Lusk v. Swanson

753 N.E.2d 748, 2001 Ind. App. LEXIS 1388, 2001 WL 911418

• Court: Indiana Court of Appeals
• Decided: August 14, 2001
• Docket: 15A01-0101-CV-029
• Status: Published

Opinions

OPINION

BAKER, Judge.

Appellant-plaintiff Marita Lusk appeals the trial court's grant of summary judgment in favor of appellee-defendant James D. Swanson, M.D. Specifically, Lusk contends that the trial court erred in determining that her claims were barred by the statute of limitations and that she had failed to establish a prima facie case of negligence. In addition, Lusk contends that the trial court erred in not granting summary judgment in her favor.

FACTS

The facts most favorable to the non-moving party are that Lusk fell and injured herself on August 18, 1996. Subsequently, Dr. Swanson, an orthopedic surgeon at Dearborn County Hospital, diagnosed Lusk as having an upper arm fracture. Dr. Swanson continued to treat Lusk for her injury until January 17, 1997.

On August 31, 1998, Lusk filed a proposed complaint with the Indiana Department of Insurance (IDOT) alleging that Dr. Swanson and Dearborn County Hospital had committed medical malpractice by negligently failing to diagnose and treat a wrist fracture.¹ Shortly thereafter, on September 9, 1998, the IDOI sent Dr. Swanson a letter informing him that he had not complied with the provisions of the Medical Malpractice Act (Act) ² and, therefore, the IDOI would have no jurisdiction over Lusk's claims against him.³ Record at 25. This letter was copied to Lusk's attorney.

The IDOI sent a second letter to Dr. Swanson on September 23, 1998, stating: "if Indiana Code 34-18-1-1, et seq. is applicable to this elaim," either party may request formation of a Medical Review Panel. R. at 26. On June 28, 1999, the IDOI sent a third letter to Dr. Swanson notifying him that he was not covered by the Act. R. at 32. This letter was also copied to Lusk's attorney.

One month later, on July 29, 1999, Lusk filed her complaint against Dr. Swanson in the Dearborn Cireuit Court. On June 29, 2000, Dr. Swanson filed a motion for summary judgment on the basis that Lusk's claims were barred by the two-year statute of limitations and that she had failed to establish a prima facie case of medical negligence. In support of her opposition to Dr. Swanson's motion, Lusk designated the affidavit of Dr. James M. Gaither, M.D., a pulmonologist,⁴ to establish that Dr. Swanson failed to meet the applicable standard of care in treating Lusk.

The trial court held a hearing on Dr. Swanson's motion on August 17, 2000. On October 3, 2000, the trial court entered summary judgment in favor of Dr. Swanson. Specifically, the trial court held that the statute of limitations barred Lusk's complaint. In addition, the trial court held that Lusk had not established a prima facie case of medical negligence because Dr. Gaither's affidavit failed to state: 1) that he was familiar with the standard of care of an orthopedic surgeon; 2) that he was familiar with the standard of care under the same or similar cireumstances; 3) what the standard of care is; 4) and that Dr. Swanson's treatment of Lusk fell below that standard. Lusk now appeals.

DISCUSSION AND DECISION

I. Standard of Review

The standard of review of a summary judgment is well settled. This court applies the same standard as the trial court. USA Life One Ins. Co. v. Nuckolls, 682 N.E.2d 534, 537 (Ind.1997). We do not weigh the evidence designated by the parties. Instead, we liberally construe the evidence in the light most favorable to the non-moving party. Id. Summary judgment is appropriate only if the pleadings and the evidence show both the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind.1996). Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Id.

IIL Lusk's Claims

Lusk first contends that the trial court erred in determining that her claims were barred by the statute of limitations. Ind.Code § 34-11-22 requires that complaints against healthcare providers based upon their rendering of professional services must be "filed within two (2) years from the date of the act, omission, or neglect complained of." Because Dr. Swanson last treated Lusk on January 17, 1997, Lusk's claims should have been filed no later than January 17, 1999. Lusk did not file her complaint until July 29, 1999, and, therefore, the trial court determined that her claim was time-barred. However, Lusk argues that the statute of limitations was tolled until she received a copy of the third letter from the IDOI on June 28, 1999, stating that Dr. Swanson was not a qualified provider under the Act.

