FILED
May 30 2018, 5:28 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Eric A. Frey John D. Nell
Frey Law Firm Jere A. Rosebrock
Terre Haute, Indiana Wooden McLaughlin, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rickie Henderson, May 30, 2018
Appellant-Petitioner, Court of Appeals Case No.
84A01-1710-CT-2566
v. Appeal from the Vigo Superior
Court
Elliott Kleinman, D.P.M., The Honorable John T. Roach,
Appellee-Respondent. Judge
Trial Court Cause No.
84D01-1506-CT-4294
Mathias, Judge.
[1] Rickie Henderson (“Henderson”) filed a complaint in Vigo Superior Court
against Dr. Elliott Kleinman (“Dr. Kleinman”). The complaint alleged that Dr.
Kleinman failed to meet the applicable standard of care both in his record
keeping and in his treatment of Henderson. Summary judgment proceedings
ensued, and the trial court granted summary judgment in Dr. Kleinman’s favor
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after concluding that the doctor was entitled to judgment as a matter of law.
Henderson appeals and argues that the trial court erred when it granted Dr.
Kleinman’s motions for summary judgment and disregarded the medical review
panel’s opinion that Dr. Kleinman’s record keeping failed to meet the
applicable standard of care.
[2] We affirm.
Facts and Procedural History
[3] Henderson was a patient of Dr. Kleinman’s for approximately five years, and
during that time he performed three surgeries on Henderson’s right foot and
ankle. The most recent surgery, which is at issue in this appeal, was performed
on August 27, 2010. Henderson presented to Dr. Kleinman with continued pain
in her right foot, and the doctor performed several surgical procedures on her
foot on that date.
[4] Henderson continued to experience pain after the surgery. After several follow
up appointments with Dr. Kleinman, Henderson sought a second opinion from
Dr. Dominic DiPierro in January 2012. Henderson reported her post-surgery
pain to the doctor, and he believed that Henderson’s pain was the direct result
of the 2010 surgery.
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[5] As required by Indiana’s Medical Malpractice Act, 1 on August 24, 2012,
Henderson filed her proposed complaint against Dr. Kleinman with the Indiana
Department of Insurance. Henderson’s complaint alleged that “[i]n performing
the [August 27, 2010] surgery, Kleinman failed to meet the appropriate
standard of care for podiatry and orthopedic surgery.” Appellant’s App. Vol. II,
p. 27. And “as a proximate result of the failure of the defendant to meet the
standard of care, plaintiff sustained severe and permanent damage to her right
foot and ankle and is permanently impaired.” Id.
[6] The Medical Review Panel (“the Panel”) reviewed her complaint and
Henderson’s patient records. On April 16, 2015, the Panel issued the following
opinion:
The panel is of the unanimous opinion that the record keeping of
the Defendant fails to meet the standard required, and that the
lack of documentation makes it impossible for the panel to decide
whether the evidence supports or does not support a conclusion
that the Defendant failed to comply with the appropriate
standard of care in his treatment of the Plaintiff.
Appellant’s App. Vol. II, p. 86.
[7] Thereafter, Henderson filed a complaint against Dr. Kleinman in Vigo Superior
Court. The complaint alleged:
1
See Indiana Code § 34-18-8-4.
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2. In performing the surgery and preparing medical records of his
care and treatment of the plaintiff, Dr. Kleinman failed to meet
the appropriate standard of care for podiatrists and orthopedic
surgeons.
3. Plaintiff’s claim was presented to a medical review panel
pursuant to Indiana’s Medical Malpractice Act, and the Medical
Review Panel found that the defendant failed to meet the
standard of care in keeping records of his care and treatment of
the plaintiff and that the Panel could not determine as a result of
those poor records that the actual surgery he performed was
within the standard of care.
4. That the plaintiff was injured and damaged as a result of the
surgery and negligent failure of the defendant to perform within
the applicable standard of care.
Appellant’s App. Vol. II, pp. 16–17.
[8] On June 28, 2017, Dr. Kleinman filed a motion for partial summary judgment
and argued that Indiana law does not impose a legal duty on physicians to keep
any particular type of patient medical records. And therefore, Henderson does
not have an actionable claim arising out of Dr. Kleinman’s method of record
keeping. Dr. Kleinman also argued that even if the duty did exist, Henderson
has not established a causal connection between the breach of that duty and her
alleged injuries.
