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Whitfield v. Wren

Court of Appeals of Indiana

July 30, 2014

JERRY WREN, Individually, and As Personal Representative of the Wrongful Death Estate of LESLIE WREN, Appellees-Plaintiffs

APPEAL FROM THE HOWARD SUPERIOR COURT. The Honorable Brant J. Parry, Judge. Cause No. 34D02-1212-CT-1204.

ATTORNEYS FOR APPELLANT: STACY L. HANEFELD, STACY L. HANEFELD, Hall, Render, Killian, Heath & Lyman, P.C., Indianapolis, Indiana.

ATTORNEY FOR APPELLEES: GLORIA J. DANIELSON, Danielson Law Office, LLC, Greenwood, Indiana.

BROWN, Judge. VAIDIK, C.J., and NAJAM, J., concur.


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BROWN, Judge

In this interlocutory appeal, James E. Whitfield, M.D. and St. Joseph Primary Care, LLC (" St. Joseph," and collectively with Dr. Whitfield, the " Appellants" ) appeal the trial court's denial of their motion for summary judgment in favor of Jerry Wren, individually, and as personal representative of the wrongful death estate of his daughter, Leslie Wren (collectively, " Wren" ).[1] The Appellants raise three issues which we consolidate and restate as whether the court erred in denying their motion for summary judgment. We affirm.


On December 6, 2007, twenty-four year old Leslie Wren was admitted to the Clarian North Medical Center with abdominal complications related to her Crohn's colitis. That same day, she underwent total abdominal colectomy with proctectomy and ileostomy performed by colorectal surgeon, Bruce Robb, M.D. After the operation, Leslie received pain and psychiatric medications. On January 4, 2008, Leslie was discharged from Clarian North Medical Center with instructions to take medications including a Fentanyl patch and Dilaudid for pain, and she was then admitted to Windsor Estates for rehabilitation.[2] Dr. Whitfield, an employee of St. Joseph, was the medical director at Windsor Estates. During her time there, Leslie continued to be treated by Dr. Robb, who controlled the pain medication orders at the facility, and questions by the nursing staff regarding her pain were directed to him.

On January 11, 2008, Dr. Whitfield saw Leslie and completed a history and physical

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for her. In the days thereafter, she was monitored and administered pain medications as needed. Leslie complained of abdominal pain and nausea with some vomiting. On January 14, 2008, at approximately 5:00 p.m., the nursing staff noted that Leslie's glucose was elevated and contacted Dr. Whitfield, who ordered five units of Humalog insulin and to recheck her blood sugar in two to four hours, as well as fifteen units of insulin to be added to her next TPN bag. At 6:00 p.m., Jerry Wren reported to the nursing staff that Leslie was bleeding, two open areas on her coccyx were identified, Dr. Whitfield was notified, and orders for daily wet-to-dry dressing changes were ordered for that area of Leslie's body. At 9:00 p.m., Leslie's blood glucose was checked and noted to be high, and after being notified Dr. Whitfield ordered twenty-five additional units of Humalog be immediately administered. Also at around 9:00 p.m., Leslie complained of feeling weak to a nurse who checked her vital signs revealing a blood pressure of 100/60, heart rate 120, respirations 20, and oxygen saturation 94% on room air. The nurse noted that Leslie's arms, hands, and legs were cool to the touch. At 9:30 p.m., Leslie received 2 mg of Dilaudid after complaining of pain, and an hour later another nurse noted that Leslie " was yelling out and demanding more Dilaudid." Appellants' Appendix at 102. Dr. Whitfield was not notified of this.

At midnight on June 15, 2008, a nurse noted that Leslie was lying in bed with her eyes open and watching TV. At 1:30 a.m., the nurse entered the room and found Leslie unresponsive with no blood pressure, pulse, or respirations. CPR was initiated, and 911 was called. Drs. Whitfield and Robb were both notified of the situation. At 2:05 a.m., the emergency personnel stated that Code Activities were to be stopped, and Drs. Whitfield and Robb were notified of Leslie's death. An autopsy revealed that Leslie's cause of death was " acute mixed drug intoxication." Id. at 103.

