INDIANA UNIV. MEDICAL CENTER v. Logan

• Decision Date: 26 May 2000
• Docket Number: No. 49S02-0003-CV-220.,49S02-0003-CV-220.
• Citation: 728 N.E.2d 855
• Parties: INDIANA UNIVERSITY MEDICAL CENTER, RILEY HOSPITAL FOR CHILDREN, Appellant-Defendant, v. Brenda LOGAN, Mother and Natural Guardian of Jordan Davis, a Minor, Appellee-Plaintiff.
• Court: Indiana Supreme Court

728 N.E.2d 855

INDIANA UNIVERSITY MEDICAL CENTER, RILEY HOSPITAL FOR CHILDREN, Appellant-Defendant, v. Brenda LOGAN, Mother and Natural Guardian of Jordan Davis, a Minor, Appellee-Plaintiff.

No. 49S02-0003-CV-220.

Supreme Court of Indiana.

May 26, 2000.

David J. Mallon, Jr., Jennifer M. Weflen, Ice Miller Donadio & Ryan, Indianapolis, Indiana, Attorneys for Appellant.

John D. Raikos, Indianapolis, Indiana, D. Charles Gantz, Gantz & Associates, Greenwood, Indiana, Attorneys for Appellee.

ON PETITION TO TRANSFER

RUCKER, Justice

Case Summary

Brenda Logan filed a complaint for medical malpractice against Indiana University Medical Center, Riley Hospital for Children (referred to as "Hospital"). The complaint was based on the allegation that Logan's minor son Jordan sustained injures while in Hospital's care. Hospital responded with a motion for summary judgment arguing that its conduct was not the proximate cause of Jordan's injuries. The trial court denied the motion, and Hospital appealed. In a memorandum decision the Court of Appeals reversed, concluding that Logan's response to Hospital's motion was untimely. Indiana University Medical Center v. Logan, 718 N.E.2d 1242 (Ind.Ct.App.1999). Having previously granted transfer, we affirm the trial court's denial of Hospital's motion for summary judgment.

Facts and Procedural History

In March 1991, Logan took her then thirteen-month-old son Jordan to Hospital for treatment of a respiratory disorder. More specifically Jordan suffered from asthma and was having difficulty breathing. A treating physician ordered that Jordan receive certain medication intravenously.¹ After an initial infusion, the medication was apparently administered for nearly two hours in a dosage much greater than ordered. In short, Jordan was overdosed. Logan contends that immediately thereafter Jordan exhibited nervousness, restlessness, insomnia, muscle twitching, reflex hyper-excitability, behavioral disturbances and confusion.

Logan filed a proposed complaint against Hospital with the Indiana Department of Insurance. The complaint alleged negligence in Hospital administering an overdose of medication and contended that as a result Jordan suffers neurological damage and impairment. On February 23, 1996, a medical review panel rendered a unanimous opinion concluding that Hospital "failed to comply with the appropriate standard of care as charged in the complaint.. . ." R. at 66. The panel also concluded however "the conduct complained of was not a factor of the resultant damages." R. at 67. Thereafter Logan filed a complaint in the Marion Superior Court setting forth the same allegations as those in her proposed complaint. On January 30, 1998, Hospital filed a motion for summary judgment contending its conduct was not the proximate cause of Jordan's injuries. Hospital submitted a memorandum, a certified copy of the panel opinion, and the affidavit of Dr. David Dunn who stated that the overdose of medication did not cause Jordan's alleged injuries. The trial court set a hearing date of May 4, 1998. The trial court also granted Logan an extension of time until April 15, 1998, to respond to Hospital's summary judgment motion.

