Thomas Pine, Individually and as Admin. for the Estate of Helen Pine v. Stirling Clinic, Inc., Albert C. Lee, M.D., and Indiana Neurology Specialty Care

FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Feb 29 2012, 9:30 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:

LAURA R. CROWLEY PETER H. POGUE
Lee, Cossell, Keuhn & Love KORI L. McOMBER
Indianapolis, Indiana RACHEL K. HEHNER
Schultz & Pogue, LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

THOMAS PINE, Individually and as )
Administrator for the ESTATE OF )
HELEN PINE, Deceased, )
)
Appellant-Plaintiff, )
)
vs. ) No. 49A02-1105-CT-382
)
STIRLING CLINIC, INC., )
ALBERT C. LEE, M.D., and INDIANA )
NEUROLOGY SPECIALTY CARE, )
)
Appellees-Defendants. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patrick L. McCarty, Judge
Cause No. 49D03-0712-CT-52890

February 29, 2012
 MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge

Appellant-plaintiff, Thomas Pine, individually and as administrator for the Estate

of Helen Pine (Mrs. Pine), deceased, appeals the trial court’s grant of summary judgment

in favor of the appellees-defendants Stirling Clinic, Inc. (Stirling Clinic), Albert C. Lee,

M.D., (Dr. Lee), and Indiana Neurology Specialty Care (Indiana Care) (collectively, the

Appellees). Specifically, Pine argues that genuine issues of material fact exist regarding

his medical malpractice claim against the Appellees because he presented evidence that

the physician’s negligence in failing to diagnose and treat his wife’s cancer contributed to

her death. Pine further maintains that the fact finder should determine the damages that

should be awarded after hearing evidence regarding the degree to which the Appellees

failure to properly diagnose the tumor increased the risk of harm to his wife.

Concluding that the trial court properly granted summary judgment in the

Appellees’ favor, we affirm.

FACTS

Sometime in 2001, Dr. Robert Stirling, from the Stirling Clinic in Indianapolis,

treated Mrs. Pine for neck and back pain that was presumably arthritis. Dr. Stirling

rendered several treatments that included some trigger point injections. Although Mrs.

Pine’s pain ceased for a while, it recurred in June 2002. Mrs. Pine was then referred to

Dr. Lee, a physician at Indiana Care, in November 2002, for neck and arm pain.

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 On January 27, 2003, Mrs. Pine underwent radiological testing that revealed a

cancerous mass near her spine. Although Mrs. Pine was treated for her cancer, she died

on March 3, 2003. Because no autopsy was conducted, it was never determined exactly

what type of cancer caused Mrs. Pine’s death. Pine filed an “anonymous complaint” for

damages in the Marion Superior Court on October 19, 2004, alleging that the Appellees

were negligent for failing to conduct any radiological testing and diagnosing his wife’s

cancer.1

Thereafter, the case was presented to a Medical Review Panel (Review Panel) for

determination. On September 24, 2007, the Review Panel issued the following opinion:

Having reviewed all of the evidence submitted by the parties to the Panel in
this case, the Panel hereby renders its expert opinion.

The Panel is of the unanimous opinion that the evidence supports the
conclusion that Defendants, [Dr. Lee] and [Indiana Care], failed to meet
the applicable standard of care, but that such conduct was not a factor in the
damages claimed.

Appellees’ Supp. App. p. 8-9.

On December 13, 2007, Pine filed an amended complaint alleging, among other

things, that Dr. Lee, as Indiana Care’s agent, committed medical malpractice during the

care and treatment of Mrs. Pine from November 6, 2002, to January 27, 2003. Pine

specifically alleged that Dr. Lee failed or refused to adequately and timely diagnose Mrs.

