Smith v. Dermatology Assocs. of Fort Wayne, P.C.

• Decision Date: 07 September 2012
• Docket Number: No. 02A03–1201–CT–41.,02A03–1201–CT–41.
• Citation: Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d 1 (Ind. App. 2012)
• Parties: Kenneth W. SMITH and Deb–Anne Smith, Appellants–Plaintiffs, v. DERMATOLOGY ASSOCIATES OF FORT WAYNE, P.C. a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, PC, Appellee–Defendant.
• Court: Indiana Appellate Court

977 N.E.2d 1

Kenneth W. SMITH and Deb–Anne Smith, Appellants–Plaintiffs,

v.DERMATOLOGY ASSOCIATES OF FORT WAYNE, P.C. a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, PC, Appellee–Defendant.

No. 02A03–1201–CT–41.

Court of Appeals of Indiana.

Sept. 7, 2012.

Dennis R. Brown, Dennis H. Geisleman, Geisleman & Brown LLP, Fort Wayne, IN, Attorneys for Appellants.

Karl L. Mulvaney, Nana Quay–Smith, Briana L. Clark, Bingham Greenebaum Doll LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Kenneth W. Smith(“Smith”) and his wife, Deb–Anne Smith, (collectively “the Smiths”) appeal from the trial court's findings of fact and conclusions thereon ¹ after a bench trial on their medical malpractice claim against Dermatology Associates of Fort Wayne, P.C., a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, P.C.(“DLSA”).The Smiths present two issues, which we consolidate and restate as follows: Whether the trial court erred by concluding that the Smiths had failed to present sufficient evidence to invoke the doctrine of res ipsa loquitur.

We affirm.

FACTS AND PROCEDURAL HISTORY

Smith, who has suffered from psoriasis since the age of thirteen, sought medical treatment for his condition.He became a patient of Dr. Alan R. Gilbert(“Dr. Gilbert”), a dermatologist employed by DLSA, in December of 1994.As a new patient, Smith was evaluated by Dr. Gilbert, and a treatment plan was proposed.Dr. Gilbert opined that Smith's psoriasis was generalized, severe in nature, and unpredictable given Smith's history.In addition to testing and medication therapy, Smith underwent UVA radiation treatments for his flare-ups of psoriasis.

In particular, his treatment plan called for Smith to periodically receive Psoralen UVA(“PUVA”) treatments.Psoralen is a drug derived from a plant, which, in its oral form, becomes activated when a certain wavelength of light is administered to a patient who had previously taken Psoralen.Psoralen is activated by UVA light, and a PUVA treatment is administered through a light box.The amount of UV light used to dose a patient is determined by the patient's skin type, sensitivity to the sun, and the patient's reaction to the initial dose of the UVA light.

Smith received PUVA therapy using the light box at DLSA's Lake Avenue office in Fort Wayne.Smith underwent the PUVA treatments from December 28, 1994 through December 8, 2004, and received a total of 147 treatments from DLSA.The most recent treatments were administered on December 3, 2004, December 6, 2004, and December 8, 2004.When Smith would notice an outbreak of psoriasis occurring, he would contact DLSA to schedule a treatment.Smith responded well to the PUVA treatments.However, after his last treatment at 1:00 p.m. on December 8, 2004, Smith suffered UV burn injuries to approximately 84% of his body.

Although he returned to work after his last treatment, a few hours thereafter, he started to feel an irritation to his skin.He noticed his skin getting red and started to feel a burning sensation.Smith left work at approximately 6:00 p.m. and went to bed after going home.Smith continued to feel poorly, began shaking uncontrollably, and started to notice blisters on his body from his torso area down.Smith went to the emergency room and complained of pain.The emergency room physician noticed that Smith had a severe sunburn on approximately 85% of his body.Smith was transferred from the emergency room to the Burn Unit of St. Joseph Hospital in Fort Wayne.

