from the Delaware Circuit Court The Honorable Marianne L.
Vorhees, Judge Trial Court Cause No. 18C01-1505-PL-11
Attorney for Appellant Jason R. Delk Delk McNally LLP Muncie,
Attorneys for Appellees Karl L. Mulvaney Nana Quay-Smith
Bingham Greenebaum Doll LLP Indianapolis, Indiana Chad
Bradford O'Bryan Brown & Toner, PLLC Indianapolis,
Diana Zelman appeals the trial court's entry of summary
judgment in a medical malpractice action in favor of Dr.
Francesca D. Tekula and Central Indiana Orthopedics
("CIO"). Zelman raises one issue which we restate
as whether the court erred in entering summary judgment in
favor of Dr. Tekula and CIO. We reverse.
and Procedural History
In March of 2010, Zelman began to experience right-side, low
back pain, with no known injury and of unknown etiology. At
some point later, she sought treatment and received a
diagnosis of a synovial cyst on her lumbar spine. Zelman
sought a consultation at CIO in Anderson, Indiana, where Dr.
Tekula recommended that she undergo a procedure to remove the
cyst. At a second appointment, where she was fitted for a
post-operative back brace and to have pre-operative x-rays,
Dr. Tekula recommended Zelman undergo a spinal fusion
Zelman agreed to proceed, and Dr. Tekula performed the
surgical procedure on May 27, 2010. Before Zelman was
released from the hospital, Dr. Tekula shared with her that:
a couple of unusual things had happened while [Zelman] was on
the table in surgery, and that, while doing this fusion . . .
cutting out the cyst and doing the one-level fusion, . . .
[Dr. Tekula] had looked around in that area and had found
another cyst and an even greater instability at another
Appendix Volume 2 at 35-36. Dr. Tekula also shared at that
time that she "went ahead and did a second-level fusion
while she was in there, at the same time, " because the
"second instability was even greater than the
first." Id. at 36. Dr. Tekula also shared that
Zelman's "spinal lamina . . . was exceptionally
long" and "longer than most other patients"
seen by her, and as a result she "cut [Zelman's]
lamina down." Id. When Zelman inquired if a
medical reason existed to cut the lamina, Dr. Tekula answered
negatively and shared that "she just found them to be
unusually long." Id. at 37. At that time,
Zelman was also told that the reason she was "probably
experiencing a higher level of pain postoperatively" was
"the fact that they had done so much in there."
Id. at 38.
Following the procedure, Zelman felt an intense pain
"unique to the postsurgical period" that was with
her "chronically . . . in the region of the lumbar
surgery" and "radiated from there up into [her]
upper buttocks and a little bit bilaterally into [her]
hips." Id. at 43-44. During this period, Zelman
asked Dr. Tekula to tell her if something went wrong in the
surgery "because it feels like something happened"
and stated that it was driving her crazy that she did not
"know what's going on." Id. at 68. In
response to Zelman's inquiries, Dr. Tekula told Zelman
that "everything went great and everything was great and
everything was fine." Id. at 61. Dr. Tekula saw
Zelman in Anderson at least two or three more times, and on
October 7, 2010, ordered an MRI of the lumbar spine, lumbar
flexion, and extension x-rays. Dr. Tekula shared with Zelman
that the MRI showed that she was healing beautifully, that
"everything inside was fine. And the healing was coming
along at the pace that she would have expected it to be, and
that there was no reason, medical reason that she could see
on the MRI for [Zelman's] continued pain."
Id. at 70. Zelman was examined by Dr. Tekula, at the
latest, on February 28, 2011.
After a post-op office visit approximately a week or two
after the procedure at which Zelman complained her foot was
in a lot of pain that had not been fixed by the surgery, Dr.
Tekula referred her to Dr. Steven Herbst, a foot specialist,
to see about her foot specifically distinct from her upper
leg. Zelman saw Dr. Herbst on June 28, 2010, he asked for
imaging of her foot, and she stopped seeing him by December
2010. At some point before October 7, 2010, Zelman received
sacroiliac and bursa injections with a Dr. Lillo. Zelman
requested and completed physical therapy at both a facility
near CIO in Muncie and a separate location, treated her pain
by seeing a pain management specialist, Dr. Mariam Ibrahim,
who tried various opioid pain medications until they found
one that seemed to work better for Zelman than anything else,
and located and saw a neurologist, Dr. Karen Vogel, who told
her that, "based on her experience, [Zelman] was
describing what, to her, sounded like nerve damage."
Id. at 83. Dr. Vogel referred Zelman to two
surgeons, Dr. Mobasser and Dr. Michael Coscia.
In the single meeting they had, Dr. Mobasser shared with
Zelman that, in his opinion, he "did not yet know what
was wrong" based on his review of the records and their
meeting and that he did not want to perform a surgery that he
"felt fairly certain" would be "brutal"
and had no guarantee to be one hundred percent successful.
Id. at 84-85. Zelman met with Dr. Coscia in November
of 2013, and he performed Zelman's second surgery in
2014, sharing with her afterward in June of 2014 that during
the surgery he "had found that there was no fusion, that
there were no pedicle screws, that that was extremely
unusual, because they've known for more than two decades
that you have to use pedicle screws or you don't get a
fusion." Id. at 90.
On January 9, 2015, Zelman filed with the State of Indiana
Department of Insurance a proposed complaint alleging medical
negligence against Dr. Tekula and CIO. On January 20, 2017,
Dr. Tekula and CIO filed a motion for summary judgment. In
support of the motion, Dr. Tekula and CIO designated portions
of Zelman's deposition in which she testified that, in
early 2011, her "insurance company no longer deemed my
visits post-op, " that "too much time had gone
by" and she was "suddenly getting charged for these
new office visits, " and that she remembers "asking
Dr. Tekula why she was still seeing me" because "it
was very different than any experience I'd had with any
other surgeon in my past." Id. at 42-43. She
testified that "still seeing the surgeon" was new
to her because she had previously undergone surgical
procedures and that she remembers "thinking it was