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Henderson v. Kleinman

Court of Appeals of Indiana

May 30, 2018

Rickie Henderson, Appellant-Petitioner,
v.
Elliott Kleinman, D.P.M., Appellee-Respondent.

          Appeal from the Vigo Superior Court The Honorable John T. Roach, Judge, Trial Court Cause No. 84D01-1506-CT-4294

          Attorney for Appellant Eric A. Frey Frey Law Firm Terre Haute, Indiana.

          Attorneys for Appellee John D. Nell Jere A. Rosebrock Wooden McLaughlin, LLP Indianapolis, Indiana.

          MATHIAS, JUDGE.

         [¶1] Rickie Henderson ("Henderson") filed a complaint in Vigo Superior Court against Dr. Elliott Kleinman ("Dr. Kleinman"). The complaint alleged that Dr. Kleinman failed to meet the applicable standard of care both in his record keeping and in his treatment of Henderson. Summary judgment proceedings ensued, and the trial court granted summary judgment in Dr. Kleinman's favor after concluding that the doctor was entitled to judgment as a matter of law. Henderson appeals and argues that the trial court erred when it granted Dr. Kleinman's motions for summary judgment and disregarded the medical review panel's opinion that Dr. Kleinman's record keeping failed to meet the applicable standard of care.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] Henderson was a patient of Dr. Kleinman's for approximately five years, and during that time he performed three surgeries on Henderson's right foot and ankle. The most recent surgery, which is at issue in this appeal, was performed on August 27, 2010. Henderson presented to Dr. Kleinman with continued pain in her right foot, and the doctor performed several surgical procedures on her foot on that date.

         [¶4] Henderson continued to experience pain after the surgery. After several follow up appointments with Dr. Kleinman, Henderson sought a second opinion from Dr. Dominic DiPierro in January 2012. Henderson reported her post-surgery pain to the doctor, and he believed that Henderson's pain was the direct result of the 2010 surgery.

         [¶5] As required by Indiana's Medical Malpractice Act, [1] on August 24, 2012, Henderson filed her proposed complaint against Dr. Kleinman with the Indiana Department of Insurance. Henderson's complaint alleged that "[i]n performing the [August 27, 2010] surgery, Kleinman failed to meet the appropriate standard of care for podiatry and orthopedic surgery." Appellant's App. Vol. II, p. 27. And "as a proximate result of the failure of the defendant to meet the standard of care, plaintiff sustained severe and permanent damage to her right foot and ankle and is permanently impaired." Id.

         [¶6] The Medical Review Panel ("the Panel") reviewed her complaint and Henderson's patient records. On April 16, 2015, the Panel issued the following opinion:

The panel is of the unanimous opinion that the record keeping of the Defendant fails to meet the standard required, and that the lack of documentation makes it impossible for the panel to decide whether the evidence supports or does not support a conclusion that the Defendant failed to comply with the appropriate standard of care in his treatment of the Plaintiff.

Appellant's App. Vol. II, p. 86.

         [¶7] Thereafter, Henderson filed a complaint against Dr. Kleinman in Vigo Superior Court. The complaint alleged:

2. In performing the surgery and preparing medical records of his care and treatment of the plaintiff, Dr. Kleinman failed to meet the appropriate standard of care for podiatrists and orthopedic surgeons.
3. Plaintiff's claim was presented to a medical review panel pursuant to Indiana's Medical Malpractice Act, and the Medical Review Panel found that the defendant failed to meet the standard of care in keeping records of his care and treatment of the plaintiff and that the Panel could not determine as a result of those ...

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