Vogler v. Dominguez

• Decision Date: 30 November 1993
• Docket Number: No. 82A01-9306-CV-192,82A01-9306-CV-192
• Citation: 624 N.E.2d 56
• Parties: Allen A. VOGLER and Jane M. Vogler, Appellants-Plaintiffs, v. Pedro R. DOMINGUEZ, M.D. and Deaconess Hospital, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 56

624 N.E.2d 56

Allen A. VOGLER and Jane M. Vogler, Appellants-Plaintiffs, v. Pedro R. DOMINGUEZ, M.D. and Deaconess Hospital, Inc.,

Appellees-Defendants.

No. 82A01-9306-CV-192.

Court of Appeals of Indiana,

First District.

Nov. 30, 1993.

Rehearing Denied Jan. 4, 1994.

Transfer Denied April 19, 1994.

Gary Becker, Becker Law Office, Louisville, KY, for appellants-plaintiffs.

Robert H. Hahn, Michele S. Bryant, Bamberger, Foreman, Oswald & Hahn, William E. Statham, Statham, Johnson & McCray, Evansville, for appellees-defendants.

ROBERTSON, Judge.

Allen A. Vogler and Jane M. Vogler appeal the granting of a summary judgment in favor of Dr. Pedro R. Dominguez and Deaconess Hospital in their action against the doctor and hospital for medical malpractice. We affirm as to the hospital but reverse as to Dr. Dominguez.

Allen Vogler underwent surgery at Deaconess Hospital on October 16, 1989 for the purpose of repairing a cerebrospinal fluid leak which had resulted from a fall. Following the surgery, which was performed by Dr. Dominguez, Vogler experienced a loss of motor function and pain in the left arm. Subsequently, doctors diagnosed the condition of Vogler's left arm as a brachial plexus stretch, i.e. a stretch injury to the nerves in the upper brachial plexus. The Voglers allege in their complaint against Dr. Dominguez and the hospital that the brachial plexus stretch condition suffered by Vogler proximately resulted from the negligent placement or manipulation of his body while he was undergoing surgery or in recovery following the surgery while Vogler was in the exclusive control of the defendants, their agents or employees. The Voglers did not name as defendants the neurosurgeon who assisted Dr. Dominguez, the anesthesiologist, or a physician's assistant.

In summary judgment proceedings, the trial court is called upon to derive the matters placed in issue from the pleadings and to examine the forms of admissible evidence sanctioned by Ind.Trial Rule 56(C) which have been made available by the parties. The probative value of each piece of evidence is then to be determined without setting weight or credibility. Rational assertions of fact and reasonable inferences therefrom are deemed to be true. Burke v. Capello (1988), Ind., 520 N.E.2d 439, 440. If, when from this viewpoint, there is no genuine issue of material fact, judgment as a matter of law may then be appropriate for a party. Upon review of a grant of summary judgment, the appellate court has before it the same materials that were before the trial court and follows the same process. Id.

On appeal, a trial court's grant of summary judgment is clothed with a presumption of validity. Rosi v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431, 434 citing Indiana Depart. of Revenue v. Caylor-Nickel Clinic (1992), Ind., 587 N.E.2d 1311, 1312-13. The appellant bears the burden of proving that the trial court erred in determining from the designated evidentiary material that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Id. On review, any doubt about the existence of a fact or the reasonable inference to be drawn from it must be resolved in favor of the non-moving party. Allied Resin Corp. v. Waltz (1991), Ind., 574 N.E.2d 913. This court may not reverse a summary judgment on the ground that there is a genuine issue of material fact unless the material facts and relevant evidence were specifically designated to the trial court. Id.; Ind.Trial Rule 56(C). The identification of material facts and relevant evidence contained in appropriate T.R. 56(C) supporting materials through a summary judgment brief complies with the designation requirement of T.R. 56(C). See Jackson v. Blanchard (1992), Ind.App., 601 N.E.2d 411, 416 n. 4.

The hospital argued in its motion for summary judgment that, as established by the uncontroverted facts, the Voglers did not have sufficient evidence to establish negligence on the part of the hospital and could not establish a proper foundation for res ipsa loquitur. In support of its motion, the hospital designated the complaint, "Plaintiffs' Specifications of Negligence," the deposition of Dr. David Seligson, an orthopedic surgeon, the affidavits of the surgical nursing staff and Dr. Dominguez, and all documents designated by Dr. Dominguez. Dr. Dominguez designated the same materials but in addition relied upon the June 7, 1990, opinion letter of Dr. Seligson and the deposition of Dr. Ronald Sowa, an orthopedic surgeon.

