Mindy (Engel) Speaks v. Vishnuvardhan Rao, D.O., Unity Physicians, Indiana Physician Services, LLC, Porter Hospital, Porter Hospital Pharmacy, and Keith Atassi, M.D. , 117 N.E.3d 661 ( 2018 )

FILED
Dec 31 2018, 8:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE:
Brian J. Hurley VISHNUVARDHAN RAO, D.O.
Timothy C. Krsak Karl L. Mulvaney
Douglas Koeppen & Hurley Nana Quay-Smith
Valparaiso, Indiana Margaret M. Christensen
Bingham Greenebaum Doll LLP
Indianapolis, Indiana
Louis William Voelker
Eichhorn & Eichhorn LLP
Hammond, Indiana
ATTORNEYS FOR APPELLEES:
PORTER HOSPITAL AND
PORTER HOSPITAL PHARMACY
Sharon L. Stanzione
Alan M. Kus
Johnson & Bell, P.C.
Crown Point, Indiana
ATTORNEYS FOR APPELLEE:
KEITH ATASSI, M.D.
Michael E. O’Neill
Jeremy W. Willett
Jessica L. Mullen
O’Neill McFadden & Willett LLP
Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 1 of 20
Mindy (Engel) Speaks, December 31, 2018
Appellant/Cross-Appellee-Plaintiff, Court of Appeals Case No.
18A-CT-131
v. Appeal from the Porter Superior
Court
Vishnuvardhan Rao, D.O., The Honorable William E. Alexa,
Unity Physicians, Indiana Senior Judge
Physician Services, LLC, Porter The Honorable Thomas Webber,
Hospital, Porter Hospital Senior Judge
Pharmacy, and Keith Atassi, The Honorable Jeffrey Clymer,
M.D. Judge
Appellees/Cross-Appellants-Defendants. Trial Court Cause No.
64D02-1411-CT-10090
Robb, Judge.
Case Summary and Issues
[1] Mindy (Engle) Speaks brings this interlocutory appeal of the trial court’s grant
of summary judgment in favor of Keith Atassi, M.D. (“Dr. Atassi”); Porter
Hospital and Porter Hospital Pharmacy (“Porter Hospital”); and
Vishnuvardhan Rao, D.O., Unity Physicians, and Indiana Physician Services,
LLC (“Dr. Rao”) (collectively, “Defendants”) on the issue of medical
malpractice. The Defendants cross-appeal the denial of their motion for
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 2 of 20
summary judgment on the issue of negligence. Concluding summary judgment
in favor of the Defendants on the issue of medical malpractice was appropriate
but that the Defendants were also entitled to summary judgment on the issue of
negligence, we affirm in part, reverse in part, and remand for the entry of
summary judgment.
Facts and Procedural History
[2] On the morning of November 19, 2012, Speaks, a forty-three-year-old registered
nurse, was exercising with her daughter when she experienced a “sudden onset
of [heart] palpitation[s] with associated shortness of breath and mild chest
tightness.” Appellant’s Appendix, Volume 5 at 73. Speaks went to the
emergency room at Porter Hospital in Valparaiso where she was placed under
the care of Dr. Rao, a board-certified emergency room physician. Speaks was
diagnosed with a condition called wide complex tachycardia, or, more simply,
a very rapid heartbeat.
[3] Pursuant to Dr. Rao’s orders, nursing staff started an IV to administer
medications to slow Speaks’ heartbeat. At 9:20 a.m., Dr. Rao ordered, and a
nurse administered, six milligrams of Adenosine by an IV “push.” A “push” is
a large saline bolus which follows the medication to help it move through the
IV and into the blood stream and heart. Dr. Rao also ordered two
electrocardiogram tests to monitor Speaks’ heart function. After the first dose
of Adenosine proved ineffective, Dr. Rao ordered a second, higher dose of
Adenosine. A nurse administered twelve milligrams by IV push. This too
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 3 of 20
proved ineffective and Dr. Rao ordered the administration of 150 milligrams of
Amiodarone, another medication that treats tachycardia through a different
methodology. Sixty-four minutes after entering the emergency room, Speaks’
heart rate returned to a stable sinus rhythm as the Amiodarone appeared
effective. Dr. Rao ordered Speaks receive 325 milligrams of aspirin and the
nurses again carried out the order. In addition to the medications listed above,
which are uncontested by the parties, a computerized chart documenting
Speaks’ vital signs and fluid intake also included a mention of
“SOTRADECOL 3%[.]” Id. at 74.
