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Webster v. Center for Diagnostic Imaging, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

August 31, 2017



          Hon. Jane Magnus-Stinson, United States District Court Chief Judge

         This 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.

         This 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.

         The 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.


         Standard of Review

         A 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. 56(e).

         In 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).

         On 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).

         “The 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.



         The background facts of this case are not in dispute[1] and involve both the narrative of Courtney Webster's medical treatment, as well as the underlying contractual relationships among various entities.

         A. Courtney Webster's Medical Treatment

         In 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.]

         On 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.]

         Less 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. 41-9.1
• 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:
(Image Omitted)
[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 follows:

         Filing No. 41-11 at 2.

         In sum, between November 12 and November 18, 2014, it is undisputed that Ms. Webster encountered representations ...

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