Edward E. Bell, M.D. v. Joan Barmore and Lew G. Barmore, Individually and as Husband and Wife (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Nov 21 2017, 10:19 am

the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEES
Matthew J. McGovern Kirk R. Jocham
Anderson, Indiana Jocham Law
Greenfield, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Edward E. Bell, M.D., November 21, 2017
Appellant-Defendant, Court of Appeals Case No.
22A01-1706-CT-1368
v. Appeal from the Floyd Superior
Court
Joan Barmore and Lew G. The Honorable Susan L. Orth,
Barmore, Individually and as Judge
Husband and Wife, Trial Court Cause No.
Appellees-Plaintiffs. 22D01-1604-CT-601

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 1 of 11
 Case Summary
[1] On April 13, 2016, a unanimous medical malpractice review panel (“the

medical review panel”) found that Appellant-Defendant Edward E. Bell, M.D.

(“Dr. Bell”), failed to comply with the appropriate standard of care and his

conduct was a cause of the injuries and damages suffered by Appellee-Plaintiff

Joan Barmore. After the medical review panel issued its decision, Joan and her

husband, Appellee-Plaintiff Lew G. Barmore (collectively, “the Barmores”)

filed a complaint alleging that Dr. Bell had committed medical malpractice.

The Barmores subsequently filed a motion for summary judgment. In granting

the Barmores’ motion for summary judgment, the trial court found that no

genuine issues of material fact remained as to whether (1) Dr. Bell’s treatment

of Joan fell below the appropriate standard of care and (2) Dr. Bell’s actions

were a cause of the injuries and damages suffered by Joan.

[2] Dr. Bell appeals from the trial court’s order granting summary judgment in

favor of the Barmores. In doing so, Dr. Bell does not contest the trial court’s

award of summary judgment on the issue of whether his treatment of Joan fell

below the appropriate standard of care. However, he contends that the trial

court erred in determining that the Barmores were entitled to summary

judgment on the issue of causation. Specifically, Dr. Bell asserts that the trial

court erred in finding that the affidavit of George E. Quill, Jr., M.D. (“Dr.

Quill”), was not sufficient to create a genuine issue of material fact as to

causation. Because we disagree, we affirm the award of summary judgment in

favor of the Barmores on the issue of causation.

Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 2 of 11
 Facts and Procedural History
[3] When Joan first visited Dr. Bell on November 14, 2011, Joan complained of

pain in her left ankle. Joan continued to seek treatment from Dr. Bell for pain

in her left knee and ankle until approximately October of 2012. During the

course of her treatment by Dr. Bell, Joan underwent numerous tests and

procedures. Eventually, Joan sought treatment for her continued left ankle and

knee pain from a different doctor.

[4] On July 21, 2014, the Barmores filed a proposed medical malpractice complaint

against Dr. Bell with the Indiana Department of Insurance. On April 13, 2016,

the appointed medical review panel unanimously determined that Dr. Bell

“failed to comply with the appropriate standard of care.” Appellant’s App. Vol.

II, p. 25. It also concluded that Dr. Bell’s conduct “was a factor in the injuries

and damages of which [the Barmores] complained.” Appellant’s App. Vol. II,

p. 25.

[5] After the medical review panel issued its findings, the Barmores filed their

complaint alleging that Dr. Bell committed medical malpractice. On June 30,

2016, the Barmores filed a motion for summary judgment on the issues of

liability and causation. The Barmores also filed a brief and designated evidence

in support of their motion for summary judgment. Dr. Bell filed a response and

designated materials in support thereof on August 29, 2016. The Barmores

subsequently filed a reply to Dr. Bell’s response to their summary judgment

motion and Dr. Bell filed a request for findings of fact and conclusions thereon.

Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 3 of 11
[6] The trial court conducted a hearing on the Barmores’ motion on September 7,

2016. Following this hearing, Dr. Bell filed a sur-reply and additional

designated evidence. The parties filed their respective proposed findings on

October 19, 2016.

[7] On November 4, 2016, the trial court issued an order granting the Barmores’

motion for summary judgment. In doing so, the trial court found that no issues

of material fact remained as to whether (1) Dr. Bell’s treatment of Joan fell

below the appropriate standard of care and (2) Dr. Bell’s actions were a cause of

the Barmores’ claimed injuries and damages. The trial court indicated that the

case would proceed to trial on the issue of damages only. The trial court

subsequently entered its summary judgment ruling as a final appealable order

and this appeal follows.

Discussion and Decision
I. Relevant Authority
A. Summary Judgement Standard of Review
[8] “Summary judgment is appropriate only if ‘there is no genuine issue as to any

material fact and ... the moving party is entitled to judgment as a matter of

law.’” Oelling v. Rao, 593 N.E.2d 189, 190 (Ind. 1992) (quoting Ind. Trial Rule

56(C)).

