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 Jan 29 2014, 10:13 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
ROBERT L. NEALE CAROL A. DILLON
New Castle, Indiana Bleeke Dillon Crandall
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT L. NEALE, )
)
Appellant-Plaintiff, )
)
vs. ) No. 52A05-1307-CT-361
)
CORRECTIONAL MEDICAL )
SERVICES, INC., et al, )
)
Appellees-Defendants. )
APPEAL FROM THE MIAMI CIRCUIT COURT
The Honorable Timothy P. Spahr, Judge
Cause No. 52C01-1106-CT-215
January 29, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-plaintiff Robert L. Neale, an inmate at the Miami Correctional Facility,
broke several fingers while punching his cellmate in the face. Neale sued the appellee-
defendants Correctional Medical Services Company (now known as Corizon), Linda
Frye, and Nicole Pax (collectively, “the defendants”), who were employees at the Miami
Correctional Facility, alleging medical malpractice and general negligence in the
treatment of his injuries.
The trial court granted summary judgment in the defendants’ favor when their
designated medical evidence established that they acted reasonably and within the
applicable standard of care. Neale put forth no expert testimony to the contrary and the
trial court struck various portions of his affidavit that amounted to inadmissible hearsay
evidence and conclusions. Nonetheless, Neale contends that genuine issues of material
fact remain as to whether the defendants committed medical malpractice.
We find that the trial court properly struck portions of Neale’s affidavit and that
summary judgment was properly entered for the defendants.
FACTS
Neale was incarcerated at the Miami Correctional Facility, which had contracted
with Corizon to provide medical care for its prisoners. On November 23, 2009, Neale
and his cellmate got into a fight and Neale hit his cellmate in the face. As a result, Neale
fractured the third and fourth digits of his right hand. Neale’s hand was x-rayed that day
and examined by Dr. Anna Lambertson. Dr. Lambertson immediately requested an
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orthopedic consultation, prescribed Vicodin for Neale’s pain, and placed Neale’s fingers
in a splint.
Although Nicole Pax, an administrative assistant in the medical department,
scheduled an appointment for Neale with the Orthopedic Clinic at Wishard Hospital on
December 8, 2009, a scheduling error occurred so she made arrangements for Neale to be
examined at Dukes Memorial Hospital (Dukes) two days later. However, Pax did not
know that Neale had a court hearing that same day. As a result, both appointments were
inadvertently cancelled in light of miscommunication by prison officials and staff. Neale
also alleged that he had informed Linda Frye, the health services administrator at the
Miami Correctional Facility and an employee of Corizon, about his injured hand. Neale
alleged that Frye ignored all of his letters and requests for treatment.
Dr. Lambertson subsequently examined Neale on December 17, 2009, and
renewed his Vicodin prescription for seven days. Surgery was performed the next day
and Neale returned for a follow up appointment at Dukes in early February, 2010.
Pursuant to Dr. Lambertson’s orders, Neale began physical therapy in March 2010, went
to several appointments, and completed therapy on April 30, 2010.
On June 15, 2011, Neale filed a complaint against the defendants, alleging that
while he was confined at the Miami Correctional Facility, Corizon, Frye, and Pax, were
negligent for failing to treat Neale’s broken hand in a timely, adequate, and effective
manner.
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On April 8, 2013, the defendants filed a motion for summary judgment, claiming
that they were entitled to judgment as a matter of law because Neale could not establish
that the defendants breached the appropriate standard of care or that any action or
inaction on their part resulted in physical harm to Neale. The defendants submitted the
affidavits of Frye, Pax, and Dr. Mandaret in support of their motion for summary
judgment, alleging that no standard of care toward Neale had been breached.
Frye averred in her affidavit that she is the Health Services Administrator at the
Miami Correctional Facility and is the liaison between the Superintendent and the
medical department. Frye rarely treats offenders and never rendered medical care to
Neale. She also makes no treatment decisions, and had no control over Dr. Lambertson
or her staff. She also did not cancel any of Neale’s appointments with any of the
providers outside the prison.
Pax set forth in her affidavit that she is the administrative assistant at the Miami
Correctional Facility, does not treat offenders or provide any sort of medical assessment,
and has nothing to do with prescribing medication for the prisoners. The medical staff
has no control over when any outside provider or a hospital schedules an appointment for
an offender. Pax acknowledged that there had been a communication problem regarding
Neale’s court date and the hospital appointment in December 2009. Pax averred that she
did not cancel any of Neale’s appointments, that Dukes had rescheduled the last
appointment, and that Neale missed his first two appointments because the correctional
officers had escorted him to the wrong clinic at Wishard Hospital.
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Dr. Mandaret averred in his affidavit that he had reviewed Neale’s medical records
and concluded that the medical care that the nursing and physician staff at the Miami
Correctional Facility rendered to Neale was “reasonable, appropriate, and within the
applicable standard of care for the prison setting.” Appellant’s App. p. 103. Dr.
Mandaret was also of the opinion that Neale’s treatment at the Miami Correctional
Facility did not cause or contribute to his injury. To the contrary, Dr. Mandaret
concluded that any deformity, restrictions, or pain that Neale had with his hand was the
result of the fracture itself, and not by the medical treatment he received.
In response, Neale presented his own affidavit, attempting to establish that the
defendants were negligent. Thereafter, the defendants moved to strike several portions of
Neale’s affidavit as inadmissible. More particularly, the trial court struck portions of the
affidavit that contradicted the medical records that were produced and amounted to
hearsay. The trial court also observed that some of the statements required medical
testimony, and that Neale lacked personal knowledge about some of the issues that he set
forth in his affidavit.
