Michael Hale v. Dr. Lolit Joseph, Nurse Lesa Wolfe, and Nurse Teresa Lennings (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 23, 2016
• Docket: 77A04-1507-CT-1025
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 23 2016, 9:25 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEY FOR APPELLEES Michael Hale J. Richard Moore Michigan City, Indiana Bleeke Dillon Crandall, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Hale, August 23, 2016 Appellant-Defendant, Court of Appeals Case No. 77A04-1507-CT-1025 v. Appeal from the Sullivan Superior Court Dr. Lolit Joseph, Nurse Lesa The Honorable J. Blaine Akers, Wolfe, and Nurse Teresa Special Judge Lennings, Trial Court Cause No. Appellees-Plaintiffs. 77D01-1310-CT-575

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 1 of 10 Case Summary [1] Michael Hale, a prisoner in the custody of the Indiana Department of

Correction, appeals the trial court’s grant of summary judgment in favor of Dr.

Lolit Joseph, M.D., Lesa Wolfe, LPN, and Teresa Lennings, LPN, on his

complaint alleging an Eighth Amendment violation based on deficient medical

care and separately alleging medical malpractice. Hale, pro se, contends that

the trial court should have held a hearing on the parties’ opposing summary-

judgment motions and should not have granted the defendants’ motion for

summary judgment. However, there was no request for a summary-judgment

hearing by either party, and summary judgment was proper because Hale failed

to raise a genuine issue of material fact. We therefore affirm the trial court.

Fact and Procedural History [2] Michael Hale was a prisoner housed at Wabash Valley Correctional Facility

when, on November 10, 2011, he fell while cleaning his cell and hit the back of

his neck on a metal desk. According to Hale’s complaint, he told Nurse

Lennings about the accident and his pain later that night, while she was

walking through his housing unit, but she did not help him. Hale submitted a

request for health care on Friday, November 11, indicating that he was “in a lot

of pain.” Appellees’ App. p. 14. Over the weekend, Hale was seen by a nurse

at 2:14 a.m. on Saturday and given ibuprofen. He was seen again, later the

same day, by Nurse Wolfe, who made a note that Hale was being treated with

ibuprofen and that Hale “was able to move the neck/shoulders without

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 2 of 10 difficulty” when he was angry. Id. at 18. Nurse Wolfe also contacted a

physician and obtained a verbal order for an X-ray. Id.

[3] The following Monday, November 14, Hale saw Dr. Joseph. She confirmed

the order for an X-ray from the weekend, ordered ice and naproxen, and

prescribed Vicodin for three days. Hale saw Dr. Joseph for his neck again on

December 7, when she ordered physical therapy and naproxen. Hale continued

seeing Dr. Joseph frequently over the next three months: (1) on December 28

for an old knee injury; (2) on January 11 for knee pain and a prescription for

Mobic to treat the knee pain; (3) on January 12 for a Kenalog injection to treat

the knee; and (4) on March 7 for constipation. On April 18, Dr. Joseph again

saw Hale specifically for his neck. She noted that the X-ray did not indicate an

injury, and she re-ordered four physical-therapy visits—Hale did not receive the

physical therapy she ordered on December 7.

[4] During the same time period, from November to April, the nursing staff

responded to more than two dozen requests for health care from Hale.

Relevant to this appeal, Nurse Wolfe saw Hale a second time, on November 21,

when Hale refused the naproxen that was ordered for his neck pain. By the

time Nurse Wolfe documented Hale’s refusal of the non-prescription pain

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 3 of 10 medication, he had been rejecting it for four days, since the day his prescription

for Vicodin ended.1

[5] Hale filed a complaint in Sullivan Superior Court. Pursuant to 42 U.S.C. §

1983, Hale alleged deficient medical care in violation of the Eighth

Amendment. He also stated a separate claim for medical malpractice.2 Both

parties moved for summary judgment, and the trial court granted summary

judgment to Dr. Joseph, Nurse Wolfe, and Nurse Lennings without first

holding a hearing.

[6] Hale appeals.

Discussion and Decision [7] Hale contends that the trial court erred in granting summary judgment to Dr.

Joseph, Nurse Wolfe, and Nurse Lennings. Hale first argues that he was

entitled to a hearing on his motion for summary judgment. However, while

Indiana Trial Rule 56(C) permits a hearing on a motion for summary judgment,

it does not require one unless a party requests it. Ind. Trial Rule 56(C). Hale’s

brief cites no motion for a hearing on the summary-judgment motions, and we

1 In response to the defendants’ motion for summary judgment, Hale submitted a medication refusal form to the trial court that was dated February 17, 2011, nine months before the neck injury at issue here, and the refusal form indicated that naproxen hurt Hale’s stomach. After Hale began rejecting the naproxen for his neck injury in November, Dr. Joseph added omeprazole to her order for naproxen to address Hale’s stomach complaints. 2 The complaint included two additional parties and additional claims, but those were dismissed early in the proceedings, so we do not address them here.

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 4 of 10 did not find one in our review of the record. The trial court indicated in its

orders that there was no request for a hearing. Appellant’s App. p. 11-12. In

the absence of a motion for a hearing, no hearing was required, and the trial

court did not err.

[8] Hale next argues that summary judgment was improperly granted with respect

to his Eighth Amendment and medical-malpractice claims. We review an order

granting summary judgment de novo. Adams v. ArvinMeritor, Inc., 48 N.E.3d 1,

9 (Ind. Ct. App. 2015). Summary judgment is appropriate if, after reviewing

the designated evidence, “there is no genuine issue as to any material fact and

. . . the moving party is entitled to a judgment as a matter of law.” T.R. 56(C).

A fact is material if its resolution would affect the outcome of the case, and an

issue is genuine if a trier of fact is required to resolve the parties’ differing

accounts of the truth, or if the undisputed material facts support conflicting

reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).

When the trial court has granted summary judgment, the nonmoving party has

the burden on appeal of persuading us that the grant of summary judgment was

in error. Adams, 48 N.E.3d at 9.

[9] Where, as here, cross-motions for summary judgment were filed, our standard

of review does not change. Secura Supreme Ins. Co. v. Johnson, 51 N.E.3d 356,

359 (Ind. Ct. App. 2016), reh’g denied. We consider each motion separately to

determine whether the moving party is entitled to judgment as a matter of law.

Id. Indiana’s summary-judgment procedure requires the movant to

affirmatively negate the non-movant’s claim. Hughley v. State, 15 N.E.3d 1000,

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 5 of 10 1003 (Ind. 2014). If the movant succeeds, then the non-movant must come

forward with evidence that presents the court with a genuine issue of material

fact in order to preclude summary judgment. Id.

[10] Beginning with Hale’s Eighth Amendment claim, two elements are required to

establish an Eighth Amendment violation based on deficient medical care: (1)

an objectively serious medical condition and (2) an official’s deliberate

indifference to that condition. Estelle v. Gamble, 429 U.S. 97, 106 (1976). An

objectively serious medical condition is one “that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.” Greeno v.

Daley, 414 F.3d 645, 653 (7th Cir. 2005). Deliberate indifference requires that

the official is “aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994). In the context of medical

professionals, medical malpractice, negligence, or even gross negligence does

not equate to deliberate indifference. Johnson v. Doughty, 433 F.3d 1001, 1012-

13 (7th Cir. 2006). Mere dissatisfaction or disagreement with a course of

treatment is generally insufficient. Id. at 1013.

[11] In this case, Nurse Wolfe, Nurse Lennings, and Dr. Joseph submitted records

of the ongoing care Hale received from November 11, 2011, until April 2012.

The records indicate that Hale was seen promptly and repeatedly by medical

staff—nurses responded to more than two dozen requests from Hale, and Dr.

Joseph saw him six times after he injured his neck. Hale’s neck was X-rayed,

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 6 of 10 finding nothing. Among other things, Hale was given ibuprofen over the

weekend before he was examined by the doctor, prescribed Vicodin for three

days, and then treated with naproxen and Mobic for pain in his neck and a knee

injury. He was also prescribed omeprazole to address his stomach pain. This is

sufficient to negate the element of “deliberate indifference.”

[12] Hale argued that the delay in providing the physical therapy ordered by Dr.

Joseph, Nurse Lenning’s refusal to treat him on the night he fell, and the failure

to renew his prescription for Vicodin created a genuine issue of material fact

with respect to deliberate indifference. First we note that nothing in the record

indicates the defendants were responsible for the delay in physical therapy,

making the delay immaterial to Hale’s complaint. Relevant to this complaint,

the Eighth Amendment does not require that prisoners receive “unqualified

access to health care,” Hudson v. McMillian, 503 U.S. 1, 9 (1992), nor are they

entitled to demand specific treatments, Forbes v. Edgar, 112 F.3d 262, 267 (7th

Cir. 1997). Therefore, whether Nurse Lennings did or did not treat Hale on the

night he fell is immaterial because Hale is not entitled to instantaneous care for

every injury—only for actual medical emergencies. And Hale’s preference for

Vicodin over the non-prescription pain relievers that were used to treat his neck

pain also does not create a genuine issue of material fact with respect to

deliberate indifference.

[13] Finally, Hale argues his malpractice claim should have survived summary

judgment. In a medical-malpractice action based on negligence, the plaintiff

must establish (1) a duty on the part of the defendant in relation to the plaintiff;

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 7 of 10 (2) failure on the part of the defendant to conform its conduct to the requisite

standard of care; and (3) an injury to the plaintiff resulting from that failure.

Scripture v. Roberts, 51 N.E.3d 248, 251-52 (Ind. Ct. App. 2016).3

[14] At issue here is whether the defendants met the standard of care required for

Hale’s injury. To establish the applicable standard of care and a breach of that

standard in a medical-malpractice case, a plaintiff generally must present expert

testimony. Methodist Hosps., Inc. v. Johnson, 856 N.E.2d 718, 721 (Ind. Ct. App.

2006). There is a narrow exception to the requirement of expert testimony for

cases where the defendant’s conduct is so obviously substandard that a fact-

finder need not possess medical expertise in order to recognize the defendant’s

breach of the applicable standard of care. Id. The exception typically arises

when physicians leave foreign objects in a patient’s body because no

independent explanation is required to understand that the object should have

been removed, id., but other medical-malpractice actions have also been sent to

the jury without the aid of expert testimony. See, e.g., Gold v. Ishak, 720 N.E.2d

1175 (Ind. Ct. App. 1999) (expert testimony not required because fire occurring

during surgery near an instrument that emits a spark was used in proximity to a

3 Ordinarily, a claim of medical malpractice must be reviewed by a medical-review panel before a medical- malpractice action may be commenced in court. Ind. Code § 34-18-8-4. However, there are exceptions such as Indiana Code section 34-18-8-5, which allows a medical-malpractice claim to be filed if there is a signed writing indicating that the parties agree to proceed without a medical-review panel. Because the original complaint submitted by Hale indicated that he filed his complaint with the Indiana Department of Insurance and “any responses are attached to the complaint[,]” Appellees’ App. p. 124, and neither party nor the trial court has indicated that there is an issue with Hale’s filing, we assume that his complaint complied with the statute for purposes of this appeal.

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 8 of 10 source of oxygen), trans. denied; Stumph v. Foster, 524 N.E.2d 812 (Ind. Ct. App.

1988) (expert testimony unnecessary to conclude a chiropractor negligently

broke his patient’s rib during treatment for migraine headaches).

[15] The defendants submitted affidavits from Dr. Joseph and Nurse Wolfe as expert

testimony that the care Hale received complied with the applicable medical

standards, and each of them attached the portion of Hale’s file that formed the

basis of her opinion. The defendants also designated Hale’s relevant medical

records as evidence. This is sufficient evidence to shift the burden to Hale to

establish a genuine question of material fact as to whether the defendants met

the standard of care required.

[16] However, Hale merely asserted that “[t]he standard of care concerning a

condition or injury causing pain is to stop or reduce [the pain] as much as

possible.” Appellees’ App. p. 140. Hale cited no legal or medical authority to

support this proposition, and we cannot agree with his further assertion that

“[a]ny layman would know this to be true[.]” Id. Narcotic painkillers like

Vicodin require a prescription precisely because the finer points of when,

where, and how to administer them are beyond the purview of the everyman.

Expert testimony is required to establish a genuine dispute of material fact with

respect to whether the defendants properly managed Hale’s pain in this case,

and he has failed to supply that.

[17] The defendants are entitled to summary judgment as a matter of law on both

the Eighth Amendment and malpractice claims.

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 9 of 10 [18] Affirmed.

Barnes, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 77A04-1507-CT-1025 | August 23, 2016 Page 10 of 10