Bassett v. Glock, 2-176A1

CourtCourt of Appeals of Indiana
Citation174 Ind.App. 439,368 N.E.2d 18
Docket NumberNo. 2-176A1,2-176A1
PartiesBessie BASSETT, Appellant (Plaintiff below), v. Steven GLOCK, M.D., Appellee (Defendant below).
Decision Date13 October 1977

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368 N.E.2d 18
174 Ind.App. 439
Bessie BASSETT, Appellant (Plaintiff below),
Steven GLOCK, M.D., Appellee (Defendant below).
No. 2-176A1.
Court of Appeals of Indiana, Second District.
Oct. 13, 1977.

[174 Ind.App. 440]

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James P. Dunn, Fort Wayne, for appellant.

John M. Clifton, Jr., Barrett, Barrett & McNagny, Fort Wayne, for appellee.

SULLIVAN, Presiding Judge.

Bassett appeals from a summary judgment granted in favor of defendant, Steven Glock, M.D. Bassett's malpractice complaint asserted negligence for failure to properly diagnose and treat a condition of her back. The trial court heard oral argument on Glock's motion for summary judgment and entered judgment for Glock.

Bassett contends that there was a genuine issue of material fact. We are not persuaded by Bassett's argument, and we affirm the trial court's judgment.

As drawn from the pleadings, affidavits, depositions and answers to interrogatories, the operative facts are undisputed. In November, 1971, while employed as a nurse's aid, Bassett experienced pain in her back as a result of helping a patient out of bed. Approximately three months later in March, 1972, Bassett [174 Ind.App. 441] initially consulted Glock, an orthopedic specialist, with reference to her back condition. Glock stated that various examinations and x-rays revealed no objective basis for Bassett's complaints of pain. However, Glock placed her on a program of conservative care consisting of the application of heat, exercises, and the use of a back brace. In September,

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1972, Bassett was admitted to Parkview Memorial Hospital for extensive testing and examination. The tests were reviewed by Glock as well as by a neurosurgeon, a radiologist, and a neurologist. None of these found any defect in the bone structure of the back nor any other objective basis for Bassett's complaint. After her discharge from the hospital, Bassett conferred with the neurosurgeon, Dr. Hastings, who informed her that a spinal fusion was an alternative solution to her back problem. However, he warned Bassett that the procedure involved risk, possibly a year of total incapacitation, some permanent impairment and that no guarantee could be offered that it would eliminate the pain. In his deposition, Hastings stated that the conservative care prescribed by Glock was accepted and proper treatment for Bassett's condition.

On two subsequent visits to Glock, Bassett was advised that she could be referred to the Mayo Clinic. She stated that she would do so when she had saved enough money.

Subsequently, on April 30, 1973, Bassett was involved in an automobile accident, and while under treatment at a Fort Wayne, Indiana, hospital, she consulted with Dr. Kimbrough, an orthopedic surgeon. Kimbrough took x-rays of Bassett's back and discovered that Bassett had a degenerative lumbosacral disc disease with an apparent grade one spondylolisthesis without spondylosis. 1 This diagnosis corresponded with similar findings made by physicians at the Mayo Clinic April 19-20, 1973.

In May, 1973, Kimbrough performed a spinal fusion on Bassett at her request. Kimbrough, however, stated in his deposition that the surgery was an elective procedure and that he found no [174 Ind.App. 442] abnormality or defect of the pars interarticularis, i. e., spondylosis; therefore he too would have followed the program of conservative care instituted by Glock in view of the lack of any objective finding as of September, 1972. Like Hastings, he concurred that the surgical procedure presented some risks incapacitation for a year or longer and some permanent impairment with no guarantee of eliminating the back pain. His statement indicated not only that Glock's treatment was an accepted one under the circumstances but that it was also possible that Bassett's condition may have worsened in the time since Glock had seen her thereby enabling Kimbrough to discover the vertebrae slippage. It was Kimbrough's opinion that appropriate treatment was administered by Glock since both the conservative care and the spinal fusion are administered by medical specialists to accomplish immobility of the problem vertebrae the operation being permanent in nature but having attendant risks, a back brace requiring constant use to assimilate comparable immobility in the bony structure.

Thus, the matter for resolution by the trial court was whether Bassett did or did not present a genuine issue of material fact regarding the propriety of the medical judgment and care, i. e., diagnosis and treatment, exercised by Glock as a medical specialist in orthopedic surgery.

We acknowledge that a negligence case is rarely an appropriate case for disposal by summary judgment, especially when the critical question for resolution is whether the defendant exercised the degree of care due under the factual circumstances. Doe v. Barnett (1969) 145 Ind.App. 542, 251 N.E.2d 688, 695. This issue, like causation, is generally a question for the trier of fact, and not answerable as a matter of law. Miller v. Griesel (1974) 261 Ind. 604, 308 N.E.2d 701. See also St. Joseph Bank & Trust Co. v. Wackenhut Corp. (3d Dist.1976) Ind.App., 352 N.E.2d 842, 845; Letson v. Lowmaster (3d Dist.1976) Ind.App., 341 N.E.2d 785, 787.

The purpose of the summary judgment procedure is to terminate litigation of a cause about which there can be no factual [174 Ind.App. 443]

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dispute and which may be determined as a matter of law. We have insisted on caution in the application of the procedure. The right of parties to have a fair determination of genuine issues within a valid cause should not be thwarted through a procedure which exists to eliminate undue burdens upon litigants and the expose of spurious lawsuits. Mere improbability of recovery by the plaintiff does not justify summary...

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