In addressing Lusk's contention, we note that the Act provides for establishing medical review panels "to review all proposed malpractice complaints against healthcare providers covered by this article" and tolls the applicable statute of limitations until ninety days after receipt of the panel's opinion. IC. § 34-18-10-1; I.C. § 34-18-7-3. The Act also provides that no action may be commenced in any court of this state before the claimant's proposed complaint has been presented to a medical review panel and the panel renders an opinion. I.C. § 34-18-8-4. However, if a healthcare provider fails to qualify under the Act, its provisions are inapplicable and the statute of limitations is not tolled. See I.C. § 34-18-3-1.

We also note that in Guinn v. Light, 558 N.E.2d 821, 824 (Ind.1990), our supreme court determined that filing a proposed complaint with the IDOI tolls the statute of limitations until the IDOI informs the claimant that the provider is not qualified under the Act. Upon such notice, the statute begins to run again and the claimant must file an action in court or risk being time-barred. Id. Moreover, in Shenefield v. Barrette, 716 N.E.2d 1, 4-5 (Ind.Ct.App.1999), this court indicated that when conflicting information is provided to the claimant concerning the qualified status of a physician under the Act, there is an affirmative obligation on the part of the claimant to determine from the IDOI whether the doctor is qualified.

Here, the statute of limitations was tolled when Lusk filed her proposed complaint with the IDOI on August 31, 1998. However, the IDOI's September 9, 1998 letter to Dr. Swanson, which was copied to Lusk's counsel, informed Lusk that Dr. Swanson was not covered by the Act. Upon such notification to Lusk, the statute of limitations began running again. See id.

Nevertheless, Lusk contends that the second letter from the IDOI indicated that Dr. Swanson was covered by the Act, and therefore, the limitations period remained tolled until June 28, 1999, the date of the third correspondence from IDOL. The second letter from the IDOI was sent on September 23, 1998, and stated that: "If Indiana Code 34-18-1-1, et seq. is applicable to this claim," either party may request formation of a Medical Review Panel, R. at 26 (emphasis supplied). However, this letter is a standard form letter that goes out whenever a medical malpractice complaint is filed with the IDOI,⁵ and, contrary to Lusk's assertion, its conditional language does not indicate that Dr. Swanson is covered by the Act in contradiction to the first letter from the IDOI. Moreover, if the language of the second letter confused Lusk, she had an affirmative duty to inquire into Dr. Swanson's qualification under the Act. See Shenefield, 716 N.E.2d at 5. Thus, Lusk's complaint should have been filed no later than January 26, 1999 (that is, January 17 plus the nine days that the statute of limitations was tolled from August 31, 1998, when Lusk filed with the IDOI, until September 9, 1998, when she was informed that Dr. Swanson was not covered by the Act). Because she did not file her complaint until July 29, 1999, it was time-barred and the trial court properly granted summary judgment in favor of Dr. Swanson.

Lusk also contends that the trial court erred in determining that she failed to establish a prima facie case of negligence against Dr. Swanson. Specifically, Lusk asserts that she was not required to present expert testimony to satisfy her burden of showing a genuine issue of material fact because the issues presented in her claim were capable of being understood by a layperson without expert assistance. In the alternative, Lusk argues that the contents of her expert witness's affidavit were sufficient to satisfy her burden even though he failed to specifically state that he was familiar with the requisite standard of care.⁶

In addressing the sufficiency of a medical malpractice action based upon negligence, we note that the plaintiff must establish: 1) a duty on the part of the defendant in relation to the plaintiff; 2) failure on the part of the defendant to conform to the requisite standard of care required by the relationship; and 3) an injury to the plaintiff resulting from that failure. Oelling v. Rao, 593 N.E.2d 189, 190 (Ind.1992). Because of the complex nature of medical diagnosis and treatment, expert testimony is generally required to establish the applicable standard of care. Simms v. Schweikher, 651 N.E.2d 348, 350 (Ind.Ct.App.1995), trans. denied. However, expert testimony is not required "where deviation from the standard of care is a matter commonly known by lay persons." Culbertson v. Mernitz, 602 N.E.2d 98, 104 (Ind.1992). "Cases which do not require expert testimony generally involve the physician's failure to remove surgical implements or foreign objects from the patient's body. The rationale underlying these cases is that the facts themselves are sufficient to raise an inference of negli-genee without expert testimony." Simms, 651 N.E.2d at 350.

