Jamie Thomson v. Saint Joseph Regional Medical Center and Michael Borkowski, M.D.

26 N.E.3d 89, 2015 Ind. App. LEXIS 80, 2015 WL 520843
CourtIndiana Court of Appeals
DecidedFebruary 9, 2015
Docket71A04-1405-CT-246
StatusPublished
Cited by8 cases

This text of 26 N.E.3d 89 (Jamie Thomson v. Saint Joseph Regional Medical Center and Michael Borkowski, M.D.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jamie Thomson v. Saint Joseph Regional Medical Center and Michael Borkowski, M.D., 26 N.E.3d 89, 2015 Ind. App. LEXIS 80, 2015 WL 520843 (Ind. Ct. App. 2015).

Opinion

BAKER, Judge.

[1] Jamie Thomson appeals the entry of summary judgment in favor of defendants St. Joseph Regional Medical Center and Michael Borkowski. Thomson claims to have suffered an injury to the nerves in her shoulder and arm when a board supporting her arm became detached during surgery, leaving her arm dangling towards the floor for an unknown period of time. A medical review panel determined that neither defendant failed to meet the applicable standard of care and that neither defendants’ actions were the proximate cause of Thomson’s injury. We find that, given the nature of this case, Thomson was not required to present expert testimony to rebut the panel’s conclusion as to either defendant’s failure to meet the standard of care. We also find that the expert testimony Thomson presented was sufficient to rebut the panel’s conclusion as to causation. Accordingly, we reverse and remand for further proceedings.

Facts

[2] On July 20, 2009, Thomson underwent a hysterectomy at St. Joseph Regional Medical Center (SJRMC) for which Michael Borkowski provided anesthesia. Thomson was lying on an operating table with her arms out from her side and her palms facing upwards. Her arms- were supported by padded arm boards that had been attached to the table. Her arms were secured to these arm boards by a strap.

[3] The procedure lasted for approximately two hours, from 7:32 a.m. to 9:24 a.m. At approximately 8:30 a.m., Dr. Bor-kowski noticed that Thomson’s right arm was dangling towards the floor because the right arm board had become detached. Dr. Borkowski did not know how or when the arm board had become detached. He reattached the arm board and noted the incident in his record.

[4] When she awoke from surgery, Thomson complained of pain in her right arm. Dr. Borkowski explained that her arm board had become detached during surgery and that this could have resulted in nerve damage to her arm. Thomson met with Dr. Zimmerman, a neurologist at SJRMC, who diagnosed her with a right *92 radial nerve injury that had probably been caused by compression.

[5] Thomson had two follow-ups with Dr. Zimmerman, after which Dr. Zimmerman reported that Thomson was experiencing residual symptoms. About a month after these follow-ups, on September 17, 2009, Dr. Zimmerman ordered an electro-myogram of Thomson’s arm. The test came back indicating normal nerve structure and function. Thomson visited Dr. Zimmerman again on March 1, 2010, and reported loss of pin-prick sensation and temperature sensation in her right thumb. On August 81, 2010, Thomson had her final visit with Dr. Zimmerman, after which he told her that he had done everything he could.

[6] Ón April 15, 2011, Thomson filed a proposed complaint against SJRMC and Dr. Borkowski with the Indiana Department of Insurance. On May 14, 2012, the case went before a medical review panel consisting of three physicians. On July 9, 2012, all three members of the panel determined that neither defendant failed to meet the appropriate standard of care and that their conduct was not a significant factor in any permanent injury Thomson may have suffered.

[7] On November 27, 2012, Thomson filed a complaint in the trial court alleging that SJRMC and Dr. Borkowski failed to meet the appropriate standard of care, resulting in injuries to Thomson. SJRMC and Dr. Borkowski both filed motions for summary judgment, citing the opinion of the panel.

[8] In response, Thomson designated as evidence the deposition testimony of Dr. Zimmerman, an affidavit of registered nurse Abigail Stanley, and the deposition testimony of anesthesiologist Robert Gill, who had been a member of the panel that originally found against Thomson.

[9] Dr. Zimmerman testified that he believed Thomson had suffered a radial nerve injury as a result of the arm board becoming detached. Stanley stated in her affidavit that employees of SJRMC failed to meet the standard of care. Dr. Gill gave equivocal testimony as to whether Dr. Borkowski had failed to meet the appropriate standard of care. When questioned by Thomson, Dr. Gill indicated that Dr. Borkowski had failed to meet the standard of care, but when questioned by Dr. Borkowski, Dr. Gill indicated that Dr. Bor-kowski had met the standard of care.

[10] A hearing was held on February 11, 2014. With respect to Dr. Gill’s deposition testimony, the trial court concluded that Dr. Gill’s equivocations showed that he had not changed his original opinion and, therefore, his testimony was insufficient to rebut the panel’s conclusion as to Dr. Borkowski’s failure to meet the standard of care. The trial court further found that Dr. Zimmerman’s testimony was insufficient to rebut the panel’s conclusion that there was no causal relationship between either defendants’ conduct and Thomson’s injury. The trial court then granted summary judgment in favor of SJRMC and Dr. Borkowski. Thomson now appeals.

Discussion and Decision

[11] With, respect to the applicable standard of care and the defendants’ alleged failure to meet it, Thomson makes two arguments: (1) Dr. Gill’s equivocal testimony as to whether Dr. Borkowski failed to meet the standard of care created a question of fact; and (2) because detachment of the arm board clearly shows a failure to meet the standard of care, Dr. Gill’s expert opinion as to the standard of care was not even needed. With respect to causation, Thomson argues that Dr. Zimmerman’s testimony that Thomson’s injury was caused by the collapse of the *93 arm board created a question of fact as to a causal relationship between the defendants’ conduct and the injury. Therefore, Thomson argues that genuine issues of material fact precluded the trial court from granting summary judgment in favor of SJRMC and Dr. Borkowski.

I. Standard of Review

[12] 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.” Ind. Trial Rule 56(C). It is initially the moving party’s burden to make a prima facie showing that this is the case. McIntosh v. Cummins, 759 N.E.2d 1180, 1183 (Ind.Ct.App.2001). Once the moving party meets this burden, the burden shifts to the non-moving party to present evidence showing the existence of a genuine issue of material fact. Id. “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.” Id. In other words, this issue is generally a question for the trier of fact. Id.

[13] 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 his conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure. Bunch v. Tiwari, 711 N.E.2d 844, 850 (Ind.Ct.App.1999).

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Bluebook (online)
26 N.E.3d 89, 2015 Ind. App. LEXIS 80, 2015 WL 520843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jamie-thomson-v-saint-joseph-regional-medical-center-and-michael-indctapp-2015.