Dixon v. Siwy

• Decision Date: 26 February 1996
• Docket Number: No. 49A02-9501-CV-1,49A02-9501-CV-1
• Citation: 661 N.E.2d 600
• Parties: Debra DIXON, Appellant, v. Barbara K. SIWY, M.D., Appellee.
• Court: Indiana Appellate Court

Page 600

661 N.E.2d 600

Debra DIXON, Appellant, v. Barbara K. SIWY, M.D., Appellee.

No. 49A02-9501-CV-1.

Court of Appeals of Indiana.

Feb. 26, 1996.

Appeal from the Marion Superior Court, Room 1, Anthony J. Metz, III, Judge, Cause No. 49D01-9402-MI-126.

Raymond F. Fairchild, Indianapolis, for appellant.

Robert J. Shula, Richard S. Pitts, Lowe Gray Steele & Hoffman, Indianapolis, for appellee.

OPINION

SULLIVAN, Judge.

Debra Dixon (Dixon) appeals the trial court's dismissal under Ind.Trial Rule 12(B)(6) ¹ of her medical malpractice claim against Barbara K. Siwy, M.D. (Siwy). We conclude that, although the trial court more properly should have treated the motion as one for summary judgment under Ind.Trial Rule 56, the ultimate disposition of the case is not affected by this conclusion, and we affirm.

The restated issues for our review are: Whether the trial court had jurisdiction to entertain Siwy's motion to dismiss Dixon's medical malpractice claim, and if so, whether the trial court properly dismissed the claim.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to Dixon, the non-movant, reveal that Dixon received breast implants in or around 1987. It appears that complications with these implants developed, and on October 15, 1991, Dixon sought treatment at Wishard Memorial Hospital (Wishard) for these complications. At Wishard, Dixon underwent a surgical procedure known as a left breast closed-capsular rupture. The doctor at Wishard who examined Dixon and performed the procedure was Dr. Janet Turkle (Turkle), a resident in Wishard's plastic surgery training program. Prior to performance of the surgery, and after consultation with Turkle, Dixon signed a form which purported to indicate that Dixon consented to performance of the surgery after having been informed of the nature of the procedure and the risks and possible complications. The "CONSENT AND PRE-OPERATIVE NOTE" read in part as follows:

"I (we) hereby request and consent to the performance of the following operation or procedure on the patient by Siwy, M.D., or members of the medical staff and personnel of Wishard Memorial Hospital ... [left breast closed-capsular rupture].... I acknowledge that I have had an opportunity to discuss with Turkle , M.D., the operation or procedure ... and risks and possible complications...." Record at 69

The names of Turkle and Siwy, who was at the time on the Wishard faculty in the plastic surgery program, had been written in spaces provided on the form as above indicated.

Despite the fact that Siwy's name had been written in the space, Siwy had not in fact seen Dixon, had not been consulted by Turkle, and had not in any way participated in or been aware of Dixon's condition or the decision to perform this procedure. Siwy's name appeared in the above space because it was common practice at Wishard for residents, who were already certified in general surgery, to simply fill in the name of a doctor on the faculty in that space, whether or not that particular doctor had in fact been consulted. Nevertheless, Dixon apparently believed Siwy would perform the surgery on her, and Dixon swore by affidavit that she preferred to have Siwy perform the procedure. ²

On October 15, 1993, Dixon filed a proposed medical malpractice complaint under Indiana's Medical Malpractice Act against Siwy, Turkle, and Wishard with the Indiana Department of Insurance. ³ The complaint alleged, inter alia, that Dixon "employed" Siwy, Turkle, and Wishard to treat her; that Siwy and Turkle "performed surgery" on Dixon on October 15, 1991; that all defendants were "negligent in their care and treatment" of Dixon; and that the defendants "failed to warn" Dixon of the risks of the procedure. Record at 8. On February 4, 1994, Siwy filed a "Motion for Preliminary Determination of Law" with the trial court seeking dismissal of Dixon's proposed complaint. Siwy filed her deposition stating that she did not see, treat, or participate in any way in Dixon's diagnosis or care prior to or during the procedure. The trial court held a hearing on the motion on May 5, and granted Siwy's motion to dismiss on June 9. ⁴

DISCUSSION

We first address sua sponte the issue of whether this motion was properly treated as one for dismissal under T.R. 12(B)(6), or whether more properly it should have been considered as a motion for summary judgment under T.R. 56. Ind.Trial Rule 12(B)(8) states:

"If, on a [12(B)(6) motion] to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56."