Here, we cannot say that a layperson could infer, based solely on the facts of this case, that Dr. Swanson was negligent in failing to diagnose and treat a "transverse fracture of the carpal navieu-lar bone" in Lusk's right wrist. R. at 5. Therefore, Lusk was required to present expert medical testimony raising a genuine factual dispute in order to preclude summary judgment. Where this expert testimony is presented in the form of an affidavit, the affidavit must set forth that the expert is familiar with the proper standard of care under the same or similar cireum-stances, what that standard of care is, and that the defendant's treatment of the plaintiff fell below that standard of care. Id.

Here, Dr. Gaither failed to state in his affidavit that he was familiar with the standard of care for orthopedic surgeons. In addition, he failed to articulate the requisite standard of care and that Dr. Swanson's treatment of Lusk fell below that standard. R. at 65-66. Nevertheless, Lusk asserts that while Dr. Gaither did not expressly state that he was familiar with the requisite standard of care, such familiarity is nevertheless evident from the contents of his affidavit. Lusk relies upon this court's opinion in Aldrich v. Coda, 732 N.E.2d 243, 246 (Ind.Ct.App.2000), to support his argument that Dr. Gaither's affidavit is sufficient to establish a genuine issue of fact and preclude summary judgment.

Aldrich involved a medical malpractice claim alleging that a podiatrist was negligent with regard to a procedure to correct deformities in the plaintiffs feet. Id. at 244. The trial court determined that the plaintiff's expert witness's affidavit was insufficient to create a genuine issue of material fact to overcome the defendant's motion for summary judgment because the expert, an orthopedic surgeon, did not state that he was familiar with the standard of care for podiatrists. Id. On appeal, this court reversed the trial court. We stated that, while it would have been preferable for plaintiff's expert to expressly state that he was familiar with the applicable standard of care for podiatrists, it was evident from the opinion letter attached to his affidavit, which specifically described the procedure to correct the deformities in the plaintiff's feet, that he was indeed familiar with the applicable standard of care. Id. at 246.

However, while it was reasonable in Ald-rich to conclude that an orthopedic surgeon who diagnoses and corrects skeletal deformities may be qualified to render an opinion on the standard of care of a podiatrist in such matters, it is not similarly reasonable to conclude that a pulmonologist is familiar with the standard of care required of an orthopedic surgeon. Further, Dr. Gaither's familiarity with the requisite standard of care is not apparent from the contents of his affidavit, which, in essence, states that Dr. Swanson should have ordered x-rays of Lusk's wrist, but does not evidence any particular knowledge or expertise in orthopedics. R. at 65-66. Accordingly, we reject Lusk's argument that the case at bar is analogous to Aldrich, and we conclude that the contents of Dr. Gaither's affidavit are insufficient to establish a disputed issue of material fact and defeat Dr. Swanson's motion for summary judgment.

Finally, inasmuch as we have determined that the trial court did not err, we reject Lusk's contention that the trial court should have granted summary judgment in her favor.

Judgment affirmed.

MATHIAS, J., concurs. BAILEY, concurs in result with opinion.

1 . On November 4, 1998, Lusk filed an amended proposed complaint with the IDOI withdrawing all claims against Dearborn County Hospital. Record at 30.

2 . Ind.Code §§ 34-18-1-1 to 34-18-18-2.

3 . Specifically, Dr. Swanson had not filed proof of financial responsibility and had not paid the surcharge required by the Act at the time of the alleged malpractice. R. at 25.

4 , A pulmonologist is a specialist in the anatomy, physiology, and pathology of the lungs. Merriam Webster's Medical Dictionary, at http://www .InteliHealth.com (last visited July 16, 2001).

5 . Dr. Swanson attached the affidavit of Julie Nahas, Manager of the Medical Malpractice Division of the IDOI to his Memorandum in Support of Defendant's Motion for Summary Judgment. In her affidavit, Nahas states that the third letter sent to Dr. Swanson is "a form letter which was inapplicable to this matter since Dr. Swanson was not a qualified health care provider at the time of the alleged act." R. at 39.

6 . Lusk also argues that Dr. Swanson's affidavit attached to his motion for summary judgment is insufficient to shift the burden to her of establishing an issue of disputed fact, We note that Lusk did not raise this issue with the trial court. A party may not raise an issue on appeal that was not raised in the trial court unless the opposing party has unequivocal notice of this issue. Transcon. Tech. Servs. v. Allen, 642 N.E.2d 981, 983 n. 1 (Ind.Ct.App.1994), trans. denied. Dr. Swanson did not have such notice. Thus, this issue is waived for our consideration.