*1 PLUARD, Christopher next a Minor Shirley
friend Dennis PLUARD Pluard, Appellants-Defendants, FUND, and PATIENTS COMPENSATION Foundation, Research Munster Medical Community Hospital, Appel Inc., d/b/a lees-Plaintiffs.
No. 45A03-9803-CV-00120. Indiana. Appeals
Feb. Brammer, Allen, E.
Kenneth J. James Associates, P.C., Valpa- & Kenneth J. Allen raiso, Indiana, Appellants. Attorneys for Conner, Ear- Tabbert Hahn Matthew W. P.C., nest, Starkey, Indianapolis, & Weddle Indiana, Attorney Appellees. OPINION
HOFFMAN, Judge Senior Pluard, a Christopher Appellant-plaintiff Minor, guаrdians Derinis next friends (“Pluard”) Shirley appeals Pluard and *2 1036 Ind. 56(C) grant summary judg- judgment. Although Trial
from trial court’s Ind. Rule party seeking summary in appellee-defendant ment favor of Patient’s (“the Fund”). “designate Compensation parts plead Fund We af- to to the court all ings, depositions, interrogatories, firm. The most the nоn- answers to facts favorable to admissions, judicial notice, below. movant are set forth matters of any other matters on which it for relied 27, 1991, Pluard, August On who had been motion,” purposes of the the Fund attached Community Hospital at in Munster born groups Desig of documents as exhibits to its previous (“Community”) day, was about Evidence, group nation and labeled each undergo surgical a circumcision to when a with exhibit The an sticker. Fund concedes lamp being positioned by over him a nurses’ rule, general designating “[a]s exhibits wall and assistant became detached from the entirety satisfy speсificity in their fails to him, striking his face He and head. 56(C).” by required Ind. Trial Rule v. Abbott epidural scarring. an suffered hematoma and Bates, 670 (Ind.Ct.App. N.E.2d Community Pluard and reached a settlement 1996), reh’g purpose denied. The hospital’s Subsequent for 56(C) specificity requirement in Trial Rule settlement, petitioned this in the evidentiary decrease amount mate payment Lake Circuit for of excess required rial the trial court is to examine damages from the Fund. ruling summary judg on a motion summary judgment, its motion for Stewart, by ment. O’Connor O’Connor argued Fund that Pluard did not have stand- (Ind.Ct.App.1996). 668 N.E.2d damages to seek from the Fund requirement designed to “free the court underlying injuries the tort Pluard’s did not having through from to sift volumes of malpractice, in sound medical but rather in order an record to locate issue of material liability. Relying principally upon fact.” Id. affidavit of assistant who was However, long trial court is ad fell, positioning lamp ovеr it Pluard when specific vised of material which genuine issue of materi- parties rely, may then the material be consid injuries al fact existed as to whether Pluard’s ered. Jobes v. Corp., Tokheim 657 N.E.2d by premises liability were caused 145, 147 Tokheim, (Ind.Ct.App.1995). In this malpractice, that summary such found purpose underlying court the Rule precluded. to have been satisfied because the movant’s regroup and restate the issues raised “quoted memorandum relevant language” by Pluard on as follows: “verbatim,” from the exhibits and “refer[red] 1) summary judgment, its motion for to the substantive upon.” assertions relied adequately designate did the Fund the evi- “Moreover, the issue therewith, dence submitted required pure the trial before court awas issue of 56(C)? Trial Ind. Rule and the exhibits to which Tokheim failed specific make 2) dispositive references were not Did the trial err finding court that no thereto.” Id. The Fund’s brief to the trial genuine issue of material fact and in existed similarly sufficiently court described granting summary judgment in favor court the issue it. before re Fund? A,” generally ferred —albeit “exhibit —to 3) Did the trial err in ruling court that the pages hospital which seven rec premises liability, law rather than the required ords. The court to “sift (“the Act”), Medical Act1 should through volumes of records” because of the apply in this case? general reference. The remainder of the First, Pluard contends that the Fund explication Fund’s memorandum involved an designated specificity argument insufficient the ex to the court as to the relevant it summary stаtutory hibits attached to its motion for and ease law—the as- “substantive seq.; governs 1. Ind.Code et parameters 34-18-1 the Act mal- payment under which be made practice' claims and sets forth the definitions and the Fund. trans. upon by the Fund. Failure to 551 N.E.2d sertions” relied appellate granted opinion аdopted specific references the exhibits make instance, Court, not, dispositive the issue Supreme the Indiana (Ind.1990). namely, whether law before The fact that conduct occurs falling cannot, itself, facility from the wall onto Pluard lamp in a health care *3 liability premises or negligеnce due to transmute the into of the rendition malpractice. negligence due to medical professional by health or care services. Doe designation of evidence hold that