dissenting.
I respectfully dissent from the majority's holding that the trial court's denial of the Coxes' motion for summary judgment was erroneous. The majority's holding is based upon our supreme court's decision in Harris v. Raymond, 715 N.E.2d 388 (Ind.1999), reh'g denied. However, I interpret Harris differently than the majority and conclude that the trial court properly denied the Coxes' motion for summary judgment.
Harris also dealt with the failure of an oral and maxillofacial surgeon to warn a patient of the Vitek implant recall. Id. at *907390. There, the surgeon inserted the implants into Raymond's jaw in 1986. Id. In December 1990, the FDA issued a safety alert regarding the implants and, soon thereafter, issued a recall order. Id. In 1991, Raymond moved to Arizona, but provided the surgeon with her new address and requested copies of her medical records. Id. The surgeon forwarded the medical records to her in Arizona. Id. In late 1991, the surgeon compiled a list of patients with the implants and attempted to notify them regarding the recall. Id. at 391. However, Raymond's name was not included on the list of patients. Id. Raymond called the surgeon in July 1992 and April 1998, and the April call was noted in her chart. Id. at 890. Despite these telephone calls, the surgeon did not notify Raymond of the recall. Id. at 391.
On appeal, our supreme court addressed an issue not raised by the parties, specifically, the surgeon's duty to warn his former and current patients of the implant recall. Id. at 392. It is clear that our supreme court found a duty to warn current and former patients of the safety alert. However, the extent of this duty and whether the surgeon breached the duty are less clear.
In concluding that the surgeon had a duty to warn current and former patients, our supreme court first qualified the duty by holding that "[aJlny countervailing interest in guarding against imposing potentially burdensome requirements for finding patients who may have relocated can be addressed by qualifying the duty so that the physician or oral surgeon need only take reasonable steps to update patient information and to locate patients whose address of record changes." Id. at 895 (emphasis added). However, our supreme
court then held that "[wlhile we need not decide today the precise limits of the duty to warn, at the very least, a safety alert issued by the manufacturer or the FDA triggers the need to make reasonable efforts to contact all current and former patients with the implants." Id. (emphasis added).
Further, in addressing whether the surgeon had breached his duty to warn Raymond, our supreme court held as follows:
We conclude that, as a matter of law, defendant had a duty to warn both current and former patients, including plaintiff, of safety issues highlighted by the manufacturer and/or the FDA, and that, based on the undisputed facts, defendant has breached that duty here.
Id. at 394 (emphasis added). However, our supreme court ultimately concluded the following:
Defendant does not dispute that the FDA issued a safety alert in 1990, that defendant had access to plaintiff's new Arizona address and in fact forwarded her dental record to her at her request, and that he nonetheless failed to notify her of the safety issues relating to the dental implant he had previously inserted in 1988. Whether this constitutes a breach of the duty to warn can, on remand, be the subject of further motions for summary judgment or a trial on the merits.
Id. at 395 (emphasis added).3
It seems to me that there are two ways to read Harris on the issue of duty and breach of duty. It is clear that Harris holds that there is a duty to warn current and former patients of the safety concerns raised by the FDA and the manufacturer. The first way to read Harris is that the *908failure to warn is a breach of that duty without regard to the reasonableness of the efforts, if any, made to discharge the duty. This reading would make the duty absolute and the lability strict. The see-ond way to read Harris is that the duty to warn is discharged if reasonable efforts, under the cireumstances, are made to locate and warn current and former patients..
If you read Harris the second way, you then have two ways to understand what the court wrote about Harris's conduct. One way is to conclude that the court found that what Harris did was, as a matter of law, a failure to make reasonable efforts to warn. The other way to understand what the court wrote about Harris's conduct is to conclude that the court remanded to the trial court for it to determine, through trial or summary judgment, whether what Harris did was a reasonable effort to warn.
The majority resolves this conflict by concluding that our supreme court "clearly determined that based on the undisputed facts of the case, Dr. Harris breached his duty to warn. However, because the court raised the issue sua sponte, it was required to remand the case for either further motions for summary judgment or a trial on the merits." Maj. Opinion at 906. Based upon Harris the majority concludes that Dr. Paul had a duty to warn Suzan Cox and breached that duty as a matter of law. The majority essentially concludes that Dr. Paul had an absolute duty to warn Cox rather than a duty to use reasonable efforts to warn her. I disagree and conclude that Dr. Paul had a duty to use reasonable efforts to warn Cox and whether he used such reasonable efforts is an issue not appropriate for summary judgment.
