FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
DENNIS R. BROWN KARL L. MULVANEY
DENNIS H. GEISLEMAN NANA QUAY-SMITH
Geisleman & Brown LLP BRIANA L. CLARK
Fort Wayne, Indiana Bingham Greenebaum Doll LLP
Indianapolis, Indiana
FILED
Sep 07 2012, 8:56 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
KENNETH W. SMITH and )
DEB-ANNE SMITH, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 02A03-1201-CT-41
)
DERMATOLOGY ASSOCIATES OF )
FORT WAYNE, P.C. a/k/a DERMATOLOGY )
& LASER SURGERY ASSOCIATES OF )
FORT WAYNE, P.C., )
)
Appellee-Defendant. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Stanley A. Levine, Judge
Cause No. 02D01-0902-CT-46
September 7, 2012
OPINION - FOR PUBLICATION
KIRSCH, Judge
Kenneth W. Smith (“Smith”) and his wife, Deb-Anne Smith, (collectively “the
Smiths”) appeal from the trial court’s findings of fact and conclusions thereon1 after a bench
trial on their medical malpractice claim against Dermatology Associates of Fort Wayne, P.C.,
a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, P.C. (“DLSA”). The Smiths
present two issues, which we consolidate and restate as follows: Whether the trial court erred
by concluding that the Smiths had failed to present sufficient evidence to invoke the doctrine
of res ipsa loquitur.
We affirm.
FACTS AND PROCEDURAL HISTORY
Smith, who has suffered from psoriasis since the age of thirteen, sought medical
treatment for his condition. He became a patient of Dr. Alan R. Gilbert (“Dr. Gilbert”), a
dermatologist employed by DLSA, in December of 1994. As a new patient, Smith was
evaluated by Dr. Gilbert, and a treatment plan was proposed. Dr. Gilbert opined that Smith’s
psoriasis was generalized, severe in nature, and unpredictable given Smith’s history. In
addition to testing and medication therapy, Smith underwent UVA radiation treatments for
his flare-ups of psoriasis.
In particular, his treatment plan called for Smith to periodically receive Psoralen UVA
(“PUVA”) treatments. Psoralen is a drug derived from a plant, which, in its oral form,
becomes activated when a certain wavelength of light is administered to a patient who had
previously taken Psoralen. Psoralen is activated by UVA light, and a PUVA treatment is
1
We commend the trial court on the thoroughness and clarity of its findings and conclusions thereon,
which greatly facilitated appellate review.
2
administered through a light box. The amount of UV light used to dose a patient is
determined by the patient’s skin type, sensitivity to the sun, and the patient’s reaction to the
initial dose of the UVA light.
Smith received PUVA therapy using the light box at DLSA’s Lake Avenue office in
Fort Wayne. Smith underwent the PUVA treatments from December 28, 1994 through
December 8, 2004, and received a total of 147 treatments from DLSA. The most recent
treatments were administered on December 3, 2004, December 6, 2004, and December 8,
2004. When Smith would notice an outbreak of psoriasis occurring, he would contact DLSA
to schedule a treatment. Smith responded well to the PUVA treatments. However, after his
last treatment at 1:00 p.m. on December 8, 2004, Smith suffered UV burn injuries to
approximately 84% of his body.
Although he returned to work after his last treatment, a few hours thereafter, he started
to feel an irritation to his skin. He noticed his skin getting red and started to feel a burning
sensation. Smith left work at approximately 6:00 p.m. and went to bed after going home.
Smith continued to feel poorly, began shaking uncontrollably, and started to notice blisters on
his body from his torso area down. Smith went to the emergency room and complained of
pain. The emergency room physician noticed that Smith had a severe sunburn on
approximately 85% of his body. Smith was transferred from the emergency room to the Burn
Unit of St. Joseph Hospital in Fort Wayne.
Dr. Gilbert received a telephone call on December 9, 2004, from the Burn Unit at St.
Joe’s Hospital informing him that Smith had been admitted early that morning with first and
second degree burns. Dr. Gilbert visited Smith at the hospital, but was not asked to assist in
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Smith’s treatment. Smith returned to work half days on December 14, 2004 and was released
to return to work full time on December 15, 2004. By March of 2005, Smith’s burns were
completely healed.
On December 4, 2006, the Smiths filed a proposed complaint with the Indiana
Department of Insurance alleging that Smith received care from DLSA that fell below the
required standard of care, that was negligent, and that constituted malpractice. A medical
review panel convened and, on October 20, 2008, rendered its decision that the evidence did
not support the conclusion that DLSA failed to comply with the appropriate standard of care.
On February 6, 2009, the Smiths filed a complaint against DLSA alleging medical
malpractice. In particular, the Smiths alleged that the negligence of the medical personnel or
machine malfunction created a res ipsa loquitur inference that an act of malpractice may
have occurred. On April 20, 2011, DLSA filed a motion for partial summary judgment,
claiming that the Smiths did not establish either of the two required elements of res ipsa
loquitur. More specifically, DLSA argued that the Smiths did not show that DLSA
employees were in exclusive control of the ultraviolet exposure level from the PUVA
machine or that the injuries Smith sustained could not have occurred without negligence.
