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Filed: March 25, 1988.


APPEAL FROM THE MARION SUPERIOR COURT ROOM 3, The Honorable Richard Brown, Judge Pro Tem, Cause No. S384-1099, COURT OF APPEALS NO. 2-785-A-221

DeBruler, J., Shepard, C.j., Givan, Pivarnik, JJ., concur. Dickson, J., Dissents with separate opinion.

Author: Debruler


Myra Burke and Jim Burke, her husband, brought a medical malpractice action against Dr. William N. Capello, an orthopedic surgeon. The trial Judge granted summary judgment for the defendant doctor. A divided Second District affirmed with unpublished opinions. The Burkes' petition to transfer is granted and the opinion of the Second District is vacated.

Here, the doctor performed an operation replacing Mrs. Burke's hip. Several weeks later, upon examination precipitated by exceptional pain, it was discovered that a fragment of cement used when affixing the prosthesis had been left in the wound and was lodged near the femoral nerve. Another operation was performed and two pieces of cement, measuring a total of one inch in diameter, were removed. The severe pain subsided.

The femoral nerve appeared to be intact. However, since the surgery, Mrs. Burke has experienced almost continuous numbness and pain in her hip.

In summary judgment proceedings the trial court is called upon to derive the matters placed in issue from the pleadings and to examine the forms of admissible evidence sanctioned by T.R. 56(C) which have been made available by the parties. The probative value of each piece of evidence is then to be determined without setting weight or credibility. Rational assertions of fact and reasonable inferences therefrom are deemed to be true. McMahan v. Snap On Tool Corp. (1985), Ind.App., 478 N.E.2d 116. If when from this viewpoint there is no genuine issue of material fact, judgment as a matter of law may then be appropriate for a party. Upon review of a grant of summary judgment, the appellate court has before it the same issues that were before the trial court and follows the same process. Brandon v. State (1976), 264 Ind. 177, 340 N.E.2d 756.

Malpractice as alleged in this complaint is the tort of negligence. Malpractice is therefore to be defined as follows:

"In Indiana the tort of negligence is comprised of three elements: (1) a duty on the part of defendant in relation to the plaintiff; (2) failure on the part of defendant to conform its conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure."

Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701.

There are no more legal elements to the tort of doctor malpractice than there are to other negligence torts. The legal duty arises when the relationship of doctor and patient is established. The standard of care here is that degree of care, skill and proficiency which is commonly exercised by ordinarily careful, skillful and prudent orthopedic surgeons, at the time of the operation and in similar localities. Worster v. Caylor (1953), 231 Ind. 625, 110 N.E.2d 337 (overruled on other grounds in New York, Chicago and St. Louis Railroad Co. v. Henderson (1957), 237 Ind. 456, 146 N.E.2d 531).

The legal basis for this doctor's motion for summary judgment and the trial court's decision to grant judgment as a matter of law was the absence of a genuine issue of material fact as to the propriety of his treatment and care of Mrs. Burke, his patient. We disagree and conclude that there was evidence to warrant the submission of element two (2) above.

The admissible evidence before us includes the written expert opinion of the medical review panel constituted to examine the Burke claim in accordance with the medical malpractice act, particularly, I.C. 16-9.5-9-7. It concluded that the evidence did not support the Conclusion that Dr. Capello failed to meet the applicable standard of care. Additional evidence included the detailed description of the operations by doctors who had assisted in those operations. These statements show that conduct was engaged in more than once during the initial operation to remove excess cement from areas within the wound both before and after it would have hardened. The entire hip was irrigated, the counted surgical sponges removed and "all debris cleaned from the wound." Dr. Capello's statement reveals that "care was taken to remove any extraneous cement . .". The statements nevertheless clearly show that the one inch piece of hardened cement was debris from the first surgical procedure and was not removed from the wound.

The appellee doctor contends that the lack of an expert medical opinion supporting the second element of the Burkes' claim sufficiently shows that they have no submissible malpractice claim. Ordinarily, because of the technical and complicated nature of medical treatment, the trier of fact is simply unable to rationally apply the standard of care to it without the benefit of informative expert opinion on the ultimate question of breach of duty. This was the situation in Bassett v. Glock (1977), 174 Ind. App. 439, 368 N.E.2d 18, where a doctor's decision to follow a conservative treatment rather than surgery for a disc disease was challenged. It was also the situation in Marquis v. Battersby (1982), Ind.App., 443 N.E.2d 1202, where the patient suffered from an ...

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