Boston v. Gyn, Ltd.
785 N.E.2d 1187
Ind. Ct. App.
2003
Check Treatment

*1 re not inclined to hearing, we are still BOSTON, Bankruptcy Richard E. Trust- To set aside the dis the dismissal. verse Kelly must, ee behalf of and Randall missal, Appellants very at the Shook, Appellants-Plaintiffs, least, that the actions of demonstrate prejudiced them injured or trial Ruggiero, Castillo v. way. some See (Ind.Ct.App.1990), trans. GYN, Szymanowski, LTD E. and James argue Presumably, Appellants M.D.,

denied. Appellees-Defendants. oppor them the the dismissal denied No. 89A05-0206-CV-270. a defense to the Sewer tunity present to dismiss. District's motion Appeals Indiana. Court of given ample opportunity were Appellants April inform the trial court of their difficulties discovery to the and to' re responding of time within which to quest an extension neither. these

respond. They did Under

facts, Ap prejudice we discern no of trial court's dismiss

pellants as a result

al, Appellants brought any nor have the Seq, e.g., attention. prejudice

such to our trial court committed no abuse of

id. The See, Wozniak, e.g.,

discretion.

at 37.

Accordingly, we hold that the trial Appellants' to dismiss the

court's decision clearly against logic not

complaint is the facts and circumstances

and effect of Consequently, the trial court.

before

trial not abuse its discretion court did Appellants' complaint pur

dismissing the See, e.g., Ind. Trial Rule 37.

suant

Hatfield, (holding N.E.2d at 400 did not abuse its discretion

the trial court complaint for

by dismissing plaintiff's appear failure to at two scheduled de

his

positions). reasons, foregoing we affirm the

For Appellants' court's

trial dismissal

complaint.

Affirmed. KIRSCH, JJ., concur.

SULLIVAN *2 IN, Indianapolis, Neiswinger,

Karen B. Attorney Appellants. for Quay-Smith, Mulvaney, Nana Karl L. Eskew, Sage, Kelly Bing- Candace L. R. LLP, IN, Indianapolis, ham McHale Attor- neys Appellee. for Hoover, Fanzini, John David Sara Stites LLP, Hoover Hull Baker & Heath India- IN, napolis, Attorneys Appellee, for James Szymanowski, E. M.D.

