Bunch v. Tiwari
| Decision Date | 27 April 1999 |
| Docket Number | No. 53A04-9901-CV-19,APPELLANTS-PLAINTIFFS,APPELLEE-DEFENDANT,53A04-9901-CV-19 |
| Citation | 711 N.E.2d 844 |
| Parties | (Ind.App. 1999) RICK BUNCH AND CINDY BUNCH,, v. KAMAL K. TIWARI, M.D., |
| Court | Indiana Appellate Court |
Attorney For Appellant: Robert D. Epstein Epstein & Frisch Indianapolis, Indiana
Attorneys For Appellee: Gary J. Clendening Kendra G. Gjerdingen Mallor Clendening Grodner & Bohrer Bloomington, Indiana
OPINION - FOR PUBLICATION
In this medical malpractice action, Rick Bunch and Cindy Bunch (collectively, "Bunch") appeal the trial court's order granting summary judgment in favor of Kamal K. Tiwari, M.D. ("Dr. Tiwari"). Bunch presents two issues which we restate as follows:
I. Whether the trial court erred in striking the affidavit of Bunch's medical expert submitted in opposition to summary judgment for failure to comply with the requirements of Indiana Trial Rule 56(E).
II. Whether there are genuine issues of material fact precluding summary judgment of the case.
We reverse and remand.
The facts in the light most favorable to Bunch establish that on August 12, 1991, Rick presented to Bloomington Hospital for a pre- surgery consultation regarding an out-patient knee operation he was to have performed the following day. Accompanied by his wife, Cindy, and his mother, Gloria, Rick met with the nurse who explained the procedure. During the course of this meeting, Gloria inquired about how Rick was going to be anesthetized, and stated adamantly that she did not want her son to have a spinal anesthetic because of complications she had experienced with one in the past. The nurse assured the family that the anesthesiologist, Dr. Tiwari, would not use a spinal anesthesia on Rick and that Rick would simply be put to sleep. Rick then signed two consent forms, one entitled "General Anesthesia." Record at 79.
On the day of the surgery, August 13, 1991, Dr. Tiwari was running behind schedule in the operating room. Due to the delay, the nurse allowed Cindy and Gloria to wait with Rick in the surgical holding area, where Rick was lying on a gurney and dressed in a surgical gown. Thereafter, the nurse came into the holding area and told Rick that Dr. Tiwari was still running behind but that she would begin his IV. After affixing the IV, the nurse injected a shot of Demerol into the IV to help Rick relax. Some time later, the nurse came into the holding area again to advise Rick that because of the continuing delays, she would give him another shot of Demerol and Dr. Tiwari would complete the administration of anesthesia in the operating room. Neither Rick, Cindy, nor Gloria saw Dr. Tiwari prior to surgery. 1
Upon being wheeled into the operating room, a third shot of Demerol was put into Rick's IV, this time by Dr. Tiwari. It was not until Rick was pre-medicated and lying on the operating table that Dr. Tiwari told Rick he was going to administer a spinal anesthetic. In performing the injection, Dr. Tiwari poked Rick several times in the lower back, causing Rick's arms to flail and resulting in a severe burning pain down his back and into his right buttock and leg. In the recovery room following the procedure, Rick continued to complain of excruciating burning sensations shooting through his right buttock and leg. He was kept in Bloomington Hospital overnight for observation as a result of the pain. Despite extensive medical treatment since the date of the operation, Rick's complaints of pain have persisted.
Bunch filed a proposed complaint against Dr. Tiwari with the Indiana Department of Insurance alleging technical negligence in the administering of the spinal anesthetic. A subsequent amended complaint alleged that Dr. Tiwari had also failed to obtain informed consent from Bunch prior to administering the spinal anesthetic. The medical review panel unanimously opined that Dr. Tiwari's conduct with regard to the administration of the spinal anesthesia did not fall below the applicable standard of care. The panel also found, however, that there remained a material issue of fact not requiring expert opinion with regard to the issue of informed consent, but that the conduct complained of was not a factor in the resultant damages.
