MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be                                     Jan 10 2020, 6:04 am

regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joseph Banasiak                                          Libby Yin Goodknight
Highland, Indiana                                        Krieg DeVault LLP
                                                         Indianapolis, Indiana

                                                         Robert A. Anderson
                                                         Shannon L. Noder
                                                         Krieg DeVault LLP
                                                         Merrillville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Ralph Gabriel,                                           January 10, 2020
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         19A-CT-1487
        v.                                               Appeal from the Lake Superior
                                                         Court
Franciscan Alliance, Inc. d/b/a                          The Honorable John M. Sedia,
Franciscan St. Anthony Crown                             Judge
Point,                                                   Trial Court Cause No.
Appellee-Defendant.                                      45D01-1809-CT-568




Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-1487 | January 10, 2020                  Page 1 of 9
                                      Statement of the Case
[1]   Ralph Gabriel appeals the trial court’s grant of summary judgment in favor of

      Franciscan Alliance, Inc. d/b/a Franciscan St. Anthony Crown Point

      (“Franciscan”). We affirm.


                                                     Issue
[2]   Gabriel raises one issue, which we restate as: whether the trial court erred in

      granting Franciscan’s motion for summary judgment as to Gabriel’s claim of

      medical malpractice.


                               Facts and Procedural History
[3]   On March 21, 2011, Gabriel arrived at Franciscan’s hospital in Crown Point,

      Indiana. He was diagnosed with two fractures in his right leg, one of them

      severe, and a fracture to his left foot. Gabriel reportedly sustained the injuries

      after jumping out of a window. Doctors at Franciscan performed two surgeries,

      one on each of his legs, and they discharged him from the hospital on March

      28.


[4]   On June 13, 2011, a doctor removed a splint from Gabriel’s right leg, and it

      “was okay then.” Appellant’s App. Vol. 2, p. 91. On June 22, Gabriel arrived

      at a Veteran’s Administration hospital (“VA”) in a wheelchair, with “open,

      swelling, draining wounds on right and left leg.” Id. at 88. Emergency room

      staff noted that his right leg was “draining yellow fluid.” Id. at 90. Testing

      revealed that Gabriel had a staph infection in his right leg, where Franciscan’s


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1487 | January 10, 2020   Page 2 of 9
      doctors had installed plates and screws to treat his injuries. The VA doctors

      performed surgery to treat the infection.


[5]   On March 20, 2013, Gabriel filed a proposed civil complaint with the Indiana

      Department of Insurance. He alleged that his leg infection was caused by

      Franciscan’s medical malpractice. The parties presented evidence to a medical

      review panel. On June 7, 2018, the panel issued a unanimous opinion,

      determining the evidence did not support a conclusion that Franciscan failed to

      meet the applicable standard of care while treating Gabriel.


[6]   On August 29, 2018, Gabriel filed suit against Franciscan. Franciscan filed an

      answer and a motion for summary judgment. Franciscan designated the review

      panel’s unanimous decision in support of its motion for summary judgment.

      Gabriel responded to the motion. He did not designate any expert medical

      evidence to oppose Franciscan’s motion.


[7]   The trial court held oral argument on Franciscan’s motion. On June 7, 2019,

      the trial court granted the motion, noting that Gabriel had not provided an

      opinion from a medical expert and had thus failed to demonstrate there was a

      dispute of material fact. This appeal followed.


                                   Discussion and Decision
[8]   When we review the grant of a motion for summary judgment, we apply the

      same standard as the trial court. Glon v. Mem’l Hosp. of South Bend, Inc., 111

      N.E.3d 232, 237 (Ind. Ct. App. 2018), trans. denied. Summary judgment is

      appropriate only when the movant shows that ‘“the designated evidentiary
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1487 | January 10, 2020   Page 3 of 9
       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.’” Id. (quoting Ind.

       Trial Rule 56(C)). Upon this showing, the nonmoving party has the burden of

       demonstrating that there is a genuine issue of material fact. AM Gen., LLC v.