OPINION RILEY, Judge STATEMENT OF THE CASE Appellants-Plaintiffs, Kelly and Randall Shooks), (collectively, appeal grant summary from the trial court's Appellees-Defen in favor of (Dr. dants, Dr. Szy James manowski) (GYN).1 GYN, Ltd., affirm. We GYN, Lid., Szymanowski's employer. is Dr. ISSUES was unable to have children cause Shook uterus, clips her used without appeal, raise one issue The Shooks previously prevent pregnancy were no whether the as follows: which we restate necessary. During procedure, longer summary in granting trial court erred *3 Szymanowski Dr. removed the Hulka Szymanowski Dr. and in favor of judgment fallopian from left tube. Shook's GYN. Szymanowski Dr. was unable to access fallopian to right area of the tube order AND PROCEDURAL HISTORY FACTS right remove the Hulka on the side. to light in the most favorable The facts 30, 1996, July to On Shook returned 13, that on March establish Shooks Hospital (Hospital) com- Reid Memorial 1991, performed lapa- Szymanowski Dr. plaining right quadrant of lower abdominal Hulka by roscopic tubal sterilization pelvic pain. Although a ultrasound (Shook). clips are Kelly on Shook involving her showed a soft tissue mass fallopian tubes to a woman's placed on hospital reports no con- right ovary, drew passing down the tube eggs from prevent the source clusion as to whether this was fertilized, thereby prevent- becoming and Hospi— pain. up her followed Shook twenty-five Shook was ing pregnancy. on Szymanowski with visits to Dr. tal visit old at the time of years 7, 1996, 22, 1996, Sep- and August August 6, 1996, of continued complaining tember later, years four Shook Approximately pain. quadrant lower abdominal Szymanowski complaining Dr. returned to Attempts to heavy bleeding. menstrual 12, 1996, Szymanow- Dr. September On with medication were bleeding control the pelviscopy on performed ski another 30, result, May on unsuccessful. As taken to She was Shook. 1996, performed hys- Szymanowski Dr. fallopian day for removal of her same (D curettage and & teroscopy, a dilation ovary Szymanowski tube and because Dr. C), pelviseopy of Shook.2 diagnostic and a pain. of her diagnosed them as the source clips Szymanowski Dr. observed the Dr. surgical report, In his pelvisco- during tube on each observing or remov- made no reference to by. clip that have still ing the Hulka should right fallopian tube. been attached to the heavy experience continued to Shook case, During deposition regarding this bleeding subsequent menstrual he did not Szymanowski testified that Dr. Thereafter, D & scope procedure and C. any steps undertook know whether he 1996, Szymanowski per Dr. July on clip. search for hysterectomy on vaginal formed a Shook. removing the low- procedure experience right involved This Shook continued pain and was seen vagina leaving quadrant er abdominal through uterus September place.3 Be- fallopian tubes and ovaries a woman pro- of the ovaries leaves procedures performed 3. Removal were 2. These surgi- pelvic estrogen, resulting area produce an internal view of Shook's vide unable to Szymanowski could check for abnor- may so Dr. hot menopause, which involve cal malities, flashes, swings attempt heavy dry vagina, and other to control mood and to lining uterine bleeding by scraping the symptoms. undesirable cavity. trial pain continued over the next standard as the court. Miller v. 1996. The Bank, N.A., 15, 1997, NBD year and on Hospital. Septem- was admitted to the On (Ind.Ct.App.1998). moving party Pennington per- ber Robert showing the burden of bears there are exploratory surgery on formed an genuine no issues of material fact and that purpose determining abdomen for the it is entitled to as a matter of pain. During surgery, of her cause met, law. Id. Once this burden has been Pennington examined Shook's bowel nonmoving party respond by must set appendix, and removed her but found no ting specific forth demonstrating facts abnormalities. No hernias were found. trial, genuine need for and cannot rest *4 Dr. Pennington found and removed a upon allegations the or in denials the small, benign nodule. pleadings. only desig Id. We review Szymanowski participated along Dr. record, evidentiary nated material in the Dr,. Pennington exploratory with in the construing that in liberally evidence favor and removed left nonmoving party deny of the so as not to ovary. procedure, tube and During the party day that its in court. Id. Summary Szymanowski also discovered the judgment appropriate is if gen there is no clip, which he later testified he was uine issue of material fact moving and the surprised to find. The Hulka was party is entitled to aas matter pelvic attached to the lower abdominal wall 56(C). of law. Ind. Trial Rule by a experi- small adhesion. Shook has enced no quadrant lower abdominal In addressing sufficiency of a 19, pain since the 1997 malpractice medical upon action based 19, 1998, February presented On 1) negligence, plaintiff must establish: complaint a to a medical panel review duty part a on the in the defendant (Panel). 21, 2001, On March the Panel 2) plaintiff; relation to the failure on the opinion unanimously rendered its in favor part of the defendant to conform to the of Dr. and GYN. requisite required by standard of care 29, 2001, On October Shooks filed 3) relationship; plain an injury to the complaint for damages against Szyma- tiff resulting Oelling from that failure. v. Wayne Superi- nowski and GYN in County Rao, 189, (Ind.1992). 593 N.E.2d 190 Be Thereafter, 4, or Court. on December complex cause of the nature of medical 2001, and December respectively, treatment, diagnosis and expert testimony and GYN filed their mo- generally required is appli establish the summary tions for A judgment. hearing cable standard of care. Simms v. 16, 17, May was held on May On Schweikher, (Ind.Ct. 348, 350 2002, the trial court granted Szymanowski App.1995), trans. denied. respective and GYN's motions. appeal. The Shooks now Additional situations, in some supplied facts will be necessary. as physician's allegedly negligent act or omis expert sion is so obvious that testimony is AND DISCUSSION DECISION unnecessary. Carter, Wright v. 622 I. Standard Review (Ind.1993). N.E.2d Cases not re quiring expert In reviewing testimony a decision are fitting of motion for those summary judgment, we apply the same the "common knowledge" ipsa or res lo- Instead, Malooley McIntyre, v. the Panel. exception. argue Shooks that quitur (Ind.Ct.App. N.E.2d 318-319 ipsa loquitur applies doctrine res 1992). exception is lim Application of this Specifically, they their case. assert physician's in which the ited to situations in a negligence malpractice medical action obviously conduct is so substandard may surgeon be inferred the failure of a possess expertise medical one need not object a foreign to remove that serves no appli recognize order to the breach contention, purpose. support In of their of care. Id. at 319. For cable standard Carter, rely Wright Shooks instance, testimony required not expert is patient which involved a who involving physician's in cases failure piece discovered a of wire her breast implements surgical foreign remove or ob biopsy. Wright, patient's after jects patient's body. from the The ratio radiologist prior inserted the wire to sur- underlying nale these cases is that gery surgeon locating to assist the are to raise an facts themselves sufficient nonpalpable he mass was to remove from negligence inference of without tes Wright the breast. The found Simms, timony. 651 N.E.2d at 350. presence the "continued foreign object of a *5 performing specific pro-

