Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                             Jan 15 2014, 10:06 am




ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

MITCHELL A. PETERS                                          MICHAEL H. MICHMERHUIZEN
MillerFisher Law LLC                                        CHARLES C. DUBES
Merrillville, Indiana                                       Fort Wayne, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TRACY RAMBO,                                        )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )   No. 17A03-1308-CT-322
                                                    )
JEFFREY JUSTICE, M.D.,                              )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE DEKALB SUPERIOR COURT
                           The Honorable Monte L. Brown, Judge
                               Cause No. 17D02-0710-CT-15


                                         January 15, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

        Tracy Rambo (“Rambo”) appeals a grant of summary judgment in favor of Jeffrey

Justice, M.D. (“Dr. Justice”) upon Rambo’s medical malpractice claim. We reverse and

remand for further proceedings.

                                                    Issue

        Rambo presents a single, consolidated issue: whether the trial court erroneously

granted summary judgment to Dr. Justice upon concluding that Rambo lacked admissible

evidence for trial, although she had secured a unanimous Medical Review Panel opinion in

her favor.1

                                    Facts and Procedural History

        On October 13, 2005, Rambo was involved in a vehicular crash and was transported to

a nearby hospital. Dr. Justice examined Rambo but thoracic spine X-rays were not obtained.

Rambo was sent to physical therapy, allegedly resulting in greatly increased pain. Two

weeks after the accident, Rambo was found to have spinal fractures.

         On September 28, 2007, Rambo filed a complaint alleging that she had been

negligently treated by Dr. Justice and three other physicians. A medical review panel was

assembled in accordance with the Indiana Medical Malpractice Act, Indiana Code section 34-

18-1-1 et. seq (“the Act.). On August 15, 2011, the panel rendered an expert opinion:

1
  Rambo also articulates an issue concerning the exclusion of witnesses and exhibits as a sanction for her
failure to timely file her witness and exhibit list. However, our reversal of the summary judgment order results
in the matter proceeding to trial, and a trial court has the inherent power to reconsider any of its previous
rulings until judgment is entered. Wisconics Engineering, Inc. v. Fisher, 466 N.E.2d 745, 752 (Ind. Ct. App.
1984), trans. denied. Indeed, the exclusionary order here was a result of Dr. Justice’s motion to have the trial
court reconsider its decision to allow Rambo’s late submission of the list. As such, the challenged order is
interlocutory and does not present an issue for appellate review at this time.

                                                       2
       The evidence supports the conclusion that said Defendant [Dr. Justice] failed
       to comply with the appropriate standard of care as charged in the Complaint.

       The failure to comply with the appropriate standard of care resulted in two (2)
       additional weeks of pain for the Plaintiff, but not the chronic pain following
       surgery of which Plaintiff complains.

(App. 190.)

       On October 28, 2011, Rambo filed an amended complaint, naming Dr. Justice as the

sole defendant.

       On January 23, 2012, a pretrial conference was conducted, with Rambo’s counsel

appearing telephonically. The case management order related to the pre-trial conference set

August 3, 2012 as the date by which Rambo was to advise Dr. Justice of the identify of any

expert witness and set November 16, 2012 as the court filing deadline of a final list of trial

witnesses and exhibits. However, this order was not entered until August 9, 2012. In a letter

dated August 14, 2012, the trial court advised the attorneys for both parties:

       Enclosed please find a copy of the Case Management Order I entered August
       9, 2012. As you know, the Case Management Conference we held that
       resulted in the enclosed Order was actually held on January 23, 2012. For
       reasons I am unable to explain, after that Conference, this file was removed
       from my desk and placed in the file cabinet where it remained until one of you
       brought the matter to the attention of my staff. I apologize for any
       inconvenience this may have caused for you.

(App. 27.) The trial court’s problematic oversight was allegedly compounded by error on the

part of Rambo’s counsel, specifically, failure to properly docket the filing deadline. On

November 20, 2012, four days after the deadline, Rambo filed her Verified Motion for Leave

to File List of Witnesses and Exhibits, and an accompanying list of witnesses and exhibits.




                                              3
The trial court initially granted leave for the filing, four calendar days and two business days

late.

        Dr. Justice filed a motion requesting the trial court’s reconsideration of its decision to

allow Rambo’s submission. He also filed a separate motion to exclude any witness or exhibit

belatedly listed. On January 22, 2013, the trial court granted the motion to reconsider and

ordered the exclusion of Rambo’s witnesses and exhibits.

