Indiana University Medical Center, Riley Hospital for Children v. Logan

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DAVID J. MALLON, JR. JOHN D. RAIKOS

JENNIFER M. WEFLEN Indianapolis, Indiana
Ice Miller Donadio & Ryan
Indianapolis, Indiana D. CHARLES GANTZ
Gantz & Associates
Greenwood, Indiana

IN THE

SUPREME COURT OF INDIANA

INDIANA UNIVERSITY MEDICAL )
CENTER, RILEY HOSPITAL FOR )
CHILDREN, )
)
Appellant-Defendant, ) Supreme Court Cause Number
) 49S02-0003-CV-220
v. )
) Court of Appeals Cause Number
BRENDA LOGAN, Mother and Natural, ) 49A02-9812-CV-997
Guardian of JORDAN DAVIS, a Minor, )
)
Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT, ROOM NO. 4
The Honorable Cynthia J. Ayers, Judge
Cause No. 49D04-9605-CT-0721

ON PETITION TO TRANSFER

May 26, 2000

RUCKER, Justice

Case Summary

Brenda Logan filed a complaint for medical malpractice against
Indiana University Medical Center, Riley Hospital for Children (referred to
as “Hospital”). The complaint was based on the allegation that Logan’s
minor son Jordan sustained injures while in Hospital’s care. Hospital
responded with a motion for summary judgment arguing that its conduct was
not the proximate cause of Jordan’s injuries. The trial court denied the
motion, and Hospital appealed. In a memorandum decision the Court of
Appeals reversed, concluding that Logan’s response to Hospital’s motion was
untimely. Indiana University Medical Center v. Logan, No 49A02-9812-CV-997
(Ind. Ct. App. Oct. 19, 1999). Having previously granted transfer, we
affirm the trial court’s denial of Hospital’s motion for summary judgment.

Facts and Procedural History

In March 1991, Logan took her then thirteen-month-old son Jordan to
Hospital for treatment of a respiratory disorder. More specifically Jordan
suffered from asthma and was having difficulty breathing. A treating
physician ordered that Jordan receive certain medication intravenously.[1]
After an initial infusion, the medication was apparently administered for
nearly two hours in a dosage much greater than ordered. In short, Jordan
was overdosed. Logan contends that immediately thereafter Jordan exhibited
nervousness, restlessness, insomnia, muscle twitching, reflex hyper-
excitability, behavioral disturbances and confusion.
Logan filed a proposed complaint against Hospital with the Indiana
Department of Insurance. The complaint alleged negligence in Hospital
administering an overdose of medication and contended that as a result
Jordan suffers neurological damage and impairment. On February 23, 1996, a
medical review panel rendered a unanimous opinion concluding that Hospital
“failed to comply with the appropriate standard of care as charged in the
complaint . . . .” R. at 66. The panel also concluded however “the
conduct complained of was not a factor of the resultant damages.” R. at
67. Thereafter Logan filed a complaint in the Marion Superior Court
setting forth the same allegations as those in her proposed complaint. On
January 30, 1998, Hospital filed a motion for summary judgment contending
its conduct was not the proximate cause of Jordan’s injuries. Hospital
submitted a memorandum, a certified copy of the panel opinion, and the
affidavit of Dr. David Dunn who stated that the overdose of medication did
not cause Jordan’s alleged injuries. The trial court set a hearing date of
May 4, 1998. The trial court also granted Logan an extension of time until
April 15, 1998, to respond to Hospital’s summary judgment motion.
On the response deadline date, Logan filed her own affidavit in
opposition to summary judgment which included twelve attached exhibits.
Without seeking further extensions of time, Logan filed additional exhibits
and a memorandum in opposition on May 4, 1998, the day of the hearing, as
well as May 21 and August 10, 1998. Hospital moved to strike all filings
on grounds that they were either untimely or otherwise inadmissible. The
trial court denied all of Hospital’s motions to strike with the exception
of one non-expert affidavit. The trial court also denied Hospital’s motion
for summary judgment. Hospital then pursued an interlocutory appeal. The
Court of Appeals reversed and remanded with instructions to enter summary
judgment in Hospital’s favor, ruling that with the exception of Logan’s own
affidavit, all memorandums and exhibits Logan filed were either untimely or
inadmissible and should have been stricken. The Court of Appeals then
concluded that because there was no expert evidence contradicting the
medical review panel’s finding of no causation, Hospital was entitled to
summary judgment as a matter of law. Thereafter, we granted Logan’s
Petition for Transfer.

