Hassan v. Begley

• Decision Date: 28 October 2005
• Docket Number: No. 91A02-0501-CV-55.,91A02-0501-CV-55.
• Parties: Philip Wayne HASSAN, M.D., Appellant-Defendant, v. Norma M. BEGLEY, Individually and as Personal Representative of the Estate of Willie A. Begley, and Daclynn Scott Johnson, M.D., Kevin Dean Slentz, M.D., and White County Memorial Hospital, Appellees-Defendants.
• Court: Indiana Supreme Court

Page 303

836 N.E.2d 303

Philip Wayne HASSAN, M.D., Appellant-Defendant, v. Norma M. BEGLEY, Individually and as Personal Representative of the Estate of Willie A. Begley, and Daclynn Scott Johnson, M.D., Kevin Dean Slentz, M.D., and White County Memorial Hospital, Appellees-Defendants.

No. 91A02-0501-CV-55.

Court of Appeals of Indiana.

October 28, 2005.

James M. Portelli, Robert D. Brown, Spangler, Jennings & Dougherty, P.C., Merrillville, for Appellant.

Kathy A. Lee, Marie Troendle Greer, Cline Farrell Christie Lee & Caress, P.C., Indianapolis, for Appellee Norma Begley.

OPINION

BAKER, Judge.

Appellant-defendant Philip Wayne Hassan, M.D. (Dr. Hassan), brings this interlocutory appeal challenging the denial of his motion for summary judgment regarding a medical malpractice claim that was brought against him by appellee-plaintiff Norma Begley, individually and as the personal representative of the estate of her deceased husband, Willie A. Begley.

In particular, Dr. Hassan alleges that the trial court erroneously denied his motion because the designated evidence established that his failure to place a nasogastric tube (NG tube) in Begley following his admission to the hospital emergency room did not proximately cause his death. Concluding that Begley has failed to submit designated evidence establishing that Dr. Hassan's conduct caused her husband's death, we reverse the judgment of the trial court and remand this cause with instructions that summary judgment be entered for Dr. Hassan.

FACTS

At approximately 9:15 a.m. on August 28, 1996, sixty-seven-year-old Willie Begley went to the White County Memorial Hospital emergency room (the Hospital), complaining of severe abdominal pain. Begley informed the hospital staff that he had begun to experience the pain the day before, and it continued to worsen. Begley also indicated that he was vomiting at home, and that he had not had a bowel movement for four days. He informed the hospital staff that his medical history consisted of chronic obstructive pulmonary disease and diverticulitis. Upon Begley's arrival, the nurses observed that his abdomen was "distended." Appellant's App. p. 76, 86.

Dr. Hassan was the emergency room physician assigned to care for Begley. At the time, Dr. Hassan was the medical director for the Hospital's emergency medical department. Dr. Hassan examined Begley and also determined that his abdomen was distended and tender to palpation. Appellant's App. p. 56, 79. The most significant abdominal tenderness was noted in Begley's left lower quadrant. Dr. Hassan described Begley's condition when he was admitted to the hospital as "severe to critical." Appellant's App. p. 80. Dr. Hassan also observed that Begley's chest x-ray showed a distended colon that was interpreted by a radiologist to show a possible bowel obstruction. Hence, Dr. Hassan believed that the prudent course would be to admit Begley to the hospital with a surgical consult.

After Dr. Hassan notified Begley's family physician—Dr. Gutierrez—of the circumstances, it was recommended that Dr. Daclynn Johnson, a general surgeon, examine Begley. The designated evidence established that Dr. Johnson believed that he saw Begley in the emergency room at approximately 11:20 a.m. He also noted that Begley's abdomen was very distended, and there was tenderness in the right lower quadrant. As a result, Begley was admitted to the special care unit at the Hospital.

Approximately thirty minutes later, the nurses observed that Begley's vital signs were weakening, and very dark urine was draining from Begley's catheter bag. The nurses went on to describe Begley's abdomen as very firm and distended, and Begley continued to suffer from severe abdominal pain. As Begley became nauseated and the pain continued, Dr. Johnson ordered placement of an NG tube. The Hospital nurses were able to anchor the tube at approximately 2:00 p.m., yet it was later determined that it had not been correctly placed. Dr. Johnson returned to surgery and passed Begley's care on to his partner, Dr. Kevin Slentz. An expert retained by Dr. Hassan was of the opinion that the NG tube had not been properly fitted.

Begley's pain continued to intensify, and at 4:00 p.m., he temporarily lost consciousness. Moreover, the nurses were unable to obtain a blood pressure reading. When Begley's blood gases were monitored at 4:20 p.m., they were in the "critically severe" range. Appellant's App. p. 83. Between 4:00 p.m., and 4:30 p.m., Begley's eyes were unfocused and his response time was very slow. Approximately six minutes later, Begley began to lack coordination when turning his head toward his family members, and his response time continued to decrease. Then, at 5:00 p.m., Begley went into a pulmonary arrest, and he was intubated one minute later by one of Dr. Johnson's partners. Dr. Hassan noted that he responded to a "Code Blue" for Begley at 5:35 p.m. Dr. Gutierrez arrived and Dr. Hassan indicated that Begley was not in Dr. Gutierrez's care. At 6:12 p.m., Begley was pronounced dead.

As a result of the incident, Begley's wife filed a proposed complaint with the Department of Insurance for medical malpractice against Drs. Hassan, Johnson and Slentz. The complaint also asserted that the Hospital was negligent because the acts or omissions by its personnel were committed "while they were acting within the scope of their employment." Appellant's App. p. 6. A Medical Review Panel assigned to hear the case determined, in a unanimous opinion, that the evidence submitted did not support the conclusion that Dr. Hassan failed to meet the appropriate standard of care. The Panel also concluded that Dr. Hassan's conduct was not a factor in Begley's death. On December 18, 2003, Begley's wife filed a complaint in the trial court against all of the defendants, alleging that they were all negligent in their treatment of Begley and that their negligence resulted in his death. The allegation with respect to Dr. Hassan was that he was negligent in failing to order an NG tube "to decompress Mr. Begley." Appellant's App. p. 7. The allegations with respect to the remaining physicians were that the NG tube was incorrectly placed on two occasions to the extent that it resulted in "further respiratory compromise." Appellant's App. p. 7.

Dr. Hassan filed a motion for summary judgment, arguing that the designated evidence uncontrovertibly demonstrated that he did not breach the standard of care and that his conduct did not proximately cause Begley's death. In essence, Dr. Hassan asserted that his decision not to order an NG tube for Begley did not amount to medical malpractice. In response, Begley's wife retained Dr. Arnold Swerdlow, who testified that the nurse had misplaced the NG tube and that the tube remained misplaced and coiled in Begley's esophagus until approximately 4:54 p.m. He also observed that the NG tube was misplaced a second time into the bronchus of Begley's lung. Dr. Swerdlow went on to testify that the misplacement of the NG tube from 2:00 p.m. onward essentially acted to deprive Begley of assisted oxygen causing him to become hypoxic and aspirate oxygen, thereby resulting in acidosis and death.

Additionally, Dr. Swerdlow acknowledged that in light of Begley's diverticulitis, an NG tube should have been placed while Begley was in the emergency room. Dr. Swerdlow testified that the failure to have an NG tube placed in the emergency room "indirectly" contributed to Begley's death. Appellant's App. p. 122. He was of the opinion that Dr. Hassan had breached the standard of care by not ordering placement of an NG tube while Begley was in the emergency room department.

Following a hearing, the trial court denied Dr. Hassan's motion for summary judgment on October 20, 2004. The trial court then certified its order denying the motion, and we accepted jurisdiction of this appeal on March 1, 2005.

DISCUSSION AND DECISION

I. Standard of Review

Motions for summary judgment are properly granted only when the pleadings and designated evidence reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Worman Enters., Inc. v. Boone County Solid Waste Mgmt. Dist., 805 N.E.2d 369, 373 (Ind.2004). This is the same standard used by the trial court in deciding whether to grant or deny summary judgment. Id. In determining whether genuine issues of material fact exist, the court must accept as true those facts established by evidence favoring the nonmoving party and resolve all doubts against the moving party. Id.

When reviewing the grant or denial of summary judgment, this court applies the same standard as the trial court. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct.App.1999). Specifically, we must determine whether there is a genuine issue of material fact requiring a trial and whether the moving party is entitled to judgment as a matter of law. Id. Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. Id.; see also Ind. Trial Rule 56(C), (H). A party seeking summary judgment must make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. Am. Mgmt., Inc. v. MIF Realty L.P., 666 N.E.2d 424, 428 (Ind.Ct.App.1996). Once the moving party satisfies this burden through evidence designated to the trial court pursuant to Trial Rule 56, the nonmoving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. Id. On appeal, we will assess the trial court's decision to ensure that the parties were not improperly denied their day in court. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind.2002). A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts...