*1 quali- was entitled to Richards facsimile Jones, privilege. Cody
fied Caroline V. JONES Appellants-Plaintiffs, that Fink abused Still, Eaton contends Van statement privilege because her qualified her and with- by ill will motivated primarily support of his in its truth. out belief MINICK, M.D., Appellee- Linus contention, us to the one- Eaton directs Van Defendant. of Richards supplemental affidavit paragraph No. 02A04-9801-CV-12. Fink it demonstrates claims attempt to extort in an made her statements Appeals of Indiana. Court of states: Selbys. The affidavit money from the had argument [Richards] That July ordered her Fink before [he] with Donna September home on [his] from things that Day evening, one of the Labor to Dick going she was to do stated that
she [them] was accuse [Richards]
Gaib and
raping [them] her and further accuse named nu-
manufacturing documents. She that she to [Richards] merous documents have been manufactured
felt could During argument, before
[Richards]. left, some state to [Richards] she did
she going to that she was of the documents manufactured, were Exhibit Prospectus, Sales
“12” the Confidential “61,” Exchange the Stock and Exhibit numerous
Agreement. She mentioned at the that were admitted other documents Eaton, that Mark Van
trial. She stated Selby, and Rich- Diane [Richards]
Jeff and Jerry would be
ard Gaib and Stillwell trouble.
serious supplemen- miseharacterizes the
Van Eaton Although the affidavit shows
tal affidavit. Richards, upset it does that Fink was attempted to extort that she not demonstrate Further, cannot
money anyone. we that Fink’s statement
infer from the affidavit by “ill that she did not motivated will” or Rath- in the truth of her statements.
believe supplemental affidavit indicates
er the manufac- believed that documents were
she Eaton has failed
tured. Because Van could establish that
designate material which privilege, we con- qualified
Fink abused her granted properly the trial court
clude that
summary of Fink. judgment favor
Affirmed. RILEY, JJ.,
BAILEY and concur.
rubusco, Indiana, specialized where he general family practice. physi- As an area cian, enjoyed full staff privileges at Park- Hospital view Memorial Wayne, in Fort Indiana. patient Caroline Jones was a of Dr. Therefore, Minick’s since childhood. when Caroline pregnant discovered that she was with her in February third child she went to Dr. Minick for obstetric care. Her uneventful, pregnancy was and her estimated 3,1993. due date was October date, Around the time of her due Caroline began pain experiencing in her Al- ribs. though labor, Caroline was not in Dr. Minick instructed her to check into Parkview herself Memorial. thought that she was going undergo pain, tests for her rib but Dr. Minick they informed her that go- ing to baby. and labor deliver the induce Ultimately, baby safely, was delivered and Caroline’s condition post-par- was stable tum. conflicting The evidence is as to the Mary Ramey, Ramey Hailey, Beth & In- sequence labor, exact of events dianapolis, Appellants-Plaintiffs. delivery repair episiotomy. Caroline’s Miller, Larry Barnard, M. Milford L. Cal- and staff’s version of the events Miller, vert Boxberger S. Miller Carson & delivery in the room is strikingly different Murphy, Wayne, Appellee-Defen- from the Joneses’ version. The nurses at- dant. tending delivery physician relieved Dr. Minick testified affidavit that OPINION delivery relatively uneventful and appeared Dr. Minick well in control' of RILEY, Judge. repair situation until it was time to Caro- STATEMENT OF CASE THE episiotomy. line’s When the L.P.N. assisting Plaintiffs-Appellants Cody Caroline and attempted Dr. Minick to hand him the nee- Joneses”) (collectively appeal Jones “the dle, Dr. Minick sat “frozen” and was not grant in fa- responsive. time, During this the R.N. at- Defendant-Appellee Minick, vor of Linus tending delivery baby, was with the (“Dr. Minick”) following M.D. the Joneses’ Cody say she heard Jones that the situation complaint alleging malpractice. Also, was “bull shit” run from the room. sister, We reverse. Caroline’s who attending the de- livery, said that get nurses had better there, ISSUE they someone all be sued. point, At that the nurses called for assis- dispositive One issue is appeal: of this seconds, tance. Within charge nurse ar- presented Whether the Joneses evidence suf- physician rived and called for a to assist. ficient to rebut of the medical panel review and thus to summary overcome Kathryn Einhaus was across the hall judgment. immediately and came to assess the situation. Upon room, entering the she observed that AND FACTS PROCEDURAL HISTORY fine, baby doing Caroline were so During pertinent the time helped get this she a resident Dr. Minick onto a gurney. maintained medical in Chu- Dr. Minick was taken to the emer- seq., appeared what Indiana Code 27-12-10-1 et Medical