Discussion and Decision

When reviewing a grant or denial of summary judgment our well-settled
standard of review is the same as it is for the trial court: whether there
is a genuine issue of material fact, and whether the moving party is
entitled to judgment as a matter of law. Landmark Health Care Assoc., L.P.
v. Bradbury, 671 N.E.2d 113, 116 (Ind. 1996). Summary judgment should be
granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows
that there is no genuine issue of material fact and the moving party
deserves judgment as a matter of law. T.R. 56(C); Blake v. Calumet Const.
Corp., 674 N.E.2d 167, 169 (Ind. 1996). All evidence must be construed in
favor of the opposing party, and all doubts as to the existence of a
material issue must be resolved against the moving party. Tibbs v. Huber,
Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996).
First, we agree with the Court of Appeals that the exhibits Logan
submitted on April 15, 1998, although timely were inadmissible. The twelve
exhibits consisted of uncertified documents and unsworn statements.[2]
Unsworn statements and unverified exhibits do not qualify as proper Rule 56
evidence. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind. Ct. App.
1996). However, the exhibits Logan submitted after the deadline date
require a different analysis. It is true that under Rule 56(C) a party
opposing summary judgment has thirty (30) days to file a response.
Further, when a party fails to file a response within thirty days, the
trial court may not consider materials filed thereafter. Markley
Enterprises, Inc. v. Grover, 716 N.E.2d 559, 563 (Ind. Ct. App. 1999),
Carroll v. Jagoe Homes, Inc., 677 N.E.2d 612, 616 n.1 (Ind. Ct. App. 1997);
Seufert v. RWB Medical Income Properties I Ltd. Partnership, 649 N.E.2d
1070, 1073 (Ind. Ct. App. 1995). However, Trial Rule 56(E) provides in
pertinent part: “the court may permit affidavits to be supplemented or
opposed by depositions, answers to interrogatories, or further affidavits.”
(emphasis added). It is within the trial court’s discretion to accept an
affidavit filed later than the date specified in the rule. Jordan v.
Deery, 609 N.E.2d 1104, 1109 (Ind. 1993); Winbush v. Memorial Health
System, Inc., 581 N.E.2d 1239, 1242-43 (Ind. 1991); see also Pekin Ins. Co.
v. Charlie Rowe Chevrolet, Inc., 556 N.E.2d 1367, 1369 (Ind. Ct. App. 1990)
(“[A]ffidavits filed by the movant the day before trial to supplement the
original, timely filed affidavits may properly be considered by the trial
court.”).
The record shows that Logan timely submitted her own affidavit in
response to Hospital’s motion for summary judgment. Among other things the
affidavit dictated:
The panel did not have the medical evidence which I provided to my
attorney, and was available but not included in my submission to the
Panel, which was the written medical opinion of Arthur R. Schramm,
M.D., on the prior 17th day of January 1995, [a] copy of which is
attached hereto as Exhibit “C” pp. 27, 28 and made a part hereof by
reference, wherein Doctor Schramm at p. 28 concluded:

Based on my review of all available records, the only stressor
identified which could be associated with causation of the
clinical problems is the theophylline overdose.

R. at 87. As the Court of Appeals correctly determined, the attached
exhibit containing Dr. Schramm’s opinion was inadmissible because it was
not sworn. An unsworn letter from an expert may not be considered in
summary judgment proceedings. Johnston v. State Farm Mut. Auto. Ins. Co.,
667 N.E.2d 802, 806 (Ind. Ct. App. 1996). However it is nonetheless the
case that Logan’s affidavit refers to Dr. Schramm and the fact that he had
an opinion concerning Jordan’s care. Logan’s submissions on May 21, 1998,
included a properly verified affidavit of Dr. Schramm that dictated in
pertinent part:
It is my opinion based upon a reasonable degree of medical certainty,
that the medical care and treatment rendered to Jordan Davis by
University Medical Center, and Riley Hospital for Children fell below
a reasonable standard of care in the theophylline overdose documented
in the medical records in the hospitalization of Jordan Davis at Riley
Hospital.