        On February 1, 2013, Dr. Justice filed a motion for summary judgment, claiming that

Rambo “cannot prevail at trial.” (App. 61.) Rambo designated materials in opposition to the

summary judgment motion, but the trial court struck Rambo’s designation in its entirety. On

July 19, 2013, the trial court entered an order granting Dr. Justice summary judgment.

Rambo appeals.

                                   Discussion and Decision

                                     I. Standard of Review

        A party seeking summary judgment bears the burden of making a prima facie showing

that there are no genuine issues of material fact and that the movant is entitled to judgment as

a matter of law. Smith v. City of Hammond, 848 N.E.2d 333, 337 (Ind. Ct. App. 2006),

trans. denied. Once the movant satisfies this burden through evidence designated to the trial

court pursuant to Indiana Trial Rule 56, the non-movant may not rest upon his or her

pleadings, but must designate specific facts demonstrating the existence of a genuine issue

for trial. Id.




                                                4
       A genuine issue of material fact exists where facts concerning an issue that would

dispose of the litigation are in dispute or where the undisputed material facts are capable of

supporting conflicting inferences on such an issue. Huntington v. Riggs, 862 N.E.2d 1263,

1266 (Ind. Ct. App. 2007), trans. denied.

       On review, we apply the same standard as the trial court: we must decide whether

there is a genuine issue of material fact that precludes summary judgment and whether the

moving party is entitled to judgment as a matter of law. Carie v. PSI Energy, Inc., 715

N.E.2d 853, 855 (Ind. 1999). In so doing, we consider only those portions of the pleadings,

depositions, and other matters specifically designated to the trial court by the parties for

purposes of the motion. Ind. Trial Rule 56(C), (H). A grant of summary judgment may be

sustained on any theory or basis supported by the designated materials. Smith v. Yang, 829

N.E.2d 624, 625 (Ind. Ct. App. 2005).

       Medical malpractice cases are like other negligence actions regarding what must be

proven. Ziobron v. Squires, 907 N.E.2d 118, 123 (Ind. Ct. App. 2008). To prevail at trial,

the plaintiff must show: (1) a duty owed to the plaintiff by the defendant; (2) a breach of

duty by allowing conduct to fall below the applicable standard of care; and (3) a compensable

injury to the plaintiff proximately caused by the defendant’s breach. Id

       Health care providers are not held to a duty of perfect care, but must exercise the

degree of skill and care ordinarily possessed and exercised by a reasonably skillful and

careful practitioner under the same or similar circumstances. Syfu v. Quinn, 826 N.E.2d 699,

703 (Ind. Ct. App. 2005). An act is a proximate cause of injury if it is the natural and


                                              5
probable consequence of the act and should have been reasonably foreseen and anticipated

under the circumstances. Hellums v. Raber, 853 N.E.2d 143, 146 (Ind. Ct. App. 2006). At a

minimum, proximate cause requires that the harm would not have occurred but for the

defendant’s conduct. Id. The negligent act need not be the sole cause of the plaintiff’s

injuries. Id.

        In negligence cases, summary judgment is “rarely appropriate.” Rhodes v. Wright,

805 N.E.2d 382, 387 (Ind. 2004). However, a defendant is entitled to judgment as a matter

of law when the undisputed material facts negate at least one element of the plaintiff’s claim.

Id. at 385.

                                                 II. Analysis

        Dr. Justice contended, and the trial court agreed, that he was entitled to summary

judgment because:

        The Plaintiff’s claim is one for medical malpractice and due to the procedural
        posture of this case, Plaintiff will be unable to present any expert medical
        testimony regarding the standard of care applicable to Dr. Justice’s treatment,
        that Dr. Justice’s actions fell below the applicable standard of care, or that the
        actions of Dr. Justice proximately caused her injuries. Since the Plaintiff
        cannot do so, she cannot prevail at trial and summary judgment is appropriate.

