Debra K. Ford, Personal Representative of the Estate of Darlene M. