Estate of Taylor v. MUNCIE MED. INV., LP, 18A02-9904-CV-265.

• Court: Court of Appeals of Indiana
• Citation: 727 N.E.2d 466
• Docket Number: No. 18A02-9904-CV-265.,18A02-9904-CV-265.
• Parties: The ESTATE OF Rebecca Jane TAYLOR by Steven W. TAYLOR, Executor; Steven W. Taylor, Individually; Richard C. Taylor, Individually; and Kent A. Taylor, Individually, Appellants, v. MUNCIE MEDICAL INVESTORS, L.P. and Life Care Centers of America, Inc., together d/b/a The Woodlands, Appellees.
• Decision Date: 20 April 2000

727 N.E.2d 466

The ESTATE OF Rebecca Jane TAYLOR by Steven W. TAYLOR, Executor; Steven W. Taylor, Individually; Richard C. Taylor, Individually; and Kent A. Taylor, Individually, Appellants,
v.
MUNCIE MEDICAL INVESTORS, L.P. and Life Care Centers of America, Inc., together d/b/a The Woodlands, Appellees

No. 18A02-9904-CV-265.

Court of Appeals of Indiana.

April 20, 2000.

727 N.E.2d 467

George G. Slater, Susan M. Hunter, Slater & Associates, Carmel, Attorneys for Appellant

Mary K. Reeder, Janelle K. Stehura, Riley Bennett & Egloff, Indianapolis, Attorneys for Appellee.

OPINION

SHARPNACK, Chief Judge.

The Estate of Rebecca Jane Taylor, by Steven W. Taylor, executor, and Steven W. Taylor, Richard C. Taylor and Kent A. Taylor, as individuals (collectively, "the Estate"), appeal the trial court's grant of summary judgment in favor of Muncie Medical Investors L.P. and Life Care Centers of America, Inc., together d/b/a as the Woodlands (collectively, "the Woodlands"). The Estate raises two issues, which we restate as:

1) whether the trial court erred when it entered summary judgment on the Estate's claim against the Woodlands for "wrongful prolongation of life;" and

2) whether the trial court erred when it found that there was no dispute of material fact on any of the claims raised by the Estate against the Woodlands.

The Woodlands raises one issue on cross-appeal: whether the Estate has waived all of its claims of error by failing to challenge the trial court's rulings. We affirm.

The relevant facts follow. In 1992, Rebecca Jane Taylor suffered a stroke that left her paralyzed on her left side and confined to a wheelchair. On December 1, 1993, Rebecca executed a living will that directed that if she was suffering from a terminal illness with "no reasonable possibility of recovery," her doctors should not take "extraordinary means" to prolong her life. Second Supp. Record, p. 15. Rebecca executed a power of attorney, which contained no specific provisions with respect to health care, in favor of her son, Steven Taylor, on August 1, 1994. On October 30, 1994, Rebecca entered the Woodlands nursing home, and Dr. Michael Seidle became Rebecca's primary care physician. Subsequently, on December 29, 1994, Rebecca executed a "Do Not Resuscitate" form in which she indicated that she did not wish to receive cardiopulmonary

727 N.E.2d 468

resuscitation in the event that she stopped breathing. Supp. Record, p. 213

On April 8, 1995, Rebecca suffered a second stroke and was transferred to Ball Memorial Hospital. The second stroke left Rebecca completely paralyzed and comatose, with no hope of recovery. As a result, Rebecca's sons, Steven, Richard and Kent, decided to discontinue providing Rebecca with artificial nutrition, return Rebecca to the Woodlands, and see that she receive only comfort measures until she died.

Rebecca returned to the Woodlands on April 13, 1995. At that time, she was receiving only sugar water and a saline solution through an intravenous line. On April 25, 1995, nurses found that Rebecca was becoming dehydrated and that her veins would no longer support an intravenous line. The Woodlands' staff also noted that Rebecca showed signs of discomfort and responsiveness, including moaning, coughing, pulling her foot away from a needle stick, and opening her eyes. The nurses then called Dr. Seidle, who ordered that they replace the intravenous line with a nasogastric tube and begin feeding her Jevity, a water-based caloric supplement, subject to obtaining the consent of a family member. Jevity has five times the caloric content of the sugar and saline solution that Rebecca had been receiving through the intravenous line. As a result, Jevity can keep recipients alive for a longer period of time than the sugar and saline solution.