gency room with repair stroke, proceeded Einhaus Review Panel was and the case was testified episiotomy. Dr. Einhaus Caroline’s to them. The Panel issued its submitted and that blood was minimal 3, 1996, opinion on written June as follows: fairly she testi- routine. repair was *3 It is the of this medical unanimous Minick, Dr. was shocked that fied that she panel review the evidence does not stroke, managed to cut a having a had while support the Defendants conclusion that the Einhaus also exam- straight episiotomy. Dr. applicable to meet the failed from the prior departure to her ined Caroline charged Complaint. care as nothing remarkable hospital. observed She (R. 24). September the Joneses that Caroline was although she did state County complaint their in the Allen filed Dr. extremely the situation. distressed over alleging proximate that as a Circuit Court apologized Caroline that Einhaus but assured negligence, cause of Miniek’s Caroline baby just despite the fine she and injury. physical emotional It suffered and problems Dr. Minick. encountered alleged in complaint was also that as a of the facts is com- The Joneses’ version proximate direct and cause of Dr. Minick’s contend that pletely different. The Joneses negligence, emo- Caroline’s husband suffered delivery they observed before injury society, companion- tional and loss of Dr. Minick acting right. Minick was not ship and consortium. gloves get not on without assis- later, weeks Several Dr. Minick filed a tance, he never and said a word summary judgment motion for wherein he delivery. performed Caro- entire Minick that there asserted was no and episiotomy line’s without anesthetic material fact had failed because Joneses began scraped Caroline’s uterus. Caroline presenting expert their to meet burden of in her screaming, and nurse stuffed towel testimony contrary findings smearing began mouth. When the Medical Review The Joneses Panel. blood, rocking back his face with Caroline’s response filed their to Dr. Minick’s motion forth, and staring at his blood-stained summary judgment along oppos- for with an hands, ran out of the Caroline’s husband ing designation of evidence. help. reported by get room to events as The afSant, opposing The Joneses’ Dr. David not in the nurses’ the Joneses were recorded Sand, opined that Dr. Minick’s care and notes. accept- treatment of below the Caroline fell undisputed It is Dr. Minick suffered able standard of care. stroke- in from massive October now de- which he never recovered. He is The Defendants to strike the affida- moved ceased. The record that Caroline did reveals grounds vit on the that it failed to set forth progress post-partum. well consult- She standard of care. The Joneses physicians regarding ed several lacerations response, their the court filed heard genitals, pelvic pain, to her excessive bleed- argument on the and motion motion strike ing, dysfunction, depression post- sexual summary judgment. taking the After hus- traumatic stress disorder. Caroline’s advisement, under court motions denied depression and band was also treated granted the Defendants’ to strike and motion post-traumatic stress disorder. in favor of the Defen- appeal ruling. The Joneses this dants. filed December of proposed complaint their the Indiana with DISCUSSION AND DECISION
Department
Dr. Minick
against
of Insurance
Hospital.1
Parkview Memorial
Standard, Review
care
alleged
Joneses
named health
court’s rul
providers
reviewing
rendered
in a
When
the trial
health care services
negligent
ing
summary judgment,
on a motion for
we
thereby causing
manner
personal injury.
apply
to suffer severe
Pursuant to
the same
as the trial court.
standard
voluntarily
dismissed
lawsuit.
