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Glon v. Memorial Hospital of South Bend, Inc.

Court of Appeals of Indiana

September 14, 2018

Cindy and Ron Glon, Appellants-Plaintiffs,
v.
Memorial Hospital of South Bend, Inc. and/or its Employees and agents, Appellees-Defendants.

          Appeal from the St. Joseph Superior Court, Mishawaka Division The Honorable Jenny Pitts Manier, Judge Trial Court Cause No. 71D05-1707-CT-000292

          ATTORNEY FOR APPELLANTS Jeffrey J. Stesiak Pfeifer, Morgan & Stesiak South Bend, Indiana

          ATTORNEY FOR APPELLEES Robert J. Palmer May, Oberfell, Lorber Mishawaka, Indiana

          MATHIAS, JUDGE.

         [¶1] The St. Joseph Superior Court entered summary judgment in favor of Memorial Hospital of South Bend, Inc. and/or its Employees and agents (collectively "the Hospital"), the defendants, against Cindy and Ron Glon (collectively "Glon"). Glon appeals and raises the following two issues for our review:

I. Whether the trial court erred when it concluded that the doctrine of res ipsa loquitur does not apply to the facts of this case; and,
II. Whether genuine issues of material fact preclude the entry of summary judgment.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] On or about June 6, 2011, Glon underwent a cementless total hip replacement of her right hip at the Hospital. The Hospital administered a spinal epidural to Glon during the surgery, and she had no feeling or sensation from the waist down.

         [¶4] After surgery, Glon was moved to her hospital room where a nurse and patient care assistant rolled Glon onto her side to give them access to remove the epidural. As they did so, Glon heard three audible pops near her right knee. Appellant's App. p. 51. However, Glon's lower body was still numb from the effects of the epidural, and she did not experience any pain at the time she heard the popping sounds.

         [¶5] After the effects of the epidural wore off, Glon found she was in severe pain that would not subside. A subsequent x-ray revealed that Glon had a three-part displaced fracture of her right femur. There had been no visible fracture on the x-rays taken immediately after Glon's surgery. Therefore, Dr. Robert Clemency ("Dr. Clemency"), Glon's surgeon, later opined that the fracture occurred at some point after she was transferred to her hospital room for recovery. Id. at 53.

         [¶6] On May 18, 2012, Glon submitted a claim to the medical review panel as required by Indiana's Medical Malpractice Act, arguing that the Hospital breached the standard of care and that its negligence caused the fracture in her right leg.[1] Almost five years later, in April 2017, the panel, which was composed of three orthopedic surgeons, unanimously agreed that the Hospital did not fail to meet the applicable standard of care. See e.g., Appellant's App. p. 25 ("The evidence does not support the conclusion that the defendant, MEMORIAL HOSPITAL OF SOUTH BEND, INC., failed to meet the applicable standard of care as charged in the complaint.").

         [¶7] On July 7, 2017, Glon filed a complaint against the Hospital in St. Joseph Superior Court. Glon alleged that her injuries were a result of negligent care rendered by the Hospital, and that but for this negligence, she would not have suffered the fracture to her femur. Glon also argued that the doctrine of res ipsa loquitur supported her claim.

         [¶8] On August 10, 2017, the Hospital filed a motion for summary judgment. In support of its motion, the Hospital designated the opinion of the medical review panel and an affidavit from orthopedic surgeon Dr. Phillip H. Ireland, M.D. ("Dr. Ireland"), who had also served on Glon's medical review panel, which states in pertinent part:

6. According to the medical records, [Glon] had a three-part displaced fracture, spiral type, of her right femur following a cementless right hip replacement surgery. This is a "high impact" injury.
7. It is not physically possible that the act by the nurse and patient care assistant of turning [Glon] on her side caused the injury to the femur.
8. I am aware [Glon] allege[s] the nurse and patient care assistant grabbed [Glon's] right leg and twisted it. Even if that allegation is true, it is not physically possible that such an act could cause the injury to [Glon's] femur.
9. [Glon's] injury can occur for reasons other than negligence.
10. The injury to [Glon's] femur is a recognized complication of a cementless hip replacement surgery. During the surgery, a hairline fracture can develop. The hairline fracture is not always seen in a post-operative x-ray.
11. In my opinion, it is more likely than not that a hairline fracture led to the resulting ...

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