1
In his complaint, Pine named “Doctor 1, Health Care Provider 1 Inc., Doctor 2 and Health Care Provider
2,” as the Defendants. Appellees’ Supp. App. p. 1. In accordance with Indiana Code section 34-18-8-7, a
claimant may commence an anonymous action in state court against qualified healthcare providers at the
same time of the filing of a claim before the Indiana Department of Insurance. Until the medical review
panel has been formed and convened to review the care at issue in the proposed complaint, the trial court
may not take any action on the case other than setting a trial date.
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Pine’s cancer, thus increasing her risk of harm. As a result, Pine claimed that because of

the Appellees’ negligence, Mrs. Pine “was denied the chance of survival and perished.”

Id. at 27.

Discovery commenced, and on October 12, 2009, the parties deposed Pine’s

expert witness, Dr. E. Allen Griggs. Dr. Griggs was questioned about the alleged

breaches of the standard of care and medical causations. More particularly, Dr. Griggs

was asked his opinion about Mrs. Pine’s percentage loss of survival in light of the

diagnosis and treatment and whether there was a significant increase in risk of harm as a

result of the alleged delay in diagnosis. Dr. Griggs responded, that he “wouldn’t know,”

and . . . “don’t know. I couldn’t—you know, an oncologist or hematologist may be able

to opine on that, but I don’t think so. I couldn’t really tell you the percentage.”

Appellant’s App. p. 24.

Dr. Griggs was asked by Dr. Lee’s counsel whether he would be testifying at trial

about what percentage that the risk of harm was increased by the purported delay in the

diagnosis of the cancerous tumor. Dr. Griggs responded that his opinions were more

qualitative and that he would have to defer to an oncologist to put a specific percentage

on the increased risk of harm.

In response to questioning by Stirling Clinic’s counsel, Dr. Griggs testified that

Mrs. Pine’s tumor had more than likely been in existence since May or June 2001 in the

soft tissues of the spine when her arm and neck pain began. Dr. Griggs believed that

Stirling Clinic should have ordered a plain film X-ray of the spine. And the X-ray might

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have “picked something up there” in the area where the neoplastic mass was located.

Appellant’s App. p. 123.

Dr. Griggs was then asked about Mrs. Pine’s prognosis. Dr. Griggs believed that

the prognosis was “grave” and determined that Mrs. Pine’s illness was “terminal,” . . . no

matter what was done.” Id. at 124. Dr. Griggs also testified that because the particular

type of cancer that Mrs. Pine had could not have been determined, no response could

have been measured with regard to “any kind of treatment.” Id. And because no autopsy

had been performed on Mrs. Pine’s body, Dr. Griggs acknowledged that it was not even

known “where the primary tumor was.” Id.

Dr. T. Howard Lee, the designated defense trial expert on causation and damages,

had practiced for over thirty years in treating metastatic non-small cell tumors. Dr. Lee

reviewed Mrs. Pine’s medical records and testified that the metastatic tumor was from a

source of 1) more likely than not lung; 2) possibly breast; 3) head and neck. His opinion

that it was more than likely from a primary lung tumor was because Mrs. Pine had been a

long-time cigarette smoker. Dr. Lee also testified that figuring out the location of the

primary tumor is of no significance in determining the patient’s prognosis. In other

words, Dr. Lee believed that once the primary tumor had migrated to the spine, additional

treatment would not have altered the outcome.

At some point, the following exchange occurred:

Q: So if I’m hearing you correctly, if there’s metastases from the primary
tumor, whether it be breast or lung—those are the two that you think it’s
more likely. It’s one or the other but more likely the lung. Would it be fair

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 to say that Helen Pine’s outcome, survivability from this tumor was cast in
stone the moment it (cancer) invaded the tissues in the spinal cord?

...

A: Dr. Lee: I think the word—if you use the word determined, the
outcome is determined at that point, yes.

Appellant’s App. p. 128-29.

On December 7, 2010, Dr. Lee and Indiana Care filed motions for summary

judgment, arguing that they were entitled to judgment as a matter of law because Pine

could not sustain his burden of proof as to damages. In other words, the Appellees

asserted that Pine was unable to demonstrate that Dr. Lee’s delay in diagnosing Mrs.