The trial court granted the defendants’ motion for summary judgment and Neale
appeals.
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DISCUSSION AND DECISION
I. Standard of Review
When reviewing a grant or denial of summary judgment, our standard of review is
the same as that of the trial court. Considering only those facts that the parties designated
to the trial court, we must determine whether there is a “genuine issue as to any material
fact” and whether “the moving party is entitled to a judgment as a matter of law.”
Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). We
construe all factual inferences in the non-moving party’s favor and resolve all doubts as
to the existence of a material issue against the moving party. Id. The party appealing a
summary judgment decision has the burden of persuading this court that the grant or
denial of summary judgment was erroneous. Knoebel v. Clark Cnty. Superior Court No.
1, 901 N.E.2d 529, 531-32 (Ind. Ct. App. 2009).
II. Neale’s Contentions
Neale asserts that the trial court erred in granting the defendants’ motion for
summary judgment because Corizon’s staff erred in making various appointments for the
treatment of his hand, and that Frye had ignored all of his letters and requests for
treatment. Thus, Neale claims that his “bones healed improperly as mistakes were made
in scheduling his medical treatment and restraints were not replaced on his hand during
the healing process.” Appellant’s Br. p. 8.
The plaintiff in a medical negligence case has the burden to prove (1) the
appropriate standard of medical care applicable to the medical provider; (2) the medical
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provider’s care fell below that standard of care; and (3) the medical provider’s failure to
meet the standard of care was the proximate cause of the plaintiff’s injuries. Watson v.
Med. Emergency Serv., 532 N.E.2d 1191, 1193 (Ind. Ct. App. 1989). When a physician
presents an opinion that the applicable standard of care was not breached, as Dr.
Marandet has done in this case, a patient asserting malpractice must “present expert
testimony establishing the standard of care and the [defendant’s] conduct fell below the
standard of care.” Marquis v. Battersby, 443 N.E.2d 1202, 1203 (Ind. Ct. App. 1982).
However, expert testimony is required only when the issue of care is beyond the realm of
lay persons. Stumph v. Foster 524 N.E.2d 812, 815 (Ind. Ct. App. 1988). A plaintiff is
not required to present expert testimony in cases of medical malpractice based on
negligence in order to overcome summary judgment when deviation from the standard of
care is a matter commonly known to lay persons. Chaffins v. Kauffman, 995 N.E.2d 707,
713 (Ind. Ct. App. 2013).
As discussed above, the defendants’ affidavits set forth the course of Neale’s
medical care and explained why Neale’s scheduled appointments were missed with the
orthopedic doctor. And Dr. Marandet concluded that the medical care that Neale
received was within the applicable standard of care for the prison setting and did not
result in any harm to Neale. Id. at 103. In other words, the problems that Neale currently
alleges to have with his hand are the result of the fractures themselves, rather than the
result of the medical care that he received from the defendants. Put another way, the
defendants’ designated evidence established that there was no causal connection between
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the medical care that Neale received at the Miami Correctional Facility and his alleged
injuries. Id.
In her affidavit, Pax averred that she did not make an appointment for Neale with
the wrong physician. Id. at 98. Although additional mistakes were made with regard to
various appointments for Neale, Pax explained that she never cancelled the appointments
and has no control as to when an outside hospital or provider will schedule a prisoner for
an appointment. Id. In short, Pax established that she had no direct involvement in
treating Neale or prescribing medication for him because she is not a medical provider.
Regarding Frye, it was established that she, as the Health Services Administrator,
did not supervise or direct the nursing staff or the physicians with regard to Neale’s care.
Id. at 93. She was also not personally involved in Neale’s care because her role at the
prison is purely administrative. Id. at 94. Moreover, there was no evidence that Frye
employed, controlled, directed, or oversaw the individuals who actually treated Neale.
The only direct allegation that Neale asserts against Frye is that he wrote her
letters to which she did not respond. However, Frye’s affidavit indicated that she had no
recollection of receiving any letters from Neale, and if she did, it is her policy to respond
to each letter the same day. Id. at 95.
In our view, the issue as to whether Corizon and its nurses and physicians
breached the applicable standard of care by failing to properly treat Neale’s fractured
fingers is a medical one for which expert testimony is required. See Topp v. Leffers, 838
N.E.2d 1027, 1032 (Ind. Ct. App. 2005) (observing that expert medical testimony was
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required to prove causation in a personal injury action arising from an automobile
accident where a motorist complained that pre-existing injuries were aggravated by the
accident, and the discerning causal connection involved a complicated medical question
in light of the pre-existing injuries).
As noted above, although Neale submitted his own affidavit in opposition to the
defendants’ motion for summary judgment, the trial court struck portions of it on the
grounds that it contained inadmissible hearsay evidence, contradicted the medical records
that were produced, and several of the statements that Neale made demonstrated his lack
of personal knowledge about some of the issues. Appellant’s App. p. 105-08.
In conclusion, the defendants presented expert medical testimony that they were
not negligent and did not breach the standard of care in treating Neale. Neale failed to
present designated medical evidence to the contrary. Thus, we conclude that the trial
court properly entered summary judgment for the defendants.
The judgment of the trial court is affirmed.
NAJAM, J., and CRONE, J., concur.
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