introduced while a cedure, II. IpsaoLoquitur serving purpose Res but no medical procedure completed, once that has been support In for of their motion give does rise an negli- to inference of summary judgment, Szymanowski and genee." Wright, 622 N.E.2d at 172. opinion the of the Panel. GYN submitted unanimously The Panel determined We find that the case at hand is distin- support evidence does not the con- in "[the guishable. Wright, Unlike the wire the Sgymanowski elusion that and [Dr. GYN] clip placed Hulka at issue was in Shook's comply appropriate failed to with the stan body remaining with the intention of it charged complaint, in dard of care as the indefinitely prevent to Shook from becom- complained the conduct of in the com ing pregnant. Although clip the Hulka no plaint not a in [Shook's] was factor resul longer purpose a medical after served damages." (Appellant's App. pp. tant 32- vaginal hysterectomy, we find the Shook's 40). opinion A the medical unanimous of implications leaving medical the panel physician review did not body Shook's and the risks of applicable of care is breach standard during surgical proce for it searching ordinarily negate sufficient to the exis layperson's seope dure are outside the fact genuine tence of issue of material result, knowledge. As a the doctrine of entitling physician summary judg Instead, ipsa loquitur apply. res does not Bonaventura, ment. McGee v. 605 N.E.2d Panel shifted the determinations (Ind.Ct.App.1993). Consequently, 794 Shooks, burden to the who were then obli Shooks, the burden shifted to the who gated expert testimony to submit to estab obligated were to either rebut the Panel's applicable lish the standard of care and opinion expert testimony or with medical how that standard was See breached. present evidence within the "common Marquis Battersby, v. knowledge" exception. Malooley, 597 See Simms, (Ind.Ct.App.1982); 1203 651 N.E.2d at 318-19. 350; Egwu, N.E.2d at Simmons (Ind.Ct.App.1996). The presented no medical Shooks regard. failed in this testimony to rebut the determination of Shooks IIL Consent that, established had the revelation been Informed made, consent to treatment would not have Next, argue negli- Shooks given. been again, Id. Once the case at genee may be inferred the absence of distinguishable. hand is expert testimony by surgeon's failure to The Shooks have made perform surgical procedure to which no assertion that, if patient Specifically, had informed Shook has consented. might that he not remove all of the September re fallopian clip, tube and Hulka right fallopian moved Shook's tube and Shook would September not have consented to the consent, ovary, with because Moreover, previous as Szymanowski's diagnosis they with the indicated argument, we find that likely pain. impli- were the source of her How the medical ever, cations of leaving that Dr. in Shook's Szyma- Shook's contend body, frag- nowski failed to remove the entire whether loose or attached to a tube, tube, fallopian ment of including clip, and the medical thereby failing perform searching risks of for it during surgical procedure scope lay which Shook consented. The as are outside the of a Shooks person's knowledge. Accordingly, we find that, result, sert as a more endured pain until fragment that, the tube and the once the burden shifted Shooks, finally they obligated were removed were and failed to expert testimony submit to establish the applicable standard of care and how that contention, support of their standard of care was breached. Mar See present Shooks the case of Bowman v. *6 quis Battersby, v. 443 N.E.2d 1203 Beghin, 713 N.E.2d 913 (Ind.Ct.App.1999). Simms, (Ind.Ct.App.1982); 651 N.E.2d at Bowman, patient the asked surgeon his 350; Egwu, Simmons v. 662 N.E.2d perform if he going spinal was to the same 658 (Ind.Ct.App.1996). by recommended another sur geon, procedure which included a known CONCLUSION microdiscectomy. as surgeon The re reasons, For the foregoing we find that sponded that perform pro he would that properly granted the trial court motions upon response, cedure. Based that the summary for in favor of Dr. patient consented to the Szymanowski and GYN. surgeon subsequently performed part of the surgery, recommended but excluded Affirmed. microdiscectomy. the

The Bowman court held that no BAKER, J., concurs.

testimony required was to establish a fail MATHIAS, J.,

ure to conform to the standard separate of care on dissents with opinion. the issue of informed consent. that,

the court found in the context of MATHIAS, Judge, dissenting. consent, informed there must be a causal relationship physician's between the failure I respectfully dissent. injury to inform and the plaintiff.