[4] At 11:08 a.m., Speaks was discharged from the emergency room and
transported to the telemetry floor where she was placed under the care of Dr.
Atassi. Speaks’ IV site was assessed and it showed no signs of redness, edema,
tenderness, or drainage. Dr. Atassi completed a Deep Vein Thrombosis Risk
Assessment and Therapy Order (“DVT Risk Form”) and scored her at “2”
based on the total of “1” for “Age 40-80 years” and “1” for “Overweight (BMI
25-30)[,]” placing her at a “moderate risk[.]” Id. at 69. Dr. Atassi ordered a
consultation with an electrophysiologist and labs to determine Speaks’ Factor V
Leiden1 status, which were collected and sent to Mayo Clinic Laboratories for
testing. Thereafter, Dr. Atassi prepared Speaks’ discharge summary with a
diagnosis of proximal tachycardia, tobacco use disorder, history of transient
1
Factor V Leiden is a genetic mutation of one of the clotting factors in the blood. This mutation can increase
a patient’s chance of developing abnormal blood clots, most commonly in the legs or lungs.
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 4 of 20
ischemic attack/stroke without residual effects, long-term use of aspirin, and a
family history of blood disorder. The next day, as a nurse removed Speaks’ IV
in preparation for her release, there appeared a “long stringy clot that had
attached itself to the catheter being withdrawn.” Id. at 77.
[5] After Speaks returned home, she noticed some swelling, redness, and pain in
her right arm where the IV had been placed. Five days later, on November 25,
Speaks returned to the emergency room and was readmitted to Porter Hospital.
Speaks refused the placement of an IV and a venous doppler study revealed that
Speaks had a basilic vein DVT, or a blood clot, where her IV had been placed
on November 20. Speaks was treated with blood thinners. The next day, Dr.
Atassi saw Speaks for a cardiac consultation and again noted her family history
of blood disorders. Dr. Atassi had not yet received the results from Speaks’
Factor V Leiden test. Speaks was eventually released to return home but her
treatment entailed several return visits to the hospital.
[6] On January 15, 2013, Speaks filed a proposed complaint with the Indiana
Department of Insurance, and subsequently amended her complaint to include
all of the present Defendants. Prior to the ruling by the medical review panel,
Speaks filed a complaint in state court on November 18, 2014. Speaks’
amended complaint alleged the Defendants had been negligent with respect to
Speaks’ evaluation and treatment while at Porter Hospital in November 2012.
Pursuant to statute, Speaks’ amended complaint also revealed the action of the
medical review panel. The medical review panel’s unanimous opinion was that
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 5 of 20
the evidence did not support a conclusion that the Defendants failed to meet the
applicable standard of care.
[7] Following the Defendants’ initial filing of motions for summary judgment, the
trial court issued an order granting the Defendants leave to amend their
motions to address Speaks’ third amended complaint, which had been filed in
the interim. The court also granted Speaks until April 11, 2017, to respond to
the same. The Defendants’ motions highlighted Speaks’ lack of expert
testimony to contradict the unanimous opinion of the medical review panel.
Speaks argued that the common knowledge exception allowed her case to
survive summary judgment without such testimony.
[8] The trial court granted partial summary judgment to the Defendants on the
issue of medical malpractice on October 10, 2017. However, the trial court
interpreted Speaks’ third amended complaint to have asserted new claims of
medical negligence against the Defendants that were independent of her claims
for medical malpractice. In so doing, the trial court found that Speaks’ medical
negligence claims—which were based on the same facts and circumstances as
her medical malpractice claims—did not have to be supported by expert
testimony regarding the standard of care and could proceed as claims of
ordinary negligence.
[9] Speaks now appeals the trial court’s grant of summary judgment on the issue of
medical malpractice and the Defendants cross-appeal the trial court’s denial of
summary judgment on the issue of medical negligence.