[9] Shortly thereafter, Dr. Kleinman filed a motion for summary judgment and
argued that he performed the August 27, 2010 surgery within the applicable
standard of care and was therefore entitled to judgment as a matter of law. In
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support of his summary judgment motions, Dr. Kleinman designated the
affidavit of Dr. J. Michael Miller, D.P.M., F.A.C.A.S. (“Dr. Miller”). In his
affidavit, Dr. Miller stated that Dr. Kleinman’s surgical and office visit records
“provided [him] with sufficient information to reliably formulate and render”
his opinion on whether Dr. Kleinman met the applicable standard of care.
Appellant’s App. Vol. III, p. 19. The doctor stated that Dr. Kleinman met the
applicable standard of care in his diagnosis and treatment of Henderson and
concluded that “the surgical procedures which [Dr. Kleinman] employed to
treat Mrs. Henderson on August 27, 2010 were performed appropriately and
within the applicable standard of care.” Id.
[10] In response to Dr. Kleinman’s motions, Henderson designated the Panel
opinion and the depositions of the panel members discussing the inadequacy of
Dr. Kleinman’s record keeping. Henderson did not designate any evidence to
counter Dr. Miller’s opinion that Dr. Kleinman’s diagnoses and treatment of
Henderson met the applicable standard of care.
[11] On October 3, 2017, the trial court granted Dr. Kleinman’s motion for
summary judgment and entered judgment in the doctor’s favor. Henderson now
appeals. Additional facts will be provided as necessary.
Standard of Review
[12] When we review the entry of summary judgment, we apply the same standard
as the trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585
(Ind. 2017). Summary judgment is appropriate only when “the designated
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evidentiary matter shows that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Ind.
Trial Rule 56(C). An issue is “genuine” if a trier of fact is required to resolve the
truth of the matter; a fact is “material” if its resolution affects the outcome of
the case. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[13] Summary judgment is a “blunt instrument” by which the non-prevailing party
is prevented from resolving its case at trial. Id. Because of this, our supreme
court has cautioned that summary judgment “is not a summary trial” and
courts on appeal should carefully “assess the trial court’s decision to ensure [a
party] was not improperly denied [their] day in court.” Id. at 1003–04 (citations
omitted). In other words, “Indiana consciously errs on the side of letting
marginal cases proceed to trial on the merits, rather than risk short-circuiting
meritorious claims.” Id. at 1004.
Discussion and Decision
[14] Henderson argues that a physician has a duty to maintain and keep adequate
patient records. Therefore, the Panel opinion “establishes that there was
evidence presented to the trial court demonstrating a failure to meet the
standard of care with regard to defendant’s legal duty to keep and maintain
adequate records of the plaintiff’s care.” Appellant’s Br. at 7.
[15] To establish a prima facie case of medical malpractice, a plaintiff must
demonstrate: (1) a duty on the part of the defendant in relation to the plaintiff;
(2) a failure to conform her conduct to the requisite standard of care required by
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the relationship; and (3) an injury to the plaintiff resulting from that failure.
Sorrells v. Reid–Renner, 49 N.E.3d 647, 651 (Ind. Ct. App. 2016) (citing Thomson
v. St. Joseph Reg’l Med. Ctr., 26 N.E.3d 89, 93 (Ind. Ct. App. 2015)). The plaintiff
must come forth with expert medical testimony establishing: (1) that the doctor
owed a duty to the plaintiff; (2) that the doctor breached that duty; and (3) that
the doctor’s breach proximately caused the plaintiff’s injuries. Siner v. Kindred
Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016); Sorrells, 49 N.E.3d at 651.
[16] 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
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, 51 N.E.3d at 1187–88; 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.
[17] Moreover, an Indiana summary judgment movant may not rely on a non-
movant’s failure to designate evidence in support of each element of her claim.
Hughley, 15 N.E.3d at 1003. Rather, Indiana practice places the burden on the
movant affirmatively to negate—that is, to designate evidence disproving—an
element of the non-movant’s claim. Id. If carried, the burden then shifts to the
non-movant to come forward with contrary evidence requiring resolution by a
trier of fact. Id.