       Armour, 46 N.E.3d 436, 439 (Ind. 2015). All reasonable inferences are

       construed in favor of the nonmoving party. Id. In addition, our review of

       summary judgment is limited to the evidence designated by the parties to the

       trial court. Laycock v. Sliwkowski, 12 N.E.3d 986, 990 (Ind. Ct. App. 2014),

       trans. denied.


[9]    Medical malpractice actions are similar to other negligence actions. Narducci v.

       Tedrow, 736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000). Summary judgment is

       rarely appropriate in negligence cases because such cases are particularly fact-

       sensitive and are governed by a standard of the objective reasonable person,

       which is best applied by a jury after hearing all the evidence. Kramer v. Catholic

       Charities of Diocese of Fort Wayne-South Bend, Inc., 32 N.E.3d 227, 231 (Ind.

       2015). Nonetheless, summary judgment is appropriate when the undisputed

       material evidence negates one element of a negligence claim. Id. The elements

       of a medical malpractice claim are: (1) the physician owed a duty to the

       plaintiff; (2) the physician breached that duty; and (3) the breach proximately

       caused the plaintiff’s injuries. Mayhue v. Sparkman, 653 N.E.2d 1384, 1386 (Ind.

       1995).


[10]   Physicians are not held to a duty of perfect care. Slease v. Highbanks, 684

       N.E.2d 496, 498 (Ind. Ct. App. 1997). Instead, a doctor must exercise the
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1487 | January 10, 2020   Page 4 of 9
       degree of skill and care ordinarily possessed and exercised by a reasonably

       skillful and careful practitioner under same or similar circumstances. Id. at 498-

       99. To establish the applicable standard of care and to show a breach of that

       standard, a plaintiff generally must present expert testimony. Id. at 499. A

       plaintiff’s need for expert testimony may be particularly acute in summary

       judgment cases, because “a unanimous opinion of the medical review panel

       that the physician did not breach the applicable standard of care is ordinarily

       sufficient to establish prima facie evidence negating the existence of a genuine

       issue of material fact entitling the physician to summary judgment.” Stafford v.

       Szymanowski, 31 N.E.3d 959, 961 (Ind. 2015).


[11]   The doctrine of res ipsa loquitur (“res ipsa”) is a limited exception to the

       general rule that the mere fact of injury will not create an inference of

       negligence. St. Mary’s Ohio Valley Heart Care, LLC v. Smith, 112 N.E.3d 1144,

       1150 (Ind. Ct. App. 2018), trans. denied. Under res ipsa, negligence may be

       inferred where: (1) the injuring instrumentality is shown to be under the

       management or exclusive control of the defendant or his servants; and (2) the

       accident is such that in the ordinary course of things does not happen if those

       who have management of the injuring instrumentality use proper care. Vogler v.

       Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1993), trans. denied.


[12]   In this case, we focus on the second element of res ipsa. A plaintiff relying

       upon res ipsa may show that the accident was more probably the result of lack

       of proper care by relying upon common sense and experience or expert

       testimony. Id. In other words, the standard of care need not be established by

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1487 | January 10, 2020   Page 5 of 9
       expert medical evidence when the doctor’s conduct was understandable by the

       jury without extensive technical input. Narducci, 736 N.E.2d at 1293.


[13]   The type of situations in which a jury can judge an incident without extensive

       technical input “have typically arisen from physicians leaving a foreign object in

       the patient’s body; juries can understand without independent explanation that

       the object should have been removed.” Syfu v. Quinn, 826 N.E.2d 699, 705

       (Ind. Ct. App. 2005). Similarly, in Gold v. Ishak, 720 N.E.2d 1175, 1179 (Ind.

       Ct. App. 1999), trans. denied, a patient suffered burns on her face and chest

       when, during a surgery to cauterize blood vessels in her neck, an electrocautery

       unit’s spark ignited the oxygen flowing from a loosely-secured oxygen mask on

       the patient’s face. A panel of this Court concluded a layperson could

       understand through their common knowledge that a fire occurring during

       surgery where an instrument emits a spark near a supply of oxygen was the

       result of negligent conduct.


