MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Aug 30 2018, 9:34 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANTS PRO SE ATTORNEYS FOR APPELLEES
Paul Michael Wildridge, Sr. Christopher L. Riegler
Cheryl L. Wildridge Kathryn Elias Cordell
Columbus, Indiana Katz Korin Cunningham, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul Michael Wildridge, Sr. and August 30, 2018
Cheryl L. Wildridge, Court of Appeals Case No.
Appellants-Plaintiffs, 18A-CT-464
Appeal from the Morgan Superior
v. Court
The Honorable Brian H. Williams,
Franciscan Alliance, Inc., Judge
Franciscan St. Francis Health, Trial Court Cause No.
St. Francis Hospital and Health 55D02-1704-CT-607
Centers, Mooresville, Indiana,
Appellees-Defendants.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellants-Plaintiffs, Paul Michael Wildridge, Sr. (Paul), and Cheryl L.
Wildridge (collectively, Wildridge), appeal the trial court’s summary judgment
in favor of Appellees-Defendants, Franciscan Alliance, Inc., Franciscan St.
Francis Health, St. Francis Hospital and Health Centers, Mooresville, Indiana
(collectively, St. Francis), on Wildridge’s allegation of medical malpractice.
[2] We affirm.
ISSUE
[3] Wildridge presents six issues on appeal, which we consolidate and restate as the
following single issue: Whether the trial court properly granted summary
judgment to St. Francis when Wildridge failed to file a response or seek an
extension of time within the thirty-day period allotted under Indiana Trial Rule
56(C).
FACTS AND PROCEDURAL HISTORY
[4] On March 16, 2011, Paul was admitted to St. Francis Hospital in Mooresville,
Indiana, for a total bilateral knee replacement. Following his surgery, Paul
became hypotensive and was transferred to the Intensive Care Unit (ICU)
where he remained until the next afternoon. On March 18, 2011, while still
admitted at the hospital, Paul developed the onset of a posterior-left heel
pressure ulcer. He was discharged two days later, on March 20, 2011.
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[5] On February 26, 2013, Wildridge filed a proposed complaint with the Indiana
Department of Insurance alleging that St. Francis had negligently provided
medical services to Paul. As required by the Medical Malpractice Act, Ind.
Code § 34-18-1 et seq, the allegations were submitted to the Medical Review
Panel. On January 19, 2017, the Medical Review Panel unanimously opined
that St. Francis “failed to comply with the appropriate standard of care as
charged in the complaint, and that the conduct complained of was not a factor
in the resultant damages.” (Appellee’s App. Vol. II, p. 24).
[6] On April 5, 2017, Wildridge filed a Complaint for Damages with the trial court.
On October 31, 2017, St. Francis filed a motion for summary judgment,
together with a memorandum of law and designation of evidence. On
November 1, 2017, the trial court scheduled the hearing on St. Francis’ motion
to take place on January 19, 2018. On December 19, 2017, Wildridge filed a
verified motion to continue the scheduled hearing for sixty days. The trial court
granted the motion for continuance and rescheduled the hearing on St. Francis’
summary judgment motion for April 2, 2018.
[7] On December 28, 2017, St. Francis filed a motion for entry of judgment due to
Wildridge’s failure to respond to its motion for summary judgment within the
specified time period. On December 29, 2017, the trial court summarily
granted judgment to St. Francis. Thereafter, on January 5, 2018, Wildridge
filed a motion to deny summary judgment and a motion to reconsider
dismissal. On January 23, 2018, the trial court denied both motions,
concluding, in pertinent part:
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The court now reviews [Wildridge’s] submitted materials and
motions, and finds and rules:
A. The response submitted is untimely and no request for
extension of time to respond was timely filed.
B. The materials submitted are not in proper form for
consideration by the court.
C. Upon review of the materials, the court cannot discern that
the issue of causation is addressed as to controvert the panel
decision and opinion
Procedurally, and on the merits, the court cannot find the
untimely response to be a basis for reinstatement of the case or
reversal of the previously issued summary judgment order.
(Appellant’s App. Vol. IV, p. 11).
[8] Wildridge now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Standard of Review
[9] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
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consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if
it helps to prove or disprove an essential element of the plaintiff’s cause of
action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an
opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.
Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant
of summary judgment has the burden of persuading this court that the trial
court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.
When the defendant is the moving party, the defendant must show that the
undisputed facts negate at least one element of the plaintiff’s cause of action or
that the defendant has a factually unchallenged affirmative defense that bars the
plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be
reversed if the record discloses an incorrect application of the law to the facts.