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[18] This is an extremely unusual case. There is no statutory authority or reported
case law establishing a duty to maintain “adequate” records. Indiana Code
section 16-39-7-1 requires doctors to keep records, and it would not be
unreasonable to conclude that the duty to keep records requires that the
doctor’s records be adequate to determine what facts the doctor relied on to
make a diagnosis, including the patient’s relevant medical history, and the
course of treatment recommended by the doctor. At a minimum a doctor’s
records should include sufficient information so that the Medical Review Panel
can make a determination whether the doctor met the applicable standard of
care. And if the sufficiency of medical records was a controlling factor in the
determination of whether Dr. Kleinman's treatment of Henderson met the
applicable standard of care, our review would end here.
[19] However, even if we assume that a physician has a duty to keep adequate
records, 2 whether Dr. Kleinman kept adequate records is a question of fact. In
support of his motion for summary judgment, Dr. Kleinman designated the
affidavit of Dr. Miller who stated that Dr. Kleinman’s surgical and office visit
records “provided [him] with sufficient information to reliability formulate and
render” his opinion on whether Dr. Kleinman met the applicable standard of
care. Appellant’s App. Vol. III, p. 19. In response, Henderson designated the
2
In the trial and appellate proceedings in this case, Dr. Kleinman argued that even if the duty to maintain
“adequate records” was recognized, and if a trier of fact found that he breached that duty, Henderson cannot
establish that the breach was the proximate cause of any claimed injuries. Henderson failed to respond to that
argument both at the trial level and in these proceedings.
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Panel’s opinion that “the record keeping of the Defendant fail[ed] to meet the
standard required.” Appellant’s App. Vol. II, p. 86. But under the facts and
circumstances of this case, this factual issue does not mandate reversal of the
trial court’s entry of summary judgment in favor of Dr. Kleinman.
[20] Importantly, in his summary judgment motion, Dr. Kleinman also argued that
in treating Henderson, he met the applicable standard of care. In support of his
argument, he again designated Dr. Miller’s affidavit. Dr. Miller, whose
specialty is also podiatry, reviewed Dr. Kleinman’s records of his office visits
with Henderson and her surgical records. Dr. Miller concluded:
Based upon my education, training and experience, and the
records which I have reviewed, it is my opinion based upon a
reasonable degree of medical certainty that Dr. Kleinman met the
standard of care in all respects in his care and treatment of Mrs.
Henderson and, in particular, with respect to his diagnoses and
treatment rendered in 2010.
Based on my training and experience, and Dr. Kleinman’s
operative note, the surgical procedures which he employed to
treat Mrs. Henderson on August 27, 2010 were performed
appropriately and within the applicable standard of care.
Appellant’s App. Vol. III, p. 19.
[21] Dr. Kleinman also designated the deposition testimony of Panel member Dr.
Oglesby who stated that there was nothing in the medical records that he
reviewed that led him to believe that Dr. Kleinman failed to meet the standard
of care in treating Henderson. Id. at 75. Dr. Henning, another review panel
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member, opined that Dr. Kleinman appropriately performed the surgical
procedures during Henderson’s August 27, 2010 surgery. Id. at 77. The third
panel member, Dr. McGowan also stated in his deposition that from the
surgical records it appeared that the procedures were appropriately performed
and the surgical procedures were within the range of appropriate treatment for
Henderson’s diagnosis.3 Id. at 79.
[22] In response to the motion for summary judgment, Henderson did not designate
any evidence to that would establish that Dr. Kleinman’s treatment of her fell
below the applicable standard of care. 4 And if Dr. Kleinman did not breach his
duty to Henderson, her claim for medical malpractice fails as a matter of law.
[23] Henderson believes that the Panel opinion rebuts Dr. Miller’s opinion that
Kleinman met the applicable standard of care. But the Panel only found that
“lack of documentation makes it impossible for the panel to decide whether the
evidence supports or does not support a conclusion that the Defendant failed to
comply with the appropriate standard of care in his treatment of the Plaintiff.”
Appellant’s App. Vol. II, p. 86. We firmly believe that the presence or absence
of medical records is certainly a factor in the determination of whether or not
3
From our review of the record, it appears that the panel was more concerned with the adequacy of
Henderson’s office visit records, but not the surgical records. In their depositions, the panel members
discussed omissions from the records of the office visits, including the lack of patient history and the lack of
discussion of more conservative treatment options.
4
Henderson included her records of patient visits with Dr. Dominic DiPierro in her Appendix. But it does
not appear from the record that these patient records were designated to the trial court with her response to
Dr. Kleinman’s motion for summary judgment.
