Sword v. NKC Hospitals, Inc.

Decision Date25 June 1999
Docket NumberNo. 10S05-9610-CV-637.,10S05-9610-CV-637.
Citation714 N.E.2d 142
PartiesDiana SWORD and Carl Sword, Jr., Appellants (Plaintiffs Below), v. NKC HOSPITALS, INC., Alliant Health System, Inc. d/b/a Norton's Children's Hospital, Appellee (Defendant Below).
CourtIndiana Supreme Court

Derrick H. Wilson, Mattox & Mattox, New Albany, Indiana, for appellants.

David C. Jensen, Paul A. Rake, Lyle R. Hardman, Eichhorn & Eichhorn, Hammond, Indiana, Amicus Curiae The Insurance Institute of Indiana, Inc., for appellee.

James M. Gary, Weber & Rose, P.S.C., Louisville, Kentucky, for appellee.

N. Kent Smith, Hall, Render Killian, Heath & Lyman, P.C., Indianapolis, Indiana, Amicus Curiae Indiana Hospital & Health Association, for appellee.



Norton's Children's Hospital ("Norton" or "defendant") challenges the decision of the Court of Appeals which reversed the trial court's decision granting summary judgment for Norton in this medical malpractice action. Sword v. NKC Hosp., Inc., 661 N.E.2d 10 (Ind.Ct.App.1996). Specifically, the trial court ruled on a choice of law question that it was bound to apply Indiana law rather than the law of Kentucky. The trial court then held that, as a matter of law, Norton could not be held liable for the injuries to patient Diana Sword ("Sword" or "plaintiff") because plaintiff asserts that she was injured through the asserted negligence of an independent contractor physician who practiced at Norton. Finally, the trial court held that, on the record before the court, there was no genuine issue of material fact as to whether the physician's negligence caused Sword's injuries. The Court of Appeals reversed and held that, under the doctrine of apparent or ostensible agency, Norton could be held liable for the alleged negligence of its independent contractor physician, and that the record established material issues of fact both on the question of apparent agency and causation. Id. at 17.

We previously granted Norton's petition for transfer and now address the following issues: 1) whether the trial court erred in resolving the choice of law question by applying Indiana rather than Kentucky law; 2) whether an application of the doctrine of apparent or ostensible agency is appropriate and warrants a conclusion that there are genuine issues of material fact in dispute on that issue; and 3) whether there is a genuine issue of material fact as to causation. Although we conclude that the trial court correctly resolved the choice of law question, the trial court erred when it concluded that, as a matter of law, Norton was not liable to Sword because an independent contract physician assertedly committed the negligent acts and because the record did not establish material issues of fact on the question of causation. Accordingly, we reverse the trial court's grant of summary judgment in favor of defendant on the apparent agency and causation issues and remand for further proceedings not inconsistent with this opinion.


The facts taken in the light most favorable to the non-moving party are as follows. Diana Sword lives in southern Indiana. On April 24, 1991, Diana Sword and her husband entered Norton in Louisville, Kentucky for the delivery of their first child. Prior to entering the hospital, Sword consulted with her obstetrician about whether or not to deliver with the help of an anesthetic. Her obstetrician recommended using an epidural; he told Sword that the epidural procedure would numb her from the waist down, and that he used them frequently. Sword decided to have an epidural. She, however, did not know in advance who would administer the epidural.

Sword also made arrangements to go to Norton through her obstetrician's office. Norton aggressively marketed its services to the public. It stated in brochures that its Women's Pavilion is "the most technically sophisticated birthplace in the region." (R. at 228.) Norton also advertised that it offers:

[I]nstant access to the specialized equipment and facilities, as well as to physician specialists in every area of pediatric medicine and surgery. Every maternity patient has a private room and the full availability of a special anesthesiology team, experienced and dedicated exclusively to OB patients.

Id. (emphasis added). One brochure stated that:

The Women's Pavilion medical staff includes the only physicians in the region who specialize exclusively in obstetrical anesthesiology. They are immediately available within the unit 24 hours a day and are experts in administering continuous epidural anesthesia.

(R. at 232.) (emphasis added).

At some point during her labor, an anesthesiologist came into Sword's room. He explained the epidural procedure and how it would make her feel. He told her that he would stick the tubing for the epidural in her lower back and then she would feel numbness from the waist down. As the anesthesiologist was preparing to begin the procedure, he was called out of the room.

