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Speaks v. Rao

Court of Appeals of Indiana

December 31, 2018

Mindy (Engel) Speaks, Appellant/Cross-Appellee-Plaintiff,
Vishnuvardhan Rao, D.O., Unity Physicians, Indiana Physician Services, LLC, Porter Hospital, Porter Hospital Pharmacy, and Keith Atassi, M.D. Appellees/Cross-Appellants-Defendants.

          Appeal from the Porter Superior Court Trial Court Cause No. 64D02-1411-CT-10090 The Honorable William E. Alexa, Senior Judge The Honorable Thomas Webber, Senior Judge The Honorable Jeffrey Clymer, Judge

          Attorneys for Appellant Brian J. Hurley Timothy C. Krsak Douglas Koeppen & Hurley Valparaiso, Indiana

          Attorneys for Appellee: Vishnuvardhan Rao, D.O. Karl L. Mulvaney Nana Quay-Smith Margaret M. Christensen Bingham Greenebaum Doll LLP Indianapolis, Indiana, Louis William Voelker Eichhorn & Eichhorn LLP Hammond, Indiana

          Attorneys for Appellees: Porter Hospital and Porter Hospital Pharmacy Sharon L. Stanzione Alan M. Kus Johnson & Bell, P.C. Crown Point, Indiana

          Attorneys for Appellee: Keith Atassi, M.D. Michael E. O'Neill Jeremy W. Willett Jessica L. Mullen O'Neill McFadden & Willett LLP Schererville, Indiana

          Robb, Judge.

         Case Summary and Issues

         [¶1] Mindy (Engle) Speaks brings this interlocutory appeal of the trial court's grant of summary judgment in favor of Keith Atassi, M.D. ("Dr. Atassi"); Porter Hospital and Porter Hospital Pharmacy ("Porter Hospital"); and Vishnuvardhan Rao, D.O., Unity Physicians, and Indiana Physician Services, LLC ("Dr. Rao") (collectively, "Defendants") on the issue of medical malpractice. The Defendants cross-appeal the denial of their motion for summary judgment on the issue of negligence. Concluding summary judgment in favor of the Defendants on the issue of medical malpractice was appropriate but that the Defendants were also entitled to summary judgment on the issue of negligence, we affirm in part, reverse in part, and remand for the entry of summary judgment.

         Facts and Procedural History

         [¶2] On the morning of November 19, 2012, Speaks, a forty-three-year-old registered nurse, was exercising with her daughter when she experienced a "sudden onset of [heart] palpitation[s] with associated shortness of breath and mild chest tightness." Appellant's Appendix, Volume 5 at 73. Speaks went to the emergency room at Porter Hospital in Valparaiso where she was placed under the care of Dr. Rao, a board-certified emergency room physician. Speaks was diagnosed with a condition called wide complex tachycardia, or, more simply, a very rapid heartbeat.

         [¶3] Pursuant to Dr. Rao's orders, nursing staff started an IV to administer medications to slow Speaks' heartbeat. At 9:20 a.m., Dr. Rao ordered, and a nurse administered, six milligrams of Adenosine by an IV "push." A "push" is a large saline bolus which follows the medication to help it move through the IV and into the blood stream and heart. Dr. Rao also ordered two electrocardiogram tests to monitor Speaks' heart function. After the first dose of Adenosine proved ineffective, Dr. Rao ordered a second, higher dose of Adenosine. A nurse administered twelve milligrams by IV push. This too proved ineffective and Dr. Rao ordered the administration of 150 milligrams of Amiodarone, another medication that treats tachycardia through a different methodology. Sixty-four minutes after entering the emergency room, Speaks' heart rate returned to a stable sinus rhythm as the Amiodarone appeared effective. Dr. Rao ordered Speaks receive 325 milligrams of aspirin and the nurses again carried out the order. In addition to the medications listed above, which are uncontested by the parties, a computerized chart documenting Speaks' vital signs and fluid intake also included a mention of "SOTRADECOL 3%[.]" Id. at 74.