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 6 of 20
Discussion and Decision
I. Standard of Review
[10] Summary judgment is a tool which allows a trial court to dispose of cases where
only legal issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The
moving party has the initial burden to show the absence of any genuine issue of
material fact as to a determinative issue. Id. An issue is “genuine” if a trier of
fact is required to resolve the truth of the matter; a fact is “material” if its
resolution affects the outcome of the case. Id. As opposed to the federal
standard which permits the moving party to merely show the party carrying the
burden of proof lacks evidence on a necessary element, Indiana law requires the
moving party to “affirmatively negate an opponent’s claim.” Id. (quotation
omitted). The burden then shifts to the non-moving party to come forward with
contrary evidence showing an issue to be determined by the trier of fact. Id.Although this contrary evidence may consist of as little as a non-movant’s
designation of a self-serving affidavit, summary judgment may not be defeated
by an affidavit which creates only an issue of law—the non-movant must
establish that material facts are in dispute. AM Gen. LLC v. Armour, 46 N.E.3d
436, 441-42 (Ind. 2015).
[11] We review a summary judgment order with the same standard applied by the
trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind.
2017). Summary judgment is appropriate only when “the designated
evidentiary matter shows that there is no genuine issue as to any material fact
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 7 of 20
and that the moving party is entitled to a judgment as a matter of law.” Ind.
Trial Rule 56(C). As our supreme court has cautioned, however, summary
judgment is a “blunt instrument” by which the non-prevailing party is
prevented from resolving its case at trial and therefore we must carefully “assess
the trial court’s decision to ensure [a party] was not improperly denied [his or
her] day in court.” Hughley, 15 N.E.3d at 1003-04 (citations omitted). “Indiana
consciously errs on the side of letting marginal cases proceed to trial on the
merits, rather than risk short-circuiting meritorious claims.” Id. at 1004.
[12] In medical malpractice cases, 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). Thereafter, the burden shifts to
the plaintiff, who may rebut with expert testimony. Id. “Failure to provide
expert testimony will usually subject the plaintiff's claim to summary
disposition.” Bhatia v. Kollipara, 916 N.E.2d 242, 246 (Ind. Ct. App. 2009).
II. Summary Judgment
A. Medical Malpractice
[13] Like other negligence actions, a medical malpractice plaintiff must prove that
the defendant owed her a duty and that the defendant breached that duty,
which proximately caused the plaintiff’s injury. Narducci v. Tedrow, 736 N.E.2d
1288, 1292 (Ind. Ct. App. 2000). “Physicians are not held to a duty of perfect
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 8 of 20
care[,]” but a “doctor 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.” Id. As noted above, expert testimony is
generally required to establish the applicable standard of care and to show a
breach of that standard. Id. “Because medicine is an inexact science, an
inference of negligence will not arise simply because there is a bad result
without proof of some negligent act.” Id.
1. Sotradecol
[14] First, Speaks claims the trial court erred in granting Dr. Rao and Porter
Hospital summary judgment on the issue of medical malpractice because she
was given the “wrong drug” while a patient in the emergency room on
November 19, 2012.2 Corrected Appellant’s Brief at 16.
[15] The only evidence designated by Speaks on this issue is a computerized chart
documenting Speaks’ vital signs and fluid intake which included two mentions
of “SOTRADECOL 3%[.]” Appellant’s App., Vol. 5 at 74. The top half of the
chart documents Speaks’ temperature, pulse, respirations, blood pressure, pain
levels, and oxygen saturation. Speaks’ oxygen saturation levels, “O2 SAT %,”
were recorded as “97%” and “98% Room air[.]” Id. The bottom section of the
chart includes two separate graphs titled “ALL MEDS[.]” Id.
2
Initially, Speaks alleged all of the Defendants were negligent by failing to flush her IV and by failing to take
preventative measures to prevent DVT. Since Dr. Rao’s motion for summary judgment, however, Speaks
has focused exclusively on her contention that she erroneously received Sotradecol while under Dr. Rao’s
care in the emergency room.
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“SOTRADECOL 3%” is listed under both “ALL MEDS” graphs, with the first
followed by “98% room” five times, and the second followed by “98% room”
twice. Id.
