Wright v. Carter, 51S01-9310-CV-1178

• Decision Date: 26 October 1993
• Docket Number: No. 51S01-9310-CV-1178,51S01-9310-CV-1178
• Court: Indiana Supreme Court
• Parties: R.S. WRIGHT, M.D., Donald D. Donner, M.D., and Bedford Medical Center, Appellants (Defendants Below), v. Betty CARTER and John Carter, Appellees (Plaintiffs Below).

Page 170

622 N.E.2d 170

R.S. WRIGHT, M.D., Donald D. Donner, M.D., and Bedford Medical Center, Appellants (Defendants Below), v. Betty CARTER and John Carter, Appellees (Plaintiffs Below).

No. 51S01-9310-CV-1178.

Supreme Court of Indiana.

Oct. 26, 1993.

Edna M. Koch, Tipton Cohen & Koch, Indianapolis, for appellant Donald D. Donner, M.D.

David J. Mallon, Jr., Kelly J. Pitcher, Ice Miller Donadio & Ryan, Indianapolis, for appellants R.S. Wright, M.D. and Bedford Medical Center.

Barry S. Brown, Bloomington, for appellees.

SHEPARD, Chief Justice.

When radiologist Donald D. Donner, M.D., moved for summary judgment on the medical malpractice claim of Betty Carter, Carter did not respond with any expert evidence. Instead, she relied on the rule of res ipsa loquitur. Given the facts underlying Carter's claim, we hold that this was an insufficient response and that Donner was entitled to summary judgment.

Carter brought this malpractice action upon learning that a 1.1 centimeter piece of wire had been inadvertently left in her left breast after a biopsy. Donner had inserted the wire prior to a surgery by defendant Dr. R.S. Wright to aid Wright in locating the non-palpable mass Wright was to remove from the breast.

Dr. Donner was not present in the operating room, where the wire transection occurred. Once he had inserted the wire, which insertion plaintiff does not allege was negligent, Donner's only role was to examine the mass removed by Dr. Wright. ¹ The medical review panel unanimously found in favor of both physicians and the Bedford Medical Center. After Carter and her husband brought this action, the three providers moved for summary judgment, based on the panel's opinion. Carter failed to offer any expert opinion to rebut the conclusions of the medical review panel.

The trial court denied the motions for summary judgment, and the Court of Appeals affirmed. Wright v. Carter (1992), Ind.App., 604 N.E.2d 1236. We grant transfer and summarily affirm the Court of Appeals decision with respect to Wright and Bedford Medical Center. Ind.Appellate Rule 11(B)(3).

Indiana Trial Rule 56(C) directs the trial judge to grant a motion for summary judgment only if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Any doubts concerning the existence of material facts are to be resolved in favor of the party opposing the motion.

As in other tort actions, a plaintiff alleging medical malpractice must show that the defendant, owing a duty to the plaintiff, violated a standard of reasonable care, causing injury to the plaintiff. Due to the complexity of the issues surrounding diagnosis and treatment, ² Indiana recognizes a rule by which the parties introduce the opinion of medical experts about the standard of care customary under circumstances similar to the case at issue. ³

Expert testimony, however, is not always a prerequisite to surviving a defendant's motion for summary judgment. As we noted in Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312, there are some situations in which a physician defendant's allegedly negligent act or omission is so obvious as to allow plaintiffs to rely on the doctrine of res ipsa loquitur. ⁴ Juries do not need an expert to help them conclude, say, that it is malpractice to operate by mistake on the wrong limb. Sometimes, the undisputed facts themselves create an inference of negligence such that the judge cannot say that the defendant must win as a matter of law, the contrary opinion of the medical review panel notwithstanding. ⁵

Cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some surgical implement or other foreign object from the patient's body. In addition to Funk (sponge left in abdomen), see also Ciesiolka v. Selby (1970), 147 Ind.App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen); Klinger v. Caylor (1971), 148 Ind.App. 508, 267 N.E.2d 848 ("surgical padding" left in intestinal tract); and Burke v. Capello (1988), Ind., 520 N.E.2d 439 (cement left in hip). ⁶

In this case, Carter argues that the fact that a piece of wire remained in her body following the biopsy is sufficient to raise an inference of negligence, thereby obviating the need for an affidavit to that effect from an expert in order for her to survive defendants' motions for summary judgment. If undisputed facts support such an inference--that is, if they "speak for themselves"--plaintiff's burden of production is satisfied without expert testimony. As we observed in Funk, to hold otherwise would cede to the medical profession the ability to determine what constitutes a violation of the standard of care, a function which Indiana law has assigned to the jury. 204 Ind. at 178, 183 N.E. at 315.

Exclusivity of control is an important component of res ipsa loquitur in cases of this type. Dr. Wright left behind the wire fragment during the course of the biopsy he performed after Dr. Donner had completed his assigned task and departed. For all that appears, Carter was under the...