Glon v. Mem'l Hosp. of S. Bend, Inc.

• Decision Date: 14 September 2018
• Docket Number: Court of Appeals Case No. 18A-CT-49
• Citation: Glon v. Mem'l Hosp. of S. Bend, Inc., 111 N.E.3d 232 (Ind. App. 2018)
• Parties: Cindy and Ron GLON, Appellants-Plaintiffs, v. MEMORIAL HOSPITAL OF SOUTH BEND, INC. and/or its Employees and agents, Appellees-Defendants.
• Court: Indiana Appellate Court

111 N.E.3d 232

Cindy and Ron GLON, Appellants-Plaintiffs,

v.MEMORIAL HOSPITAL OF SOUTH BEND, INC. and/or its Employees and agents, Appellees-Defendants.

Court of Appeals Case No. 18A-CT-49

Court of Appeals of Indiana.

Filed September 14, 2018

Attorney for Appellants: Jeffrey J. Stesiak, Pfeifer, Morgan & Stesiak, South Bend, Indiana

Attorney for Appellees: Robert J. Palmer, May, Oberfell, Lorber, Mishawaka, Indiana

Mathias, Judge.

[1] The St. Joseph Superior Court entered summary judgment in favor of Memorial Hospital of South Bend, Inc. and/or its Employees and agents (collectively "the Hospital"), the defendants, against Cindy and Ron Glon (collectively "Glon"). Glon appeals and raises the following two issues for our review:

I. Whether the trial court erred when it concluded that the doctrine of res ipsa loquitur does not apply to the facts of this case; and,

II. Whether genuine issues of material fact preclude the entry of summary judgment.

[2] We affirm.

Facts and Procedural History

[3] On or about June 6, 2011, Glon underwent a cementless total hip replacement of her right hip at the Hospital. The Hospital administered a spinal epidural to Glon during the surgery, and she had no feeling or sensation from the waist down.

[4] After surgery, Glon was moved to her hospital room where a nurse and patient care assistant rolled Glon onto her side to give them access to remove the epidural. As they did so, Glon heard three audible pops near her right knee. Appellant's App. p. 51. However, Glon's lower body was still numb from the effects of the epidural, and she did not experience any pain at the time she heard the popping sounds.

[5] After the effects of the epidural wore off, Glon found she was in severe pain that would not subside. A subsequent x-ray revealed that Glon had a three-part displaced fracture of her right femur. There had been no visible fracture on the x-rays taken immediately after Glon's surgery. Therefore, Dr. Robert Clemency ("Dr. Clemency"), Glon's surgeon, later opined that the fracture occurred at some point after she was transferred to her hospital room for recovery. Id. at 53.

[6] On May 18, 2012, Glon submitted a claim to the medical review panel as required by Indiana's Medical Malpractice Act, arguing that the Hospital breached the standard of care and that its negligence caused the fracture in her right leg.¹ Almost five years later, in April 2017, the panel, which was composed of three orthopedic surgeons, unanimously agreed that the Hospital did not fail to meet the applicable standard of care. See e.g., Appellant's App. p. 25 ("The evidence does not support the conclusion that the defendant, MEMORIAL HOSPITAL OF SOUTH BEND, INC., failed to meet the applicable standard of care as charged in the complaint.").

[7] On July 7, 2017, Glon filed a complaint against the Hospital in St. Joseph Superior Court. Glon alleged that her injuries were a result of negligent care rendered by the Hospital, and that but for this negligence, she would not have suffered the fracture to her femur. Glon also argued that the doctrine of res ipsa loquitur supported her claim.

[8] On August 10, 2017, the Hospital filed a motion for summary judgment. In support of its motion, the Hospital designated the opinion of the medical review panel and an affidavit from orthopedic surgeon Dr. Phillip H. Ireland, M.D. ("Dr. Ireland"), who had also served on Glon's medical review panel, which states in pertinent part:

6. According to the medical records, [Glon] had a three-part displaced fracture, spiral type, of her right femur following a cementless right hip replacement surgery. This is a "high impact" injury.

7. It is not physically possible that the act by the nurse and patient care assistant of turning [Glon] on her side caused the injury to the femur.

8. I am aware [Glon] allege[s] the nurse and patient care assistant grabbed [Glon's] right leg and twisted it. Even if that allegation is true, it is not physically possible that such an act could cause the injury to [Glon's] femur.

9. [Glon's] injury can occur for reasons other than negligence.

10. The injury to [Glon's] femur is a recognized complication of a cementless hip replacement surgery. During the surgery, a hairline fracture can develop. The hairline fracture is not always seen in a post-operative x-ray.

