Watson v. Medical Emergency Services, Corp.

532 N.E.2d 1191, 1989 Ind. App. LEXIS 14, 1989 WL 3577
CourtIndiana Court of Appeals
DecidedJanuary 16, 1989
Docket29A02-8709-CV-00354
StatusPublished
Cited by46 cases

This text of 532 N.E.2d 1191 (Watson v. Medical Emergency Services, Corp.) 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
Watson v. Medical Emergency Services, Corp., 532 N.E.2d 1191, 1989 Ind. App. LEXIS 14, 1989 WL 3577 (Ind. Ct. App. 1989).

Opinion

SULLIVAN, Judge.

Geraldine Watson appeals a summary judgment granted in favor of defendants.

We affirm.

Geraldine's medical malpractice complaint asserts negligent failure to diagnose and treat her husband's lung cancer. The operative facts are undisputed. In August of 1979 and in January of 1980, James Watson consulted the emergency room of Methodist Hospital complaining of cold symptoms. In January, the attending emergency resident, Mary Bush, took x- *1193 rays of James' chest but neither she nor her supervising physician, Dr. W. Larry Corbett, nor radiologists Dr. Keller and Dr. Pratt diagnosed James as having lung cancer. James did not seek further medical attention until April of 1980. On April 22, 1980, it was recommended that a lung biopsy be performed, but James refused. In June of 1980, a lung biopsy was performed and revealed terminal cancer. James died in September of 1980.

When Geraldine filed the proposed complaint, the medical review panel unanimousty concluded that the physicians involved had not breached their duty of care. After this lawsuit was filed, the Hamilton Superi- or Court granted summary judgment against Geraldine, finding no genuine issue as to any material fact.

Our focus upon review is to determine whether there is any genuine issue as to any material fact and whether the defendants were entitled to a judgment as a matter of law. Burke v. Capello (1988) Ind., 520 N.E.2d 439; Ferrell v. Geisler (1987) 1st Dist.Ind.App., 505 N.E.2d 137, trans. denied. If the trial court's grant of summary judgment is sustainable on any theory or basis in the record, we will affirm. Gorski v. Deering (1984) 4th Dist.Ind.App., 465 N.E.2d 759, trans. denied. However, any doubt concerning the existence of a genuine issue of material fact so as to preclude the granting of summary judgment must be resolved against the defendants here. McNabb v. Mason (1970) 148 Ind.App. 233, 264 N.E.2d 623. Rarely is a negligence case an appropriate case for disposal by summary judgment, especially when it is disputed whether the conduct of defendants measures up to the standard of due care. Bassett v. Glock (1977) 2d Dist., 174 Ind.App. 439, 368 N.E.2d 18. McNabb, supra, 264 N.E.2d at 626, states:

"Even where the trial judge may surmise that the proponent of a motion for summary judgment is likely to prevail at the trial, this is not a sufficient basis for refusing the respondent to a motion for summary judgment his day in court with respect to any genuine issue as to a material fact."

Geraldine's claim for negligence rests upon the physicians' failure to diagnose and treat James' lung cancer in January of 1980 as well as failure to obtain or direct follow-up diagnosis and treatment. The success of the claim depends upon the establishment of each of the following elements:

(1) That defendants owed a duty to James;
(2) That defendants breached this duty by permitting their conduct to fall below the set standard of care; and
(8) That defendants' breach of duty proximately caused James to suffer a compensable injury.

See Burke, supra, 520 N.E.2d 489; Dolezal v. Goode (1982) 3d Dist.Ind.App., 433 N.E.2d 828, trans. denied.

In order to achieve reversal of the summary judgment, however, Geraldine need not carry that burden. Rather, we must decide whether in the motion for summary judgment defendants showed the undisputed nonexistence of at least one of these elements. When the affidavits or other evidence filed by the defendants here establish the lack of a genuine issue of material fact, the burden is upon Geraldine to demonstrate the existence of a genuine issue. See Johnson v. Padilla (1982) 2d Dist.Ind.App., 433 N.E.2d 393, trans. denied.

It is undisputed that a duty was owed to James. As to whether this duty was breached, there is conflicting evidence. The physicians herein must exercise the degree of skill which other physicians possess and exercise in the same fields or specialties and in the same or similar locality. Burke, supra, 520 N.E.2d 439; Wilson v. Sligar (1987) 1st Dist.Ind.App., 516 N.E.2d 1099, trans. denied. The general and conclusory affidavit of Dr. Sandra C. Den-ton states that the physicians failed to obtain a more complete history on James and to seek follow-up care. The affidavit does not state wherein the history was deficient or inadequate or what follow-up care should have been given. When we consider Dr. Denton's affidavit along with Dr. *1194 Darrel S. Mandel's and Dr. Ned B. Horn-back's depositions, which conclude that cancer was not a likely diagnosis from the symptoms and that follow-up tests were not indicated from the x-rays taken, we cannot say that there is a genuine issue of fact as to whether a breach of duty of care occurred. Nevertheless, we will assume arguendo that Dr. Bush and/or other responsible persons should have sought a more complete medical history and conducted tests or examinations following up the x-rays. Having made the assumption that a genuine issue of material fact was presented upon the issue of breach of the duty of care, summary judgment was inappropriate unless the third element, that defendants' negligence proximately caused James' harm, was undeniably absent. Yaney v. McCray Memorial Hospital (1986) 3d Dist.Ind.App., 496 N.E.2d 135.

The test for determining whether a negligent act or omission is the proximate cause of an injury is whether the injury is a natural and probable consequence which should have been foreseen. Yaney, supra, 496 N.E.2d 185. When the issue of proximate cause is not within the understanding of lay persons, testimony of an expert witness on the issue is necessary. Id.

In the present case, several experts gave their opinion as to whether the cancer was diagnosable in January and whether it was treatable once detected. Dr. Walter J. Daly expressed the following opinion:

"'The Methodist Hospital x-ray was not indicative of lung cancer. In my opinion, disseminated cancer certainly was one possibility to explain the abnormalities noted, but only one of a large number of possibilities." Record at 328-24.

At his deposition, Dr. Ned B. Hornback agreed:

"Dr. Daly and I were in agreement that the patient did not have [advanced malignancy]. The diagnosis could not have been made on the chest x-ray.... There was no evidence in the medical records of this, that the diagnosis could be made." Record at 419, Deposition at 18.

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Bluebook (online)
532 N.E.2d 1191, 1989 Ind. App. LEXIS 14, 1989 WL 3577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-medical-emergency-services-corp-indctapp-1989.