On January 11, 2010, Wren filed a proposed complaint (the " Proposed Complaint" ) against Dr. Whitfield and St. Joseph, as well as Kindred Nursing Centers Limited Partnership d/b/a Kindred Transitional Care and Rehabilitation-Kokomo (" Kindred" ), Dr. Robb, and University Surgeons, Inc. (" University Surgeons" ), with the Indiana Department of Insurance alleging that " [t]he medical treatment provided by Defendants fell below the standard of care within the medical community and proximately caused or proximately contributed to Leslie Wren's death." Id. at 29. Pursuant to Ind. Code § 34-18-10-17, the parties filed their Submissions with the Medical Review Panel (the " Panel" ), and the Panel convened on July 23, 2012 to review the submitted evidence. On August 30, 2012, after reviewing the evidence submitted the Panel unanimously rendered the following expert opinion (the " Panel Opinion" ) with respect to the care and treatment provided by all of the Defendants: " [t]he evidence does not support the conclusion that the Defendants failed to meet the applicable standard of care as charged in the [Proposed Complaint], and the conduct complained of was not a factor in the resultant damages." Id. at 31.

On December 3, 2012, Wren filed a complaint for damages in the Howard County Superior Court against Dr. Whitfield, St. Joseph, Kindred, Dr. Robb, and University Surgeons. On December 20, 2012, Dr. Robb and University Surgeons filed a motion for summary judgment, and subsequently on January 24, 2013, the Appellants filed their motion for summary judgment, along with a memorandum in support and designation of evidence, stating that Wren " has not offered any expert testimony to refute the Opinion of the

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Medical Review Panel." Id. at 21. On or about February 19, 2013, Wren filed a response in opposition to both summary judgment motions (the " Response" ), as well as a memorandum in support and designation of evidence in which Wren designated the affidavit of Robert Gregori, M.D., in opposition to the Panel Opinion. Dr. Gregori's affidavit contained the following statements related to the medical care provided by Dr. Whitfield:

36. That in my expert opinion, based upon my education, training and clinical experience, the development of pressure ulcers, elevated BUN and elevated potassium is the direct and proximate result of defendants' failure to measure and record Leslie's intake and output, failure to reweigh Leslie and failure to treat Leslie's nausea and vomiting and is more likely than not the proximate cause, or contributing cause, to Leslie's death.
72. That[,] with respect to defendant Dr. Whitfield, based upon my education, training and personal clinical experience it is my professional opinion to a reasonable degree of medical certainty that Dr. Whitfield's failure to check, evaluate, monitor, and treat Leslie's physical condition, including the signs and symptoms of significant dehydration and electrolyte derangement, was not reasonable under the circumstances, was a breach in the standard of care and more likely than not caused or contributed to Leslie Wren's death.

Id. at 56, 59.

On March 7, 2013, Dr. Robb and University Surgeons withdrew their motion for summary judgment. Then, on March 21, 2013, the Appellants filed their reply (the " Reply" ) to Wren's Response in which they argued that Wren's Submission to the Panel contained a " sole allegation against Dr. Whitfield (and St. Joseph . . . his employer)" which concerned his " response to Leslie Wren's blood sugar," claiming that it " was not reasonable." Id. at 61. The Appellants' Reply stated that " their Submission [] addressed only the allegation regarding Dr. Whitfield's role in monitoring Leslie Wren's blood sugar." Id. The Reply suggested that Wren in his Response raised issues through the affidavit of Dr. Gregori which were not before the Panel and that accordingly such issues were not properly before the court, citing to K.D. v. Chambers, 951 N.E.2d 855 (Ind.Ct.App. 2011), trans. denied, disapproved on other grounds by Spangler v. Bechtel, 958 N.E.2d 458, 466 n.5 (Ind. 2011). The Reply was accompanied by a supplemental designation of evidence which designated Wren's Submission to the Panel, the Appellants' Submission, and Wren's Reply Submission.

