facts, the

       standard of review is de novo. Cavens, 849 N.E.2d at 529.


[19]   Stewart argues that Dr. Alunday made a judicial admission and that—contrary

       to the trial court’s conclusion in its order denying her motion to correct errors—

       the judicial admission is conclusive and binding. Before addressing whether

       Dr. Alunday made a judicial admission, we clarify the law regarding the legal

       effect of judicial admissions.




       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016   Page 12 of 19
                         I. Judicial Admissions Are Conclusive
[20]   There are two types of admissions: judicial and evidentiary. 32 C.J.S. Evidence

       § 624 (2008). Evidentiary—also known as extrajudicial—admissions consist of

       words or other conduct of the party that are admissible in evidence against the

       party. Id. They may be made in, among other things, depositions, pleadings in

       a case other than the one being tried, pleadings that have been superseded or

       withdrawn, answers to interrogatories, and other statements, such as statements

       by party opponents. Id.; see also 13 Robert Lowell Miller, Jr., Indiana Practice,

       Indiana Evidence § 801.416 (3d ed. 2007) (addressing statements by party

       opponents). Judicial admissions, on the other hand, are voluntary and knowing

       concessions of fact by a party or a party’s attorney occurring at any point in a

       judicial proceeding. 32 C.J.S., supra, § 624; 9 Wigmore, Evidence § 2588

       (Chadbourn rev. 1981) (explaining that a judicial admission is an “express

       waiver made in court or preparatory to trial by the party or his attorney

       conceding for the purposes of the trial the truth of some alleged fact”). The

       party must testify clearly and unequivocally to a fact peculiarly within his

       knowledge in order for it to be considered a judicial admission. 32A C.J.S.,

       supra, § 1649. Judicial admissions may be contained in stipulations, current

       pleadings in the case being tried, admissions made in open court, and

       admissions made pursuant to requests to admit. 32 C.J.S., supra, § 624.


[21]   The distinction between judicial and evidentiary admissions is “significant” and

       “should not be blurred by imprecise usage.” Id.; see also 29A Am. Jur. 2d

       Evidence § 785 (2d ed. 2008). This is because, although both types are

       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016   Page 13 of 19
       admissible, each type’s “legal effect is markedly different.” 32 C.J.S., supra, §

       624. While evidentiary admissions can be accepted or rejected by the trier of

       fact, judicial admissions are conclusive and binding on the trier of fact. Id.; 9

       Wigmore, supra, § 2588 (explaining that judicial admissions, which are

       conclusive, are “sharply marked off” from evidentiary admissions, which are

       not conclusive). In fact, it is “universally conceded” that the “vital feature of a

       judicial admission is . . . its conclusiveness upon the party making it, i.e., the

       prohibition of any further dispute of the fact by him and of any use of evidence

       to disprove or contradict it.” 9 Wigmore, supra, § 2590. Simply put, a judicial

       admission is “a substitute for evidence, in that it does away with the need for

       evidence.” 9 Wigmore, supra, § 2588; see also Lutz v. Erie Ins. Exch., 848 N.E.2d

       675, 678 (Ind. 2006) (noting that judicial admissions may be “taken as true as

       against the party without further controversy or proof” and are “conclusive as

       to that party”); 29A Am. Jur. 2d, supra, § 783 (noting that judicial admissions

       are used as a substitute for evidence at trial); 6 Terrance L. Smith & Adrian P.

       Smith, Indiana Practice, Trial Handbook for Indiana Lawyers § 32:18 (2015 ed.)

       (“Admissions made in the course of judicial proceedings are substituted for

       actual proof of a fact.”).

[22]   Here, the trial court found that Dr. Alunday made a judicial admission but,

       citing Weinberger v. Boyer, 956 N.E.2d 1095 (Ind. Ct. App. 2011), trans. denied,

       and Waugh v. Kelly, 555 N.E.2d 857 (Ind. Ct. App. 1990), concluded that the

       judicial admission was not conclusive and binding. Instead, the court found

       that Dr. Alunday’s judicial admission should “be considered by the trier of fact

       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016   Page 14 of 19
who would consider it and weigh it as other evidence.” Appellant’s App. p. 12.

