Walter Kerr appeals the summary judgment entered against him in his medical malpractice action against Dr. Cris J. Carlos, Chua Medical Corporation, Inc., and St. Anthony Medical Center. Kerr raises three (3) issues, none of which constitutes reversible error.
FACTS
The facts in the light most favorable to the nonmovant, Kerr, indicate that, on May 7, 1986, Dr. Carlos, who was associated with the Chua Medical Corporation, performed double coronary by-pass surgery upon Kerr at the St. Anthony Medical Center. Kerr did not consent to be operated on by Dr. Carlos and had expected Dr. Chua to perform the operation. On June 30, 1986, an angiogram revealed that the artery involved in the surgery was occluded. In August of 1986, Dr. Chua performed by-pass surgery upon Kerr and this time the procedure was successful.
Kerr’s complaint alleged that the defendants “acted carelessly and negligently and failed to meet the standard of care of the local medical community before, during and after a coronary bypass operation on May 7, 1986.” Kerr submitted his complaint to the medical review panel which found in favor of the defendants.
Kerr filed suit on May 14, 1990. Kerr never served the defendants with any discovery requests. Kerr never obtained an expert’s opinion that Dr. Carlos’ performance fell below the appropriate standard of care. Kerr hired an expert, Dr. Jacobs. However, Jacobs could not conclude that the result Kerr received from Dr. Carlos' *863 surgery was the result of technical negligence.
On May 28, 1990, the defendants moved for summary judgment on the basis that Kerr could not produce expert testimony in support of his lawsuit. On November 28, 1990, the trial court held a hearing on the motion for summary judgment. Kerr requested and received additional time (until December 17, 1990) to file a legally sufficient affidavit of an expert. However, Kerr was unable to obtain such an affidavit and the trial court entered summary judgment against him on February 13, 1991.
DECISION
Initially, we will set out the well-settled standard for summary judgment. The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.
Bassett v. Glock
(1977),
Rarely is a negligence case appropriately disposed of by summary judgment, especially when the critical question for resolution is whether the defendant exercised the degree of care under the factual circumstances.
Stumph v. Foster
(1988), Ind.App.,
However, expert testimony is required only when the issue of care is beyond the realm of lay persons.
Id.
The standard of care need not be established by expert opinion when the doctor’s conduct was understandable by a jury without extensive technical input.
Burke v. Capello
(1988), Ind.,
I.
Dr. Carlos’ Surgical Performance
Kerr asserts expert testimony is not essential to his malpractice claim against Dr. Carlos as it relates to his performance in surgery. Kerr asserts that it is common knowledge that a by-pass operation to clear arteries should not result in occluded arteries less than one month later. Therefore, he asserts that expert testimony is not essential to his claim.
The experts on the medical review panel concluded that Dr. Carlos was not negligent in his performance of the by-pass operation. Kerr’s expert, Dr. Jacobs, could not conclude that the result Kerr received from Dr. Carlos’ surgery indicated “technical negligence.”
A physician does not undertake absolutely to cure but is bound to possess
*864
and exercise the average degree of skill possessed and exercised by members of the profession practicing in similar localities.
Bassett,
II.
Informed Consent
Kerr argues that Dr. Carlos’ failure to obtain his consent before surgery gives rise to a malpractice action based on the doctrine of informed consent. As noted above, he alleged that Dr. Carlos completely failed to obtain his consent to the procedure and that he expected Dr. Chua to perform the surgery. He implies that had Dr. Chua performed the surgery the first time, it would have been a success and the second operation would have been unnecessary. He argues further that a lay jury would be competent to infer negligence under the facts of this case.
The doctrine of informed consent is a negligence theory.
Rumple v. Bloomington Hospital
(1981), Ind.App.,
We believe that a lay jury would be incompetent to determine that Dr. Chua’s surgical skills were so superior to those of Dr. Carlos that, had the first bypass surgery been performed by Dr. Chua, it would have been successful. We believe this is especially true considering that it would appear that no medical expert is available to testify that Dr. Carlos’ performance fell below the requisite standard of care. We must conclude that expert testimony was essential to establish. the proximate cause element of Kerr’s action against Dr. Carlos based on the doctrine of informed consent. Therefore, we hold the trial court committed no error in entering summary judgment against Kerr on this issue.
Moreover, we believe that Kerr has erroneously characterized his cause of action. We note that the complete failure of a physician to obtain informed consent before proceeding with surgery is more appropriately characterized as a battery, not negligence.
Perna v. Pirozzi
(1983),
In summary judgment proceedings, any legal theory which is not properly presented to the trial court is waived.
Franklin Bank and Trust Co. v. Mithoefer
(1990), Ind.,
III.
Whether Summary Judgment Was Premature?
Kerr argues that the trial court erred in granting summary judgment against him based in his failure to obtain an expert witness because no discovery cut off date had been set and continuing efforts were being made to obtain an expert. Kerr points out — for reasons that escape us— that he hired Dr. Jacobs, paid for his ser *865 vices, but did not receive an opinion which would benefit him at trial. Kerr suggests that the trial court should have given him until sixty (60) days before trial to obtain an expert.
At the outset of the discussion of this issue, we note that Kerr’s suggestion is not well taken. We believe it would be quite illogical and a waste of precious judicial resources to require the trial court to reserve sufficient space on its calendar for a full-blown medical malpractice trial before it is clear that the action can survive summary judgment.
Kerr’s cause of action accrued in 1986. Kerr has never served any discovery requests upon the defendants. Nor has he made any attempt to obtain an expert the entire time his claim was pending before the medical review panel even though he was specifically permitted to do so under Ind.Code 16-9.5-9-4(a).
See Hepp v. Pierce
(1984), Ind.App.,
On a motion for summary judgment, when evidence presented by the mov-ant establishes a lack of any genuine issue of material fact, the nonmovant may not rest upon the mere allegations or denials of his pleadings, but must respond by affidavit or by other appropriate evidence, setting forth specific facts showing that there is a genuine issue for trial.
Watson v. Medical Emergency Services
(1989), Ind.App.,
Judgment affirmed.