It is my further opinion based upon a reasonable degree of medical
certainty that the ultimate medical condition and injuries, received
by Jordan Davis between March 4 through March 8, 1991, i.e., massive
physiological stress of the theophylline overdose documented by the
Hospital Records, is clearly the type of stressor which can
precipitate the clinical appearance of the symptoms of the bipolar
disorder, and more probably than not was caused by the inappropriate
care rendered by the Riley Hospital staff.
R. at 267-68. Dr. Schramm’s affidavit expands on the reference to him and
his opinion found in Logan’s own timely filed affidavit. We therefore view
the Dr. Schramm affidavit as merely a supplement to Logan’s affidavit. See
T.R. 56(E). Thus, the question is whether the trial court abused its
discretion in considering the late-filed affidavit when ruling on
Hospital’s motion for summary judgment. An abuse of discretion occurs when
the trial court’s decision is against the logic and effect of the facts and
circumstances before it. Vernon v. Kroger Co., 712 N.E.2d 976, 982 (Ind.
1999).
The record here shows that on the date originally scheduled for
hearing on Hospital’s motion for summary judgment, Hospital filed among
other things a motion to strike Logan’s affidavit and attached exhibits.
The trial court took the motion to strike under advisement, ordered the
parties to submit briefs by May 22, and subsequently rescheduled the
summary judgment hearing until August 11. It was during this period, more
specifically on May 21, that Logan submitted the affidavit of Dr. Schramm.
Admitting the affidavit, filed after the deadline date but well before the
date of the hearing, was not against the logic and effect of the facts and
circumstances before the court. In sum, the trial court did not abuse its
discretion. This case has been pending since the filing of Logan’s
complaint in May 1996. Both parties have engaged in extensive discovery
including depositions, interrogatories, and requests for admissions.
Indeed, prior to Hospital’s motion for summary judgment, the trial court
had conducted a pre-trial conference, and this case was scheduled for a
four-day jury trial in June 1998. Hospital has neither argued nor
demonstrated that the supplemental affidavit works to its prejudice. On
the other hand, absent the affidavit there is no issue of material fact
concerning the cause of Jordan’s injuries.[3] With the affidavit there is
such a dispute, and accordingly the trial court properly denied Hospital’s
motion for summary judgment.
Conclusion
We vacate the opinion of the Court of Appeals, affirm the trial
court’s denial of summary judgment, and remand for further proceedings.

SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.

SULLIVAN, J., not participating.

-----------------------
[1] In her brief Logan identifies the medication as “Theophylline.”
In her complaint she identified the medication as “Aminophylline.” In its
submissions to the trial court Hospital referred to the medication as
“Aminophylline (also known as Theophylline).”
[2] Specifically the exhibits included: A) Logan’s unsworn
submissions to the medical review panel and uncertified medical records; B)
an uncertified copy of the opinion of the Medical Review Panel; C) an
unsworn letter of Dr. Schramm, a medical doctor who treated Jordan; D) an
uncertified laboratory report; E) a newspaper article; F) the unsworn
statement of Jordan’s grandmother; G) the unsworn statement of Jordan’s
former babysitter; H) the unsworn statement of a pastor; I) a portion of an
article from the internet; J) a second article from the internet; K) an
excerpt from The American Druggist’s Complete Family Guide; and L)
uncertified school records.
[3] It has been held that expert opinion is usually required to
establish a causal connection between the acts or omissions of the
physician and the injury to the patient. Bowman v. Beghin, 713 N.E.2d 913,
917 (Ind. Ct. App. 1999); Daub v. Daub, 629 N.E.2d 873, 878 (Ind. Ct. App.
1994); see also Cahoon v. Cummings, 715 N.E.2d 1, 17 (Ind. Ct. App. 1999)
(declaring, “It is well settled that in a medical negligence claim, the
plaintiff must prove by expert testimony not only that the defendant was
negligent, but also that the defendant’s negligence proximately caused the
plaintiff’s injury.”), reh’g. denied, (quoting Schaffer v. Roberts, 650
N.E.2d 341, 342 (Ind. Ct. App. 1995)). This court has never addressed the
precise issue of whether a “causation” expert is required in a medical
negligence case. Here however, Logan’s affidavit absent the improperly
attached exhibits does not mention causation. Thus, even if expert
testimony is not required on this point, without the Dr. Schramm affidavit
Logan presented no issue of material fact on the question of causation.