the Fund’s Hospital, Roe v. Madison Center 652 N.E.2d 56(C). under Ind. Trial Rule 101, was sufficient trans. dismissed. patient-plaintiff Lomax involved a who group and to- third issues we second tripped premises fell hospi- and on the first, gether follows: we must decide as bar, however, plaintiff tal. the at Unlike pre- fact genuine whether a issue of material argued negligent Lomax that fail- Winona’s summary grant judgment, cluded the of and reasonably ure in a to maintain its floor safe second, in rul- whether the trial court erred give not rise condition did to a claim under judgment to that the was entitled Malpractice the Medical Act.2 Lomax even law. as a matter of every by that to that claim a hold reviewing summary motion When a рrovid- a patient against qualified care health applies judgment, this court the same stan to er comes within the Act would lead absurd v. dard as the court. Chamberlain results, allowing pa- as of such the claim a Parks, (Ind.Ct.App. 692 N.E.2d injured tient when a fixture who 1998), Summary judgment reh’g is denied. hospital fell on him in his bed. aрpropriate only designated the evi- agreed, reasoning “[s]uch that matters the as genu that is no dentiary matter shows there premises of are within the maintenance safe moving ine material fact and that the issue of knowledge experience and common party to a matter of is entitled as average person. providers, Health who care However, grant the trial court’s of law. Id. up ... panel must make the medical review pre summary judgment with a is clothed qualified as on experts are more such no sumption validity, appellant and the bears of average juror.” matters than the demonstrating the trial the burden of at 740. Transp. Systems, Inc. Ozinga court erred. Sales, Inc., Michigan v. Ash 676 N.E.2d argues important that the distinc- bar, (Ind.Ct.App.1997). case at the that, and tion between his case Lomax summary to the Fund can be entitled Lomax, tripped who and while unlike genuine if we find that no issue of by personnel, Pluard was unattended medical if, as matter of material fact exists and a being by under attended a assistant not we find Pluard’s claim is one of medical physician, supervision and a the control of premises malpractice, but rather sounds in proce- being prepared for medical a liability. (the circumcision). upon the dure He relies assistant, which affidavit of the nurses’ held the This court has Medi states: to cal Act was not intended ex ordinary negligence performing [the At time that I was tend to cases of the Pluard], focusing surgical light of over Memorial Foun the Winona Lomax, by Indianapolis responding I to the sur- direction dation of denied; geon charge performing the circumci- (Ind.Ct.App.1984), reh’g Indiana, prepare patient the for a circumci- Hospital Ray, Inc. v. sion to Methodist bar, Lomax, time). parties’ way at In the case at werе framed issues Lomax, plain- to arguments Winona had moved dismiss to because are antithetical those in grounds complaint she tiffs on the had keep matter out of now the Fund wishes present comply failing Act Act, failed to with the argues purview of whereas complaint proposed Cоmmis- a Insurance govern. compliance His Act should panel sion for review a medical review before proposed complaint requirement filing has commencing required by her action any litigation. at time in the not been issue (Ind.Code § § 34-18-8-4 16-9.5-9-2 Ind.Code surgical prepare compelled sion and area so not that We are reach the merits surgeon perform argument, could the circumci- of that because Pluard did not appeal. Appellate sion. raise it on Ind. 8.3(A)(3) that, ap- Rule states “[t]he brief (R. 69). Pluard’s contention is pellant shall contain ... [a] statement focusing act was undertaken presented App.R. issues review.” ready proce- in order to him for the medical 8.3(A)(7) further that: dure, parcel continuous appellant event that can Each be characterized Pluard’s error intends raise specifically shall be forth medical carе and treatment. set was fell on has injury. the another tant’s conflicting cause of Pluard’s close describes establish injury not not in manipulation of him; We find that time to the Pluard was way, been generally the genuine inferences as to the the the Pluard, alleged light injury. attached duty issue of injured light’s but it does not raise the to have caused his to secure the events The nurses’ assis affidavit on him because it falling to the because light, material surrounding while wall. proximate does the fact. Pluard, light, light very Put It with citations to the with to. raised contain the contentions of the tentions reasons particular facts оf the case under review. they clear followed one and parts of If [1] respect showing substantially in argument. in support two support be the record relied to the issues grouped of how the issues and con- [2] argument applicable or more of thereof relate to the the sаme the The authorities, statutes, and contentions argument errors presented, supported