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medical malpractice occurred in any case. However, in the face of an admissible
affidavit from a competent expert opining that Dr. Kleinman’s care of
Henderson was within the applicable standard of care notwithstanding his
extremely poor recordkeeping and deposition testimony from Panel members
that the surgeries were adequately performed and appropriate for Henderson’s
diagnosis, it is inadequate as a matter of law to respond solely by pointing only
to the Panel's finding that Dr. Kleinman's recordkeeping failed to meet the
applicable standard.
[24] Dr. Kleinman met his burden as the summary judgment movant to
affirmatively negate an element of Henderson’s claim. The burden then shifted
to Henderson to come forward with contrary evidence requiring resolution by a
trier of fact. See Hughley v. State, 15 N.E.3d at 1003. Henderson failed to do so.5
We therefore affirm the trial court’s grant of summary judgment in Dr.
Kleinman’s favor.
[25] Affirmed.
Barnes, J., concurs.
Najam, J., concurs with a separate opinion.
5
With her memorandum in opposition to Dr. Kleinman’s motions for summary judgment, Henderson only
designated the Panel opinion and portions of Dr. Henning’s and Dr. McGowan’s depositions, who were both
members of the Panel.
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IN THE
COURT OF APPEALS OF INDIANA
Rickie Henderson, Court of Appeals Case No.
84A01-1710-CT-2566
Appellant-Petitioner,
v.
Elliott Kleinman, D.P.M.,
Appellee-Respondent.
Najam, Judge, concurring.
[26] I concur, but write separately to emphasize the injustice caused by Dr.
Kleinman’s failure to maintain adequate and accurate medical records, which
prevented the Medical Review Panel from rendering an opinion on the merits
of Henderson’s medical malpractice claim. As our Supreme Court has
acknowledged, “the ‘[m]aintenance of health records by providers’ is . . . closely
entwined with health care and . . . records in general are . . . important to a
medical review panel’s assessment of whether the appropriate standard of care
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was met.” Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 186 (Ind. 2011).
It should follow, then, that a health care provider’s failure to maintain
documentation of a patient’s treatment sufficient to enable a Medical Review
Panel to form an opinion on alleged medical malpractice would support a claim
against the provider. I urge our Legislature to amend the Act to provide that
health care providers have an affirmative duty to maintain adequate and
accurate medical records and that a violation of that duty could support a prima
facie medical malpractice claim.
[27] A health care provider’s failure to maintain adequate and accurate medical
records is the functional equivalent of spoliation of evidence. While our courts
do not recognize an independent tort claim for first party spoliation of evidence,
“[i]n Indiana, the exclusive possession of facts or evidence by a party, coupled
with the suppression of the facts or evidence by that party, may result in an
inference that the production of the evidence would be against the interest of
the party which suppresses it.” Porter v. Irvin’s Interstate Brick & Block Co., 691
N.E.2d 1363, 1364-65 (Ind. Ct. App. 1998). Such an inference could defeat a
summary judgment motion. See, e.g., Dawson v. Hummer, 649 N.E.2d 653, 661
(Ind. Ct. App. 1995) (holding where evidence gives rise to conflicting inferences
summary judgment is inappropriate).
[28] Here, Dr. Kleinman had exclusive control over the creation of Henderson’s
medical records, which evidence was a necessary predicate for her medical
malpractice claim. The inadequacy of those records is akin to the suppression
of evidence and supports an inference that adequate medical records would
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have been against Dr. Kleinman’s interest. As the majority observes, it would
be reasonable to assert that a health care provider has an affirmative duty to
maintain adequate and accurate records. Such a duty is wholly meaningless
without a consequence for a failure to comply. See, e.g., Shirey v. Flenar, 89
N.E.3d 1102, 1112 (Ind. Ct. App. 2017) (Baker, J., concurring). Here, the
Medical Review Panel’s inability to evaluate Henderson’s malpractice claim
due to a “lack of documentation” should be sufficient to withstand Dr.
Kleinman’s summary judgment motion. Appellant’s App. Vol. II at 86.
Nonetheless, we must strictly construe the Act, and because Henderson did not
designate any evidence to show that Dr. Kleinman’s conduct fell below the
applicable standard of care, I am compelled to agree with the majority that
summary judgment for Dr. Kleinman is required.
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Rickie Henderson v. Elliott Kleinman, D.P.M.
Combined Opinion