The burden is on the moving party to prove the nonexistence of a
genuine issue of material fact; if there is any doubt, the motion
should be resolved in favor of the party opposing the motion.
Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 4 of 11
 Once the movant has sustained this burden, however, the
opponent may not rest upon the mere allegations or denials in his
pleadings, but must respond by setting forth specific facts
showing that there is a genuine issue for trial. T.R. 56(E).

Id. “At the time of filing the motion or response, a party shall designate to the

court all parts of pleadings, depositions, answers to interrogatories, admissions,

matters of judicial notice, and any other matters on which it relies for purposes

of the motion.” Simms v. Schweikher, 651 N.E.2d 348, 349 (Ind. Ct. App. 1995)

(citing T.R. 56(C)).

[9] “When reviewing an order granting summary judgment, an appellate court

faces the same issues that were before the trial court and follows the same

process.” Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct.

App. 2005), trans. denied. However, “[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.” Sony DADC U.S. Inc. v. Thompson, 56 N.E.3d 1171,

1178 (Ind. Ct. App. 2016), trans. denied sub nom. Sony DADC US, Inc. v.

Thompson, 60 N.E.3d 1039 (Ind. 2016) (citing Troxel, 833 N.E.2d at 40).

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.
[Troxel, 833 N.E.2d at 40]. 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.

Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 5 of 11
 Id.

B. Medical Malpractice Actions
[10] In 1975, the Indiana Medical Malpractice Act was adopted by the General

Assembly “in an effort to maintain the availability of healthcare services in

Indiana … and to help control the costs of medical liability insurance, litigation,

settlements, and excessive judgments against healthcare providers.” Mayhue v.

Sparkman, 653 N.E.2d 1384, 1386 (Ind. 1995).

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.” [Oelling, 593
N.E.2d at 190]. The physician has a duty to conform to the
standard of care of a reasonably prudent physician in providing
care to a patient. Bowman v. Beghin, 713 N.E.2d 913, 916 (Ind.
Ct. App. 1999). 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.”
McIntosh v. Cummins, 759 N.E.2d 1180, 1184 (Ind. Ct. App.
2001), trans. denied (2002). Care that falls below the requisite
standard establishes a breach of the physician’s duty. Bowman,
713 N.E.2d at 916.

Mills v. Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct. App. 2006).

[11] A unanimous opinion of the medical review panel establishing that the doctor

failed to comply with the appropriate standard of care and that the doctor’s

Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 6 of 11
 conduct was a factor in causing the patients resultant damages is “ordinarily

sufficient” to meet the patient’s initial burden to show that there was no

genuine issue of material fact. See Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d

1184, 1187-88 (Ind. 2016); Scripture v. Roberts, 51 N.E.3d 248, 252 (Ind. Ct.

App. 2016). The burden then shifts to the doctor to designate sufficient expert

testimony “setting forth specific facts showing the existence of a genuine issue”

of material fact. Scripture, 51 N.E.3d at 252.

II. Analysis
[12] With respect to Dr. Quill’s tendered affidavit, the trial court found as follows:

46. In an apparent attempt to establish there is a material issue
of fact as to Dr. Bell’s negligence being a causative factor in
Plaintiffs’ injuries and damages, Dr. Bell provided this Court
only with the affidavit of Dr. Quill.
47. Under Perry,[1] Dr. Quill’s affidavit is insufficient, as he
fails to state [that] he has reviewed the relevant medical records.
48. Furthermore, Dr. Quill’s affidavit does not defeat summary
judgment in Plaintiffs’ favor on the issue of causation for
Plaintiffs’ injuries, rather it is only relevant to the amount of
Plaintiffs’ damages.
49. Injuries and damages are not synonymous, as they are
different legal considerations.
*****
52. A review of Dr. Quill’s affidavit reveals it discusses only
the amount of damages incurred by Plaintiffs and does not speak

1
Prior to this point in the trial court’s order, the trial court cites to both Perry v. Anonymous Physician 1, 25
N.E.3d 103 (Ind. Ct. App. 2014) and Perry v. Driehorst, 808 N.E.2d 765 (Ind. Ct. App. 2004), trans. denied, in
its order. Although the trial court does not specify to which “Perry” decision it is referring in this finding, we
believe the trial court was referring to our opinion in Perry v. Driehorst.

Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 7 of 11
 to whether Dr. Bell’s actions caused Plaintiffs’ injuries, such as
was determined by the Medical Review Panel.
53. In particular, Dr. Quill’s affidavit states, “Damages from
the care rendered by Dr. Bell are speculative,” and, “even before
[Joan] had her arthroscopic procedure in September 2012…she
had significant and severe degenerative arthritis that probably
would require eventual arthrodesis anyway.” (underline added).
*****
55. Nowhere in his affidavit, does Dr. Quill state it is his
opinion [that] Dr. Bell’s care did not cause Joan’s arthrodesis;
rather, what is implicitly stated in his vague affidavit is [that] it
his opinion that the arthrodesis occurred sooner than it may
otherwise have occurred due to Dr. Bell’s care.
56. Although Dr. Quill’s affidavit and testimony may be
appropriate at the damages stage of these proceedings, as he
disagrees with the amount of Plaintiffs’ damages, (i.e., his
opinion as to how soon the arthrodesis would have eventually
occurred), his affidavit does not rebut the Opinion of the Medical
Review Panel that Dr. Bell’s substandard [care] was a factor in
Joan’s injuries, including the ankle arthrodesis, of which
Plaintiffs complained.
57. Dr. Quill’s affidavit does not create a material issue of fact as
to whether or not Dr. Bell’s care was a factor in the injuries of
which Plaintiffs complained.

Appellant’s App. Vol. III, pp. 50-51 (underlining in original, third set of

bracketed material in original, all other bracketed material added). We cannot

agree with the trial court’s conclusion that Dr. Quill’s affidavit is insufficient to

create an issue of material fact as to causation.

[13] While the trial court correctly states that Dr. Quill’s affidavit does not contain

an explicit statement that he reviewed the specific medical records pertinent to

this case, it is clear from his statements that he did so. To find his affidavit

Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 8 of 11
 insufficient for failing to make the explicit statement that he reviewed the

relevant medical records when it is clear that he did so would be to elevate form

over substance, which we prefer not to do. See generally Hoosier Health Sys., Inc.

v. St. Francis Hosp. & Health Ctrs., 796 N.E.2d 383, 387 (Ind. Ct. App. 2003)

(providing that “[w]here the purpose of a rule is satisfied, this Court will not

elevate form over substance”); Aldrich v. Coda, 732 N.E.2d 243, 246 (Ind. Ct.

App. 2000) (providing that while it would have been preferable if the doctor had

stated in his affidavit that he was familiar with the applicable standard of care

for podiatrists, it was evident from the content of the affidavit that the doctor, as

an orthopedic surgeon, was indeed familiar with the applicable standard of care

and, as a result, the affidavit was sufficient to establish a genuine issue of fact

and preclude summary judgment).

[14] However, as to the question of causation, we again highlight the following

finding by the trial court:

55. Nowhere in his affidavit, does Dr. Quill state it is his
opinion [that] Dr. Bell’s care did not cause Joan’s arthrodesis;
rather, what is implicitly stated in his vague affidavit is [that] it
his opinion that the arthrodesis occurred sooner than it may
otherwise have occurred due to Dr. Bell’s care.

Appellant’s App. Vol. III, p. 51.

[15] Dr. Quill stated the following regarding causation in his affidavit:

1. I am a board certified orthopaedic surgeon.
2. I disagree with the opinion that subsequent damages
resulted from the treatment rendered by Dr. Bell for Mrs.
Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 9 of 11
 Barmore at the arthroscopy performed for her left ankle on
09/21/2012.
3. Damages from the care rendered by Dr. Bell are
speculative, as polyarticular arthritis, the claimed result of Dr.
Bell’s treatment, was already present before his index
arthroscopic procedure.
4. Furthermore, Dr. Bell’s notes all indicate that arthritis was
the indication for all her office-based care, injections, and
surgical care.
5. The records would indicate that the patient underwent a
subsequent left ankle arthrodesis by the podiatrists on 01/25/13
after irrigation and debridement of this ankle and completion of
parenteral antibiotic therapy.
6. All of the notes would indicate that, even before she had
her arthroscopic procedure in September 2012, that she had
significant and severe degenerative arthritis that probably would
require eventual arthrodesis anyway.

Appellant’s App. Vol. II, p. 100.

[16] In reviewing Dr. Quill’s affidavit, we agree with the trial court’s determination

that Dr. Quill did not explicitly make any statements that would give rise to a

genuine issue of material fact as to causation. Dr. Quill’s statements seem to

refer to the amount of monetary damages that should be received by the

Barmores as he believed that she would have probably required arthrodesis at

some point in the future regardless of the care provided by Dr. Bell. As the trial

court properly stated, Dr. Quill’s affidavit can properly be considered during the

still-to-come damages phase of trial.

Conclusion

Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 10 of 11
[17] Because we agree that Dr. Quill’s affidavit did not raise a genuine issue of

material fact a to the question of causation, we affirm the judgment of the trial

court.

[18] The judgment of the trial court is affirmed.

May, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 22A01-1706-CT-1368 | November 21, 2017 Page 11 of 11