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
Summary and Issues
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.
and Procedural History
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.
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.
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 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.
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.
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.
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.
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.
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.
Standard of Review
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.
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). ...