On the response deadline date, Logan filed her own affidavit in opposition to summary judgment which included twelve attached exhibits. Without seeking further extensions of time, Logan filed additional exhibits and a memorandum in opposition on May 4, 1998, the day of the hearing, as well as May 21 and August 10, 1998. Hospital moved to strike all filings on grounds that they were either untimely or otherwise inadmissible. The trial court denied all of Hospital's motions to strike with the exception of one non-expert affidavit. The trial court also denied Hospital's motion for summary judgment. Hospital then pursued an interlocutory appeal. The Court of Appeals reversed and remanded with instructions to enter summary judgment in Hospital's favor, ruling that with the exception of Logan's own affidavit, all memorandums and exhibits Logan filed were either untimely or inadmissible and should have been stricken. The Court of Appeals then concluded that because there was no expert evidence contradicting the medical review panel's finding of no causation, Hospital was entitled to summary judgment as a matter of law. Thereafter, we granted Logan's Petition for Transfer.

Discussion and Decision

When reviewing a grant or denial of summary judgment our well-settled standard of review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Landmark Health Care Assoc., L.P. v. Bradbury, 671 N.E.2d 113, 116 (Ind.1996). Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. T.R. 56(C); Blake v. Calumet Const. Corp., 674 N.E.2d 167, 169 (Ind.1996). All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party. Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996).

First, we agree with the Court of Appeals that the exhibits Logan submitted on April 15, 1998, although timely were inadmissible. The twelve exhibits consisted of uncertified documents and unsworn statements.² Unsworn statements and unverified exhibits do not qualify as proper Rule 56 evidence. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind.Ct.App. 1996). However, the exhibits Logan submitted after the deadline date require a different analysis. It is true that under Rule 56(C) a party opposing summary judgment has thirty (30) days to file a response. Further, when a party fails to file a response within thirty days, the trial court may not consider materials filed thereafter. Markley Enterprises, Inc. v. Grover, 716 N.E.2d 559, 563 (Ind.Ct.App. 1999), Carroll v. Jagoe Homes, Inc., 677 N.E.2d 612, 616 n. 1 (Ind.Ct.App.1997); Seufert v. RWB Medical Income Properties I Ltd. Partnership, 649 N.E.2d 1070, 1073 (Ind.Ct.App.1995). However, Trial Rule 56(E) provides in pertinent part: "the court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." (emphasis added). It is within the trial court's discretion to accept an affidavit filed later than the date specified in the rule. Jordan v. Deery, 609 N.E.2d 1104, 1109 (Ind.1993); Winbush v. Memorial Health System, Inc., 581 N.E.2d 1239, 1242-43 (Ind.1991); see also Pekin Ins. Co. v. Charlie Rowe Chevrolet, Inc., 556 N.E.2d 1367, 1369 (Ind.Ct.App.1990) ("[A]ffidavits filed by the movant the day before trial to supplement the original, timely filed affidavits may properly be considered by the trial court.").

The record shows that Logan timely submitted her own affidavit in response to Hospital's motion for summary judgment. Among other things the affidavit dictated:

The panel did not have the medical evidence which I provided to my attorney, and was available but not included in my submission to the Panel, which was the written medical opinion of ARTHUR R. SCHRAMM, M.D., on the prior 17th day of January 1995, [a] copy of which is attached hereto as Exhibit "C" pp. 27, 28 and made a part hereof by reference, wherein Doctor Schramm at p. 28 concluded:

Based on my review of all available records, the only stressor identified which could be associated with causation of the clinical problems is the theophylline overdose.

R. at 87. As the Court of Appeals correctly determined, the attached exhibit containing Dr. Schramm's opinion was inadmissible because it was not sworn. An unsworn letter from an expert may not be considered in summary judgment proceedings. Johnston v. State Farm Mut. Auto. Ins. Co., 667 N.E.2d 802, 806 (Ind.Ct.App. 1996). However it is nonetheless the case that Logan's affidavit refers to Dr. Schramm and the fact that he had an opinion concerning Jordan's care. Logan's submissions on May 21, 1998, included a properly verified affidavit of Dr. Schramm that dictated in pertinent part:

It is my opinion based upon a reasonable degree of medical certainty, that the medical care and treatment rendered to Jordan Davis by

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