Boston v. Gyn, Ltd.
| Decision Date | 08 April 2003 |
| Docket Number | No. 89A05-0206-CV-270.,89A05-0206-CV-270. |
| Citation | 785 N.E.2d 1187 |
| Parties | Richard E. BOSTON, Bankruptcy Trustee on behalf of Kelly and Randall Shook, Appellants-Plaintiffs, v. GYN, LTD and James E. Szymanowski, M.D., Appellees-Defendants. |
| Court | Indiana Appellate Court |
Karen B. Neiswinger, Indianapolis, IN, Attorney for Appellants.
Nana Quay-Smith, Karl L. Mulvaney, Candace L. Sage, Kelly R. Eskew, Bingham McHale LLP, Indianapolis, IN, Attorneys for Appellee.
John David Hoover, Sara Stites Fanzini, Hoover Hull Baker & Heath LLP, Indianapolis, IN, Attorneys for Appellee, James E. Szymanowski, M.D.
Appellants-Plaintiffs, Kelly and Randall Shook (collectively, the Shooks), appeal from the trial court's grant of summary judgment in favor of Appellees-Defendants, Dr. James Szymanowski (Dr. Szymanowski) and GYN, Ltd., (GYN).1
We affirm.
The Shooks raise one issue on appeal, which we restate as follows: whether the trial court erred in granting summary judgment in favor of Dr. Szymanowski and GYN.
The facts in the light most favorable to the Shooks establish that on March 13, 1991, Dr. Szymanowski performed a laparoscopic tubal sterilization by Hulka clip on Kelly Shook (Shook). Hulka clips are placed on a woman's fallopian tubes to prevent eggs from passing down the tube and becoming fertilized, thereby preventing pregnancy. Shook was twenty-five years old at the time of surgery.
Approximately four years later, Shook returned to Dr. Szymanowski complaining of heavy menstrual bleeding. Attempts to control the bleeding with medication were unsuccessful. As a result, on May 30, 1996, Dr. Szymanowski performed a hysteroscopy, a dilation and curettage (D & C), and a diagnostic pelviscopy of Shook.2 Dr. Szymanowski observed the Hulka clips on each fallopian tube during the pelviscopy.
Shook continued to experience heavy menstrual bleeding subsequent to the scope procedure and D & C. Thereafter, on July 8, 1996, Dr. Szymanowski performed a vaginal hysterectomy on Shook. This procedure involved removing the uterus through the vagina and leaving the fallopian tubes and ovaries in place.3 Because Shook was unable to have children without her uterus, the Hulka clips used previously to prevent pregnancy were no longer necessary. During the procedure, Dr. Szymanowski removed the Hulka clip from Shook's left fallopian tube. However, Dr. Szymanowski was unable to access the area of the right fallopian tube in order to remove the Hulka clip on the right side.
On July 30, 1996, Shook returned to Reid Memorial Hospital (Hospital) complaining of right lower quadrant abdominal pain. Although a pelvic ultrasound showed a soft tissue mass involving her right ovary, hospital reports drew no conclusion as to whether this was the source of her pain. Shook followed up the Hospital visit with visits to Dr. Szymanowski on August 7, 1996, August 22, 1996, and September 6, 1996, complaining of continued right lower quadrant abdominal pain.
On September 12, 1996, Dr. Szymanowski performed another pelviscopy on Shook. She was taken to surgery the same day for removal of her right fallopian tube and ovary because Dr. Szymanowski diagnosed them as the source of her pain. In his surgical report, Dr. Szymanowski made no reference to observing or removing the Hulka clip that should have still been attached to the right fallopian tube. During a deposition regarding this case, Dr. Szymanowski testified that he did not know whether he undertook any steps to search for the Hulka clip.
Shook continued to experience right lower quadrant abdominal pain and was seen by Dr. Szymanowski on September 24, 1996. The pain continued over the next year and on September 15, 1997, Shook was admitted to the Hospital. On September 19, 1997, Dr. Robert Pennington performed an exploratory surgery on Shook's abdomen for the purpose of determining the cause of her pain. During the surgery, Dr. Pennington examined Shook's bowel and removed her appendix, but found no abnormalities. No hernias were found. Dr. Pennington found and removed a small, benign nodule.
Dr. Szymanowski participated along with Dr. Pennington in the exploratory surgery and removed Shook's left fallopian tube and ovary. During the procedure, Dr. Szymanowski also discovered the right Hulka clip, which he later testified he was surprised to find. The Hulka clip was attached to the lower abdominal pelvic wall by a small adhesion. Shook has experienced no right lower quadrant abdominal pain since the September 19, 1997 surgery.
On February 19, 1998, Shook presented a complaint to a medical review panel (Panel). On March 21, 2001, the Panel rendered its opinion unanimously in favor of Dr. Szymanowski and GYN.
On October 29, 2001, the Shooks filed a complaint for damages against Dr. Szymanowski and GYN in Wayne County Superior Court. Thereafter, on December 4, 2001, and December 21, 2001, respectively, Dr. Szymanowski and GYN filed their motions for summary judgment. A hearing was held on May 16, 2002. On May 17, 2002, the trial court granted Szymanowski and GYN's respective motions.
The Shooks now appeal. Additional facts will be supplied as necessary.
In reviewing a decision of a motion for summary judgment, we apply the same standard as the trial court. Miller v. NBD Bank, N.A., 701 N.E.2d 282, 285 (Ind.Ct.App.1998). The moving party bears the burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. Once this burden has been met, the nonmoving party must respond by setting forth specific facts demonstrating a genuine need for trial, and cannot rest upon the allegations or denials in the pleadings. Id. We review only the designated evidentiary material in the record, construing that evidence liberally in favor of the nonmoving party so as not to deny that party its day in court. Id. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C).
In addressing the sufficiency of a medical malpractice action based upon negligence, the plaintiff must establish: 1) a duty on the part of the defendant in relation to the plaintiff; 2) failure on the part of the defendant to conform to the requisite standard of care required by the relationship; and 3) an injury to the plaintiff resulting from that failure. Oelling v. Rao, 593 N.E.2d 189, 190 (Ind.1992). Because of the complex nature of medical diagnosis and treatment, expert testimony is generally required to establish the applicable standard of care. Simms v. Schweikher, 651 N.E.2d 348, 350 (Ind.Ct. App.1995), trans. denied.
However, in some situations, a physician's allegedly negligent act or omission is so obvious that expert testimony is unnecessary. Wright v. Carter, 622 N.E.2d 170, 171 (Ind.1993). Cases not requiring expert testimony are those fitting the "common knowledge" or res ipsa loquitur exception. Malooley v. McIntyre, 597 N.E.2d 314, 318-319 (Ind.Ct.App. 1992). Application of this exception is limited to situations in which the physician's conduct is so obviously substandard that one need not possess medical expertise in order to recognize the breach of the applicable standard of care. Id. at 319. For instance, expert testimony is not required in cases involving a physician's failure to remove surgical implements or foreign objects from the patient's body. The rationale underlying these cases is that the facts themselves are sufficient to raise an inference of negligence without expert testimony. Simms, 651 N.E.2d at 350.
In support of their motion for summary judgment, Dr. Szymanowski and GYN submitted the opinion of the Panel. The Panel unanimously determined that "[t]he evidence does not support the conclusion that [Dr. Szymanowski and GYN] failed to comply with the appropriate standard of care as charged in the complaint, and the conduct complained of in the complaint was not a factor in [Shook's] resultant damages." (Appellant's App. pp. 32-40). A unanimous opinion of the medical review panel that the physician did not breach the applicable standard of care is ordinarily sufficient to negate the existence of a genuine issue of material fact entitling the physician to summary judgment. McGee v. Bonaventura, 605 N.E.2d 792, 794 (Ind.Ct.App.1993). Consequently, the burden shifted to the Shooks, who were obligated to either rebut the Panel's opinion with expert medical testimony or present evidence within the "common knowledge" exception. See Malooley, 597 N.E.2d at 318-19
.
The Shooks presented no expert medical testimony to rebut the determination of the Panel. Instead, the Shooks argue that the doctrine of res ipsa loquitur applies to their case. Specifically, they assert that negligence in a medical malpractice action may be inferred by the failure of a surgeon to remove a foreign object that serves no purpose. In support of their contention, the Shooks rely on Wright v. Carter, 622 N.E.2d 170, which involved a patient who discovered a piece of wire in her breast after a biopsy. In Wright, the patient's radiologist inserted the wire prior to surgery to assist the surgeon in locating the nonpalpable mass he was to remove from the breast. The Wright court found that the "continued presence of a foreign object introduced while performing a specific procedure, but serving no medical purpose once that procedure has been completed, does give rise to an inference of negligence." Wright, 622 N.E.2d at 172.
We find that the case at hand is distinguishable. Unlike the wire in Wright, the Hulka clip at issue was placed in Shook's body with the intention of it remaining indefinitely to prevent Shook from becoming pregnant. Although the Hulka clip no longer served a medical purpose after Shook's vaginal hysterectomy, we find the...
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