Whyde v. Czarkowski
| Decision Date | 22 December 1995 |
| Docket Number | No. 29A05-9506-CV-239,29A05-9506-CV-239 |
| Citation | 659 N.E.2d 625 |
| Parties | Jacqueline WHYDE, Appellant-Plaintiff, v. Robert CZARKOWSKI, M.D., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Jacqueline Whyde appeals the trial court's grant of summary judgment in favor of defendant-appellee, Dr. Robert Czarkowski, on her claim for medical malpractice. The sole issue for our review is whether the trial court erred in granting the motion for summary judgment. We reverse and remand.
On December 22, 1989, Jacqueline Whyde sustained a work related injury to her right shoulder, which was later diagnosed as a rotator cuff tear. On January 25, 1990, the worker's compensation carrier sent Whyde to Dr. Raymond DeLorenzi. Subsequently, DeLorenzi performed surgery on the shoulder and continued to follow her recovery.
On August 27, 1990, Dr. Robert Czarkowski examined Whyde at the request of the worker's compensation carrier. Czarkowski also examined Whyde on November 30, 1990, at the request of the carrier. Czarkowski evaluated Whyde's flexion, extension, abduction, external, and internal mid-thoracic range of motion. As part of the examination, Whyde was required to move both of her arms. Whyde was able to raise her left arm up and point to the ceiling but was unable to do the same with her right arm.
Sometime later, Whyde filed a complaint against Czarkowski with the Indiana Department of Insurance pursuant to Ind.Code § 27-12-8-4. 1 In the complaint, Whyde alleged that Czarkowski negligently cared for her arm. After a hearing on December 7, 1993, a medical review panel decided that the evidence did not support the conclusion that Czarkowski failed to meet the applicable standard of care as alleged in Whyde's complaint.
Record, pp. 28-29 (original emphasis). Whyde designated her affidavit, her mother's affidavit, the complaint, and Czarkowski's deposition but did not file any independent expert testimony regarding the applicable standard of care.
On March 8, 1995, the trial court granted the motion because Whyde failed to submit expert testimony regarding the applicable standard of care. Whyde appeals the court's decision.
At the outset, we reiterate our well established standard of review with respect to challenges to the entry of summary judgment. Upon review, we are bound by the same standard as the trial court. Ayres v. Indian Heights Volunteer Fire Department, Inc. (1986), Ind., 493 N.E.2d 1229, 1234. We may consider only those portions of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters designated to the trial court by the moving party for purposes of the motion for summary judgment. Rosi v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431, 434; see Ind.Trial Rule 56(C), (H). Any doubt as to the issue of a material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party. Cowe v. Forum Group, Inc. (1991), Ind., 575 N.E.2d 630, 633. "A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue." Scott v. Bodor, Inc. (1991), Ind.App., 571 N.E.2d 313, 318. 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 which bars the plaintiff's claim. Moore v. Sitzmark (1990), Ind.App., 555 N.E.2d 1305, 1307.
To maintain a claim of medical malpractice, the plaintiff must show (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty by allowing conduct to fall below a set standard of care, and (3) a compensable injury proximately caused by defendant's breach of the duty. Wielgus v. Lopez (1988), Ind.App., 525 N.E.2d 1272, 1275. To determine whether the physician's conduct fell below the legally prescribed standard of care, the plaintiff-patient must present expert testimony to establish what a reasonably prudent physician would or would not have done in treating the plaintiff. Snyder v. Cobb (1994), Ind.App., 638 N.E.2d 442, 445-446, trans. denied. Failure to provide expert testimony will usually subject the plaintiff's claim to summary disposition. Widmeyer v. Faulk (1993), Ind.App., 612 N.E.2d 1119, 1122. However, a plaintiff is not required to present expert testimony in those cases where deviation from the standard of care is a matter commonly known to lay persons. Culbertson v. Mernitz (1992), Ind., 602 N.E.2d 98, 100. This exception is based upon the doctrine of res ipsa loquitur where the deficiency of the physician's conduct "speaks for itself". See id.
On appeal, Whyde first argues that she was not required to provide expert testimony regarding the applicable standard of care because "common folk understand that when a physician is merely 'examining' a patient's arm he or she does not forcefully jerk the injured arm." Appellant's brief, p. 9, n. 1. Alternatively, she argues that the applicable standard of care was established by Czarkowski's deposition. We will examine each of these arguments.
Whyde's first argument is that she is not required to present expert testimony in this case. In support of his motion for summary judgment, Czarkowski designated the opinion of the medical review panel which found that Czarkowski met the applicable standard of care. This evidence was sufficient to satisfy Czarkowski's burden of showing no genuine issue of material fact; without a breach of the standard of care, Czarkowski would be entitled to judgment as a matter of law. See Oelling v. Rao (1992), Ind., 593 N.E.2d 189, 190. "The plaintiffs cannot prevail in a medical malpractice action or any other tort claim where the undisputed evidence demonstrates that the defendant did not breach any duty owed to the plaintiff." McGee v. Bonaventura (1993), Ind.App., 605 N.E.2d 792, 794. Therefore, Whyde had the burden of presenting expert testimony to demonstrate a genuine issue for trial, that is, whether Czarkowski breached the standard of care. See Oelling, 593 N.E.2d at 190; McGee, 605 N.E.2d at 794. However, Whyde contends that the exception to the rule requiring expert testimony applies to the facts of this case. We disagree.
Our courts have held that expert testimony is not required when the fact finder can understand that the physician's conduct fell below the applicable standard of care without technical input from an expert witness. See Burke v. Capello (1988), Ind., 520 N.E.2d 439, 441. This "common knowledge exception" is applicable in select cases:
Malooley v. McIntyre (1992), Ind.App., 597 N.E.2d 314, 319. Thus, this exception is narrow and is restricted to cases in which the alleged malpractice is "so obvious as to allow plaintiffs to rely on the doctrine of res ipsa loquitar." Wright v. Carter (1993), Ind., 622 N.E.2d 170, 171. These "obvious" cases have generally been limited to the leaving of foreign objects such as cement or wire in the patient's body after surgery. See id.; Burke, 520 N.E.2d at 441.
Here, the allegedly negligent conduct was the application of passive range of motion ("PROM"). PROM occurs when a physician or mechanical device assists a patient with the range of motion of the patient's joints. PROM is used to determine which motions may not be performed by the patient without assistance because of injury or muscle weakness. Upon review, we find no authority requiring us to include this case within the common knowledge exception. In addition, we are unwilling to expand the breadth of the exception because the medical conduct here is not so "obviously substandard that one need not possess medical expertise in order to recognize the breach." See Malooley, 597 N.E.2d at 319. Therefore, we find that Whyde was required to present expert testimony to establish the applicable standard of care.
Whyde's alternative argument is that she did present expert testimony regarding the standard of care when she designated Czarkowski's deposition in her memorandum in opposition to the motion for summary judgment because she claims the deposition establishes the standard of care. 2 The following sections of the deposition are relevant for this discussion:
"Q Are there certain principles of medicine that are followed when passively moving an extremity that has suffered an injury either in the extremity or the shoulder?
A I don't understand what you're asking.
Q Passive motion, as I understand it, by a...
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