After the Smiths filed their response, the trial court denied the motion for summary judgment,
finding the existence of genuine issues of material fact.
A three-day bench trial began on June 21, 2011. At the close of the Smiths’ case-in-
chief, DLSA made an oral motion for involuntary dismissal. The trial court took the motion
under advisement and requested post-trial briefing on the issues raised by DLSA. On
January 4, 2012, the trial court entered its findings of fact and conclusions thereon. The trial
4
court concluded that the Smiths had failed to establish that DLSA had exclusive control of
the PUVA machine or that the injuries allegedly suffered by Smith would not have occurred
without negligence. The trial court concluded that the doctrine of res ipsa loquitur was
inapplicable and that the Smiths had failed to meet their burden of establishing by direct or
circumstantial evidence that DLSA breached its duty of care. The trial court entered
judgment in favor of DLSA. The Smiths now appeal.
DISCUSSION AND DECISION
The trial court determined that the doctrine of res ipsa loquitur did not apply to allow
the inference that an act of malpractice had occurred. The doctrine of res ipsa loquitur
literally means “the thing speaks for itself,” and we have stated the following about the
doctrine:
Res ipsa loquitur is a rule of evidence which permits an inference of
negligence to be drawn based upon the surrounding facts and circumstances of
the injury. The doctrine operates on the premise that negligence, like any other
fact or condition, may be proved by circumstantial evidence. To create an
inference of negligence, the plaintiff must establish: (1) that the injuring
instrumentality was within the exclusive management and control of the
defendant or its servants, and (2) that the accident is of the type that does not
ordinarily happen if those who have the management and control exercise
proper care. In determining if the doctrine is applicable, the question is
whether the incident more probably resulted from defendant’s negligence as
opposed to another cause. A plaintiff may rely upon common sense and
experience or expert testimony to prove that the incident more probably
resulted from negligence. To invoke res ipsa loquitur, the plaintiff must
demonstrate that the defendant had exclusive control of the injuring
instrumentality at the time of injury. Exclusive control is an expansive concept
which focuses upon who has the right or power of control and the opportunity
to exercise it. The existence of multiple defendants or the possibility of
multiple causes does not automatically defeat the application of res ipsa
loquitur.
Rector v. Oliver, 809 N.E.2d 887, 889-90 (Ind. Ct. App. 2004) (internal citations omitted).
5
Because the Smiths did not prevail at trial, they appeal from a negative judgment. A
judgment entered against a party who bore the burden of proof at trial is a negative judgment.
Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d 409, 411 (Ind. Ct. App. 2002). On appeal,
we will not reverse a negative judgment unless it is contrary to law. Mominee v. King, 629
N.E.2d 1280, 1282 (Ind. Ct. App. 1994). To determine whether a judgment is contrary to
law, we consider the evidence in the light most favorable to the appellee, together with all the
reasonable inferences to be drawn therefrom. J.W. v. Hendricks Cnty. Office of Family &
Children, 697 N.E.2d 480, 482 (Ind. Ct. App. 1998). A party appealing from a negative
judgment must show that the evidence points unerringly to a conclusion different than that
reached by the trial court. Mominee, 629 N.E.2d at 1282.
We have stated the following about medical malpractice actions:
To prevail in a medical malpractice action, the plaintiff must prove three
elements: “(1) a duty on the part of the defendant in relation to the plaintiff;
(2) a failure to conform his conduct to the requisite standard of care required
by the relationship; and (3) an injury to the plaintiff resulting from that
failure.” The physician has a duty to conform to the standard of care of a
reasonably prudent physician in providing care to a patient. More specifically,
the physician is “required to possess and exercise that degree of skill and care
ordinarily possessed and exercised by a reasonably careful, skillful and prudent
practitioner in the same class to which he belongs treating such maladies under
the same or similar circumstances.” Care that falls below the requisite
standard establishes a breach of the physician’s duty.
When a medical review panel issues an opinion in favor of the physician, the
plaintiff must present expert medical testimony to negate the panel’s opinion.
If the plaintiff fails to provide sufficient expert testimony, summary judgment
should be granted in favor of the defendants. However, a medical malpractice
case based upon negligence is rarely appropriate for disposal by summary
judgment, particularly when the critical issue is whether the defendant
exercised the appropriate standard of care under the circumstances. This issue
is generally inappropriate for resolution as a matter of law and is a question
that should be reserved for the trier of fact.
6
Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct. App. 2006) (internal citations omitted).
Furthermore,
[I]n order for the plaintiff to carry [his] burden of proof, [he] must present
evidence of probative value based on facts, or inferences to be drawn from the
facts, establishing both that the wrongful act was the cause in fact of the
occurrence and that the occurrence was the cause in fact of [his] injury. The
plaintiff’s burden may not be carried with evidence based merely upon
supposition or speculation. Standing alone, evidence establishing a mere
possibility of cause or which lacks reasonable certainty or probability is not
sufficient evidence by itself to support a verdict. Civil liability may not be
predicated purely upon speculation.