Pine’s cancer resulted in any quantifiable damages, because “there was absolutely no

increased risk of harm caused by Dr. Lee’s alleged delay in diagnosing Mrs. Pine’s

cancer from November 6, 2002, to January 27, 2003.” Appellant’s App. p. 13.

Thereafter, Stirling Clinic filed a joinder motion for summary judgment.

Following a hearing on Lee and Indiana Care’s motion for summary judgment, the trial

court issued an order on February 22, 2011, stating in part that:

[B]ased on the grounds that plaintiff is unable to prove the element of
causation that Dr. Lee’s alleged delay in diagnosing Mrs. Pine’s cancer
from November 6, 2002, to January 22, 2003, ultimately increased her risk
of harm, this Court expressly directs that judgment is summarily entered in
favor of defendants, Albert C. Lee, M.D., and [Indiana Care], and against
plaintiff Thomas Pine, Individually and as the Administrator for the Estate
of Helen Pine, Deceased, as to any and all claims.

Appellant’s App. p. 84.

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 Thereafter, the trial court conducted a hearing on Stirling Clinic’s motion on

March 30, 2011, and granted summary judgment in its favor. Pine now appeals.

DISCUSSION AND DECISION

I. Standard of Review

When reviewing a grant of summary judgment, our standard of review is the same

as the trial court. Cleary v. Manning, 884 N.E.2d 335, 337 (Ind. Ct. App. 2008).

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 judgment as a matter of law. Id.; Ind. Trial Rule 56(C). In

answering these questions, we construe all factual inferences in the nonmovant’s favor

and resolve all doubts as to the existence of a material issue against the movant. Id.

We will affirm summary judgment if there is any basis in the record for upholding the

judgment. Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph Med. Center of Fort

Wayne, Inc., 683 N.E.2d 243, 247 (Ind. Ct. App. 1997).

II. Pine’s Claims

Pine argues that the trial court erred in granting summary judgment in favor of the

Appellees because genuine issues of material fact existed and it is the jury’s function to

determine whether Mrs. Pine’s “loss of chance” to survive “was a significant factor in the

injury.” Appellant’s Br. p. 9. Pine claims that he was improperly required to “wholly

7
resolve the significant factor issues as a prerequisite to present [the] case before a jury.”

Id.

In a medical malpractice claim, the plaintiff is required to prove the following

elements: 1) the physician owed a duty to the plaintiff; 2) the physician breached that

duty; and, 3) the breach proximately caused the plaintiff’s injuries. Mayhue v.

Sparkman, 653 N.E.2d 1384, 1386 (Ind. 1995). An essential element in a negligence

action is the requirement of a reasonable connection between the defendant’s conduct and

the damages that a plaintiff allegedly suffered. Daub v. Daub, 629 N.E.2d 873, 877 (Ind.

Ct. App. 1994).

In cases involving an alleged increased risk of harm, the element of causation is

examined differently than in a traditional negligence context. In order for the plaintiff to

succeed under an increased risk of harm argument, the plaintiff must prove that: (1) the

defendant’s negligent act or omission increased the risk of harm to a person in the

plaintiff’s position; (2) the harm was, in fact, sustained; and (3) the defendant’s

negligence was a substantial factor in producing the harm. Mayhue, 653 N.E.2d at 1386.

In Mayhue, our Supreme Court adopted an alternative method of determining

causation in a medical malpractice case under a theory of “increased risk of harm,” as set

forth in the Restatement of Torts:

One who undertakes, gratuitously or for consideration, to render services
which he should recognize as necessary for the protection of the other’s
person or things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to perform his

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 undertaking, if (a) his failure to exercise such care increases the risk of
harm. . . .

