Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Zelman v. Central Indiana Orthopedics, P.C.

Court of Appeals of Indiana

December 13, 2017

Diana Zelman, Appellant-Plaintiff,
Central Indiana Orthopedics, P.C., and Francesca D. Tekula, M.D., Appellees-Defendants.

         Appeal 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, Indiana.

          Attorneys for Appellees Karl L. Mulvaney Nana Quay-Smith Bingham Greenebaum Doll LLP Indianapolis, Indiana Chad Bradford O'Bryan Brown & Toner, PLLC Indianapolis, Indiana.

          Brown, Judge.

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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 surgery.

         [¶3] 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 level.

         Appellant's 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.