MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 25 2016, 5:32 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
David Van Gilder Kathleen A. Kilar
Andrew P. Simmons Andrew S. Williams
Lindsay A. Davenport Jeremy D. Lemon
Van Gilder & Trzynka, P.C. Hunt Suedhoff Kalamaros LLP
Fort Wayne, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
The Estate of Diana K. Blake by May 25, 2016
Nicole Walker, Personal Court of Appeals Case No.
Representative, 02A03-1511-PL-2030
Appellant-Plaintiff, Appeal from the
Allen Superior Court
v. The Honorable
Stanley A. Levine, Judge
Select Specialty Hospital-Fort Trial Court Cause No.
Wayne, Inc., 02D03-1412-PL-469
Appellee-Defendant.
Kirsch, Judge.
[1] The Estate of Diana K. Blake (“Blake”) by Nicole Walker, Personal
Representative (“the Estate”), appeals the trial court’s grant of summary
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judgment in favor of Select Specialty Hospital-Fort Wayne, Inc. (“the
Hospital”) on the Estate’s medical malpractice claim. The Estate raises two
issues of which we find the following dispositive: whether the trial court erred
in granting summary judgment in favor of the Hospital because the Estate
contends that the designated evidence established a genuine issue of material
fact that the Hospital breached its standard of care to Blake.
[2] We reverse and remand.
Facts and Procedural History
[3] On January 26, 2011, Blake underwent a left femoral anterior tibial bypass
surgery, which was performed by John F. Csicsko, M.D. (“Dr. Csicsko”), a
thoracic surgeon with Lutheran Hospital. The surgery entailed a left-side groin
wound in which a section of vein was grafted into an artery in Blake’s leg.
Following the surgery, Blake was transferred to St. Joseph Hospital for
continuing care. While there, she was treated for an infection due to a non-
healing left leg wound. On February 19, 2011, Blake underwent a second
surgery, in which a debridement was performed by Dr. Csicsko, and a section
of Blake’s sartorius muscle was pulled and sutured over the vein graft to help
protect the graft. To assist in healing, a Vacuum Assisted Closure (“VAC”)
system was applied over the wound. On February 24, 2011, Blake was
transferred to the Hospital for continuing care, including wound care which
involved changing the VAC dressing every three days.
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[4] Patricia Gerig, RN (“Nurse Gerig”), who was employed by the Hospital,
performed the wound care on February 25, and again on February 28, by
changing the VAC dressing. Nurse Gerig testified that, on each date, she
applied an adaptic layer over the wound in Blake’s left groin before applying the
black sponge, which was part of the VAC dressing. However, Blake’s medical
records did not contain any notations indicating that the adaptic layer was
applied during either of the VAC dressing changes. On February 28, Nurse
Gerig completed the wound care at 11:30 a.m. At approximately 4:30 p.m. on
February 28, a code was called due to Blake having developed an acute bleed
from her left groin wound. Blake was not able to be resuscitated, and she died.
During the code, Dr. Csicsko observed that the sartorius muscle was dislodged,
and the vein graft was clearly visible in the wound.
[5] On April 27, 2012, the Estate filed a Proposed Complaint against the Hospital
with the Indiana Department of Insurance. A Medical Review Panel was
formed consisting of two physicians and one nurse. On September 17, 2014,
the Medical Review Panel reached a unanimous opinion that the Hospital did
not breach its standard of care and that the “conduct complained of was not a
factor of the resultant damages.” Appellant’s App. at 5-10. On December 4,
2014, the Estate filed a civil complaint in the Allen County Superior Court
against the Hospital. The Hospital filed a motion for summary judgment based
on the Medical Review Panel’s determination. After the Estate filed its
response to the summary judgment motion and designated evidence, the
Hospital moved to strike portions of the designated evidence, including an
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affidavit by Carol White (“White”), a registered nurse and nurse practitioner
(“the Affidavit”). A hearing was held on the motion to strike, and the trial
court granted the motion, striking the Affidavit. A hearing was later held on
the Hospital’s motion for summary judgment, and on October 28, 2015, the
trial court granted summary judgment in favor of the Hospital. The Estate now
appeals.
Discussion and Decision
[6] When reviewing the grant of summary judgment, our standard of review is the
same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d
1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of
Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in
the shoes of the trial court and apply a de novo standard of review. Id. (citing
Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our
review of a summary judgment motion is limited to those materials designated
to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d
461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate
only where the designated evidence shows there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on
the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view
the pleadings and designated materials in the light most favorable to the non-
moving party. Id. Additionally, all facts and reasonable inferences from those
facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.
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Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.
denied). Under Indiana’s summary judgment procedure, the party moving for
summary judgment has the burden of establishing that no genuine issue of
material fact exists. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937
N.E.2d 853, 865-66 (Ind. Ct. App. 2010) (citing Jarboe v. Landmark Cmty.
Newspapers, 644 N.E.2d 118, 123 (Ind. 1994)). Only after the moving party has
met this burden with a prima facie showing that no genuine issue of material
fact exists does the burden then shift to the non-moving party to establish that a
genuine issue of material fact does in fact exist. Id. at 866.