11. In my opinion, it is more likely than not that a hairline fracture led to the resulting injury in [Glon's] case.

12. In my opinion, nothing the nurses did, or failed to do, led to the injury in [Glon's] case.

Id. at 28–29.

[9] In his deposition, which was designated to the trial court, Dr. Ireland stated that a high impact injury meant "that [it] takes a lot of force to break the femur in that location and to break it in that style." Id. at 56. He clarified that this type of fracture is "not something that you or I would get by falling or even falling off a bicycle," and "it would take ... high force of -- in this case, the broaches or the implantation of the hip inside that canal to cause that kind of fracture." Id. at 57. Dr. Ireland agreed that a hairline fracture was not visible in the postoperative x-ray. Id. at 58. He explained that it is likely that the fracture was not visible on the postoperative x-ray because it was obscured by the metal implant. Id. at 59.

[10] In response, Glon designated her own affidavit wherein she described hearing three pops while she was being rolled onto her side by the nursing staff after her surgery. She also designated an affidavit from Dr. Clemency, her surgeon, which stated in pertinent part that:

1. [...] [A]ll matters and opinions stated herein are based on my personal knowledge, are made to a reasonable degree of medical probability, and are true and accurate to the best of my knowledge and belief.

* * *

3. Based on the history given to me by [Glon], a physical examination, x-rays which were taken in the operating room after I performed a hip replacement, but prior to [Glon] being sent to recovery, and my personal knowledge, it is my opinion that the large three (3) part displaced fracture of [Glon's] right leg did not occur during her hip replacement surgery which I performed on June 6, 2011, but at some point after [Glon] was returned to her room and was being rolled over by the nursing staff.

Id. at 53.

[11] A hearing was held on December 7, 2017, and the trial court took the matter under advisement. One week later, the trial court granted summary judgment in favor of the Hospital, and issued the following order:

Defendants' expert opined that "it is not physically possible that the act by the nurse and patient care assistant of turning [Glon] on her side caused the injury to her femur" and that even if the Plaintiffs' allegations as to how Defendants (mis)handled [Glon] are true, "it is not physically possible that such an act could cause the injury."

Plaintiffs' expert failed to counter this opinion. That is, Plaintiffs' expert failed either to assert that it is physically possible that the complained of conduct of Defendants caused or could have caused the injury to [Glon] or to identify some other act of negligence committed by Defendants that was a proximate cause of [Glon's] injuries.

Plaintiffs argue that the issue should be tried to a jury, that a jury might not believe the testimony of Defendants' expert that a hairline fracture occurred during the operation and the fact that there was no radiographic evidence of that fracture after the surgery was due to the fact that the fracture was hidden by the implant. While a jury might not believe this testimony, or believe that this proposition that a hairline fracture occurred during surgery was a necessary conclusion if Defendants' expert was to maintain that the conduct of Defendants could not have cause[d] the injury, we are still left with the fact that Plaintiffs have presented no expert testimony that asserts or from which it can be concluded that negligence on the part of Defendants was a cause of [Glon's] injuries. Plaintiffs argue that "common sense" supplies the causative connection.

The Court agrees with Defendants that the cause of this injury in not a matter of common sense, but of medical expertise.

Id. at 8–9.²

[12] Glon appeals the trial court's order granting summary judgment to the Hospital.³

Standard of Review

[13] When we review the entry of summary judgment, we apply the same standard as the trial court. City of Lawrence Util. Serv. Bd. v. Curry , 68 N.E.3d 581, 585 (Ind. 2017). Summary judgment is appropriate only when "the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). An issue is "genuine" if a trier of fact is required to resolve the truth of the matter; a fact is "material" if its resolution affects the outcome of the case. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014). "Just as the trial court does, we resolve all questions and view all evidence in the light most favorable to the non-moving party, so as to not improperly deny him his day in court." Alldredge v. Good Samaritan Home, Inc. , 9 N.E.3d 1257, 1259 (Ind. 2014).

[14] Summary judgment is a "blunt instrument" preventing the non-prevailing party from resolving its case at trial. Hughley , 15 N.E.3d at 1003. Because of this, our supreme court has cautioned that summary judgment "is not a summary trial" and courts on appeal should carefully "assess the trial court's decision to ensure [a party] was not improperly denied his [or her] day in court." Id. at 1003–04 (citations omitted).

I. Res Ipsa Loquitur

[15] Glon argues that the doctrine of res ipsa loquitur is applicable to her case and the Hospital's breach of the standard of care speaks for itself.

The doctrine of res ipsa loquitur is a rule of evidence which allows an inference of negligence to be drawn from certain surrounding facts. The plaintiff's evidence must include the underlying elements of res ipsa

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