The trial court’s confusion about the legal effect of judicial admissions stems

from language contained in Weinberger and Waugh. That is, Waugh correctly

begins by stating that a judicial admission is conclusive upon the party making

it and relieves the opposing party of the duty to present evidence on that issue.

555 N.E.2d at 859. However, the Waugh Court then veers off course by

including the standard for evidentiary—not judicial—admissions:

        Admissions are to be considered and weighed precisely as other
        evidence in the case by the trier of fact. An admission’s weight
        depends upon its character, the circumstances under which it was
        made, and the effect of such circumstances is to be determined by
        the trier of fact.


Id. Waugh cites a 1919 case for this proposition: Warner Gear Co. v. De Peugh, 70

Ind. App. 264, 123 N.E. 363 (1919). De Peugh, however, is not a judicial-

admission case; rather, it addresses statements against interest, which are

evidentiary admissions. See now Ind. Evidence Rule 804(b)(3). Specifically, De

Peugh was injured at work and sued his employer. Witnesses testified at trial

that shortly after De Peugh was injured, he said, “It was all my fault.” De

Peugh, 123 N.E. at 363. On appeal, we held that De Peugh’s “admission or

declaration, being against interest” was admissible at trial and “to be considered

and weighed precisely as other evidence. The weight of such evidence depends

upon its character and the circumstances under which the admissions were

made, and the effect of such circumstances is to be determined by the jury.” Id.



Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016   Page 15 of 19
[23]   Likewise, Weinberger, relying on Waugh, correctly begins by stating that a

       judicial admission is conclusive upon the party making it and relieves the

       opposing party of the duty to present evidence on that issue. Weinberger, 956

       N.E.2d at 1105. But then Weinberger, citing our Supreme Court’s decision in

       Lutz, provides that judicial admissions “are to be considered and weighed

       precisely as other evidence in the case by the trier of fact. An admission’s

       weight depends on its character, the circumstances under which it was made,

       and the effect of such circumstances is to be determined by the trier of fact.” Id.

       (citing Lutz, 848 N.E.2d at 678). But as Stewart notes on appeal, see Appellant’s

       Br. p. 16, Lutz does not say this; rather, Waugh does.


[24]   Because of an error made in 1990 in Waugh that commingled the standards for

       judicial and evidentiary admissions, which has since been repeated in other

       cases including Weinberger, we now clarify that unlike evidentiary admissions,

       which the trier of fact may accept or reject, judicial admissions are conclusive

       and binding on the trier of fact.


           II. Dr. Alunday Did Not Make a Judicial Admission
[25]   We now address whether Dr. Alunday made a judicial admission, because if he

       did, then that issue should have been removed from the jury. See 32A C.J.S.

       Evidence § 1649 (2008) (explaining that even if a case has been fully tried, if a

       party makes a judicial admission, then “the court must instruct that the

       admitted fact is to be taken as true or it must direct a verdict accordingly.”).




       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016   Page 16 of 19
       Whether a party’s statement constitutes a judicial admission is a question of

       law. See 29A Am. Jur. 2d, supra, § 783.


[26]   Stewart claims that Dr. Alunday made a judicial admission when he testified at

       trial.5 Stewart focuses on two statements. The first statement is when Dr.

       Alunday agreed on cross-examination that, consistent with the statements

       contained on page 6 of Exhibit 5, (1) a reasonable physician should be

       concerned that MRSA could have seeded to a compression fracture in an

       elderly patient with acute onset back pain and on vancomycin for treatment of

       MRSA and (2) failure to consider this would fall below the appropriate

       standard of care. The second statement is when Dr. Alunday simply agreed on

       cross-examination that page 5 of Exhibit 5 contained the statement that

       “MRSA in fracture did not cross his mind at all.” Stewart argues that when

       these two statements are combined, Dr. Alunday judicially admitted that he

       breached the standard of care by failing to consider whether MRSA could have

       spread to Hatton’s compression fracture.

