Oelling v. Rao, 46S05-9206-CV-437

Citation593 N.E.2d 189
Case DateJune 08, 1992
CourtSupreme Court of Indiana

Glenn J. Tabor and Roger A. Weitgenant, Blachly, Tabor, Bozik & Hartman, Valparaiso, for appellants.

David C. Jensen and Douglas B. Stebbins, Eichorn, Eichorn & Link, Hammond, for appellees.

SHEPARD, Chief Justice.

Howard and Margaret Oelling appealed the trial court's grant of defendants' motion for summary judgment in their medical malpractice action against Dr. Satya M. Rao, Dr. Jorge J. Martinez, and Cardiovascular Consultants, P.C., Inc. The Court of Appeals affirmed, holding that the affidavit submitted by appellants was insufficient because it failed to state that the affiant was familiar with the local standard of care. Oelling v. Rao, 585 N.E.2d 273 (Ind.App.1991). We grant transfer and affirm.

Summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Ind.Trial Rule 56(C). The burden is on the moving party to prove the nonexistence of a genuine issue of material fact; if there is any doubt, the motion should be resolved in favor of the party opposing the motion. Once the movant has sustained this burden, however, the opponent may not rest upon the mere allegations or denials in his pleadings, but must respond by setting forth specific facts showing that there is a genuine issue for trial. T.R. 56(E).

On appeal from a summary judgment, the appellate court faces the same issues, which we analyze in the same way as a trial court does. Dept. of Revenue v. Caylor-Nickel Clinic (1992), Ind., 587 N.E.2d 1311, 1313. On appeal, however, the party which lost in the trial court has the burden to persuade the appellate tribunal that the trial court's decision was erroneous. Id. Our proper role includes the careful scrutiny of the trial court's determination to assure that the non-prevailing party is not improperly prevented from having his day in court. Id.

In a medical malpractice action based upon negligence the plaintiff must establish, "(1) a duty on the part of the 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 (quoting Miller v. Griesel (1974), 261 Ind. 604, 611, 308 N.E.2d 701, 706). In support of the motion for summary judgment, Dr. Rao submitted the opinion of the medical review panel. It had determined that the defendants did not fail to comply with the standard of care. This was sufficient to satisfy their burden of showing no genuine issue of material fact; without a breach of the standard of care, the defendants would be entitled to judgment as a matter of law.

It was then up to the Oellings to respond by presenting specific facts which showed a genuine issue for trial. They attempted to do this by presenting the affidavit of Dr. Steven Meister. This affidavit failed to satisfy their burden. To refute the defendants' evidence, the affidavit needed to set out the applicable standard of care and a statement that the treatment in question fell below that standard. Marquis v. Battersby (1982), Ind.App., 443 N.E.2d 1202. Dr. Meister's affidavit states only that he would have treated Mr. Oelling differently, not that Dr. Rao's treatment fell below the applicable standard. 1

Our holding today in Vergara v. Doan, 593 N.E.2d 185 (Ind.1992) does not compel a different outcome. The new standard, that a physician must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which he belongs, acting under the same or similar circumstances, is slightly different from the modified locality rule which Indiana has been using. It still requires expert testimony, however, about what other reasonable doctors similarly situated would have done under the circumstances. Because Dr. Meister's affidavit fails to set out any standard at all, it is insufficient to raise a material issue of fact as to whether the defendants' conduct fell below that which was reasonable under the circumstances.

Because the Court of Appeals affirmed the trial court based on the failure of Dr. Meister's affidavit to set out the standard of care in the same or similar localities, we grant transfer and vacate their opinion. Because doctors' motion for summary judgment should have been granted, however, we affirm the judgment of the trial court.

KRAHULIK, J., concurs.

GIVAN, J., concurs in result, believing that the trial court should be affirmed under either standard.

DICKSON, J., dissents with separate opinion, in which DeBRULER, J., concurs.

DICKSON, Justice, dissenting.

The party moving for summary judgment must shoulder the burden of establishing the lack of a material factual issue. Cowe v. Forum Group Inc. (1991), Ind., 575 N.E.2d 630; Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723; Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138. The opposing party's obligation to disgorge evidence demonstrating the existence of a genuine triable issue does not arise until after the movant has shown himself entitled to summary judgment. Cowe; Marathon Petroleum v. Colonial Motel (1990), Ind.App., 550 N.E.2d 778.

As proponent of summary judgment here, the defendant physicians asserted the determinative issue of material fact to be whether they violated the applicable standard of care. Record at 36. To support their motion for summary judgment, the defendants submitted the following opinion of the medical review panel:

That the evidence does not support the conclusion that the defendants failed to comply with the standard of care as charged in the complaint. 1

Record at 43-45 (emphasis in original). Submitted with the motion for summary judgment were separate copies of the written opinion, each purporting to be signed by a physician member of the panel. 2 No information was provided regarding the panel member's area of medical specialty or locale of practice. 3 The medical review panel opinion does not provide any information regarding what other reasonable doctors similarly situated would have done under the circumstances.

In opposing the motion for summary judgment, the plaintiffs submitted the affidavit of Steven G. Meister, M.D., licensed to practice medicine in Pennsylvania and Massachusetts and certified by the American Board of Internal Medicine in the speciality of Cardiology. Dr. Meister's affidavit states, in pertinent part:

It is my opinion that the cardiac catheterization performed on HOWARD A. OELLING by DR. SATYA RAO on 12/16/86 at St. Catherine's Hospital was not indicated and...

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