Id.
[10] We observe that, in the present case, the trial court did not enter findings of fact
and conclusions of law in support of its judgment. Special findings are not
required in summary judgment proceedings and are not binding on appeal.
AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.
App. 2004). However, such findings offer this court valuable insight into the
trial court’s rationale for its review and facilitate appellate review. Id.
II. Analysis
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[11] Wildridge contends that there are genuine issues of material fact supporting his
claim that St. Francis breached its duty of care to Paul while an inpatient at the
hospital, and therefore, the trial court improperly issued summary judgment to
St. Francis.
[12] We initially note that although Wildridge is proceeding pro se, such litigants are
held to the same standard as trained counsel and are required to follow
procedural rules. Ballaban v. Bloomington Jewish Community, Inc., 982 N.E.2d
329, 334 (Ind. Ct. App. 2013). Thus, pro se litigants are bound to follow the
established rules of procedure and must be prepared to accept the consequences
of their failure to do so. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.
2004), trans. denied. This court will not “indulge in any benevolent
presumptions on [their] behalf, or waive any rule for the orderly and proper
conduct of [their] appeal.” Ankeny v. Governor State of Ind., 916 N.E.2d 678, 679
n.1 (Ind. Ct. App. 2009) (citation omitted), reh’g denied, trans. denied.
[13] To establish a prima facie case of medical malpractice, a plaintiff must
demonstrate: (1) the defendant’s duty in relation to the plaintiff; (2) the
defendant’s failure to conform its conduct to the requisite standard of care
required by the relationship forming the duty; and (3) an injury to the plaintiff
resulting from that failure. Bunch v. Tiwari, 711 N.E.2d 844, 850 (Ind. Ct. App.
1999). This generally requires expert testimony showing that the physician’s
performance fell below the applicable standard of care and that his negligence
was a proximate cause of the plaintiff’s injuries. Id. When, as here, a Medical
Review Panel renders an opinion in favor of the physician, the plaintiff must
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then come forward with expert medical testimony to rebut the Panel’s opinion
in order to survive summary judgment. Id. (when the medical review panel
finds in favor of the physician on the element of proximate cause, the plaintiff
must demonstrate the existence of a question of fact only as to proximate
cause). Moreover, where there is a unanimous Medical Review Panel
determination favoring the defendant and no countervailing expert opinion, the
defendant is entitled to judgment as a matter of law. McGee v. Bonaventura, 605
N.E.2d 792, 794 (Ind. Ct. App. 1993).
[14] Nevertheless, St. Francis argues, and the trial court agreed, that the merits of
Wildridge’s contention need not be reached as Wildridge failed to timely
designate expert testimony to oppose the Medical Review Panel’s opinion in
order to survive summary judgment.
[15] Indiana Trial Rule 56(C) provides that a party opposing a motion for summary
judgment has thirty days to serve a response or any other opposing affidavits.
When a nonmoving party fails to respond to a motion for
summary judgment within 30 days by either filing a response,
requesting a continuance under Trial Rule 56(I), or filing an
affidavit under Trial Rule 56(F), the trial court cannot consider
summary judgment filings of that party subsequent to the 30-day
period.
HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008) (citing Borsuk v.
Town of St. John, 820 N.E.2d 118, 125 n.5 (Ind. 2005)). St. Francis filed its
motion for summary judgment on October 31, 2017. Therefore, in accordance
with T.R. 6(E) and T.R. 56(C),Wildridge’s response was due no later than
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December 3, 2017. Wildridge ultimately filed his response to St. Francis’
motion on January 5, 2018, more than a month late. Moreover, even if we
consider Wildridge’s motion to continue as a request for additional time under
T.R. 56(I), this motion was also filed outside the thirty-day period as
Wildridge’s motion was submitted on December 19, 2017, some sixteen days
after the time had elapsed. Accordingly, as the trial court could not consider
Wildridge’s late filings in response to St. Francis’ motion for summary
judgment, St Francis was entitled to summary judgment. See McGee, 605
N.E.2d at 794.
CONCLUSION
[16] Based on the foregoing, we hold that the trial court properly granted summary
judgment to St. Francis when Wildridge failed to file a response or seek an
extension of time within the thirty-day period allotted under Indiana Trial Rule
56(C).
[17] Affirmed.
[18] Vaidik, C. J. and Kirsch, J. concur
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