On March 25, 2013, Wren filed an Objection to the Appellants' Reply and a Motion to Strike the Supplemental Designation of Evidence asserting that the Appellants were not allowed to file the Supplemental Designation, that the Reply was untimely, that the Submissions designated in the Supplemental Designation consist of arguments made by attorneys which are not evidence, and that the Appellants' reliance on K.D. is misplaced. On April 18, 2013, Appellants filed their Reply to Wren's Objection and Motion to Strike stating that Wren's " attempt to persuade this Court that the Submissions presented to the Medical Review Panel cannot be considered by this Court in ruling on [the Appellants'] claim . . . is in direct conflict of Indiana statute, legal precedent and logic." Id. at 135. On May 30, 2013, the court heard oral argument on Appellants' summary judgment motion and Wren's Motion

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to Strike, and took the matters under advisement. On June 12, 2013, the court entered its order denying the Appellants' summary judgment motion (the " Order" ) stating as follows:

1. The Supplemental Evidence filed by the [Appellants] on March 21, 2013 in reply to [Wren's] response to Summary Judgment shall be considered by the court.
2. The [Appellants] argue[] that [Wren] must make specifically [sic] allegations in his complaint to the Department of Insurance. The [Appellants go] on to argue that [Wren] cannot present evidence at [sic] in this cause as to alleged negligence that was not specifically pled to the Department of Insurance.
3. [Wren] argues the complaint to the Department of Insurance is not required to be specifically pled. [Wren] argues [he] alleged that the medical providers['] care fell below the standard of care.
4. The Court notes that the form complaint located on the State Department of Insurance [website] ( simply includes a generic statement that the medical provider's care fell below the requisite standard of care. It is not specifically pled.
5. The issue concerning the care provided by the medical providers in this case, in all aspects, shall be determined by the jury.
6. [The Appellants'] Motion for Summary Judgment is DENIED.

Id. at 11.

On July 9, 2013, the Appellants timely filed their Motion for Certification of Interlocutory Order for Appeal pursuant to Ind. Appellate Rule 14(B)(1), which the court granted on July 17, 2013. On July 18, 2013, Wren filed an Objection to the Appellants' motion, and the court noted in the chronological case summary (" CCS" ) that the motion was moot as the Appellants' motion had been ruled upon. On July 22, 2013, Wren filed a motion to reconsider granting the Appellants' motion and stay of trial court proceedings, and the court denied Wren's motion.


The issue is whether the court erred in denying the Appellants' motion for summary judgment. When a trial court's ruling granting or denying summary judgment is challenged on appeal, our standard of review is the same as it is for the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind. 2010). The moving party " bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law." Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). Summary judgment is improper if the moving party fails to carry its burden, but if it succeeds, then the non-moving party must come forward with evidence establishing the existence of a genuine issue of material fact. Id. We construe all factual inferences in favor of the non-moving party and resolve all doubts as to the existence of a material issue against the moving party. Plonski, 930 N.E.2d at 5. An appellate court reviewing a challenged trial court summary judgment ruling is limited to the designated evidence before the trial court, see Ind. Trial Rule 56(H), but is constrained to neither the claims and arguments presented at trial nor the rationale of the trial court ruling. See Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind. 2012) (" We will reverse if the law has been incorrectly applied to the facts. Otherwise, we will affirm a grant of summary judgment upon any theory supported by evidence in the record." ), cert. denied,

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133 S.Ct. 233, 184 L.Ed.2d 44 (2012); Wagner v. Yates, 912 N.E.2d 805, 811 (Ind. 2009) (" [W]e are not limited to reviewing the trial court's reasons for granting or denying summary judgment but rather we may affirm a grant of summary judgment upon any theory supported by the evidence." ).

The entry of specific findings and conclusions does not alter the nature of a summary judgment which is a judgment entered when there are no genuine issues of material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

To the extent that the parties' arguments require us to interpret sections of the Medical Malpractice Act (the " Act" ), we note that the first step in statutory interpretation is to determine whether the legislature has spoken clearly and unambiguously on the point in question. McCarty v. Sanders, 805 N.E.2d 894, 898 (Ind.Ct.App. 2004), trans. denied. When a statute is clear and unambiguous, courts need not, and indeed shall not, apply any rules of construction other than to require that words and phrases be taken in their plain, ...

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