In interpreting Harris, the general principles of our medical malpractice law and summary judgment procedures must be kept in mind. In general, in a medical malpractice case, the plaintiff must show: (1) a duty owed to plaintiff by defendant, (2) breach of that duty by allowing conduct to fall below the applicable standard of care, and (38) compensable injury proximately caused by defendant's breach of duty. Bader v. Johnson, 732 N.E.2d 1212, 1216-1217 (Ind.2000). The standard of care that a physician must exercise is "that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which he belongs, acting under the same or similar circumstances." Weinberg v. Geary, 686 N.E.2d 1298, 1301 (Ind.Ct.App.1997), reh'g denied, trans. denied. Thus, generally, a physician is held to a standard of care of reasonableness. An interpretation of Harris that includes an absolute duty to warn is inconsistent with our general medical malpractice laws. However, an interpretation of the duty as a duty to use reasonable efforts to warn patients is more consistent with such laws.
If Dr. Paul is held to a duty to use reasonable efforts to warn his patients, summary judgment for the Coxes is inappropriate. Summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Stryczek v. Methodist Hospitals, Inc., 656 N.E.2d 553, 554 (Ind.Ct.App.1995), reh'g denied, trams. demied. We must liberally construe all designated evidentiary matter in favor of the nonmoving party and resolve any doubt against the moving party. Id. Even if it appears that the nonmoving party will not succeed at trial, summary judgment is inappropriate where material facts conflict or undisputed facts lead to conflicting inferences. Id.; see also Payne v. Marion General Hosp., 549 N.E.2d 1043, 1046 (Ind.Ct.App.1990) (A *909court's "belief that the nonmovant will be unsuccessful at trial is not grounds for summary judgment."), reh'g denied, trans. denied. A medical malpractice case based upon negligence "is rarely an appropriate case for disposal by summary judgment, particularly when the critical question for resolution is whether the defendant exercised the requisite degree of care under the circumstances." Robertson v. Bond, 779 N.E.2d 1245, 1249 (Ind.Ct.App.2002), trans. denied. Rather, "[this issue is generally a question for the trier of fact, and not answerable as a matter of law." Id.
Here, the facts are undisputed. Dr. Paul inserted the implants into Cox's jaw in 1984. Her last appointment with Dr. Paul was in June 1984. In 1991, Dr. Paul was notified by the FDA that the implants were being recalled. In 1992, he ordered his staff to conduct a review of his patient charts to determine which patients had received the implants. Patients identified during the review as having the implants were mailed a packet of information regarding the recall. In 1994, Dr. Paul ordered that another review of patient charts be performed "to determine if there were Vitek patients who had not been identified earlier." Appellant's Appendix at 379. Cox was not identified in either review of the patient charts. In 1996, it came to Dr. Paul's attention that Cox has received the implants but had not been notified of the recall. At that time, Dr. Paul's office staff contacted Cox.
Although the facts are undisputed, such facts lead to conflicting inferences. It is for the jury to determine whether Dr. Paul's efforts to warn Cox were reasonable. Consequently, I conclude that summary judgment is inappropriate. See, e.g., Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind.Ct.App.1997) (holding in a products liability case that whether a duty to warn exists is a question of law and the adequacy of the warning is a question of fact for the jury), reh'g denied, trans. denied.
Even if you read Harris to mean that the supreme court found the facts of Harris to equal a breach as a matter of law, the question here then is whether those facts are the same as our facts. They are not. In Harris, despite continued contact between the patient and physician even after the recall was issued, the physician did not notify the patient of the recall. Here, there was no contact between Suzan and Dr. Paul from 1984 until Dr. Paul notified her of the recall in 1996. Consequently, I do not believe that Harris mandates a grant of summary judgment for the Coxes.
In summary, I would affirm the trial court's denial of the Coxes' motion for summary judgment.
. On remand, Raymond filed a motion for partial summary judgment alleging that the surgeon breached his duty to warn based upon the supreme court's opinion, and the trial court granted the motion.