[16] The presence of “SOTRADECOL 3%” on Speaks’ computerized vital signs and
fluid intake chart constitutes an uncontested fact. Id. However, Speaks
argument also requires “[t]he inference . . . that the drug would have been
ordered by Dr. Rao, come from the Porter Pharmacy and been administered by
the nursing staff.” Corrected Appellant’s Br. at 16. Although we are mindful
that all reasonable inferences must be construed in favor of the nonmoving
party, AM General LLC, 46 N.E.3d at 439, those inferences must still be
reasonable. See Fowler v. Campbell, 612 N.E.2d 596, 602 (Ind. Ct. App. 1993)
(explaining that an “unreasonable inference” is an inference which results in
action that is arbitrary or capricious and which is based on “speculation, guess,
surmise, conjecture or mere possibility”).
[17] Here, Sotradecol appears by numbers representing oxygen saturation levels, not
a dosage. There is no other record of Dr. Rao having ordered Sotradecol, no
record of any nurse having administered Sotradecol, and Sotradecol is
conspicuously absent from the other records where the uncontested
medications, namely Adenosine, Amiodarone, and Aspirin, are listed. Speaks
remembered having received these other medications but has no memory of
having received Sotradecol. Further, Dr. Rao testified that he would not have
ordered Sotradecol and there were no other doctors who could have ordered the
medication. He explained that Sotradecol 3% was “most likely entered in
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 10 of 20
error[,]” and that, because the chart references seven distinct measurements
within a two-hour visit, “[i]f I am following your assertion, this patient received
Sotradecol not once, but one, two, three, four, five [times] in rapid succession
. . . that is totally illogical, it doesn’t make any sense.” Appellant’s App., Vol. 5
at 36.
[18] Patricia Keith, the clinical systems analyst for Porter Hospital and a former
nurse, testified that this charting anomaly was brought to her attention in April
2013 when the director of the Porter Hospital Pharmacy informed her that
Sotradecol was showing up on patient’s charts and that “the hospital does not
carry Sotradecol.” Id., Vol. 6 at 73. Keith further testified that “Sotradecol has
never been stocked in our pharmacy or in our Pyxis machines.” Id. at 72.
Keith’s job responsibilities included building and supporting screens used for
Porter Hospital’s clinical charting systems, specifically for the nurses and
ancillary charting. Porter Hospital uses the software platform McKesson and
after McKesson was alerted to the charting error, it determined that the error
occurred due to a “mismatched label sequence between the clinical charting and
the emergency room charting systems.” Id. at 74. When a nurse in the
emergency room would chart a patient’s oxygen saturation level, therefore, the
software generated the name “Sotradecol” in error. Id. at 76. Keith further
testified that the computerized vital signs and fluid intake chart is not the
“correct charting that would appear if a drug were given.” Id. at 77.
[19] Speaks refused to have an IV administered when she returned to the hospital on
November 25, 2012, for fear of developing another blood clot. Despite the fact
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that Sotradecol is a drug administered intravenously, Sotradecol once again
appeared on Speaks’ computerized vital signs and fluid intake chart next to her
oxygen saturation levels. Speaks admitted that this must have been an error,
unrelated to the medications or treatment that she received.
[20] In light of the evidence and circumstances presented, we conclude the only
reasonable inference is that Sotradecol’s presence on Speaks’ computerized vital
signs and fluid intake chart was a charting error; Sotradecol was not even a
drug available at Porter Hospital on November 19, 2012. Therefore, although
we agree that whether Speaks received Sotradecol is a “material” fact because it
could affect the outcome of her case, we nevertheless conclude that Speaks has
failed in her burden to demonstrate that this issue is “genuine.” Hughley, 15
N.E.3d at 1003 (explaining that an issue is only “genuine” if a trier of fact is
required to resolve the truth of the matter). Accordingly, summary judgment in
favor of Dr. Rao and Porter Hospital on this issue was appropriate. 3
3
We disagree with Speaks’ contention that the only issue raised by the Defendants on summary judgment
was the standard of care. Specifically, Speaks argues, “[s]ince the Defendants failed to present any evidence
as to duty, causation, and/or damages those issue [sic] remain unaddressed and the Plaintiff may rest on her
complaint and other pleadings.” Corrected Appellant’s Br. at 20. Whether Speaks received Sotradecol was
addressed on reply, see Spudich v. Northern Ind. Public Serv. Co., 745 N.E.2d 281, 285-87 (Ind. Ct. App. 2001)
(holding new arguments can be made in a reply brief on summary judgment), trans. denied, argued at the
summary judgment hearing, and thoroughly litigated on appeal.