Thereafter, Bunch filed a medical malpractice action against Dr. Tiwari which mirrored the allegations of the proposed complaint. After answering the complaint, Dr. Tiwari moved for summary judgment relying on the unanimous opinion of the medical review panel. In response, Bunch submitted the affidavits of two medical experts, Dr. Sy Rabins and Dr. Michael Turner. At the summary judgment hearing, Dr. Tiwari made an oral motion to strike the affidavit of Dr. Rabins for failing to comply with the requirements of Indiana Trial Rule 56(E). The trial court struck the affidavit of Dr. Rabins and determined that the affidavit of Dr. Turner standing alone was insufficient to refute the medical review panel's opinion and demonstrate the existence of a material issue of fact. Dr. Tiwari's motion for summary judgment was granted. Bunch now appeals.
Our analysis proceeds from the premise that summary judgment is a lethal weapon and courts must be ever mindful of its aims and targets and beware of overkill in its use. Schrum v. Moskaluk, 655 N.E.2d 561, 564 (Ind. Ct. App. 1995) (). Summary judgment is appropriate only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Ind. T. R. 56(C); Brown v. Banta, 682 N.E.2d 582, 584 (Ind. Ct. App. 1997). Rarely is a negligence action properly disposed of by summary judgment, particularly when the critical question for resolution is whether the defendant exercised the requisite degree of care under the circumstances. Summit Bank v. Panos, 570 N.E.2d 960, 964 (Ind. Ct. App. 1991) (quoting Strumph v. Foster, 524 N.E.2d 812, 814 (Ind. Ct. App. 1988)), trans. denied. This issue is generally a question for the trier of fact, and not answerable as a matter of law. Id.
In the instant case, the trial court entered specific findings of fact and Conclusions of law thereon. Although such findings aid appellate review, they are not binding on this court. Reid v. Ragsdale, 702 N.E.2d 367, 369 (Ind. Ct. App. 1998) (citing Althaus v. Evansville Courier Co., 615 N.E.2d 441, 444 (Ind. Ct. App. 1993)). Instead, when reviewing an entry of summary judgment, we stand in the shoes of the trial court. Simms v. Schweikher, 651 N.E.2d 348, 349 (Ind. Ct. App. 1995), trans. denied. We do not weigh the evidence but will consider the designated facts in the light most favorable to the nonmoving party. Id. (). All doubts as to the existence of a factual issue must be resolved in the non-movant's favor. Schrum v. Moskaluk, 655 N.E.2d 561, 564 (Ind. Ct. App. 1995) (), trans. denied.
A trial court's grant of summary judgment is "clothed with a presumption of validity," and the appellant has the burden of demonstrating that the grant of summary judgment was erroneous. Brown, 682 N.E.2d at 584 (). However, we must carefully assess the trial court's decision to ensure the non-movant was not improperly denied his or her day in court. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997).
Bunch contends that the trial court erred in striking the affidavit of Dr. Rabins for failing to comply with the requirements of Indiana Trial Rule 56(E). The court's rationale for doing so, as articulated in its findings of facts and Conclusions thereon, 2 was two-fold:
Record at 271-74 (emphases added).
In addition to the court's findings, Dr. Tiwari further argues that Dr. Rabins' affidavit was properly stricken because it was not based on first-hand personal knowledge. We cannot agree with either proposition and hold that the trial court's ruling with regard to Dr. Rabins' affidavit was erroneous.
First, as it relates to Dr. Rabins' telephone interview of Rick and Cindy Bunch, Indiana Evidence Rule 703 states specifically that "[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field." Moreover, this court has consistently held that an expert may utilize hearsay information in forming his opinion. Cox v. American Aggregates Corp., 580 N.E.2d 679, 685 (Ind. Ct. App. 1991) (), trans. denied. Clearly, a personal interview to ascertain additional facts not readily...
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