FOR PUBLICATION                                   Sep 05 2014, 9:23 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEES:

MORRIS L. KLAPPER                             LAURA K. BINFORD
Indianapolis, Indiana                         JAMES O. GIFFIN
                                              Riley Bennett & Egloff, LLP
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA
BRENDA K. TIPTON,                             )
                                              )
      Appellant-Plaintiff,                    )
                                              )
             vs.                              )        No. 49A05-1311-CT-541
                                              )
MARGARET ISAACS, M.D., ST. VINCENT            )
HOSPITAL AND HEALTHCARE                       )
CENTER, a/k/a ASCENSION HEALTH,               )
CHRISTINA FRANCIS, M.D., and                  )
JAMES R. MINOR, M.D.,                         )
                                              )
      Appellees-Defendants.                   )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Heather Welch, Judge
                          Cause No. 49D12-1112-CT-49101

                                  September 5, 2014

                             OPINION - FOR PUBLICATION

MAY, Judge
        Brenda K. Tipton appeals summary judgment for various healthcare providers she

sued after her hysterectomy. As the consent form Tipton signed is determinative of all issues

she raises on appeal, we affirm.

                            FACTS AND PROCEDURAL HISTORY

        Tipton became a patient at St. Vincent Hospital Family Practice and OB/GYN

Residency Clinic (“the Clinic”) in 2004. On three occasions, once in 2004 and twice in 2007,

she was informed the Clinic was a residency program and that:

        Residents are medical doctors who have graduated from medical school and
        are receiving specialty training in the fields of . . . Women’s Health . . . . Staff
        doctors oversee the care provided by the resident doctor. Every case is
        discussed with a staff doctor and the staff doctor may see or examine the
        patient as well.

(App. at 276.)

        Dr. Margaret Isaacs, a resident, first examined Tipton at the clinic in March 2008. In

July 2008, Dr. Isaacs and another doctor operated on Tipton, and the surgical findings

indicated Tipton had an increased risk of developing cervical cancer. Tipton was advised of

several options, and she decided to undergo a hysterectomy.

        On September 25, 2008, the day of the hysterectomy at St. Vincent Hospital (“the

Hospital”), Tipton signed a “Consent to Surgery or Other Medical Procedure,” (id. at 218),

that explicitly authorized Dr. Isaacs1 “and such assistants as may be selected by him or her to

perform the . . . [t]otal abdominal hysterectomy.” (Id.) She consented to “the presence, in


1
  Tipton states in her brief that “the consent form mentions only the name of Dr. Isaacs.” (Appellant’s Br. at
4.) While Tipton is correct that no other name is mentioned, the form is explicit that Tipton was consenting to
the presence and participation of other people.
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the procedure room, of residents, interns, approved observers, students, and pharmacy, supply

and equipment vendors who will witness and support the procedure being performed on me,”

(id.), and to “the participation of medical, nursing, other health care students, residents, and

interns in the procedure being performed on me. These individuals will participate under the

direct supervision of my physician.” (Id.)

       Dr. Isaacs, a resident, performed most of the surgery. She was present in the operating

room during all of the surgery. Another resident, Dr. Christina Francis, performed the

hysterectomy on one side of Tipton’s body but did not participate in the operation on the

other side, or in the opening or closing procedures. Dr. James Minor supervised both

residents. He was present for and assisted in the entire procedure. On October 1, Tipton was

readmitted to the Hospital and on October 5 she underwent further surgery because of wound

drainage and swelling.

       Tipton brought a medical malpractice complaint against the Hospital and Doctors

Isaacs, Francis, and Minor (collectively, “the doctors”) after completion of medical review

panel proceedings. She alleged (1) the “failure of Dr. Francis to obtain any consent at all

before performing surgery on [Tipton] was a battery,” (id. at 62), (2) the Hospital and each of

the doctors had a duty to obtain her informed consent for the surgery, including “disclosure

of the identities and qualifications of all physicians involved in performing the procedure,

and the fact that Doctors Isaacs and Francis were still in training, (id. at 63), and (3) Doctors

Francis, Isaacs, and Minor were liable for “actual or constructive fraud or deceit,” (id.),

because Dr. Francis entered the operating room, performed surgery, and left while Tipton

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was unconscious, “intentionally depriving her of the opportunity to be advised of or object to

Dr. Francis performing surgery on her,” (id. at 64), and the other two doctors knowingly

allowed Dr. Francis to do so and they did not tell Tipton in advance that Dr. Francis would be

performing part of the surgery.

       The trial court granted summary judgment for the defendants on all three counts.

                             DISCUSSION AND DECISION

       When a grant or denial of summary judgment is challenged on appeal, the procedure

and standard under Indiana law is clear. Our standard of review is the same as it is for the

trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). The moving party bears the

initial burden to make a prima facie showing that there are no genuine issues of material fact

and that it is entitled to judgment as a matter of law. Id. Summary judgment is improper if

the moving party fails to carry its burden, but if it succeeds, then the non-moving party must

come forward with evidence establishing there is a genuine issue of material fact. Id. We

construe all factual inferences in favor of the non-moving party and resolve all doubts as to

the existence of a material issue against the moving party. Id. An appellate court reviewing

a challenged trial court summary judgment ruling is limited to the evidence designated before

the trial court, see Ind. Trial Rule 56(H), but is constrained to neither the claims and

arguments presented at trial nor the rationale of the trial court ruling. Id. We will reverse if

the law has been incorrectly applied to the facts; otherwise, we will affirm a summary

judgment on any theory supported by evidence in the record. Id. We are not limited to

reviewing the trial court’s reasons for granting or denying summary judgment. Id.

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          1.      Informed Consent

          As Tipton consented to Dr. Francis’ participation in her surgery, summary judgment

on Tipton’s informed consent count was not error. Lack of informed consent is a distinct

theory of liability. Spar v. Cha, 907 N.E.2d 974, 979 (Ind. 2009). Lack of informed consent

to a harmful touching in medical malpractice cases was traditionally viewed as a battery

claim. More recently, unless there is a complete lack of consent, the theory is regarded as a

specific form of negligence for breach of the required standard of professional conduct.2 Id.

Lack of informed consent is premised on the physician’s duty to disclose to the patient

material facts relevant to the patient’s decision about treatment. Id.

          To succeed in a lack of informed consent action, a plaintiff must prove

          (1) nondisclosure of required information; (2) actual damage . . . (3) resulting
          from the risks of which the patient was not informed; (4) cause in fact, which
          is to say that the plaintiff would have rejected the medical treatment if she had
          known the risk; and (5) that reasonable persons, if properly informed, would
          have rejected the proposed treatment.

Id. at 980. As Tipton did not prove there was “nondisclosure of required information,”

summary judgment for the healthcare providers was not error.

          In Rumple v. Bloomington Hosp., 422 N.E.2d 1309 (Ind. Ct. App. 1981), trans.

denied, Rumple claimed he was not informed that he would be billed for radiological services

provided to his son. Rumple signed a consent form that read in pertinent part:

          2. I hereby authorize and direct the above-named surgeon and/or his associates
          to provide such additional services for me as he or they may deem reasonable
          and necessary, including, but not limited to, the administration and
          maintenance of the anesthesia, and the performance of services involving

2
    As there was not a complete lack of consent in the case before us, we need not conduct a battery analysis.
                                                       5
       pathology and radiology, and I hereby consent thereto.
       3. I understand that the above-named surgeon and his associates or assistants
       will be occupied solely with performing such operation, and the persons in
       attendance at such operation for the purpose of administering anesthesia, and
       the person or persons performing services involving pathology and radiology,
       are not the agents, servants or employees of Bloomington Hospital nor of any
       surgeon, but are independent contractors and as such are the agents, servants,
       or employees of myself.

Id. at 1312.

       Rumple argued that he understood the consent form to authorize only treatment

necessary for setting his son’s wrist and that aside from very general language in the form,

there was no discussion of radiology. Rumple argued that from the consent form, the

hospital “assumed the discretion to impose unauthorized services” on him in violation of the

doctrine of informed consent.