The trial court granted summary judgment to Dr. Rao and Porter Hospital on this issue by concluding Speaks
had failed to proffer expert testimony contradicting the medical review panel. Appealed Order at 5. It is well
established, however, that we may affirm the trial court’s grant of summary judgment upon any basis
supported by the record. Kumar v. Bay Bridge, LLC, 903 N.E.2d 114, 115 (Ind. Ct. App. 2009).
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 12 of 20
2. DVT Risk Form
[21] Next, Speaks claims the trial court erred in granting Dr. Atassi and Porter
Hospital summary judgment on the issue of medical malpractice relating to the
completion of her DVT Risk Form. Specifically, Speaks claims that she does
not need an expert opinion to refute a unanimous medical review panel because
of the “common knowledge” exception.4 Corrected Appellant’s Br. at 25.
[22] A plaintiff is not required to present expert testimony in cases where deviation
from the standard of care is a matter commonly known to lay persons. Perry v.
Driehorst, 808 N.E.2d 765, 768 (Ind. Ct. App. 2004), trans. denied. This
“common knowledge” exception applies where:
the complained-of conduct is so obviously substandard that one
need not possess medical expertise in order to recognize the
breach. It is otherwise when the question involves the delicate
inter-relationship between a particular medical procedure and the
causative effect of that procedure upon a given patient’s
structure, endurance, biological makeup, and pathology. The
sophisticated subtleties of the latter question are not susceptible
to resolution by resort to mere common knowledge.
Malooley v. McIntyre, 597 N.E.2d 314, 319 (Ind. Ct. App. 1992).
4
Speaks further argues that “[r]es ipsa loquitur may be, but is not necessarily, an element of the use of the
‘common knowledge’ exception to the need for expert testimony.” Corrected Appellant’s Br. at 25.
However, Speaks never advances an argument regarding res ipsa loquitur and this issue is waived for our
review. See, e.g., D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119, 1126 (Ind. Ct. App. 2018), trans. denied.
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 13 of 20
[23] The common knowledge exception typically arises in instances such as
physicians leaving foreign objects in a patient’s body, because a jury does not
require expert testimony that the object should have been removed. See Balfour
v. Kimberly Home Health Care, Inc., 830 N.E.2d 145 (Ind. Ct. App. 2005). We
have also permitted the common knowledge exception to be applied where
physicians were using an instrument near a source of oxygen and a fire
occurred during a surgery, Gold v. Ishak, 720 N.E.2d 1175 (Ind. Ct. App. 1999),
trans. denied, or where a chiropractor broke a patient’s ribs during treatment for
migraine headaches, Stumph v. Foster, 524 N.E.2d 812 (Ind. Ct. App. 1988).
[24] Here, the record reveals Dr. Atassi completed a DVT Risk Form which omitted
Speaks’ “characteristic of coagulapathy [sic], a blood disorder that is Factor V
Leiden[,] tobacco use disorder (risk factor), stroke at the age of 25 (a risk factor)
and family history of a blood disorders [sic] (another risk factor).” Corrected
Appellant’s Br. at 11. Had the form been properly completed, Speaks argues,
“the score should have shown very high risk of DVT. Instead, due to the
mistakes by Dr. Atassi, [Speaks’] score, despite her Factor V Leiden a clotting
disorder, only revealed a moderate threat.”5 Id. at 27.
5
Speaks makes several references to her Factor V Leiden diagnosis as a fact Dr. Attassi would have, or
should have, been aware of on the date he completed the DVT Risk Form. However, the record reveals that
Dr. Attassi ordered the Factor V Leiden test on November 19, 2012, and he did not receive the results of that
test until November 28, 2012, nine days later, and three days after Speaks’ second admission to Porter
Hospital. See Appellant’s App., Vol. 6 at 37.
