United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY
RICHARD L. YOUNG, CHIEF JUDGE.
Robert Beaver, had a total right knee replacement on March 7,
2011, at the Indianapolis Veteran Affairs Medical Center.
Since the surgery, Plaintiff has suffered constant and severe
right foot pain, rendering him unable to walk unassisted.
Further diagnostic testing revealed evidence of
acute/subacute damage to both distal branches of the right
sciatic nerve. He alleges his medical problems were
proximately caused by the negligence of VA-employed surgeons.
The United States now moves for summary judgment. For the
reasons explained below, the motion is GRANTED.
medical malpractice claim against the United States is
brought pursuant to the Federal Tort Claims Act
(“FTCA”). Because the FTCA “incorporates
the substantive law of the state where the tortious act or
omission occurred, ” the court applies the law of
Indiana. Augustis v. United States, 732 F.3d 749,
752 (7th Cir. 2013) (internal quotation marks and citation
omitted); see also Gipson v. United States, 631 F.3d
448, 451 (7th Cir. 2011) (applying Indiana law governing
expert testimony in FTCA medical malpractice case). As such,
a plaintiff alleging medical malpractice must establish that:
(1) the physician owed a duty of care to the plaintiff; (2)
the physician breached that duty by allowing his/her conduct
to fall below the applicable standard of care; and (3) the
breach proximately caused the plaintiff's injury.
Sorrells v. Reid-Renner, 49 N.E.3d 647, 651
are not held to a duty of perfect care.” Syfu v.
Quinn, 826 N.E.2d 699, 703 (Ind.Ct.App. 2005). Rather,
the physician must exercise “the degree of care, skill,
and proficiency exercised by reasonably careful, skillful,
and prudent practitioners in the same class to which the
physician belongs, acting under the same or similar
circumstances.” Whyde v. Czarkowski, 659
N.E.2d 625, 630 (Ind.Ct.App. 1995). To establish the
applicable standard of care and to show a breach of that
standard, a plaintiff must generally present expert
testimony. Syfu, 826 N.E.2d at 703. “This is
 so because the technical and complicated nature of medical
treatment makes it impossible for a trier of fact to apply
the standard of care without the benefit of expert opinion on
the ultimate issue of breach of duty.” Bader v.
Johnson, 732 N.E.2d 1212, 1217-18 (Ind. 2000); see
also Perry v. Anonymous Physician 1, 25 N.E.3d 103, 106
(Ind.Ct.App. 2014), transfer denied, 29 N.E.3d 124
(Ind. 2015), and cert. denied, 136 S.Ct. 227 (2015)
(“Because of the complexity of medical diagnosis and
treatment, expert opinion is required as to the existence and
scope of the standard of care that is imposed on medical
specialists and as to whether particular acts or omissions
measure up to the standard of care.”).
Plaintiff did not present expert evidence regarding the
applicable standard of care. Instead, Plaintiff submitted
medical records from various doctors who determined that he
suffers from acute nerve damage which probably occurred
during his knee replacement surgery. (See Filing No.
48-3, Progress Note of Dr. Loretta VanEvery dated 7/19/11
(“There is evidence of acute/subacute damage to both
distal braches of the right sciatic nerve.”); Filing
No. 48-6, Office Note of Joyce E. Boeglin FNP dated 1/16/13
(“[H]ad a surgery through VA and patient ended up with
sciatic nerve damage to his right leg.”); Filing No.
48-7, Treatment Note dated 1/22/13 (“This man does have
significant neuropathic pain from an apparent injury to his
sciatic nerve. I explained to him that the nerve could have
been hit during surgery or more likely stretched causing
problems.”); Filing No. 49-9, Letter from Dr. Nicholas
Barbaro dated 3/19/13 (“Robert Beaver has neuropathic
pain in the right foot consistent with a prior sciatic nerve
injury.”)). This evidence does not raise an inference
that the VA committed medical malpractice, however.
“Medicine is not an exact science; thus, an inference
of negligence will not arise merely because there is a bad
result without proof of a negligent act.” Ross
v. Olson, 825 N.E.2d 890, 893 (Ind.Ct.App.
case is not necessarily doomed. “[A] plaintiff is not
required to present expert testimony in cases where the
deviation from the standard of care is a matter commonly
known to lay persons.” Whyde, 659 N.E.2d at
627. “This exception is based upon the
doctrine of res ipsa loquitur where the deficiency
of the physician's conduct ‘speaks for
itself.'” Id. “Application of this
exception is limited to situations in which the
physician's conduct is so obviously substandard that one
need not possess medical expertise in order to recognize the
breach of the applicable standard of care.”
Syfu, 826 N.E.2d at 703. For example, “expert
testimony is not required in cases involving a
physician's failure to remove surgical implements or
foreign objects from the patient's body.”
Boston v. GYN, Ltd., 785 N.E.2d 1187, 1191
Plaintiff mentioned the doctrine of res ipsa
loquitur in his Response Brief, he did not develop the
argument. But even if he had, the argument would fail. The
risks and complications associated with total knee
replacement surgery, including the possibility of permanent
nerve damage, are not commonly known to lay people.
Ziobron v. Squires, 907 N.E.2d 118, 126 (Ind.Ct.App.
2008) (ruling res ipsa loquitur did not relieve
patient, who suffered complications from bladder sling
surgery, of her duty to provide expert evidence on standard
of care); Ross, 825 N.E.2d at 894 (affirming trial
court's refusal to give res ispa loquitur
instruction, finding “[w]e cannot conclude, as a matter
of law, that popliteal artery injury [that occurred during
bilateral knee replacement surgery] would not have occurred
but for negligence”).
further argues that the VA was negligent by failing to obtain
his informed consent prior to surgery. Plaintiff's
argument is easily dismissed for two reasons. First, he
failed to present the claim on an executed Standard Form 95
or other written notification to the United States,
accompanied by a claim for money damages in sum certain for
personal injury prior to filing suit. 28 C.F.R. §
14.2(a). Therefore, he failed to exhaust his administrative
remedies and his claim is barred. McNeil v. United
States, 508 U.S. 106, 113 (1980) (“The FTCA bars
claimants from bringing suit in federal court until they have
exhausted their administrative remedies.”). Second,
even if a claim had been properly presented to the United
States, Plaintiff signed a consent form prior to surgery
which clearly advises that a known risk of the surgery is
“[t]emporary or permanent pain, numbness, or weakness
from nerve injury.” (Filing No. 54-2, Consent for
Treatment/Procedure at 2). Accordingly, the United States is
entitled to summary judgment.
failed to raise a genuine issue of material fact on his
medical malpractice and informed consent claims. Therefore,
Defendant's Motion for Summary Judgment (Filing No. 40)