Parkview Memorial was
from this
County,
Henshilwood v. Hendricks
653 the Defendants stated that nothing in Dr.
(Ind.Ct.App.1995),
trans.
Sand’s affidavit
familiarity
indicated his
words,
any
denied.
In other
we resolve
practice phy-
care for
any
doubts
or inference to be
perform
sicians who
procedures.
obstetric
therefrom, in
non-moving
drawn
favor of the
Furthermore,
argued
the Defendants
party.
Summary judgment
Id.
appropri
is
Dr. Sand did not
articulate the
only if
designated evidentiary
ate
materi
standard of care in his affidavit. Because
al shows that there
no
is
issue as to
inadequate,
affidavit is
the Defendants
moving party
material fact and the
argued that
it was insufficient to preclude
judgment
entitled
as a matter of law. Ind.
summary judgment in their favor.
56(C);
Boren,
Trial Rule
Wolf v.
The trial court found that
the affidavit
(Ind.Ct.App.1997),
trans. denied. The
*4
contained admissible evidence arid therefore
party moving
summary judgment
for
bears
denied the Defendants’ motion to strike.
making
prima
the initial burden of
a
facie
However,
court granted summary
the
judg-
showing
genuine
that there are no
issues of
ment in favor of the Defendants finding that
material fact
the movant is entitled
the
affidavit failed to
issues
to judgment as a matter of law. Luider v.
of
precluding
material fact
summary judg-
593,
Skaggs,
(Ind.Ct.App.
693 N.E.2d
595
ment.
1998). Once the movant meets these two
requirements,
the burden
shifts
the non-
In a
malpractice
medical
an
moving party
specifically desig
to set forth
opposing affidavit submitted to
establish
showing
nated facts
the
genu
existence of a
issue of fact on the standard of care issue
appeal,
ine issue.
Id. On
we must deter
expert’s
must demonstrate
familiarity
the
mine
whether there is a
applicable
with the
set out
material fact and whether the law has been
of
standard
care and state that
correctly applied by
City
the trial court.
of
question
treatment
in
fell below that stan
Government, Inc.,
Agenda: Open
Elkhart v.
Hoskins,
dard.
Summary Judgment Randolph County In Hosp., plaintiff offered dispositive testimony opposi- affidavit presented issue for review summary judgment. tion to Specifically, is whether the Joneses came forward with along sufficient affidavit with the affiant’s curriculum evidence to create a question of fact vitae indicated as follows: as to whether Dr. Miniek the affiant attend- Indiana; appropriate breached the ed medical school the affiant was standard care. strike, Indiana; their motion to the Defendants licensed to medicine in argued Indiana; that Dr. practiced Sand’s affidavit should be affiant medicine stricken because it failed to set forth the affiant was familiar with the standard of care Specifically, standard of review. physicians engaged surgery abdominal upon my chart reviewed Based review of the medical the affiant Randolph County; of the I have maintained on Caroline and was which medical records relevant Jones, plaintiff my clinical of Caroline to the examination that the care rendered
opinion Jones, my professional background, applicable standard fell below the decedent education, my training, experience it is the cause of the decedent’s and was of care Minnick, professional that Linnus discussing whether the affiant Id. death. (sic) commonly accept- famil- M.D. fell below the that he was bare assertion physician’s family practitioner care physicians ed standard of of a standard of care iar with Randolph provid- surgery in in the care treatment which engaged abdominal Further, my it is adequate ed Caroline Jones. County episiotomy professional said that “the lack detail purposes, we (sic) Minnick, per- Linnus M.D. and credibili- which goes affidavit], per- not to formed Caroline Jones assigned ty [the in a fell question manner which below adequate it is to create whether accepted which (citing Deery, commonly standard of care fact.” Id. Jordan (Ind.1993) (holding have been should exercised damage, including practitioner that he is caused bare assertion of the affiant scarring, significant of care to Caroline Jones. with the familiar *5 summary judgment pur- adequate is (R. 155-56). Dominguez, v. poses)); Vogler accord Rao, (Ind.Ct.App.1993), reh’g de- Oelling supreme the court held nied, stating trans. denied. affiant that an affidavit the differently patient treated is
would have the fact genuine in his to a issue of Dr. Minick is correct not sufficient create While plain of enough it is for the the standard care issue. 593 N.E.2d not on assertion (Ind.1992).2 Here, affidavit expert to that he or she would Dr. Sand’s tiffs differently, merely have Dr. state that he would patient treated did have Rather, differently. Dr. beyond a mere asser treated Caroline affidavit went Sand’s that, affirmatively profes- in his have treated Caroline Sand stated tion that provided opinion, Dr. treatment fell differently. Dr. affidavit sional Minick’s Sand’s to medi of care. While he had been licensed below specialized thorough as it in that he Dr. Sand’s affidavit is not as cine Indiana since be, satisfy it family practice, that he was we find to general a sufficient showing at Parkview Me burden of a factual issue of the active staff Joneses’ member to in Ran- Wayne. His affidavit for trial. Similar the affidavits morial Fort County Hosp. personally dolph Deery, examined the fact that provided that he further episiotomy per lacking of her Dr. Sand’s affidavit is somewhat site credibility days post-partum. goes to by Dr. Minick ten content opinion given opinion, not to the admissi- professional rendered his be Sand bility of the affidavit follows: itself. designated my opinion. majority Oelling cardiac cathet- held that the zation in Had the
2. The opposing summary judgment complica- was insuf- performed, affidavit erization not been as to ficient to raise material issue of fact actually would not have tions occurred fell below that whether which was defendant’s conduct Oelling had to done so and Mr. would not have the circumstances. reasonable under complica- surgery cardiac correct the have provided The affidavit as follows: tions. my opinion is that the cardiac catheteriza- It (Dickson, J., dissenting). at 192 No- Oelling by performed A. tion on Howard tably, stan- this affidavit failed to set forth Satya Catherine's Hos- Rao on at St. 12/16/86 of this of care whatsoever. content dard unnecessary pital ... was not indicated striking of is in to the affidavit contrast study [W]hen the thallium revealed stress his Sand sets forth the Dr. Sand. In affidavit. previ- ischemia the distribution of affirmatively applicable standard care and ously right coronary artery with none occluded his treatment states Dr. Minick’s coronary system, in the distribution left of the below of care. Caroline fell that standard perform cardiac catheri- there was no need to evidence, affidavit established'a Sand’s missible this court has held that regarding issue of material fact whether Dr. such substantially affidavits should follow Minick’s conduct fell below though same form as the affiant giving standard of care. Dr. Sand’s testimony in court. Id. personal knowledge following based his addition, in order for testimony episioto- examination of the site of Caroline’s admissible, proponent of such evi my. Dr. Sand’s affidavit set forth that he (1) dence must subject establish that practice physician expert’s opinion matter of the distinctly is so area, Wayne and that he was on the staff of science, profession, related to a occupation or Hospital. Parkview Memorial It is further beyond as to be the knowledge of the aver “per- stated the affidavit that Dr. Sand’s (2) age lay person; and the witness has the episiotomy” formance of the fell below the skill, knowledge sufficient experience standard of care. assist the trier fact its determination. Because we find that 702(a); Ind. Evid. Rule See also Stackhouse regard material fact exists with to the breach Scanlon, 639 (Ind.Ct.App. of the 1991) (plaintiff non-movant must suf in favor precluded. of Dr. Minick is We ficient foundation for admission of therefore reverse the decision of the trial opinion), trans. denied. court and remand for trial. Here, it was incumbent
Reversed. as the non-movants to establish Dr. Sand’s competence by way of affidavit. “A witness’ BAILEY, J., concurs. competency knowledge determined NAJAM, J., separate dissents subject generally; matter his knowl opinion. edge specific subject of the inquiry goes *6 NAJAM, Judge, dissenting. opinion.” accorded his Vo (Ind. gler Dominguez, 624 N.E.2d 60 I respectfully majori- dissent. Unlike the Ct.App.1993). majority The holds that ty, I conclude that Dr. Sand’s affidavit fails witness, qualify order to as an competent to establish that he is obstet- need competence Sand demonstrate his Thus, rics. the affidavit does not create a general However, family practice. necessary issue of material fact to argues, agree, and I that before Dr. preclude summary judgment in favor of Dr. express can Sand on the standard Minick. family practitioners of care for perform who presents When the non-movant tes- procedures, obstetric he must first establish affidavit, timony by way of that affidavit family both that practice he maintains requirements must meet the of Indiana Trial practice that his includes obstetrics. See 56(E). 56(E), Rule Under T.R. affidavits Rao, (Ind. Oelling v. 191 supporting opposing or 1992) (to trial, plain show issue for personal motion must be made tiff required present expert non-movant is affiant, knowledge of the must affirmatively testimony that establishes “what other rea competent testify show that the affiant is similarly sonable doctors situated would have as to the matters in the covered affidavit and circumstances.”). done under the In this must set forth facts which would be admissi- general subject family matter is not Raymundo ble in evidence. v. Hammond practice, encompasses range which a wide Ass’n, (Ind.1983). Clinic obstetrics, primary specific but in summary judgment assertion affida- subject inquiry episiotomy per is the vit of by conclusions law or one not formed Dr. Minick. qualified testify shown to be to such will Forister, not suffice. Celina Mut. Ins. Co. v. Dr. Sand’s affidavit states that li- he is (Ind.Ct.App.1982). practice Indiana, censed to medicine carrying requirement out the Rule’s specializes family practice he and that he supporting opposing currently practices affidavits ad- at Parkview He Wayne, Indiana. also states METTLER, Appellant- of care of “familiar with Vern E. who physicians practice Defendant, med-
family practice Wayne, Indiana area.” icine in the Fort enough. While the affidavit es- That is not Indiana, Appellee-Plaintiff. STATE of competence family Dr. Sand’s tablishes practice, competence it not establish his does No. 25A05-9801-CR-37. Neither does his affidavit obstetrics. Appeals Court of of Indiana. that he is familiar with the standard family practitioners who also care for those July brief, In their obstetrics. performs that Dr. Sand ob- Joneses assert part family prac- procedures
stetric However, Dr. does not make that
tice. Sand affidavit,
representation in his no such
representation before trial court Thus, ruling.
when it made its the affidavit
fails to Sand is “simi- demonstrate See Id. Dr. Miniek.
larly situated” to
Still, argue that court the trial reasonably a family practice infer that
physician’s training and education includes thus, and, that Dr.
obstetrics Sand would be procedures.
familiar with such I cannot
agree. assume that We cannot all
practitioners practice. maintain an obstetrics support may assump-
While the affidavit
tion, support the it inference that does family practice qualifies him to Sand’s concerning
testify the standard of care for There procedures.
obstetric is a material *7 assumption an
difference between inference, assumption salvage cannot Logansport, Appellant-De- Jim Brugh, Accordingly, the affidavit. Dr. Sand’s affida- fendant. competent vit that he fails to establish Modisett, General, Jeffrey Attorney A. expert opinion pro- render an the medical Mallett, Deputy Attorney Janet prop- Brown Gen- at issue. The trial court acted cedure eral, Thus, erly Indianapolis, Appellee-Plaintiff. disregarding the I affidavit. affirm the trial court.
OPINION RATLIFF, Judge. Senior of the Case Statement appeals Vern E. Mettler conviction of incest, attempted felony.1 a Class C We reverse.
The Issue solicitation of fa- Whether Mettler’s sexual eighteen-year-old daughter vors from his 35-46-1-3; § § Ind.Code Ind.Code 35^11-5-1.