[7] A trial court’s grant of summary judgment is clothed with a presumption of
validity, and the party who lost in the trial court has the burden of
demonstrating that the grant of summary judgment was erroneous. FLM, 973
N.E.2d at 1173. Where a trial court enters specific findings and conclusions,
they offer insight into the rationale for the trial court’s judgment and facilitate
appellate review, but are not binding upon this court. Id. We will affirm upon
any theory or basis supported by the designated materials. Id. When a trial
court grants summary judgment, we carefully scrutinize that determination to
ensure that a party was not improperly prevented from having his or her day in
court. Id.
[8] Cases involving medical malpractice are no different from other kinds of
negligence actions regarding that which must be proven. Giles v. Anonymous
Physician I, 13 N.E.3d 504, 510 (Ind. Ct. App. 2014), trans. denied. “Specifically,
a plaintiff in a medical malpractice action must prove: (1) duty owed to the
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plaintiff by the defendant; (2) breach of duty by allowing conduct to fall below
the applicable standard of care; and (3) compensable injury proximately caused
by the defendant’s breach of duty.” Id.
[9] When a medical review panel renders an opinion in favor of the physician or
hospital, the plaintiff must then come forward with expert medical testimony to
rebut the panel’s opinion in order to survive summary judgment. Mills v.
Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct. App. 2006); Bunch v. Tiwari, 711
N.E.2d 844, 850 (Ind. Ct. App. 1999). “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.” Mills, 851 N.E.2d at
1070. 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. Id. In order to be
sufficient to demonstrate the existence of a material fact and make summary
judgment inappropriate, an affidavit must establish an expert’s credentials, state
that the expert has reviewed the relevant medical records, and set forth the
expert’s conclusion that the defendants violated the standard of care in their
treatment which in turn caused the complained of injury. Id.
[10] In support of its motion for summary judgment, the Hospital submitted the
opinion of the Medical Review Panel, which determined unanimously that the
Hospital did not breach its standard of care and that the challenged conduct
was not a factor of the resultant damages. Appellant’s App. at 19-24. That
satisfied the Hospital’s burden to show there was no genuine issue of material
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fact. It was then up to the Estate to designate sufficient expert testimony setting
forth facts showing the existence of a genuine issue of material fact for trial. See
Mills, 851 N.E.2d at 1070. In support of its response in opposition to the
Hospital’s motion for summary judgment, the Estate designated, among other
things, the following evidence: an affidavit by Dr. Csicsko, excerpts from the
deposition of Dr. Csicsko, excerpts from the deposition of Nurse Gerig, and
excerpts from the deposition of Brian Youn, M.D., who assisted in the
attempted resuscitation of Blake. Appellant’s App. at 33-34.
[11] Dr. Csicsko stated in his affidavit that he is a licensed and practicing physician,
specializing in the field of thoracic surgery, and was one of the treating
physicians of Blake. The affidavit stated that Dr. Csicsko reviewed Blake’s
medical records from the Hospital and set forth the relevant facts of Blake’s
surgery and hospitalization. Dr. Csicsko then stated:
12. A properly working wound vac will not dislodge the
sartorius muscle flap that I sutured over the vein graft site; the
wound vac sponge sticking to the muscle could dislodge it if the
vac sponge was not carefully removed. If an adaptic layer had
been used the sartorius flap would not likely have been dislodged
and the vein graft would not have been directly exposed to the
vac pressure.
....
15. Based on my review of the records and my observations: (a)
the grafted vein was not deteriorated due to infection; (b) the
protective sartorius muscle flap was dislodged, most likely during
a wound vac change; (c) there is no record that an adaptic layer
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was applied in the wound vac dressing change on February 25 or
February 28, 2011; (d) the vac reservoir was filled with about
1500cc of blood; and (e) the cause of Diane [sic] Blake’s cardiac
arrest was the acute bleeding through a hole in the grafted vein.
It is my opinion that the responsible cause of her death on
February 28 was more likely than not a disruption to the vein
and subsequent bleed out through the wound vac.
16. It is my opinion that had Ms. Blake been properly cared for
at Select Specialty Hospital more likely than not she would have
survived.
Id. at 98-99.
[12] This testimony was competent to establish that the standard of care for the use
of a wound VAC dressing was to use an adaptic layer between the VAC sponge
and the fragile vein graft. Additionally, the Estate designated portions of Nurse
Gerig’s deposition testimony, in which she stated that, in her nursing judgment,
an adaptic layer should be used because she “knew the wound vac should be
used with caution in graft sites and that it was recommended to use a release
layer” and that an adaptic layer should have been used in a vein graft site such
as Blake’s “[s]o that the sponge doesn’t stick to the wound when you’re
removing it.” Id. at 113. We find this evidence sufficient to refute the Medical
Review Panel’s opinion and create a genuine issue of material fact as to
whether the Hospital complied with the appropriate standard of care. The trial
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court, therefore, erred in granting summary judgment in favor of the Hospital. 1
We reverse the grant of summary judgment in favor of the Hospital and remand
for further proceedings.
[13] Reversed and remanded.
[14] Riley, J., and Pyle, J., concur.
1
Because we have concluded that the Estate designated sufficient evidence to refute the Medical Review
Panel’s opinion and to create a genuine issue of material fact without reference to White’s affidavit, we do
not reach the issue of whether the trial court erred in granting the Hospital’s motion to strike White’s
affidavit.
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