Stafford v. Szymanowski

• Decision Date: 15 July 2014
• Docket Number: No. 89A01–1401–CT–48.,89A01–1401–CT–48.
• Citation: 13 N.E.3d 890
• Parties: Rebecca STAFFORD, Individually and as Surviving Parent of Drayden Powell, Deceased, and Drayden Powell, Deceased, Appellants–Plaintiffs, v. James E. SZYMANOWSKI, M.D. and GYN, LTD., Inc., Appellees–Defendants, and Joseph B. Clemente, M.D., Appellee–Defendant.
• Court: Indiana Appellate Court

13 N.E.3d 890

Rebecca STAFFORD, Individually and as Surviving Parent of Drayden Powell, Deceased, and Drayden Powell, Deceased, Appellants–Plaintiffs

v. James E. SZYMANOWSKI, M.D. and GYN, LTD., Inc., Appellees–DefendantsandJoseph B. Clemente, M.D., Appellee–Defendant.

No. 89A01–1401–CT–48.

Court of Appeals of Indiana.

July 15, 2014.

Michael E. Simmons, Andrew P. Wirick, Hume Smith Geddes Green & Simmons, LLP, Indianapolis, IN, Attorneys for Appellants.

Susan E. Cline, Edward J. Fujawa, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellees.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants–Plaintiffs, Rebecca Stafford, Individually and as Surviving Parent of Drayden Powell, Deceased (Stafford) and Drayden Powell, Deceased (Drayden) (Collectively, Appellants), appeal the trial court's summary judgment in favor of Appellees–Defendants, Joseph B. Clemente, M.D. (Dr. Clemente)¹ ; James E. Szymanowski, M.D. (Dr. Szymanowski); and GYN, Ltd., Inc. (GYN) (Collectively, Appellees) with respect to Appellants' medical malpractice claim.

We affirm.

ISSUES

Appellants raise three issues on appeal, which we restate as:

(1) Whether the trial court properly concluded that the testimony of Appellants' expert witness did not create a genuine issue of material fact as to the liability of Dr. Szymanowski;

(2) Whether the trial court properly concluded that the alleged negligence of a physician qualified under the Indiana Medical Malpractice Act cannot be imputed upon the corporate Appellee, GYN, under a theory of vicarious liability; and (3) Whether the trial court properly concluded that no recovery can be had for the 2007 death of a child not born alive under the Child Wrongful Death Statute.

FACTS AND PROCEDURAL HISTORY

Stafford became pregnant with her third child in 2007. She received prenatal medical care from Appellees from approximately March of 2007 until Drayden was stillborn on November 6, 2007. Stafford alleges that Drayden's death in utero and stillbirth resulted from Appellees' negligence and medical malpractice at a time when Drayden was a viable fetus, and specifically from certain medical acts and omissions which occurred between October 6, 2007 and November 6, 2007.

On June 2, 2009, Stafford filed a Proposed Complaint for Medical Malpractice with the Indiana Department of Insurance. On October 23, 2009, an amended complaint was filed, adding Drayden, a child not born alive, as a party, and submitted to the Medical Review Panel (Panel) pursuant to Ind.Code § 34–18–10–1. On May 30, 2012, the Panel issued its expert opinion, concluding “that the evidence does not support the conclusion that the [Appellees] failed to meet the applicable standard of care, and that their conduct was not a factor of the resultant damages.” (Appellants' App. p. 31).

On August 3, 2012, following the Panel's opinion, Appellants filed their Complaint for Medical Malpractice before the trial court. On September 21, 2012, Appellees tendered a motion for summary judgment as a matter of law because Appellants had failed to establish a genuine issue of material fact in the standard of care exhibited by the Appellees and because Drayden's claim under the Child Wrongful Death Statute (CWDS) was time-barred. On December 27, 2012, Appellants responded, designating an affidavit by its expert witness, Gary Brickner, M.D. (Dr. Brickner). Reviewing the same records and materials previously tendered to the Panel, Dr. Brickner concluded that the medical care and treatment rendered by Appellees to Stafford failed to comply with the appropriate medical standard of care and was deficient for, at least, the following reasons:

a. On October 16, [Stafford] had an eight hour hospital stay at which time the medical care and treatment failed to include appropriate laboratory testing and a 24 hour urine study which could have provided indications of impending or existing maternal/fetal complications and risk.