Id. at 1388 (quoting Restatement (Second) of Torts §323(a) (1965)). Pursuant to

Mayhue, once a plaintiff has introduced evidence that a defendant’s negligent act or

omission increased the risk of harm to a person in the plaintiff’s position and the harm

was in fact sustained, “it becomes a question for the jury as to whether or not that

increased risk was a substantial factor in producing the harm.” Id. at 1388. When a

defendant healthcare provider presents expert medical testimony establishing that the

alleged wrongful conduct did not cause the plaintiff’s condition or injury, the plaintiff

must present expert medical testimony to rebut the lack of causation and demonstrate the

existence of a genuine issue as to causation. Morton v. Moss, M.D., 694 N.E.2d 1148,

1152 (Ind. Ct. App. 1998).

Notwithstanding the rule announced in Mayhue, Pine argues that he is not required

to present specific evidence quantifying his allegation that Dr. Lee and Indiana Care’s

alleged negligence caused an increased risk of harm to Mrs. Pine. In support of that

proposition, Pine directs us to this court’s opinion in Wolfe v. Estate of Custer, 867

N.E.2d 589 (Ind. Ct. App. 2007), which addressed the issue of damages in a medical

malpractice case under the theory of increased risk of harm.

In Wolfe, the Custers filed a medical malpractice action against Dr. Wolfe,

alleging that he failed to properly treat Custer at a hospital emergency room. Dr. Wolfe

alleged that the evidence presented at trial was insufficient to support a finding of

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malpractice against him because the Custers had failed to prove causation and damages.

Id. at 595. More particularly, Dr. Wolfe maintained that the Custers “failed to meet their

burden of . . . quantifying the increased risk of harm from which the jury could assess

damages.” Id.

At trial, the Custers presented testimony from members of the Medical Review

Panel who found that Dr. Wolfe had breached the standard of care in treating Custer. Id.

at 593. One panel member, Dr. Lackman, testified that Dr. Wolfe was negligent for

several reasons, including the failure to properly diagnose Custer, failing to review

abdominal x-rays that were taken in the hospital emergency department, and failing to

order an immediate surgical consultation. Thus, Dr. Lackman was of the opinion that Dr.

Wolfe placed Custer at an increased risk of harm.

Dr. Lackman testified that Dr. Wolfe’s negligence triggered a series of events that

resulted in Custer’s multi-system organ failure and sepsis. Dr. Lackman also testified

about some medical literature demonstrating that a delay in a patient’s receipt of

antibiotics increased the risk for a negative outcome and a higher chance for the

continuation of a downward spiral. Id. at 593-94. Based on the medical studies that Dr.

Lackman reviewed, the risk of a negative outcome was increased by six to ten percent for

each hour that antibiotics were delayed. Id. at 594.

A second panel member, Dr. Hough, also testified that Dr. Wolfe’s failure to

review the abdominal X-rays, correctly diagnose a small bowel obstruction, or schedule

an immediate surgical consultation, put Custer at an increased risk of harm. Id. at 594.

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Dr. Hough testified that an earlier intervention could have stopped a “cascade” of events

from happening to Custer that included multi-system organ failure. Id.

In determining whether the Custers introduced sufficient evidence that related to

the quantification of the increased risk of harm, we observed that “evidence of

quantification is required in relation to the damages issue in a § 323 case.” Id. at 599

n.10. Therefore, a plaintiff must demonstrate an increased risk of harm by expert

testimony, and more importantly, produce quantitative evidence expressed in a

percentage of increased risk to successfully prove the essential element of damages. Id.

Based on that rationale, it was determined that the Custers met their burden of

presenting evidence as to the quantification of the increased risk of harm. Wolfe, 867

N.E.2d at 599. Indeed, Dr. Lackman’s testimony of quantitative evidence expressed in a

percentage of increased harm aided the jury in determining the amount of damages

directly attributable to Dr. Wolfe’s conduct and ultimately quantified the harm causally

related to Dr. Wolfe’s negligence. Id. Therefore, it was determined that the evidence

was sufficient to support the jury’s verdict.