       We determined the doctrine of informed consent did not apply because:

       The issue in informed consent is whether the patient was subjected to the
       inherent risks of the proposed treatment without being permitted to
       intelligently reject or accept treatment. The doctrine of informed consent
       usually arises in a situation where a physician failed to fulfill his or her duty to
       inform the patient of the risks of proposed treatment or where the physician
       was liable for treatment of the patient beyond that which was authorized.
       Neither of those situations are present in the case at bar.

Id. at 1212 (internal quotation omitted). Nor does Tipton make such allegations.

       But assuming arguendo the doctrine of informed consent applies to Tipton’s case, we

find she consented to the participation of Dr. Francis and others in her surgery. Rumple, as

does Tipton in the case before us, alleged the consent form was a contract of adhesion and

thus was void. He noted the form was a standardized form that was presented to him by a


                                                6
party with greater bargaining power, and there was no bargaining between the parties as to its

contents; rather, if he wanted medical treatment for his son, then he had to sign the form as

presented. This lack of negotiation, he argued, made the contract unenforceable.

       We determined it was not, first noting a standardized contract is not unenforceable just

because of the unequal bargaining power of the parties. Id. at 1313. “There must also be a

showing that the contract is unconscionable, i.e., one which contains unreasonable or

unknown terms and is the product of inequality of bargaining power.” Id. Rumple did not

make such a showing, nor has Tipton. Rumple read the consent form at the time he signed it

and acknowledged at trial that he understood its terms. Tipton directs us to no evidence she

did not read or understand the form she signed.

       We found the terms of Rumple’s consent were not unreasonable, as it allowed doctors

to perform necessary and reasonable medical services and did not allow them to perform

unnecessary medical services. Id. Consent to allow the performance of reasonable and

necessary medical treatment is not unconscionable: “An ‘unconscionable contract’ has been

defined to be such as no sensible man not under delusion, duress or in distress would make,

and such as no honest and fair man would accept.” Id. (quoting Weaver v. Am. Oil Co., 257

Ind. 458, 462, 276 N.E.2d 144, 146 (1971)). We decline to hold Tipton’s consent to allow

“assistants as may be selected by [Dr. Isaacs] to perform the . . . [t]otal abdominal

hysterectomy” and “the participation of medical, nursing, other health care students,

residents, and interns in the procedure being performed on me,” (App. at 218), is an

agreement “no sensible man not under delusion, duress or in distress would make, and such

                                              7
as no honest and fair man would accept.” As Tipton consented to Dr. Francis’ participation

in the surgery, summary judgment on her informed consent claim was appropriate.

       Neither party directs us to Indiana decisions that specifically address Tipton’s

situation, i.e., the validity of a consent to the participation of unnamed doctors or other health

care providers, but we find decisions from other jurisdictions instructive. In Haynes v.

Beceiro, 219 S.W.3d 24 (Tex. App. San Antonio 2006), review denied, the language of

Haynes’ consent was almost identical to Tipton’s: “I (we) voluntarily request Dr. Peter Kuhl

as my physician, and such associates, technical assistants and other health care providers as

they [sic] may deem necessary, to treat my condition which has been explained to me as:

Endometriosis.” Id. at 26. The Haynes court determined that when Haynes gave written

consent for her doctor and “such associates” to perform the surgery specified in the

disclosure and consent form, she consented to another surgeon performing part of surgery,

and that precluded her medical battery claim. Id. at 27.

       Haynes’ argument, like Tipton’s, was that the consent form named only one person as

the surgeon, and the patient never gave consent for someone else to be her surgeon. Haynes

argued that because Dr. Beceiro performed one-half of the surgery, she had a duty to obtain

Haynes’ consent; and, because Dr. Beceiro did not, the surgery was medical battery. Haynes’

argument relied on the premise that the word “associate” in the Disclosure and Consent form

did not include physicians, surgeons, or assistant surgeons.

       The Haynes court disagreed, noting words and phrases in agreements should be given

their ordinary, plain, and common meaning, and the dictionary definition of “associate” is

                                                8
“one associated with another: as a partner, [or] colleague.” Id. at 27 (quoting Webster’s

Ninth New Collegiate Dictionary 110 (1983)). Because the terms used in the consent form

were not ambiguous, it construed the form as a matter of law, and construed the phrase “such

associates” to

       include other physicians and surgeons as deemed necessary by the surgeon
       named in the form. Therefore, when [Haynes] gave her written consent for the
       [named surgeon] “and such associates” to perform the surgery specified in the
       Disclosure and Consent form, she consented to Beceiro performing any part of
       that surgery “[the named surgeon] may deem necessary, to treat [her]
       condition.”

