United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, United States District Court Chief Judge
case involves a suit for damages stemming from a missed
cancer recurrence diagnosis. Courtney Webster alleges that
her recurrent rectal cancer went undiagnosed for over a year
and a half after her CT scan was misread. She and her husband
Brian now seek to hold Center for Diagnostic Imaging, Inc.
and CDI Indiana, LLC (collectively, “Defendants”)
liable for damages as a result of the misdiagnosis.
Defendants, however, contend that they are not liable because
the doctor who misread Ms. Webster's scan was neither
their actual nor apparent agent.
matter is before the Court on Defendants' Motion for
Summary Judgment and on Courtney and Brian Webster's
Cross-Motion for Partial Summary Judgment. In addition,
Defendants filed a Motion to for Leave to File a Rebuttal,
which the Court will also consider.
determinative question before this Court on summary judgment
is whether an Indiana Supreme Court decision regarding
apparent agency - Sword v. NKC Hospitals, 714 N.E.2d
142 (Ind. 1999) - applies to the facts of this case.
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the
current version of Rule 56 makes clear, whether a party
asserts that a fact is undisputed or genuinely disputed, the
party must support the asserted fact by citing to particular
parts of the record, including depositions, documents, or
affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also
support a fact by showing that the materials cited do not
establish the absence or presence of a genuine dispute or
that the adverse party cannot produce admissible evidence to
support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or
declarations must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.
Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in
opposition to a movant's factual assertion can result in
the movant's fact being considered undisputed, and
potentially in the grant of summary judgment. Fed.R.Civ.P.
deciding a motion for summary judgment, the Court need only
consider disputed facts that are material to the decision. A
disputed fact is material if it might affect the outcome of
the suit under the governing law. Hampton v. Ford Motor
Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words,
while there may be facts that are in dispute, summary
judgment is appropriate if those facts are not outcome
determinative. Harper v. Vigilant Ins. Co., 433 F.3d
521, 525 (7th Cir. 2005). Fact disputes that are irrelevant
to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
summary judgment, a party must show the Court what evidence
it has that would convince a trier of fact to accept its
version of the events. Johnson v. Cambridge Indus.,
325 F.3d 892, 901 (7th Cir. 2003). The moving party is
entitled to summary judgment if no reasonable fact-finder
could return a verdict for the non-moving party. Nelson
v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court
views the record in the light most favorable to the
non-moving party and draws all reasonable inferences in that
party's favor. Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence
or make credibility determinations on summary judgment
because those tasks are left to the fact-finder.
O'Leary v. Accretive Health, Inc., 657 F.3d 625,
630 (7th Cir. 2011). The Court need only consider the cited
materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit
Court of Appeals has “repeatedly assured the district
courts that they are not required to scour every inch of the
record for evidence that is potentially relevant to the
summary judgment motion before them, ” Johnson, 325
F.3d at 898. Any doubt as to the existence of a genuine issue
for trial is resolved against the moving party. Ponsetti
v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
existence of cross-motions for summary judgment does not . .
. imply that there are no genuine issues of material
fact.” R.J. Corman Derailment Servs., LLC v.
Int'l Union of Operating Eng'rs, 335 F.3d 643,
647 (7th Cir. 2003). Specifically, “[p]arties have
different burdens of proof with respect to particular facts,
different legal theories will have an effect on which facts
are material; and the process of taking the facts in the
light most favorable to the non-movant, first for one side
and then for the other, may highlight the point that neither
side has enough to prevail without a trial.”
Id. at 648.
background facts of this case are not in
dispute and involve both the narrative of Courtney
Webster's medical treatment, as well as the underlying
contractual relationships among various entities.
Courtney Webster's Medical Treatment
2009, Courtney Webster underwent treatment for rectal cancer.
[Filing No. 41-1; Filing No. 41-2.] ¶ 2010, her medical
exams showed no signs of cancer, but she underwent follow-up
colonoscopies periodically over the next three years, none of
which detected cancer. [Filing No. 41-3.]
October 27, 2014, Ms. Webster visited her gastroenterologist
complaining of constipation. [Filing No. 41-4.] She underwent
a colonoscopy a few days later, which revealed a “large
mass” and a “flat polyp.” [Filing No, 41-5
at 1.] Based on these results, the doctor who performed the
colonoscopy recommended that Ms. Webster schedule a CT scan
“at the next available appointment.” [Filing No,
41-5 at 2.]
than two weeks later, on November 17, 2014, Ms. Webster
underwent a CT scan, the results of which were signed by Dr.
Michael Walker the following day. [Filing No. 41-9; Filing
No. 41-11 at 2.] Ms. Webster recalls that although she
originally planned to go to a St. Vincent facility for the
scan, “a representative from my insurance company at
the time, United Healthcare, called me and said CDI would be
less expensive and gave me CDI's address at 11900 N.
Meridian St. in Carmel, IN." [Filing No. 41-7 at 2.1 In
the days leading up to and following her CT scan, Ms. Webster
received the following information about the medical center
where her scan was performed:
• On November 12, 2014, Ms. Webster electronically
signed a Patient Registration Information form that featured
the name "CDI Indianapolis North" at the top and
provided, in part, that payment of insurance benefits be made
directly to "Medical Scanning Consultants, P.A. d/b/a
Center for Diagnostic Imaging and CDI Indiana, LLC."
[Filing No. 41-9.1 The form also contained a provision in
which Ms. Webster assigned to "Center for Diagnostic
Imaging, Inc." claims for payment against her insurance
company related to services provided to her. [Filing No.
• On November 17, 2014, the date of Ms. Webster's
scan, the signage at 11900 N. Meridian Street contained a
logo with the letters "CDI" in the center, and the
words "CENTER FOR DIAGNOSTIC IMAGING" next to the
logo, as follows:
[Filing No. 42-4 at 4.1
• On November 17, 2014, Ms. Webster signed a Notice of
Privacy Practices form that provided, in part, that
"Medical Scanning Consultants, P. A." was
"doing business as Center for Diagnostic Imaging (CDI)
" [Filing No. 41-10 at 1.1
• The CT Report containing Ms. Webster's test
results features the name "CDI Indianapolis North"
at the top and bears the following logo with the letters
"CDI" in the center: (Image Omitted) [Filing No.
41-11 at 1.1 The CT Report is signed by Dr. Walker, as
No. 41-11 at 2.
between November 12 and November 18, 2014, it is undisputed
that Ms. Webster encountered representations ...