Unlike the circumstances in Wolfe, the record in this case does not reflect that

Pine presented evidence to quantitatively support his position that Dr. Lee’s alleged

negligence in the misdiagnosis was a substantial factor that contributed to Mrs. Pine’s

death. As discussed above, Pine’s expert, Dr. Griggs, could not provide an opinion as to

the extent that Dr. Lee’s alleged negligence might have increased Mrs. Pine’s risk of

death. More specifically, Dr. Griggs testified that:

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 Q. (Mr. Pogue): Do you believe that there was—there was a problem with
the causation as it pertains to Dr. Lee in this case given the timing interval
of only six weeks between November 6 and January 22 of 2003?

A (Dr. Griggs): I don’t think there’s a problem. I think the causation is
there, but I think the issue is how much difference did it make in terms of
loss of chance, loss of life or loss of reasonable existence, those things.

Q: And that’s my question for you is what difference do you think Dr.
Lee’s failure to diagnose the cancer from November 6th of 2002 until the
time it was diagnosed in January 22 of 2003 made to Ms. Pine?

A: I think it—it prevented her from getting diagnosed in a more—and
treated in a more timely fashion, but what percentage of loss of survival I
can’t—I can’t really opine other than . . . what we discussed before.

Appellant’s App. p. 78-79.

Dr. Griggs also admitted under oath that he could not “tell a percentage” to which

Dr. Lee’s conduct might have increased Mrs. Pine’s risk of harm. Id. at 26-27. He was

of the opinion that Mrs. Pine’s tumor had existed since May or June 2001in the soft

tissues of the spine when she began to experience neck and arm pain. Id. at 122.

However, Dr. Griggs candidly stated that he would have to defer to a medical

oncologist or hematologist for a percentage of increased harm. Id. at 27. Moreover, Dr.

Griggs agreed that because no autopsy was performed, it was impossible for him to

determine precisely where the primary tumor originated. Thus, he was not able to

explain what types of treatment might have been effective. Finally, Dr. Griggs agreed

that Mrs. Pine’s prognosis was “grave” and the diagnosis was “nearly 100 percent

terminal.” Id. at 124.

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 In light of this testimony, it is apparent that Pine was not able to provide the

essential element of damages in an increased risk of harm setting. In other words, Dr.

Griggs could not present specific evidence quantifying his opinion as to the increased risk

of harm that was caused by Dr. Lee’s alleged negligence.

We also note that in the responses to the requests for admission that were served

following Dr. Griggs’s deposition, Pine admitted that Dr. Griggs had no opinion as to the

percentage of increased harm resulting from Dr. Lee’s alleged negligence. Appellant’s

App. p. 30-32. Indeed, as discussed above, Dr. Griggs testified in his deposition that he

would have to defer to an oncologist for a percentage of increased harm. Id. at 52.

Therefore, because there was no quantification of a percentage risk that was increased by

the Appellees’ purported negligence, the jury cannot make that calculation. In short, Pine

failed to designate sufficient expert medical testimony to meet his burden in accordance

with Trial Rule 56.

Finally, we reject Pine’s claim that there was no basis for the grant of summary

judgment in Stirling Clinic’s favor. Dr. Stirling was voluntarily dismissed from the

lawsuit on September 15, 2009, and Pine did not present any expert testimony as to any

independent acts of negligence that Stirling Clinic might have committed. Therefore,

because Dr. Stirling was dismissed from the lawsuit and no independent claims were

asserted against Stirling Clinic, liability cannot attach to it. Comer-Marquardt v. A-1

Glassworks, LLC, 806 N.E.2d 883, 887 (Ind. Ct. App. 2004) (holding that if a servant or

agent is released from liability, no liability can attach to the principal).

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 In sum, while we are sympathetic to the Pines’ plight, there were no experts who

could give an opinion as to Mrs. Pine’s percentage chance of survival as of November 6,

2002. Therefore, because Pine failed to produce quantitative evidence of the risk of

harm, his claim fails, and we conclude that the trial court properly entered summary

judgment in the Appellees’ favor.

The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.

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