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[25] The thrust of Speaks’ argument is that the DVT Risk Form is a “simple form
with simple instructions.” Id. at 28. Therefore, according to Speaks, the
common knowledge exception should be applied because a jury would not need
expert testimony to understand Dr. Atassi’s breach. As we explained in
Malooney, however, the common knowledge exception is inapplicable “when
the question involves the delicate inter-relationship between a particular
medical procedure and the causative effect of that procedure upon a given
patient’s structure, endurance, biological makeup, and pathology.” 597 N.E.2d
at 319. That is the case presented here. Although a sophisticated lay person’s
completion of the form is within the realm of possibility, the relevant inquiry is
whether a lay person could understand the form’s medical significance. We
therefore agree with the trial court’s conclusion that this was a complex medical
issue “not susceptible to resolution by resort to common knowledge[.]”
Appealed Order at 6. And we conclude the trial court properly granted
summary judgment in favor of Dr. Atassi and Porter Hospital because Speaks
failed to bring forth expert testimony contradicting a unanimous medical review
panel.
3. IV Flushing
[26] Speaks also claims her testimony precluded summary judgment in favor of
Porter Hospital relating to the monitoring and flushing of her IV. Porter
Hospital, in turn, argues that Speaks’ assertions are factually inaccurate, that
Speaks relies on evidence not in the record, and that even if Speaks’ allegations
were true, Speaks has once again failed to present expert testimony
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 15 of 20
contradicting a unanimous medical review panel. We agree with Porter
Hospital.
[27] Citing to her affidavit for evidentiary support, Speaks argues that she “offered
uncontested testimony that, in violation of common flushing protocols, her
intravenous line was never flushed for the entire time she was at the hospital.”
Corrected Appellant’s Br. at 23.6 However, Speaks’ affidavit is no longer
evidence in the record because the trial court granted Porter Hospital’s motion
to strike this affidavit, providing:
It is, therefore, considered, ordered, adjudged, and decreed by the
Court, that the Defendants’ Motion for Summary Judgment and
Motion to Strike is granted in part as it relates to the medical
malpractice portion of the complaint, however, it is denied as to
the complained reference to medical negligence and injuries
alleged to have resulted from such negligence . . . .
Appealed Order at 9 (emphasis added). Speaks did not file a response to Porter
Hospital’s motion to strike Speaks’ affidavit and, with the exception of limited
argument in Speaks’ reply brief to Porter Hospital, Speaks has not challenged
the trial court’s decision on appeal. Because Speaks raised this issue for the first
time in a reply brief on appeal, Speaks’ challenge to the granting of the motion
to strike her affidavit is waived for our review. See Curtis v. State, 948 N.E.2d
6Speaks further contends this allegation is “corroborated by the relevant medical records which likewise
contained no indication that the plaintiff received appropriate flushing protocol with respect to her [IV].” Id.
at 23. To the contrary, the record reflects Speaks’ IV was checked on at least four occasions and her IV was
flushed at 11:17 a.m. Appellant’s App., Vol. 6 at 49.
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1143, 1148 (Ind. 2011) (noting that parties may not raise an issue for the first
time in a reply brief on appeal).
[28] As Speaks’ argument regarding expert testimony relies exclusively upon an
affidavit stricken from evidence, we conclude Speaks has failed to present
expert testimony in order to contradict a unanimous medical review panel.7
Therefore, summary judgment on this issue was appropriate.
B. Negligence
[29] The trial court concluded that although Speaks’ lack of expert testimony
entitled the Defendants to summary judgment on her claim of medical
malpractice, that had “no merit in [Speaks’] claim for negligence.” Appealed
Order at 7. The court then ordered that the Defendants’ motions for summary
judgment were:
[G]ranted in part as it relates to the medical malpractice portion
of the complaint, however, it is denied as to the complained
reference to medical negligence and injuries alleged to have
resulted from such negligence . . . .
Id. at 9. On cross-appeal, the Defendants argue the trial court erred in denying
their motion for summary judgment by sua sponte creating a distinction
7
Speaks also utilizes a subheading reading “Common Knowledge exception to expert witness evidence as to
failure to flush lines or engage in DVT prophylaxis.” Corrected Appellant’s Br. at 25. Speaks then discusses
Dr. Atassi’s failure to complete the DVT Risk Form discussed above without advancing an argument
regarding the common knowledge exception applied to IV flushing. Therefore, Speaks has also waived this
argument for our review. Whipple, 103 N.E.3d at 1126.
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 17 of 20
between Speaks’ claims of “medical negligence” and “medical malpractice.”
