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
Attorneys for Appellee John D. Nell Jere A. Rosebrock Wooden
McLaughlin, LLP Indianapolis, Indiana.
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.
and Procedural History
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
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.
As required by Indiana's Medical Malpractice Act,
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.
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
Appellant's App. Vol. II, p. 86.
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
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 ...