dissenting with separate opinion.
I respectfully dissent. Not only is summary judgment rarely granted in negli-genee actions when the sole issue is proximate cause, but especially in a medical malpractice case based upon negligence, summary judgment is seldom an appropriate disposition. Jones v. Minick, 697 N.E.2d 496, 499 (Ind.Ct.App.1998); Hoskins v. Sharp, 629 N.E.2d 1271, 1277 (Ind.Ct.App.1994), reh'g denied. That is, the issue of proximate cause is generally a question for the jury. State Street Duffy's, Inc. v. Loyd, 623 N.E.2d 1099 (Ind.Ct.App. 1993). This is particularly true when the critical question for resolution is whether the defendant exercised the degree of care due under the factual cireumstances. Jones, 697 N.E.2d at 499. Accordingly, summary judgment should not be used as an abbreviated trial. Brunner v. Trustees of Purdue Univ., 702 N.E.2d 759, 760 (Ind.Ct.App.1998), trans. denied.
In the instant case, Dr. Hassan has asked us to hold, and the majority agreed, that, as a matter of law, his alleged conduct was not a proximate cause of Begley's death because his acts were too remote in time and superseded by the negligence of other health care providers. However, I cannot agree. It is well established that intervening acts by third parties do not break the chain of proximate causation between a defendant's acts and a plaintiff's injury unless the intervening acts are unforeseeable. See Mansfield v. Shippers Dispatch, Inc., 399 N.E.2d 428, 425 (Ind.Ct.App.1980). Viewing the evidence in the light most favorable to Begley, I find that reasonable jurors could conclude that the chain of causation was intact and thus, that the negligent acts and omissions of Dr. Hassan contributed to the wrongful death of Begley.
As the majority correctly states, Begley is not required to prove that Dr. Hassan's negligence was "the" proximate cause of his death but, viewed in the light most favorable to Begley, Dr. Hassan's care was "a" proximate cause of Begley's death. In this case, even though Dr. Hassan evaluated Begley's condition as severe to critical upon his admission to the emergency room at White County Hospital, Dr. Hassan failed to order a nasogastric tube. Furthermore, because of the serious nature of Begley's condition, it cannot be said that it was unforeseeable that Begley would require ongoing and monitored care. In a similar vein, it was not unforeseeable that Dr. Hassan's failure to timely place the nasogastric tube in compliance with the reasonable and accepted standards of medical care would become a proximate cause of Mr. Begley's death. Therefore, I conclude that Dr. Hassan's initial mismanagement of Begley's care combined with the alleged negligence of other health care providers are factual matters that could be characterized as "a" proximate cause.
Moreover, Dr. Swerdlow testified that Dr. Hassan's failure to place a nasogastric tube in Mr. Begley while Mr. Begley was in the emergency room, was a breach of the standard of care. The majority should be mindful that when two or more health care providers owe the same duty to a patient, and each contribute to a breach of that duty, they are jointly and severally liable for the patient's death pursuant to Indiana's Medical Malpractice Act.
Accordingly, I find that Begley has met his burden of a prima facie showing to the trial court, and the trial court thus correctly determined that the proximate cause in this case could not be decided as a matter of law and should be left to the province of the jury. I would affirm the trial court's decision.