APPEAL FROM THE TIPPECANOE SUPERIOR COURT. The Honorable Thomas H. Busch, Judge. Cause No. 79D02-1002-CT-6.
ATTORNEY FOR APPELLANT: JAMES E. AYERS, Wernle Ristine & Ayers, Crawfordville, Indiana.
ATTORNEY FOR APPELLEE: DAVID G. FIELD, BRANDON M. KIMURA, Schultz & Pogue, LLP, Indianapolis, Indiana.
BARNES, Judge. BAKER, J., and CRONE, J., concur.
Joseph Laycock appeals the trial court's grant of summary judgment in favor of Joseph Sliwkowski, M.D. We affirm.
Laycock raises one issue, which we restate as whether there is designated evidence that Dr. Sliwkowski caused injury or damages to Laycock.
On November 8, 2005, Laycock was stabbed in the thigh with a red-hot welding wire at work and was immediately treated by a work clinic nurse under Dr. Sliwkowski's supervision. On November 11, 2005, Laycock was seen by the work clinic nurse because his thigh was " swollen, tight, and very painful." App. p. 67. The nurse sent Laycock home after discussion with Dr. Sliwkowski. The next day, the pain became unbearable, and Laycock went to the emergency room, where he was diagnosed with compartment syndrome and underwent surgery for the condition.
In 2007, Laycock filed a proposed medical malpractice complaint with the Indiana Department of Insurance. In 2009, a medical review panel unanimously concluded that the evidence did not support the conclusion that Dr. Sliwkowski failed to comply with the appropriate standard of care and that the conduct complained of was not a factor in the resultant damages.
In 2010, Laycock filed a complaint against Dr. Sliwkowski. The complaint alleged that Dr. Sliwkowski had a duty to exercise reasonable care to see that Laycock obtained proper treatment, that Dr. Sliwkowski failed to use ordinary skill, care, and diligence, and " [t]hat as a direct and proximate result of the actions and omissions . . ., the Plaintiff suffered certain injuries and damage." Id. at 12.
Dr. Sliwkowski eventually moved for summary judgment based on the medical review panel's opinion. In response, Laycock designated an affidavit, in which Dr. Herbert Hermele asserted that Dr. Sliwkowski failed to meet the standard of care on November 8, 2005, and November 11, 2005, and that the failures to diagnose and refer and the delay in diagnosis caused Laycock to have increased tissue damage, pain, swelling, bleeding, loss of range of motion, and impairment of function. Dr. Sliwkowski then withdrew his motion for summary judgment.
Dr. Hermele was deposed, and Dr. Sliwkowski filed another motion for summary judgment asserting that there were no genuine issues of material fact regarding a breach of the standard of care on November 8, 2005, or causation and damages on November 11, 2005. In support of his motion, Dr. Sliwkowski designated the review panel's opinion and portions of the Dr. Hermele's deposition testimony about the November 11, 2005 treatment in which Dr. Hermele stated:
Q. What would have been the course of care had he gone to an ER that night?
A. It would have been the same, just a day sooner than what was done on the 12th. Once he got to the emergency room, I think everything was done appropriately and they, in fact, said this is a compartment syndrome, I think. I can't assure you, but I think if he had walked in on the 11th, they would have said this is a compartment syndrome, and then the clinical story would have been just one day sooner, not different,
just sooner. This is one of those situations where the clock does count.
Q. He would have still had to have the embolization?
Q. He would still have had to have had the fasciotomy?
Q. The semitendinosus would have still ...