Id. And see generally Robin Cheryl Miller, Annotation, Recovery by Patient on whom

Surgery or Other Treatment was Performed by One Other than Physician who Patient

Believed would Perform it, 39 A.L.R.4th 1034 (1985).

       Similarly, when Tipton explicitly authorized Dr. Isaacs “and such assistants as may be

selected by him or her to perform the . . . [t]otal abdominal hysterectomy” and consented to

“the participation of medical, nursing, other health care students, residents, and interns in the

procedure being performed on me. These individuals will participate under the direct

supervision of my physician,” (App. at 218), she consented to Dr. Francis performing any

part of her surgery. Summary judgment for the healthcare providers was not error.

       2.        Constructive Fraud and Deceit

       Nor was summary judgment for the health care providers error on Tipton’s

constructive fraud count. Constructive fraud arises by operation of law from a course of

conduct which, if sanctioned by law, would secure an unconscionable advantage, even if


                                                 9
there is no evidence of actual intent to defraud. Demming v. Underwood, 943 N.E.2d 878,

892 (Ind. Ct. App. 2011), reh’g denied, trans. denied. The elements of constructive fraud

are: 1) a duty owing by the party to be charged to the complaining party due to their

relationship; 2) violation of that duty by the making of deceptive material misrepresentations

of past or existing facts, or by remaining silent when a duty to speak exists; 3) reliance

thereon by the complaining party; 4) injury to the complaining party as a proximate result

thereof; and 5) the gaining of an advantage by the party to be charged at the expense of the

complaining party.

       As the designated evidence does not demonstrate the health care providers made

deceptive material misrepresentations of past or existing facts, nor is there evidence

suggesting they remained silent when a duty to speak existed, summary judgment for the

health care providers was not error.

       Neither party directs us to Indiana authority specifically addressing whether, in a

situation like the one before us, there can be a deceptive material misrepresentation of past or

existing facts or whether, in light of consent like that Tipton provided, health care providers

have remained silent when a duty to speak existed. Those questions have been addressed in

other jurisdictions, and we find instructive Bowlin v. Duke University, 423 S.E.2d 320 (N.C.

Ct. App. 1992), review denied.

       Bowlin’s physician did not specifically inform her that a fourth-year medical student

would be participating in her bone marrow harvest procedure. Bowlin, like Tipton, knew the

facility where her procedure would be performed was a teaching institution, and that

                                              10
students, nurses, and allied health personnel might assist in providing care. Like Tipton, she

signed a consent form that included a statement that she agreed medical students could assist

in providing her care.

       The Bowlin court determined the doctor had no duty to inform Bowlin of the

qualifications of all surgical assistants:

       [Bowlin] contends [her doctor] should have informed her of any health care
       provider who would assist him in the bone marrow harvest procedure and their
       levels of expertise. There is, however, no statutory or common law duty for an
       attending surgeon to inform a patient of the particular qualifications of
       individuals who will be assisting, and the consent given by [Bowlin] defeats
       this argument.

Id. at 323. Therefore, the doctor’s failure to reveal the assistant’s status as an unlicensed

student was not constructive fraud. Id. at 324.

       We find the Bowlin reasoning persuasive. In light of Tipton’s consent, we cannot say

Tipton’s healthcare providers remained silent when they had a duty to speak or that they

made a deceptive material misrepresentation of past or existing facts. The providers were

therefore entitled to summary judgment on her constructive fraud claim.

                                       CONCLUSION

       Tipton consented to Dr. Francis’ participation in her surgery, and Tipton’s healthcare

providers did not make a deceptive material misrepresentation of past or existing facts or

remain silent when they had a duty to speak. We accordingly affirm the summary judgment

for the defendants.




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      Affirmed.

KIRSCH, J., and BAILEY, J., concur.




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