In this case, Siwy clearly presented material outside the pleadings in support of her motion, namely her deposition stating that she did not see or treat Dixon prior to the surgery. It is apparent that the trial court considered the deposition in rendering its decision, inasmuch as the face of Dixon's complaint alleged, inter alia, that Dixon "employed" Siwy, that Siwy "performed surgery" on Dixon in a negligent manner, and that Siwy "failed to warn" Dixon of the risks associated with the surgery. Record at 8. In a 12(B)(6) motion, the court is required to take as true all allegations upon the face of the complaint, and may only dismiss if plaintiff would not be entitled to recover under any set of facts admissible under the allegations of the complaint. Morton-Finney v. Gilbert (1995) Ind.App., 646 N.E.2d 1387, 1388, trans. denied. Given the above allegations, Dixon's claim clearly would withstand a 12(B)(6) challenge if only the face of the complaint were considered. Thus, the trial court must have considered Siwy's deposition in granting her 12(B)(6) motion, and in so doing placed the case in a summary judgment posture. See Laux v. Chopin Land Assoc. Inc. (1993) Ind.App., 615 N.E.2d 902, 904, trans. denied; Valley Fed. Sav. Bank v. Anderson (1993) Ind.App., 612 N.E.2d 1099, 1101.

We note, however, that in Hill v. Beghin (1994) Ind.App., 644 N.E.2d 893, trans. denied, a panel of this court ruled that it was proper for a trial judge to refuse to treat a 12(B)(6) motion as one for summary judgment, despite the fact that both parties submitted, and the trial court may have considered, materials outside of the pleadings. 644 N.E.2d at 896. While the panel noted that it is "not permissible" for a trial court to consider these supporting materials, it concluded that because "[t]he matters submitted outside the pleadings did not raise genuine issues of material fact ... the trial court properly refused to treat [the] motion to dismiss as a summary judgment motion." Id.

We do not construe this language to imply that a trial court may consider materials external to the pleadings in determining that a complaint fails to state a claim for purposes of T.R. 12(B)(6). Rather, we believe the panel's language indicates that, when examination of the face of a complaint alone reveals that the plaintiff will not be entitled to relief under any set of circumstances, consideration of external materials aimed at substantiating or contradicting the complaint's factual allegations is irrelevant, because a fortiori the complaint fails to state a claim upon which relief can be granted under any factual scenario. In that instance, the trial court should exclude materials outside the pleadings which are submitted with a 12(B)(6) motion, rather than convert the motion into one for summary judgment, because the external materials are irrelevant to the motion. See 1 William F. Harvey, Indiana Practice: Rules of Procedure Annotated § 12.9 (Supp.1996); cf. Runde v. Vigus Realty, Inc. (1993) Ind.App., 617 N.E.2d 572, 574 (trial court action in not converting 12(B)(6) motion into one for summary judgment despite presentation of external material was proper where "[t]he issue presented to the trial court was the failure to state a redressable claim," and "[the trial court] did not consider the material.").

In the present case, the face of the complaint was sufficient to withstand a 12(B)(6) motion, and the supporting materials, namely Siwy's deposition, were intended to contradict the allegations of the facially sufficient complaint. Thus, the issue presented to the trial court was not the sufficiency of the complaint itself, but the veracity of the factual allegations contained therein, and the trial court should have converted the motion into one for summary judgment. ⁵

While the trial court erred in not considering the motion as one for summary judgment, this does not, in itself, constitute reversible error. Dixon presented no argument in this record either before the trial court or upon appeal, and we discuss it solely in the interests of clarity. Cf. Ski World, Inc. v. Fife (1986) Ind.App., 489 N.E.2d 72, 74 (where neither party presented argument on issue of trial court's misdesignation of hearing as one for summary judgment instead of motion to dismiss, appellate court simply noted misdesignation).

Ind.Trial Rule 12(B)(8) provides that, when a 12(B)(6) motion is to be treated as one for summary judgment, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." When a trial court treats a 12(B)(6) motion as one for summary judgment and does not afford the parties a reasonable opportunity to present such material, the trial court commits reversible error. Carrell v. Ellingwood (1981) Ind.App., 423 N.E.2d 630, 634. However, when the trial court does in fact afford the parties a reasonable opportunity to present external material, the failure to specifically designate a motion as one for summary judgment instead of dismissal under 12(B)(6) is deemed harmless error, and the appellate court will simply review the case as if arising from a grant of summary judgment. See, e.g., ITT Hartford Ins. Group v. Trowbridge (1993) Ind.App., 626 N.E.2d 567, 569, trans....