[27]   There are two problems with Stewart’s argument. The first problem is that the

       second statement, which is the key to Stewart’s argument, is not a judicial



       5
         Notably, Stewart does not claim that the statements contained in Dr. Alunday’s submission to the
       Medical Review Panel constitute a judicial admission. See Appellant’s Reply Br. p. 4 (Stewart noting
       that she “does not contend that Dr. Alunday’s submission to the medical review panel is a pleading or
       a Judicial Admission”), 9 (Stewart noting that she “has never argued that the statements in the
       submission are binding admissions. As the trial court established in its Order on the Motion to Correct
       Error, Dr. Alunday’s testimony constitutes his Judicial Admission.”). Indeed, the statements
       contained in Dr. Alunday’s panel submission are not judicial admissions because a panel submission is
       not a pleading. See 13 Robert Lowell Miller, Jr., supra, § 801.422 (citing Ind. Trial Rule 7(A)).



       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016                        Page 17 of 19
       admission. This is because Dr. Alunday merely agreed that Exhibit 5 contained

       the statement that “MRSA in fracture did not cross his mind at all.” Unlike the

       first statement, Stewart’s attorney did not ask Dr. Alunday if he agreed with the

       statement. And, of course, Exhibit 5 is a summary of Dr. Alunday’s deposition

       made by his attorney. Because Dr. Alunday did not testify that he agreed with

       the statement but rather only agreed that Exhibit 5 contained that statement, he

       did not judicially admit that he failed to consider whether MRSA could have

       spread to Hatton’s compression frature.

[28]   The second problem is that when determining whether a party has made a

       judicial admission, the party’s testimony must be considered as a whole and be

       clear and unequivocal. 32A C.J.S., supra, § 1649. Accordingly, even assuming

       that Dr. Alunday testified on cross-examination that he agreed with the

       statement that he did not consider whether MRSA could have spread to

       Hatton’s compression fracture (which would therefore fall below the standard

       of care based on his first statement), he testified on direct examination that he

       did, in fact, consider whether Hatton still had a MRSA infection. That is, Dr.

       Alunday testified that his primary consideration in clearing Hatton for the

       kyphoplasty was to determine whether she still had a MRSA infection, and that

       because the second blood culture was negative for MRSA and the March 27

       MRI did not show any infection, it was reasonable to say that MRSA had not

       spread to her compression fracture. See, e.g., Tr. p. 54 (Dr. Alunday testifying

       that in order to decide whether to clear Hatton, he “wanted to make sure

       whether or not she still had MRSA in the blood stream”), 59 (Dr. Alunday


       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016   Page 18 of 19
       testifying about the factors he considered in clearing Hatton for the procedure,

       including that Hatton’s second blood culture was negative for MRSA), 63 (Dr.

       Alunday testifying that he “met the standard of care”), 122 (Dr. Alunday

       testifying that he ruled out MRSA after the negative blood culture, and that

       because the March 27 MRI did not show any infection in Hatton’s back, it was

       reasonable to say that MRSA had not spread there); see also Ex. Vol. I, tab 15, p.

       11 (Dr. Alunday denying Stewart’s request for admission that he “never

       considered an infection seeding to the compression fracture as a cause of

       [Hatton’s] back pain complaints”). Accordingly, based on Dr. Alunday’s

       testimony as a whole, he did not unequivocally admit that he failed to consider

       whether MRSA could have spread to Hatton’s compression fracture. We

       therefore affirm the trial court’s denial of Stewart’s motion for judgment on the

       evidence.6

[29]   Affirmed.

       Bailey, J., and Crone, J., concur.




       6
         In light of this result, we do not need to address Stewart’s argument that she is entitled to a new trial on the
       issues of causation and damages.

       Court of Appeals of Indiana | Opinion 16A04-1507-CT-760 | April 28, 2016                             Page 19 of 19