Bowman, Further, notes, 713 N.E.2d at 917. majority As the "in some situa- tions, such causal only physician's connection arises if it allegedly negligent is act object body in the leaving foreign of expert testi is so obvious or omission by an act have been removed which should Op. p. 1190-1191 unnecessary." mony is jury without exten- 170, understandable Carter, v. (citing Wright at 441. input." technical Id. sive (Ind.1993)). fact have in- A rational trier of could situations which are some [There from the admissible evidence ferred negligent allegedly defendant's physician have in at least the cement would been to allow obvious as is so act or omission perceptible by hardening state and thus of res the doctrine rely on plaintiffs en- touch to a careful observer sight or not need an do ipsa loquitur. Juries cleansing the gaged process in the conclude, that it say, help them expert to debris, instruments, and other wound by mistake on operate malpractice is paraphernalia. Sometimes, the undis- limb. wrong Id. an infer- create puted facts themselves judge such that negligence

ence of case, Szymanowski per- In this when must win the defendant say cannot on vaginal hysterectomy formed law, contrary opinion matter of as a removed July notwith- panel review the medical tube, from the left standing. unable to find and remove but was previously he had affixed to supreme 171. Our N.E.2d at Wright, 622 deposition, tube. In his right fallopian expert opin- held that previously has Szymanowski testified: required generally is not evidence ion operating involving the failure of cases Q: remove the left Why you did implement a surgical to remove physician attempt to remove patient's object from the foreign doing or other purpose was there one? What body. Id. at 172. that? foreign suppose, simply, A: I it's Capello, In Burke accessible, you would body, and its if (Ind.1988),4 hip re plaintiff underwent out, I assume. try get it *7 "ex experienced and

placement Id. following ceptional pain" added). p. (emphasis Appellant's App. examination, "it was discov Upon at 440. Thus, recognized Dr. even used when fragment of cement ered that fallopian clip right on the that the Hulka left prosthesis had been affixing the had, foreign point, become at tube femoral lodged near the and was wound medically longer it was no body because underwent plaintiff then nerve." Id. Furthermore, Szymanow- necessary. and, follow the cement surgery to remove recall whether he told Shook could not ski removal, subsided. pain the severe ing its removed. clip -wasnot that the that the determined supreme court Id. Our p. Appellant's App. ex present required was not plaintiff 12, testimony concerning later, pert medical September months Two 1996, removed Shook's "involves the case of care because standard conduct the defendant's which measured grounds by on other 4. Burke was overruled Doan, in the same against of other doctors by Vergara Vergara (Ind.1992). supreme Vergara In our community. rule, locality modified abandoned ovary and due to her tube complaints pain. again, onee remaining clip, which now right fallopi- attached to the longer

was no tube,

an was not removed. the docu- court, the trial

ments submitted to there Dr. Szymanowski

was no evidence that attempted

even to locate the Hulka

and to remove it at the of that surgi- time procedure.

cal

I would hold that onee Dr. Szymanowski

failed to locate and remove the Hulka body

from during July

surgery after it had un- medically become

necessary, foreign became a ob-

ject. subsequent His failure to remove the

clip during 1996 sur-

gery possible notify failure to it body remained in her after these separate surgeries two "is sufficient to

raise an inference of negligence, thereby

obviating an the need for affidavit to that

effect from an in order for" Shook

to survive the defendants' motions for Therefore,

summary judgment. id. See I

would reverse the trial court and remand

this with deny case instructions to

Szymanowski's and GYN's motions for

summary judgment.

Phyliss MITCHELL, Appellant-

Respondent, *8 Appellee MITCHELL, H.

Jack

-Petitioner.

No. 12A02-0210-CV-815. Appeals

Court of of Indiana.

April