Kathy L. Siner, Personal Representative of the Estate of Geraldine A. Siner, Deceased, and John T. Siner, prior Enduring Power of Attorney and Medical Representative of the Deceased, Appellants-Plaintiffs,
Kindred Hospital Limited Partnership d/b/a Kindred Hospital of Indianapolis, et al., Mohammed A. Majid, M.D., Dennis Nicely, David Uhrin, RN., Appellees-Defendants
Appeal from the Marion Superior Court. The Honorable Heather Welch, Judge. Cause No. 49D12-1305-CT-20123.
Kathy L. Siner, APPELLANT, Pro se, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES, KINDRED HOSPITALS, DENNIS, NICELY, AND DAVID UHRIN: Melinda R. Shapiro, Libby Y. Goodknight, Lauren C. Sorrell, Krieg DeVault LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE, MOHAMMED MAJID: Michael Roth, Brett T. Clayton, Eichhorn & Eichhorn, LLP, Indianapolis, Indiana.
Bradford, Judge. Vaidik, C.J., concurs. Kirsch, J., concurs in part and dissents in part with opinion.
[¶1] In 2013, Appellants-Plaintiffs Kathy and John Siner (collectively " the Siners" ) brought a medical malpractice suit against Appellee-Defendant Kindred Hospital and its employees Appellees-Defendants Dennis Nicely and David Uhrin (collectively " Kindred" ) as well as Appellee-Defendant Dr. Mohammed Majid. The Siners alleged that Kindred and Dr. Majid (collectively the " Defendants" ) were negligent in their medical treatment of the Siners' mother, Geraldine Siner, resulting in her injury. The Siners filed their complaint after a medical review panel determined, in 2012, that the Defendants were negligent and that their negligence may have caused injury to Geraldine. The trial court granted separate motions for summary judgment in favor of Dr. Majid and Kindred, finding that the Siners had failed to designate evidence which created an issue of material fact with regards to whether Defendants' allegedly negligent conduct proximately caused injury to Geraldine. We affirm the trial court's grant of summary judgment with regards to Dr. Majid and reverse with regards to Kindred.
Facts and Procedural History
[¶2] October 26, 2007, eighty-six-year old Geraldine Siner became a patient at Kindred Hospital. Geraldine suffered from advanced dementia caused by Alzheimer's disease and as a result could no longer care for herself. Geraldine's son, John Siner, was designated as her health care representative and had power of attorney. Upon Geraldine's admission to Kindred, and several times thereafter, John informed Dr. Mohammad Majid, Geraldine's attending physician, that Geraldine was to be a 'full code' patient. On November 16, 2007, Kindred's Ethics Committee decided to make Geraldine a No Code/Do Not Resuscitate (" DNR" ) patient, meaning that Kindred staff would not attempt to resuscitate her in the event that she went into respiratory or cardiac arrest (otherwise known as " coding" ). The Ethics Committee did not receive approval from John or any other family member to change Geraldine's status in this manner. Geraldine's health continued to decline over the following two weeks and Kindred declined to keep Geraldine on 'full code' status despite her family's protests.
[¶3] As a result of their dissatisfaction with Kindred, the family had Geraldine moved from Kindred to Methodist Hospital on December 8, 2007. Geraldine required immediate treatment for a collapsed lung, " over-whelming infection, and septic shock at the time of intake." Appellant's App. p. 190. Geraldine died on December 28, 2007 while at Methodist Hospital.
[¶4] On November 10, 2009, Kathy Siner, Geraldine's daughter and personal representative of her estate, filed a medical malpractice claim against Defendants with the Indiana Department of Insurance. On December 17, 2012, a medical review panel determined, by unanimous opinion, " that the evidence supports the conclusion that the defendants failed to comply with the appropriate standard of care, and that their conduct may have been a factor of some resultant damages, but not the death of the patient." Appellee's App. p. 15.
[¶5] On May 6, 2013, the Siners filed a complaint against Defendants in Marion Superior Court. On September 12, 2013, one of the medical review panel members, Dr. James Krueger, provided an affidavit to clarify the reasoning behind his panel decision. In his affidavit, Dr. Krueger states that the only negligent care provided by Defendants was the prolonged use of a CPAP mask. Dr. Krueger went on to state that upon further review, after the panel had rendered its decision, he learned that IU Pulmonary and Critical Care (" IU Pulmonary" ) directed Geraldine's pulmonary care during her hospitalization at Kindred and that " it was reasonable for Kindred to defer to the judgment of the Pulmonology Service as it related to Ms. Siner's pulmonary care. Therefore, it is my opinion that Kindred met the standard of care by consulting the Pulmonology Service...." Appellee's App. p. 22. Dr. Krueger did not speak as to the opinion of the other two panel members.
[¶6] On September 3, 2013, Dr. Majid filed a motion for summary judgment arguing that there was no disputed material fact regarding causation and he designated the panel opinion and affidavit from Dr. Krueger as evidence. The Siners timely filed a response on November 1, 2013, but did not designate any expert witness evidence beyond the panel opinion. On November 19, 2013, the date of the hearing on Dr. Majid's motion, the Siners filed their belated designation of evidence. Because the evidence was designated belatedly, the trial court did not consider it pursuant to Indiana Trial Rule 56. On November 26, 2013, the trial court granted Dr. Majid's motion for summary judgment.
[¶7] On December 6, 2013, Kindred filed a motion for summary judgment which similarly argued that there was no genuine issue of material fact as to causation. The Siners filed a response and designated the affidavits of Drs. Timothy Pohlman and Lawrence Reed. Pohlman opined that the Defendants breached their duty of care in multiple respects and that Geraldine's injuries likely resulted from those breaches. On March 13, 2014, the trial court granted Kindred's motion for summary judgment reasoning that " neither [Pohlman nor Reed's] affidavit addresses the issue of causation of Geraldine Siner's injuries or death." Appellee's App. p. 107. The Siners now appeal both orders granting summary judgment.
Discussion and Decision
I. Standard of Review
[¶8] On appeal, our standard of review is the same as that of the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We construe all
facts and reasonable inferences drawn from those facts in favor of the non-moving party. On appeal, the trial court's order granting or denying a motion for summary judgment is cloaked with a presumption of validity. A party appealing from an order granting summary judgment has the burden of persuading the appellate tribunal that the decision was erroneous.
Roberts v. Sankey, 813 N.E.2d 1195, 1197 (Ind. Ct. App. 2004) (citations omitted).
A defendant is entitled to judgment as a matter of law when he shows that the undisputed material facts negate at least one element of the plaintiff's claim for relief. A court must grant summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element ...