from the St. Joseph Superior Court, Mishawaka Division The
Honorable Jenny Pitts Manier, Judge Trial Court Cause No.
ATTORNEY FOR APPELLANTS Jeffrey J. Stesiak Pfeifer, Morgan
& Stesiak South Bend, Indiana
ATTORNEY FOR APPELLEES Robert J. Palmer May, Oberfell, Lorber
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.
and Procedural History
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
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.
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.
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
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
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.
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]
9. [Glon's] injury can occur for reasons other than
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 ...