         [¶4] At 11:08 a.m., Speaks was discharged from the emergency room and transported to the telemetry floor where she was placed under the care of Dr. Atassi. Speaks' IV site was assessed and it showed no signs of redness, edema, tenderness, or drainage. Dr. Atassi completed a Deep Vein Thrombosis Risk Assessment and Therapy Order ("DVT Risk Form") and scored her at "2" based on the total of "1" for "Age 40-80 years" and "1" for "Overweight (BMI 25-30)[, ]" placing her at a "moderate risk[.]" Id. at 69. Dr. Atassi ordered a consultation with an electrophysiologist and labs to determine Speaks' Factor V Leiden[1] status, which were collected and sent to Mayo Clinic Laboratories for testing. Thereafter, Dr. Atassi prepared Speaks' discharge summary with a diagnosis of proximal tachycardia, tobacco use disorder, history of transient ischemic attack/stroke without residual effects, long-term use of aspirin, and a family history of blood disorder. The next day, as a nurse removed Speaks' IV in preparation for her release, there appeared a "long stringy clot that had attached itself to the catheter being withdrawn." Id. at 77.

         [¶5] After Speaks returned home, she noticed some swelling, redness, and pain in her right arm where the IV had been placed. Five days later, on November 25, Speaks returned to the emergency room and was readmitted to Porter Hospital. Speaks refused the placement of an IV and a venous doppler study revealed that Speaks had a basilic vein DVT, or a blood clot, where her IV had been placed on November 20. Speaks was treated with blood thinners. The next day, Dr. Atassi saw Speaks for a cardiac consultation and again noted her family history of blood disorders. Dr. Atassi had not yet received the results from Speaks' Factor V Leiden test. Speaks was eventually released to return home but her treatment entailed several return visits to the hospital.

         [¶6] On January 15, 2013, Speaks filed a proposed complaint with the Indiana Department of Insurance, and subsequently amended her complaint to include all of the present Defendants. Prior to the ruling by the medical review panel, Speaks filed a complaint in state court on November 18, 2014. Speaks' amended complaint alleged the Defendants had been negligent with respect to Speaks' evaluation and treatment while at Porter Hospital in November 2012. Pursuant to statute, Speaks' amended complaint also revealed the action of the medical review panel. The medical review panel's unanimous opinion was that the evidence did not support a conclusion that the Defendants failed to meet the applicable standard of care.

         [¶7] Following the Defendants' initial filing of motions for summary judgment, the trial court issued an order granting the Defendants leave to amend their motions to address Speaks' third amended complaint, which had been filed in the interim. The court also granted Speaks until April 11, 2017, to respond to the same. The Defendants' motions highlighted Speaks' lack of expert testimony to contradict the unanimous opinion of the medical review panel. Speaks argued that the common knowledge exception allowed her case to survive summary judgment without such testimony.

         [¶8] The trial court granted partial summary judgment to the Defendants on the issue of medical malpractice on October 10, 2017. However, the trial court interpreted Speaks' third amended complaint to have asserted new claims of medical negligence against the Defendants that were independent of her claims for medical malpractice. In so doing, the trial court found that Speaks' medical negligence claims-which were based on the same facts and circumstances as her medical malpractice claims-did not have to be supported by expert testimony regarding the standard of care and could proceed as claims of ordinary negligence.

         [¶9] Speaks now appeals the trial court's grant of summary judgment on the issue of medical malpractice and the Defendants cross-appeal the trial court's denial of summary judgment on the issue of medical negligence.

         Discussion and Decision

         I. Standard of Review

         [¶10] Summary judgment is a tool which allows a trial court to dispose of cases where only legal issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving party has the initial burden to show the absence of any genuine issue of material fact as to a determinative issue. Id. An issue is "genuine" if a trier of fact is required to resolve the truth of the matter; a fact is "material" if its resolution affects the outcome of the case. Id. As opposed to the federal standard which permits the moving party to merely show the party carrying the burden of proof lacks evidence on a necessary element, Indiana law requires the moving party to "affirmatively negate an opponent's claim." Id. (quotation omitted). The burden then shifts to the non-moving party to come forward with contrary evidence showing an issue to be determined by the trier of fact. Id. Although this contrary evidence may consist of as little as a non-movant's designation of a self-serving affidavit, summary judgment may not be defeated by an affidavit which creates only an issue of law-the non-movant must establish that material facts are in dispute. AM Gen. LLC v. Armour, 46 N.E.3d 436, 441-42 (Ind. 2015).

         [¶11] We review a summary judgment order with the same standard applied by the trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind. 2017). Summary judgment is appropriate only when "the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). As our supreme court has cautioned, however, summary judgment is a "blunt instrument" by which the non-prevailing party is prevented from resolving its case at trial and therefore we must carefully "assess the trial court's decision to ensure [a party] was not improperly denied [his or her] day in court." Hughley, 15 N.E.3d at 1003-04 (citations omitted). ...

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