We agree.
[30] To the extent that the trial court separates Speaks’ claim of “medical
malpractice” from her claim of “medical negligence,” we emphasize that
Indiana law does not recognize such a distinction. These terms are one in the
same and our courts use these terms interchangeably for claims more properly
referred to as medical malpractice—namely, those claims falling under the
provisions of the Indiana Medical Malpractice Act. See, e.g., Howard Reg’l
Health Sys. v. Gordon, 952 N.E.2d 182 (Ind. 2011) (using the terms “medical
malpractice” and “medical negligence” interchangeably throughout). In the
context of the trial court’s discussion, however, it appears the trial court sought
to distinguish Speaks’ claim of medical malpractice (or medical negligence) and
a claim of ordinary negligence.
[31] The Indiana Medical Malpractice Act (“MMA”) covers “curative or salutary
conduct of a health care provider acting within his or her professional capacity,
but not conduct unrelated to the promotion of a patient’s health or provider’s
exercise of professional expertise, skill, or judgment.” Id. at 185. (emphasis
added) (citation and quotations omitted). It is uncontested that Speaks was a
patient of the Defendants and the Defendants are qualified healthcare providers
covered by the Act. However, the MMA is not all-inclusive as to claims against
medical providers, and a claim against a medical provider sounding in ordinary
negligence or premises liability rather than medical malpractice falls outside the
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 18 of 20
procedural and substantive provisions of the MMA. Peters v. Cummins Mental
Health, Inc., 790 N.E.2d 572, 576 (Ind. Ct. App. 2003), trans. denied.
[32] The “fact that the alleged misconduct occurs in a healthcare facility” or that
“the injured party was a patient at the facility,” is not dispositive in determining
whether the claim sounds in medical malpractice. Madison Ctr., Inc. v. R.R.K.,
853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006), trans. denied. Rather, the test to
determine whether a claim sounds in medical malpractice is whether the claim
is based on the provider’s behavior or practices while acting in his professional
capacity as a provider of medical services. Collins v. Thakkar, 552 N.E.2d 507,
510 (Ind. Ct. App. 1990), trans. denied. By contrast, a case sounds in ordinary
negligence when the factual issues are capable of resolution without application
of the health care provider’s standard of care. Terry v. Cmty. Health Network,
Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 2014). “[W]e are guided by the
substance of a claim to determine the applicability of the Act.” Id.[33] In response to Dr. Rao’s motion for summary judgment, the trial court found
“the complained-of conduct of Dr. Rao is not susceptible to resolution by resort
to mere common knowledge,” and, in regard to Dr. Atassi and Porter Hospital,
found “[t]his case involves complex medical issues, which are not susceptible to
resolution by resort to mere common knowledge, therefore falling within the
greater realm of medical malpractice cases, which require an expert opinion.”
Appealed Order at 5-6. It is perplexing then, that the trial court simultaneously
concluded—on the very same facts—that Speaks had presented a claim of
ordinary negligence.
Court of Appeals of Indiana | Opinion 18A-CT-131 | December 31, 2018 Page 19 of 20
[34] We conclude that Speaks’ claims present a straightforward application of the
MMA. Speaks (1) was admitted to the emergency room where she claims to
have received the wrong medication from Dr. Rao and Porter Hospital staff; (2)
was transported to the telemetry floor and placed under the care of Dr. Atassi
where she claimed Dr. Atassi incorrectly completed a DVT Risk Form; and (3)
throughout her admission at Porter Hospital, Speaks claims that her IV was not
properly monitored or flushed. These claims boil down to a “question of
whether a given course of treatment was medically proper and within the
appropriate standard[,]” which is the “quintessence of a malpractice case.”
Howard Reg’l Health Sys., 952 N.E.2d at 185. Therefore, Speaks’ claims sounded
in malpractice, not ordinary negligence, and the trial court erred in denying the
Defendants’ motion for summary judgment.
Conclusion
[35] For the reasons set forth above, we conclude the Defendants were entitled to
summary judgment on the issues of medical malpractice and negligence.
Therefore, we affirm in part, reverse in part, and remand for the entry of
summary judgment on Speaks’ negligence claims.
[36] Affirmed in part, reversed in part, and remanded with instructions.
Baker, J., and May, J., concur.
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