Ziobron v. Squires

• Decision Date: 07 October 2008
• Docket Number: No. 29A04-0804-CV-235.,29A04-0804-CV-235.
• Citation: 907 N.E.2d 118
• Parties: Mary J. ZIOBRON, Appellant-Plaintiff, v. Madalyn Kell SQUIRES, M.D., Womens' Health Partnership, PC., St. Vincent Hospital & Health Services, Michael G. Hostetter, M.D., and Associated Urologists, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

907 N.E.2d 118

Mary J. ZIOBRON, Appellant-Plaintiff, v. Madalyn Kell SQUIRES, M.D., Womens' Health Partnership, PC., St. Vincent Hospital & Health Services, Michael G. Hostetter, M.D., and Associated Urologists, Inc., Appellees-Defendants.

No. 29A04-0804-CV-235.

Court of Appeals of Indiana.

October 7, 2008.

Publication Ordered November 14, 2008.

Karen Neiswinger, Indianapolis, IN, Attorney for Appellant.

Peter H. Pogue, Catherine L. Kyle, Schultz & Pogue, LLP, Michael Roth, Mallory Reider Inselberg, Eichhorn & Eichhorn, LLP, Indianapolis, IN, Attorneys for Appellees.

OPINION

VAIDIK, Judge.

Case Summary

Mary Ziobron filed a medical malpractice action against Dr. Madalyn Kell Squires, Dr. Michael Hostetter, Women's Health Partnership, P.C., St. Vincent Hospital and Health Services, and Associated Urologists, Inc., for injuries allegedly sustained as a result of surgical operations performed by Dr. Squires and Dr. Hostetter. After Ziobron failed to present an expert opinion to rebut a medical review panel's unanimous opinion that the doctors exercised the requisite standard of care during the operations, the trial court granted summary judgment in favor of all of the defendants except for St. Vincent Hospital. Ziobron now appeals, arguing that she presented a sufficient expert opinion to survive a summary judgment motion and that, in the alternative, an expert opinion was not required because negligence can be inferred under the doctrine of res ipsa loquitur. Dr. Hostetter and Associated Urologists cross-appeal for appellate attorneys' fees, and Ziobron requests attorneys' fees for the first time in her reply brief. Concluding that Ziobron failed to present an expert opinion to rebut the medical review panel's unanimous decision and that negligence cannot be inferred under these facts, we affirm the summary judgment order. Additionally, concluding that neither award of attorneys' fees is warranted, we deny both requests for appellate attorneys' fees.

Facts and Procedural History

Ziobron met with Dr. Squires, a gynecologist with Women's Health Partnership, in June 2001 for evaluation and treatment of postmenopausal bleeding and a right ovarian cyst. After an examination, Dr. Squires diagnosed several operable gynecological issues. Dr. Squires referred Ziobron to Dr. Hostetter, a urologist with Associated Urologists, for a separate medical complaint. Ziobron subsequently attended an appointment with Dr. Hostetter.

On October 30, 2001, Ziobron underwent surgery at St. Vincent Hospital in Indianapolis. During this surgery, Dr. Squires performed a vaginal hysterectomy with removal of ovaries and fallopian tubes, and Dr. Hostetter performed a bladder sling procedure. In her postoperative report, Dr. Squires reported difficulty accessing Ziobron's left fallopian tube and ovary. However, Dr. Squires reported that she removed both ovaries and fallopian tubes. The removed tissue was later sent to a laboratory for evaluation, and the pathologist identified only one ovary. Dr. Squires did not notice this observation on the laboratory report. In December 2001, Dr. Squires located a mass on the left side of Ziobron's pelvis during a postoperative examination. An ultrasound revealed a non-cystic mass that Dr. Squires believed was a blood clot.

Sometime late in 2001, while relaxing in bed, Ziobron felt a sensation "in or around the area where the bladder sling was performed" of something "pulling away like that of stitches being removed from two pieces of material, `snapping loose' one by one over a period of a few minutes." Appellant's App. p. 253. Since then, she has experienced complications related to a dropped bladder.

A gastroenterologist treating Ziobron for other symptoms in 2002 noticed what he believed was a retained left ovary. After learning of this, Dr. Squires suggested a laparoscopy to Ziobron to further evaluate the situation. However, Ziobron did not return to Dr. Squires for evaluation or treatment. After Ziobron underwent a later surgery performed by other physicians, it was discovered that the material that these physicians believed to be ovarian remnants was not.