(App. 61.) His contention turns our summary judgment standard on its head and ignores the

expert opinion rendered by the Medical Review Panel as required by law.2 Dr. Justice insists


2
  Indiana Code section 34-18-10-22 provides that the panel “has the sole duty to express the panel’s expert
opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or
failed to act within the appropriate standards of care as charged in the complaint.” The panel shall give one or
more of the expert opinions: “the evidence supports the conclusion that the defendant or defendants failed to
comply with the appropriate standard of care as charged in the complaint; the evidence does not support the
conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the
complaint; there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration

                                                        6
that Rambo has not identified a genuine issue for trial, but he did not himself demonstrate the

absence of such an issue.

        “In ruling upon a motion for summary judgment, facts alleged in a complaint must be

taken as true except to the extent that they are negated by depositions, answers to

interrogatories, affidavits, and admissions on trial or by testimony presented at the hearing on

a motion for summary judgment.” Cowe by Cowe v. Forum Grp., Inc., 575 N.E.2d 630, 633

(Ind. 1991). Rambo alleged in her complaint that she was injured by Dr. Justice’s

negligence. She had obtained an expert opinion from the Medical Review Panel favorable to

her position.         .

        As previously observed, the party seeking summary judgment must make a prima facie

showing that there are no genuine issues of material fact and that he is entitled to judgment as

a matter of law before the non-movant is required to come forward with a designation of

specific facts demonstrating a genuine issue for trial. Smith, 848 N.E.2d at 337. In order to

properly obtain summary judgment in his favor, it was incumbent upon Dr. Justice to, prima

facie, negate one or more of the elements of Rambo’s negligence claim.

        This is so because Indiana’s summary judgment procedure “abruptly diverges” from

federal practice. Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118

(Ind. 1994). In federal practice a defendant seeking summary judgment is not required to

negate a plaintiff’s claim, but need only indicate the basis for its motion and designate

evidence to show that the plaintiff failed to establish an essential element of its claim. Miller


by the court or jury; the conduct complained of was or was not a factor of the resultant damages.” Id.

                                                     7
v. Bernard, 957 N.E.2d 685, 697 (Ind. Ct. App. 2011). In Indiana, however, merely alleging

that the plaintiff has failed to produce evidence on each element of its claim is insufficient to

sustain summary judgment. Id. (citing Jarboe, 644 N.E.2d at 123). Instead, the party seeking

summary judgment must demonstrate the absence of any genuine issue of fact as to a

determinative issue, and only then is the non-movant required to come forward with contrary

evidence. Id.

       In support of his motion for summary judgment, Dr. Justice designated the following:

“Plaintiff’s Amended Complaint, Order of January 22, 2013 granting Defendant’s Motion to

Exclude, and Order of January 22, 2013 granting Defendant’s Motion to Reconsider.” (App.

61.) The designated materials do not show, prima facie, that Dr. Justice owed Rambo no

duty, or that Dr. Justice’s conduct did not fall below the standard of care, or that there was no

compensable injury to Rambo caused by a breach of the standard of care. In other words, Dr.

Justice’s designated materials do not, prima facie, negate an element of Rambo’s claim.

       Dr. Justice’s assertion that Rambo seemed unable, following a sanction excluding

belatedly listed witnesses and exhibits, to prove her claim did not entitle Dr. Justice to

summary judgment. “Summary judgment should not be used as an abbreviated trial.”

Dickerson v. Strand, 904 N.E.2d 711, 715 (Ind. Ct. App. 2009). Dr. Justice’s sparse

designation did nothing to show lack of duty, causation, or injury. In these circumstances,

Rambo was not required to come forward with designated evidence in order to withstand

summary judgment.




                                               8
       We acknowledge the imposition of a severe sanction. This is not, however, equivalent

to the dismissal of Rambo’s negligence claim. We decline to speculate on whether Rambo

will ultimately have admissible evidence in addition to the Medical Review Panel opinion

mandated under the Act. Apart from the possibility of newly discovered evidence, there

remains the prerogative of the trial court to reverse an order of sanction, just as it has

previously done. See Gibson v. Evansville Vanderburgh Bldg. Comm’n, 725 N.E.2d 949,

952 (Ind. Ct. App. 2000) (observing “the trial court has inherent power to reconsider any of

its previous rulings so long as the action remains in fieri, or until judgment is entered”), trans.

denied.

       Dr. Justice did not demonstrate the absence of a genuine issue of material fact and his

entitlement to judgment as a matter of law. Accordingly, summary judgment was improperly

granted.

       Reversed and remanded for further proceedings.

FRIEDLANDER, J., and KIRSCH, J., concur.




                                                9