Five to ten minutes later, a second anesthesiologist, Dr. Luna, came into Sword's room to administer the epidural. The parties do not dispute that Dr. Luna practiced medicine at Norton as an independent contractor. After verifying that the previous anesthesiologist had explained the procedure to Sword, Dr. Luna began the epidural procedure. As Sword sat on the bed and leaned forward, Dr. Luna began inserting the epidural tubing. Dr. Luna first inserted the tubing near the top of Sword's neck. Shortly thereafter, Dr. Luna removed the epidural tubing "because it did not take" and then reinserted it in Sword's lower back. (R. at 181-82.)

Soon after the delivery of her healthy baby, Sword began to have headaches which recur every four to six weeks. When the headaches occur, Sword is very sensitive to light and sound. In addition to the headaches, she also feels a numbness in her back where the second epidural was administered. Sword alleges that these symptoms are a result of Dr. Luna's negligent placement of the epidural tubing and that Norton is liable.

I. Standard of Review

To determine whether the trial court correctly granted summary judgment, this Court applies the same standard as did the trial court. See Trotter v. Nelson, 684 N.E.2d 1150, 1152 (Ind.1997); Greathouse v. Armstrong, 616 N.E.2d 364, 365-66 (Ind.1993). We do not weigh the evidence designated by the parties but, instead, consider it liberally and in the light most favorable to the non-moving party. See Trotter, 684 N.E.2d at 1152. Summary judgment is appropriate only "if the designated evidentiary matter shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C), see also Estate of Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind.1999). The burden is on the moving party to prove the non-existence of a genuine issue of material fact. See Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind.1994). If the movant sustains this burden, the opponent may not rest upon the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Ind. Trial Rule 56(E); Mullin, 639 N.E.2d at 281. If there is any doubt, the motion should be resolved in favor of the party opposing the motion. Id.

II. Choice of Law

The trial court decided the case on the basis of Indiana law and ruled that any choice of law issue was not properly raised. Sword argues that the trial court erred by not using Kentucky law to decide the case. We find that any choice of law issue was not properly raised and, thus, is waived. As a result, the trial court properly applied Indiana law to this case.

Under the Uniform Judicial Notice of Foreign Law Act,1 a party may raise a choice of law issue and may inform the trial court of the law of other states by offering evidence of such law or by asking the court to take judicial notice of such law. IND.CODE § 34-38-4-4 (1998) (formerly codified at IND.CODE § 34-3-2-4 (1993)). Providing the trial court with notice of the foreign law allows the court to consider whether the other state's or Indiana's law should apply. See Harvest Ins. Agency, Inc. v. Inter-Ocean Ins. Co., 492 N.E.2d 686, 691 (Ind.1986). A prerequisite to informing the court of another state's law, however, is that "reasonable notice shall be given to the adverse parties, either in the pleadings or otherwise." IND.CODE § 34-38-4-4 (1998). In the absence of such notice to the adverse party or to the trial court, the court "will presume the law in that [other] jurisdiction is substantially the same as the law in Indiana." Harvest, 492 N.E.2d at 691; see also Williams v. Graber, 485 N.E.2d 1369, 1374-75 (Ind.Ct.App.1985). In other words, if the adverse party is not given reasonable notice that the issue of another state's law will be raised, then any choice of law question is waived and the trial court presumes that all law is the same as Indiana's. Id.

Here, Sword failed to give reasonable notice to Norton that Kentucky law should be applied to any of the substantive issues. Sword argues that notice was given because 1.) a sister action was pending in a Kentucky court; 2.) the details of the complaint make it clear that Kentucky law should apply; and 3.) the issue of Kentucky law was raised at the summary judgment hearing. None of these arguments are persuasive.

First, the fact that an accident occurred in a state other than Indiana does not provide reasonable notice that a party will seek to use the other state's law. See Williams, 485 N.E.2d at 1371, 1374-75. Similarly, the fact that a sister action is pending in another state also is insufficient to provide reasonable notice within the meaning of § 34-38-4-4. The fact that plaintiff filed a sister action in Kentucky may be interpreted simply as Sword's way of "hedging her bets"—that is to say that she chose to file actions in both states in order to enhance her chances of recovery in at least...

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