Ellis v. Smith, 64A03-8802-CV-46

• Decision Date: 26 September 1988
• Docket Number: No. 64A03-8802-CV-46,64A03-8802-CV-46
• Citation: 528 N.E.2d 826
• Parties: R.K. ELLIS, M.D., Defendant-Appellant, v. Michael A. SMITH and Candy Smith, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 826

528 N.E.2d 826

R.K. ELLIS, M.D., Defendant-Appellant, v. Michael A. SMITH and Candy Smith, Plaintiffs-Appellees.

No. 64A03-8802-CV-46.

Court of Appeals of Indiana Third District.

Sept. 26, 1988.

Rehearing Denied Nov. 10, 1988.

Edward N. Kalamaros, Peter J. Agostino, Edward N. Kalamaros & Associates, P.C., South Bend, for defendant-appellant.

James R. Oates, Merrillville, for plaintiffs-appellees.

HOFFMAN, Judge.

Defendant-appellant Dr. R.K. Ellis presents an interlocutory appeal from a denial of summary judgment. After a medical review panel concluded that defendant met the applicable standard of care, plaintiffs brought a medical malpractice suit against Dr. Ellis in Porter Superior Court.

In their complaint, the Smiths alleged that Dr. Ellis failed to fully inform them of the risks of an elective surgical procedure. Dr. Ellis performed foot surgery on Michael A. Smith, who suffers from muscular dystrophy. The procedure was intended to correct equine contractions and allow Michael to place his feet flatly on the ground, enabling him to stand for longer periods of time. Following surgery, Michael was unable to walk. Plaintiffs claim defendant performed more extensive surgery then discussed, and failed to disclose the risks of more complicated surgery. Plaintiffs allege the surgery required an extended recovery period causing premature confinement to a wheelchair.

Porter Superior Court denied defendant's motions for summary judgment. Ind.Rules of Procedure, Trial Rule 56. Appellant argues that trial court erred in denying summary judgment when plaintiff failed to present admissible expert opinion contrary to the medical panel finding.

Summary judgment is appropriate where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Yang v. Stafford (1987), Ind.App., 515 N.E.2d 1157, 1162. The purpose of summary judgment proceedings is to terminate litigation when no factual basis exists and when a case may be determined as a matter of law. Skaggs v. Merchants Retail Credit Ass'n. (1988), Ind.App., 519 N.E.2d 202, 203.

An action prefaced on the doctrine of informed consent is considered as one based on negligence. Revord v. Russell (1980), Ind.App., 401 N.E.2d 763, 766.

Malpractice as alleged in the complaint is the tort of negligence. Malpractice is defined as follows:

" 'In Indiana the tort of negligence is comprised of three elements: (1) a duty on the part of defendant in relation to the plaintiff; (2) failure on the part of defendant to conform its conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure.' "

Burke v. Capello (1988), Ind., 520 N.E.2d 439, 441.

The general rule is that expert medical opinion testimony is required to establish the content of reasonable disclosure unless the situation is clearly within the realm of laymen's comprehension, as where disclosure is so obvious that laymen could recognize the necessity of such disclosure. Searcy v. Manganhas (1981), Ind.App., 415 N.E.2d 142, 144.

In the present case, the reasonable disclosure and informed consent necessary for elective foot surgery on a muscular dystrophy patient is not clearly within a layman's realm of comprehension. Plaintiffs were required to come forward with expert medical opinion contrary to the unanimous finding of the medical review panel. The question of an appropriate standard of care may not be resolved without resort to expert testimony. Marquis v. Battersby (1982), Ind.App., 443 N.E.2d 1202, 1203.

Plaintiffs argue that testimony from the defendant-doctor's deposition provided expert opinion of the locality's proper standard of care for disclosure of surgical risks. No affidavit verifying the deposition's contents was filed. The record contains no indication of a motion to publish defendant's deposition. The parties did not stipulate to the contents of the deposition. Because the defendant's deposition was not published, it could not be considered by the trial court in its summary judgment ruling. Defendant's deposition cannot be considered in reviewing the trial court ruling on summary judgment. Bell v. Horton (1980), Ind.App., 411 N.E.2d 648.

Even if defendant-doctor's deposition could be considered, it does not provide expert opinion contrary to the medical review panel findings on the issue of proximate cause, the causal connection between inadequate disclosure and resulting damage. Plaintiffs failed to present expert medical testimony contradicting panel findings on a necessary element of a prima facie medical malpractice suit. Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no conflict...