Ziobron filed a proposed medical malpractice complaint against the defendants with the Indiana Department of Insurance. On April 18, 2007, the medical review panel rendered its opinion, which provides in part:

The panel is of the unanimous opinion that the evidence does not support the conclusion that the Defendants, Madalyn Kell Squires, M.D., Women's Health Partnership, P.C., Michael G. Hostetter, M.D., and Associated Urologists, Inc. failed to meet the applicable standard of care as charged in the complaint.

Appellant's App. p. 84.

Ziobron then commenced this action in the Hamilton Superior Court. In her ten-count amended complaint,¹ which named Drs. Squires and Hostetter, Women's Health Partnership, Associated Urologists, and St. Vincent Hospital as defendants, she contended that Drs. Squires and Hostetter negligently operated upon her and committed several acts of fraud. Specifically, all of her claims rest upon allegations that Dr. Squires negligently failed to remove her left ovary,² that Dr. Hostetter negligently performed the bladder sling procedure, and that all of the defendant parties had a duty to supervise each other and inform her of negligence.³ Id. at 50-66.

The defendants, excluding St. Vincent Hospital, filed motions for summary judgment based upon the medical review panel's unanimous decision. During a pretrial conference, the trial court asked Ziobron's counsel whether she had secured an expert opinion that the defendants breached the applicable standard of care. The trial court then instructed counsel:

Bottom line, this is a medical malpractice case and you have to have an expert opinion that says the standard of care was breached and you have to be prepared to respond to that.... [The summary judgment motions] can be defeated by a simple one page piece of paper from somebody that you're relying on that says they did something wrong. You don't need depositions of everybody, you need one fact. One, under oath, from an expert, and it's done. Of course it is, it is the exception, not the rule.

Tr. p. 11, 13. Ultimately, Ziobron designated several materials in opposition to the defendants' summary judgment motions: a deposition of Dr. Squires and attached exhibits, a deposition of Dr. Hostetter and attached exhibits, depositions of two medical review panel members and attached exhibits, an affidavit written and signed by Ziobron, and the materials designated in support of Dr. Squires's summary judgment motion. Appellant's App. p. 181-82. The depositions and several of the attached documents reflected that there was a question between 2002 and 2006 about whether Ziobron retained her left ovary after the 2001 surgery performed by Dr. Squires. However, a certified medical record from October 2006 reveals that Ziobron underwent surgery to remove what was thought to be her left ovary but was not. Id. at 143, 153. The pathology report from that surgery reports, "No ovarian parenchyma recognized." Id. at 153.

The trial court granted the defendants' motions for summary judgment, finding that Ziobron failed to meet her burden of rebutting, with an expert opinion, the medical review panel's finding that the health care providers met the applicable standard of care. Id. at 12-13. The trial court further found that Ziobron's claims do not succeed under the doctrine of res ipsa loquitur because "this is not the type of case that could be resolved solely by laypersons." Id. at 15. Ziobron now appeals.

Discussion and Decision

Ziobron contends that the trial court erred in granting summary judgment in favor of Dr. Squires, Dr. Hostetter, Women's Health Partnership, and Associated Urologists.⁴ She contends that there is a genuine issue of material fact relating to whether these defendants breached their duty of care while treating her. "The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law." Bushong v. Williamson, 790 N.E.2d 467, 474 (Ind. 2003). When reviewing a trial court's grant of summary judgment, we apply the same standard used by the trial court. Carlson v. Warren, 878 N.E.2d 844, 850 (Ind.Ct.App.2007) (citing Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1282 (Ind.2006)). Summary judgment "shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). On appellate review, "all facts and inferences drawn from them are construed in favor of the non-moving party." Carlson, 878 N.E.2d at 850-51 (citing Auto-Owners Ins. Co., 842 N.E.2d at 1282). On appeal, the trial court's order granting or denying a motion for summary judgment is cloaked with a presumption of validity. Roberts v. Sankey, 813 N.E.2d 1195, 1197 (Ind.Ct.App.2004), trans. denied. A party appealing from an order granting summary judgment has the burden of persuading the appellate tribunal that the decision was erroneous. Id. The parties moving for summary judgment bear the burden of showing the absence of a factual issue and that they are entitled to judgment as a matter of law. McGee v. Bonaventura, 605 N.E.2d 792, 794 (Ind.Ct. App.1993). Once that burden has been met, the opposing party cannot rest upon its pleadings. Id. It must then present sufficient rebuttal evidence to demonstrate the existence of a genuine issue of material fact. Id. (citing T.R. 56(E)).

Under Indiana law, a plaintiff in a medical malpractice case must generally present expert opinion testimony to demonstrate the existence of a genuine issue of fact once the defending parties designate the opinion of a medical review panel finding that the defendants exercised the applicable standard of care. Boston v. GYN, Ltd., 785 N.E.2d...