Daub v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994) (internal citations omitted).
In this case, the Smiths presented the expert testimony of Dr. Jeffery
Sassmannshausen (“Dr. Sassmannshausen”), a board certified dermatologist, who agreed
with the medical review panel that DLSA did not breach the standard of care owed to Smith
and did not breach the standard of care in controlling the setting for the PUVA machine.
Furthermore, while the Smiths did establish that Smith received serious burns to his body, at
most, the trial court was left to speculate that the PUVA machine may have malfunctioned
and that the malfunctioning may have caused his injuries.
The Smiths were not able to establish that Smith received both UVA and UVB
treatment on December 8, 2004, which was their theory of how Smith’s burns occurred.
Smith testified that there was nothing different about his treatment on that day as compared
to any of his prior treatments. He did not perceive that anything different happened during
his treatment and could not state that both the UVA and UVB bulbs were on during that
treatment.
7
Additionally, the evidence presented to the trial court showed that there were no
maintenance issues which could have caused both the UVA and UVB bulbs to come on
during Smith’s treatment. The Smiths were not able to establish that a lack of maintenance
or some other defect with the PUVA machine contributed to or caused Smith’s burns. DLSA
employees inspected the machine after learning of Smith’s injuries and could not determine
the cause of Smith’s burns. They could not decide which of the possibilities had led to
Smith’s injuries. Those possibilities included, a machine malfunction, burns as a result of the
treatment, or a problem with the doors of the machine increasing the time remaining for the
pre-treatment warm-up of the machine.
The Smiths were also unable to establish that DLSA breached the standard of care by
failing to evaluate Smith during his PUVA treatments. Dr. Gilbert routinely saw Smith
following his treatments and would discuss them with him.
While the Smiths were able to point to a specific instrumentality, the PUVA machine,
as the cause of Smith’s burn injuries, they were unable to establish that DLSA had exclusive
control of the PUVA machine. Smith was alone in the room with the PUVA machine during
and after his treatment on December 8, 2004 with keys to both the UVA and UVB control
panels. Smith had the opportunity and ability to turn on the UVB lights, but denied doing so.
None of the other patients who used the PUVA machine at DLSA’s Lake Avenue office on
December 8, 2004 experienced a reaction such as Smith’s to the treatment.
In sum, the Smiths were unable to establish the first element of the doctrine of res ipsa
loquitur, that DLSA had exclusive control of the PUVA machine. The trial court in this
bench trial, in its fact-finding role, was the sole judge of the credibility of the witnesses.
8
There was contrary evidence on this element, and the trial court was left to resolve those
differences. We cannot say that the evidence leads unerringly to a conclusion that is different
than that reached by the trial court.
Moreover, the Smiths were unable to establish the second element of the doctrine of
res ipsa loquitur, that Smith’s injuries would not have occurred without negligence. Dr.
Sassmannshausen testified that a patient who experiences UV burns does not necessarily
receive those burns as a result of malpractice. He testified that while a properly functioning
machine should not cause a UV burn to a patient, a UV burn could be caused by a patient
receiving too much of a dose, which is not necessarily evidence of malpractice. A UV burn
is one of the risks of light treatment.
Dr. Jeffrey Moore (“Dr. Moore”), a dermatologist who served on the medical review
panel in this matter, testified that a UV burn could have occurred without negligence. Dr.
Moore testified that he has had patients of his own become phototoxic, or adversely reacting
to treatment due to light sensitivity, after receiving a treatment in a PUVA machine that was
properly functioning, properly maintained, and properly set. Further, he testified that patients
with unstable psoriasis, as was Smith’s condition, may have reactions to treatment that are
described as idiosyncratic, or unexpected, and beyond explanation. In his opinion,
phototoxicity is a known complication of PUVA treatment for psoriasis, and in his
vernacular, a burn injury such as Smith’s, was a phototoxic reaction.
The Smiths were unable to establish that Smith’s injuries would not have occurred
without negligence. The trial court in this bench trial, in its fact-finding role, was the sole
judge of the credibility of the witnesses. “The trier of fact must resolve conflicts in the
9
evidence and determine which witness testimony to credit.” Bradley v. State, 765 N.E.2d
204, 212 (Ind. Ct. App. 2002). There was contrary evidence on this element. and the trial
court was left to resolve those differences. We cannot say that the evidence leads unerringly
to a conclusion that is different than that reached by the trial court.
We further conclude that the Smiths’ substantial rights were not adversely affected as
a result of the trial court’s refusal to apply the doctrine of res ipsa loquitur. The inference
was not applied because there was contrary evidence on each of the elements of the doctrine.
The trial court, as trier of fact, was left to resolve the conflicts in the evidence and to
determine which testimony was more credible. Although the Smiths’ sole theory of recovery
was res ipsa loquitur, they did not meet their burden of persuasion, and have failed to
establish on their appeal from a negative judgment that the evidence leads unerringly to a
conclusion that is different from that reached by the trial court.
Affirmed.
NAJAM, J., and MAY, J., concur.
10