Dr. Gilbert received a telephone call on December 9, 2004, from the Burn Unit at St. Joe's Hospital informing him that Smith had been admitted early that morning with first and second degree burns.Dr. Gilbert visited Smith at the hospital, but was not asked to assist in Smith's treatment.Smith returned to work half days on December 14, 2004 and was released to return to work full time on December 15, 2004.By March of 2005, Smith's burns were completely healed.

On December 4, 2006, the Smiths filed a proposed complaint with the Indiana Department of Insurance alleging that Smith received care from DLSA that fell below the required standard of care, that was negligent, and that constituted malpractice.A medical review panel convened and, on October 20, 2008, rendered its decision that the evidence did not support the conclusion that DLSA failed to comply with the appropriate standard of care.

On February 6, 2009, the Smiths filed a complaint against DLSA alleging medical malpractice.In particular, the Smiths alleged that the negligence of the medical personnel or machine malfunction created a res ipsa loquitur inference that an act of malpractice may have occurred.On April 20, 2011, DLSA filed a motion for partial summary judgment, claiming that the Smiths did not establish either of the two required elements of res ipsa loquitur.More specifically, DLSA argued that the Smiths did not show that DLSA employees were in exclusive control of the ultraviolet exposure level from the PUVA machine or that the injuries Smith sustained could not have occurred without negligence.After the Smiths filed their response, the trial court denied the motion for summary judgment, finding the existence of genuine issues of material fact.

A three-day bench trial began on June 21, 2011.At the close of the Smiths' case-in-chief, DLSA made an oral motion for involuntary dismissal.The trial court took the motion under advisement and requested post-trial briefing on the issues raised by DLSA.On January 4, 2012, the trial court entered its findings of fact and conclusionsthereon.The trial court concluded that the Smiths had failed to establish that DLSA had exclusive control of the PUVA machine or that the injuries allegedly suffered by Smith would not have occurred without negligence.The trial court concluded that the doctrine of res ipsa loquitur was inapplicable and that the Smiths had failed to meet their burden of establishing by direct or circumstantial evidence that DLSA breached its duty of care.The trial court entered judgment in favor of DLSA.The Smiths now appeal.

DISCUSSION AND DECISION

The trial court determined that the doctrine of res ipsa loquitur did not apply to allow the inference that an act of malpractice had occurred.The doctrine of res ipsa loquitur literally means “the thing speaks for itself,” and we have stated the following about the doctrine:

Res ipsa loquitur is a rule of evidence which permits an inference of negligence to be drawn based upon the surrounding facts and circumstances of the injury.The doctrine operates on the premise that negligence, like any other fact or condition, may be proved by circumstantial evidence.To create an inference of negligence, the plaintiff must establish: (1) that the injuring instrumentality was within the exclusive management and control of the defendant or its servants, and (2) that the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care.In determining if the doctrine is applicable, the question is whether the incident more probably resulted from defendant's negligence as opposed to another cause.A plaintiff may rely upon common sense and experience or expert testimony to prove that the incident more probably resulted from negligence.To invoke res ipsa loquitur,the plaintiff must demonstrate that the defendant had exclusive control of the injuring instrumentality at the time of injury.Exclusive control is an expansive concept which focuses upon who has the right or power of control and the opportunity to exercise it.The existence of multiple defendants or the possibility of multiple causes does not automatically defeat the application of res ipsa loquitur.

Rector v. Oliver,809 N.E.2d 887, 889–90(Ind.Ct.App.2004)(internal citations omitted).

Because the Smiths did not prevail at trial, they appeal from a negative judgment.A judgment entered against a party who bore the burden of proof at trial is a negative judgment.Garling v. Ind. Dep't of Natural Res.,766 N.E.2d 409, 411(Ind.Ct.App.2002).On appeal, we will not reverse a negative judgment unless it is contrary to law.Mominee v. King,629 N.E.2d 1280, 1282(Ind.Ct.App.1994).To determine whether a judgment is contrary to law, we consider the evidence in the light most favorable to the appellee, together with all the reasonable inferences to be drawn therefrom.J.W. v. Hendricks Cnty. Office of Family & Children,697 N.E.2d 480, 482(Ind.Ct.App.1998).A party appealing...