upon, question appellant *4 alleged, there- and a along shall the 8.3(A)(3), comply App.R. Pluard did not duty and the posi even assistant’s not it, did he did set and tion not involve a health forth enumerate the сare decision estoppel argument collateral involving professional the of of exercise skill one the or Instead, Rather, presented issues judgment. general it review. involved two pages argument his in duty premises support into equip to maintain safe and of Issue 3 (whether such, аpplies not capable ment. As it the Act involves issues as a matter of law), of saying Pluard a application resolution without inserted footnote he of the standard “incorporates prevalent estoppel judi- of all of care in the local and res medical cоmmu thus, arguments cata nity, purview and is outside the made to trial court and of the Act, thereof,” in panel support which authorities convening and di- of experts recting court purpose pages to the three or judging of four in completely argument origi- the record where question. different kind of that Even nally when we view in made. the evidence most Pluard, accept proposi favorable to and appellate brief pre should be
tion fixture’s fall was sufficient pared judge, considering so that each ly proximate as to time make it independent transcript, brief аlone and Pluard, ongoing care of the nurses’ assistant intelligently can question pre each consider being surgeon, under the direction of the it sented. Town Merrillville v. Merrillville of required still not an event the exer (Ind.Ct.App.1995), Conservancy, 645, professional cise of judgment. skill and denied, ’g citing Coney v. rezh point, Bank, At this we must note that in the Farmers Ind.App. State appeal, attempted course his to N.E.2d trans. de collaterally assert that the Fund is estopped nied. prepared The brief must be so all asserting questions its entitlement to can be determined the court theory underlying matter law. The frоm an examination of the brief without Community assertion that because having record, and to examine the because there they Pluard reached a settlement which transcript among one to be shared all stipulated that the nature of Pluard’s claim judges. 648. On malpractice, was medical the Fund should to this an attempt incorporate an permitted not “relitigate” be argument issue. entire raised provide security negligently failed to not tal in a footnote does by reference pur- brought the claim within the spirit protection or the the letter comply 'with either Al- 8.3(A)(3). Also, thе Medical Act. charac- view of it cannot be App.R. very though Ogle may fall at the spirit of facts fulfilling language or terized as care, the 8.3(A)(7), margin of what constitutes health has not App. R. previously that we have rais- case demonstrates more errors” grouped together “two or Aсt, scope included within the “substantially question” the same ing rather, clearly negligence.” is not “medical argument; which with one supported them Caylor-Nickel Hospital Inc. substantially Harts See two different grouped has he (Sul- (1990) Ind.App., 553 N.E.2d 880-81 of a together the rubric arguments under J., dissenting), trans. denied. livan alleged namely, that the single error — as a matter entitled a surgical lamp fact which law. physical agency the immediate and caus- Judgment automatically affirmed. injury does not render matter a common case law SHARPNACK, C.J., concurs. question de- The answer to that or not the nurse was pends whether J., opinion. SULLIVAN, dissents with posi- manner in which she negligent in the *5 SULLIVAN, Judge, dissenting lamp negligence, tioned the and whether injury. any, proximate if was a cause that, majority as matter holds law, malpractice is not a medical the claim event, any appears the issue to me to be In so, states, aаs doing the court also claim. inappro- particularly fact sensitive and fell on Pluard matter of judgment. by summary priately resolved properly attached “because for further I would reverse remand 1038. Op. at wall.” proceedings. light fell that the overhead We do know injured. do not Pluard was and that it was not
know that it injury occurred attached. as a lamp disconnected result became integral lamp as an positioning nurse’s of medical treatment. may facts will disclose It be main- negligently lamp was installed RODGERS, Appellant- A. Brian tained but it also be Defendant, negli- positioning thе nurse if not was a gent manner and cause some the cause. Indiana, Appellee-Plaintiff. STATE of case, Even in the Lomax relied 42A01-9805-CR-179. No. recognized: majority, the court Appeals Indiana. particular question of whether a
“that the extremely fact Act is claim falls within the Feb. gray lies that а band of sensitive and broad pure spectrum middle ordinary malpractice to non-medi- at 740. negligence.” cal Hickey Ogle John’s Memorial v. St. (1985)
Hospital Ind.App., tram, denied, unit patient psychiatric in a raped by patient. This court another hospi- allegation that the plaintiffs held that