In response to the defendants' motions for summary judgment, the Voglers filed a brief in opposition to the motion for summary judgment in which they identified the opinions of Dr. Seligson, stated in his deposition that, to a reasonable medical probability, the injury sustained by Allen Vogler was caused by the position of Vogler's body during surgery; the alternative causes suggested by other physicians were only possible and not probable and could not have produced the injury; and reasonably prudent health care providers who perform surgery of this nature would not have nerve palsies in their patients following surgery but would by the positioning of the patient, or by the precautions taken, with or without nerve monitoring in the extremities, complete such a surgery without a nerve palsy and that therefore, the standard of care must have been breached. The Voglers also filed the affidavits of Dr. Seligson and Dr. Steven J. Reiss, a neurosurgeon. In his affidavit, Dr. Seligson opined that the brachial plexis injury sustained by Allen Vogler was not due to a viral infection and that while the anesthesiologist often assists in positioning a patient, ultimate responsibility for the positioning of the head and shoulders of a patient during a right frontal craniotomy is the duty of the operating surgeon. In his affidavit, Dr. Reiss avers that the injury to Allen Vogler's left shoulder and arm is not an expected or acceptable risk of a right frontal craniotomy; that the injury was not due to a viral infection; and that the position of the patient in a right frontal craniotomy performed with the use of Mayfield pins is ultimately the responsibility and duty of the operating neurosurgeon. Dr. Reiss averred that his opinions were made to a reasonable degree of medical certainty and were based on his training and experience as an operating neurosurgeon performing surgeries of the type which Allen Vogler underwent on October 16, 1989. ¹

The law requires that a physician treating a patient possess and exercise that degree of skill and care ordinarily possessed and exercised by a reasonably careful, skillful and prudent practitioner in the same class to which he belongs treating such maladies under the same or similar circumstances. Culbertson v. Mernitz (1992), Ind., 602 N.E.2d 98, 100 n. 4; Vergara v. Doan (1992), Ind., 593 N.E.2d 185, 187. Generally, in order for a lay jury to know whether a physician complied with the legally prescribed standard of care, the parties must present expert testimony to establish what a reasonably prudent physician would or would not have done in treating a patient. Id.

Neither of the defendants has questioned Dr. Seligson's qualifications to form and express an opinion upon the applicable standard of care. An orthopedic surgeon specializes in the diagnosis and treatment of the diseases and conditions of the bones, joints, and nerves including nerve palsies. Rather, Dr. Dominguez maintains that the Voglers have failed to establish that Dr. Seligson is in fact familiar with and competent to testify to the appropriate standard of care to be applied to a neurosurgeon who performs a right frontal craniotomy.

Dr. Dominguez points to Dr. Seligson's inability to define the term "standard of care" and his use of terms during his deposition, which Dr. Dominguez argues, demonstrates that he is misapplying the standard or applying the wrong standard. At one point in his deposition, Dr. Seligson admitted that he did not know the standard of care and could not specify what a reasonably prudent surgeon would or would not have done under the same or similar circumstances. Dr. Seligson testified that he was only familiar with the surgery performed on Allen Vogler in a general sense, and because he was not a neurosurgeon, did not know the specific details. Dr. Seligson also referred to the expectations of the public rather than those of the medical community.

Nonetheless, the same deposition provides evidence that Dr. Seligson does in fact know from his experience, education and training, the degree of care, skill and proficiency exercised by reasonably careful, skillful and prudent neurosurgeons such as Dr. Dominguez under the same or similar circumstances, and that a nerve palsy does not result when such care, skill and proficiency are used. Dr. Seligson testified that as an intern in surgery and as a senior registrar in neurosurgery in 1972 or 1973, he had performed more than twenty frontal craniotomies (R. 703); that there are operations on the brain which carry with them a risk of palsy but in an operation such as Allen Vogler had, it would not be expected that he would wake up with dysfunction of the arm (R. 724); that such an expectation would hold for specialists throughout the country (R. 695); that something happened to Allen Vogler which could have been prevented by reasonably prudent health care professionals (R. 742); that the conduct of the person or persons who performed the surgery was not reasonable and prudent (R. 742); and that reasonably prudent surgical experts would, by positioning and arrangement of the patient during surgery or by precautions taken, complete such a procedure without a nerve palsy. (R. 696). Dr. Seligson also opined that the nerve palsy suffered by Allen Vogler was the net result in some form of the positioning of the patient during the operative procedure which created a stretch...