[14]   By contrast, in Carpenter v. Campbell, 149 Ind. App. 189, 191, 271 N.E.2d 163,

       165 (1971), a patient underwent a Caesarian section in June 1964. Almost a

       month later, she arrived at an emergency room, where she was diagnosed with

       a bowel obstruction and required extensive treatment. The patient later sued

       the doctors who performed the Caesarian section, claiming their malpractice

       had caused the bowel obstruction and a subsequent severe infection. She

       further argued the doctors were liable under the doctrine of res ipsa. A panel of

       this Court concluded res ipsa was inapplicable because the evidence showed the

       obstruction could have been caused by a variety of complications, some of

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1487 | January 10, 2020   Page 6 of 9
       which might not have been the result of negligence by the defendants. As a

       result, negligence could not be inferred.


[15]   Further, in Methodist Hosps., Inc. v. Johnson, 856 N.E.2d 718, 719-20 (Ind. Ct.

       App. 2006), Johnson gave birth to a child in a hospital. In the following days,

       hospital personnel noted that the infant’s skin reacted poorly to intravenous

       needles (“IVs”). Despite the personnel’s attempts to move the IVs to different

       locations on the infant’s body and provide other treatments, the infant

       developed burns at the locations where IVs had been inserted.


[16]   Johnson filed a proposed complaint, but a medical malpractice review board

       unanimously determined the hospital did not breach the standard of care.

       Next, Johnson sued, claiming negligence. The hospital moved for summary

       judgment but did not prevail. On appeal, the question was whether res ipsa

       applied, thereby establishing an inference of negligence, despite Johnson’s

       failure to provide expert medical evidence to oppose summary judgment. A

       panel of this Court determined the complications arising from the placements of

       the IV were “not within the realm of a layperson’s knowledge.” Id. at 722. As

       a result, common knowledge was insufficient to establish the second element of

       res ipsa, and Johnson should have submitted expert medical evidence to

       establish a dispute of material fact. In the absence of such evidence, the Court

       concluded the hospital was entitled to summary judgment.


[17]   Turning to the facts of Gabriel’s case, we conclude they more closely resemble

       the circumstances of Carpenter and Methodist Hospitals than the circumstances in


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1487 | January 10, 2020   Page 7 of 9
       Gold. Gabriel, like the plaintiff in Carpenter, developed an infection after

       surgery, but there were numerous possible causes for the infections, only some

       of which could have involved negligence by hospital staff. Gabriel’s situation is

       even less clear than Carpenter’s because Carpenter reported her bowel

       obstruction one month after surgery, while Gabriel did not report his infection

       until almost three months after surgery, during which time he was not under the

       hospital’s care. As the Carpenter Court stated, “‘courts reject the notion that

       because infection follows a treatment an inference of negligence is to be made.’”

       149 Ind. App. at 196, 271 N.E.2d at 168 (quoting Quick v. Thurston, 290 F.2d

       360, 363-64 (D.C. Cir. 1961)).


[18]   Similarly, in Methodist Hospitals the hospital submitted expert evidence that the

       complications resulting from the placement of the IVs could have occurred

       despite due care being taken by the doctors and hospital employees. Gabriel’s

       infection, like the infant’s complications in Methodist Hospitals, are beyond a

       layperson’s common knowledge. Gabriel should have provided expert medical

       evidence to determine whether the standard of care was met. See Methodist

       Hosps., 856 N.E.2d at 722; see also Narducci, 736 N.E.2d at 1293-94 (reversing

       denial of summary judgment on medical malpractice claim arising from

       surgical complications; cause and nature of complications deemed beyond

       common knowledge of laypersons, and expert medical evidence was required).

       In the absence of expert medical evidence establishing a dispute of material fact,

       the trial court did not err in granting summary judgment in favor of Franciscan.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1487 | January 10, 2020   Page 8 of 9
                                                Conclusion
[19]   For the reasons stated above, we affirm the judgment of the trial court.


[20]   Affirmed.


       Bradford, C.J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1487 | January 10, 2020   Page 9 of 9