b. On November 1, a biophysical profile was performed which, if performed properly, should have predicted the chances of fetal survival for up to a week thereafter. It is my opinion that the baby most probably expired between November 2 and November 4. Consequently, there is medical reason to believe that the biophysical profile was performed or interpreted, improperly.

c. On November 1, a fetal non-stress test or other appropriate evaluation of the fetal heart rate pattern should have been performed based on [Stafford's] background/history and reduced fetal movement, and was not.

d. Given the condition of [Stafford] on November 1, a biophysical profile of 8 out of 8 is a deviation from the standard of care because it left off a critical index, the non-stress test.

e. It was a deviation from the standard of care for [Stafford] given her report of decreased fetal movement, to have been sent home from the office for the weekend on November 1 with an 8 out of 8 biophysical profile without conducting a non-stress testing or other fetal heart rate evaluation.

(Appellants' App. p. 99). Appellees deposed Dr. Brickner on June 3, 2013.²

On July 1, 2013, Appellees, besides filing a joint reply to Appellants' Response, also filed a second motion for summary judgment, as well as a designation of evidence, to which Appellants responded. On November 15, 2013, the trial court conducted a hearing on the motions for summary judgment. On January 2, 2014, the trial court granted Appellees' motion, concluding that there was no genuine issue of material fact as to Dr. Szymanski and GYN, and to the extent necessary the unnamed physician, Joseph Smith, M.D. (Dr. Smith), even though Dr. Smith had never been named as a party to the action.

Appellants now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties' differing accounts of the truth ..., or if the undisputed facts support conflicting reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009).

In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607–08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

We observe that, in the present case, the trial court entered findings of fact in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. See id. However, such findings offer this court valuable insight into the trial court's rationale for its decision and facilitate appellate review. Id.

II. Dr. Szymanowski

Appellants contend that the trial court improperly entered summary judgment in favor of Dr. Szymanowski. Relying on Dr. Brickner's affidavit and deposition, Appellants assert that a genuine issue of material fact existed which precluded the entry of summary judgment.

Under Indiana law, once the defending parties—as here—“designate the opinion of the medical review panel finding that the defendants exercised the applicable standard of care, the plaintiff must generally present expert opinion testimony to demonstrate the existence of a genuine issue of material fact.” Boston v. GYN, Ltd., 785 N.E.2d 1187, 1190 (Ind.Ct.App.2003), reh'g denied, trans. denied. Because of the complexity of medical diagnosis and treatment, “substantive law requires expert opinion as to the existence and scope of the standard of care which is imposed upon medical specialists and as to whether particular acts or omissions measure up to the standard of care ... Before the trier of fact may confront the factual question [of negligence] the issue must be presented and placed in controversy by reference to expert opinion.” McGee v. Bonaventura, 605 N.E.2d 792, 794 (Ind.Ct.App.1993).

In an effort to rebut the Panel's unanimous decision that Dr. Szymanowski met the appropriate standard of care in his medical consultations with Stafford, Appellants point to Dr. Brickner's affidavit, opining that on November 1st an insufficient biophysical profile was performed or interpreted improperly. Although the affidavit is silent on which physician conducted the biophysical appointment, Appellants maintain that Dr. Brickner's designated deposition clarifies that Dr. Szymanowski was involved in Stafford's care on that particular day.

In his deposition, Dr. Brickner affirmed that “[m]y basic criticism of the care is that it was the only test done on that patient, which given her presenting situation that day, [ ] was insufficient as a way of assuring fetal well-being.” (Appellants' App. p. 137). Specifically, Dr. Brickner laments the absence of a non-stress test that is included in the “true biophysical profile.” (Appellants' App. p. 136). Although Dr. Brickner acknowledged that a biophysical profile can be compiled in varying ways—both with or without a...