After receiving the order from Dr. Seidle, Woodlands' employee, Nurse Rebecca Vickery, set about contacting family members on that same day in order to get a family member's consent to insert the nasogastric tube. Vickery first tried to contact Steven, who had Rebecca's power of attorney, but he was at work so she spoke instead to his wife, Dee. Dee did not want to make a decision about the nasogastric tube without talking to Steven, and she told Vickery that she would contact Steven at work, as well as Steven's brother Richard, and call her back with a decision. Nevertheless, Vickery then called Richard directly and asked him to consent to the use of the nasogastric tube. After Vickery told Richard that his mother's veins were collapsing and that a "dry death" was terrible, he gave his consent to prevent Rebecca from suffering. Supp. Record, pp. 59-60. While Vickery and Richard were conversing, Dee called Steven, who rejected the proposed nasogastric tube because he thought it would unnecessarily prolong Rebecca's life in a comatose state. Dee subsequently called the Woodlands and told them not to go forward with Dr. Seidle's orders.

When Dr. Seidle called the Woodlands that evening, he broke the impasse created by the sons' orders by telling the nurses to insert the feeding tube. Dr. Seidle told the nurses that if one son consented, as Richard had, then they had sufficient permission to go ahead with the procedure. The nasogastric tube was placed later that night, and Rebecca began receiving Jevity.

After this incident, Steven met with Dr. Jose Valena on June 7, 1995, and hired him to replace Dr. Seidle as Rebecca's primary care physician. Dr. Valena told Steven that he would monitor Rebecca's condition for a month and then order the Woodlands to change Rebecca's diet from Jevity to just water if she did not improve. However, on July 10, 1995, Dr. Valena ordered the Woodlands to increase, not decrease, Rebecca's caloric intake without informing Rebecca's family. Meanwhile, on July 13, 1995, Steven obtained a guardianship over Rebecca. Dee spoke with Dr. Valena on August 31, at which time he told her that he had ordered an increase in Rebecca's caloric intake on July 10. On Sept. 11, 1995, the Taylor family removed Rebecca from the Woodlands and took her to Ball Memorial Hospital, where she died on September 21, 1995.

On February 6, 1996, the Estate filed suit against the Woodlands, alleging gross negligence, negligence, violation of Ind.

727 N.E.2d 469

Code §§ 16-36-1-1 to XX-XX-X-XX and Ind. Code §§ 16-36-4-1 to XX-XX-X-XX, battery, failure to seek a guardian ad litem, violation of Rebecca's federal and state "right to liberty and self-determination," violation of the Federal Nursing Home Reform Law, fraudulent misrepresentation, constructive fraud, intentional infliction of emotional distress, and breach of contract. Record, pp. 14-24. The Woodlands moved for summary judgment, and the trial court granted the Woodlands' motion on all of the Estate's claims and issues

Our standard of review for appeals from summary judgment is well settled. When reviewing summary judgment, this court views the same matters and issues that were before the trial court and follows the same process. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 632-633 (Ind.1991). A summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. at 633. Any doubt as to the existence of a factual issue should be resolved against a moving party, construing all properly asserted facts and reasonable inferences in favor of the nonmovant. Id. Summary judgment may be proper when there is no dispute regarding a fact that is dispositive of the action. Id. In ruling upon a motion for summary judgment, facts alleged in a complaint must be taken as true except to the extent that they are negated by depositions, answers to interrogatories, affidavits, and admissions on trial or by testimony presented at the hearing on a motion for summary judgment. Id. The party moving for summary judgment must shoulder the burden of establishing the lack of a material factual issue. Id. Once the movant has met this burden, the opposing party is obliged to present sufficient evidence to show the existence of a genuine triable issue. Id. The opposing party's obligation does not arise until after the movant has shown that he or she is entitled to summary judgment. Id.

In this case, the trial court entered findings of fact and conclusions of law sua sponte. Special findings are not required in summary judgment proceedings and are not binding on appeal. Trout v. Buie, 653 N.E.2d 1002, 1005 (Ind.Ct.App.1995), trans. denied. However, such findings offer this court valuable insight into the trial court's rationale for its judgment and facilitate appellate review. Id.

I.

We first address the waiver claim raised by the Woodlands on cross-appeal because the claim, if successful, would end the parties' dispute. The Woodlands argues that the Estate has waived all of its claims of error by failing to challenge the trial court's disposition of all of its claims. When an appellant fails to raise and argue in his...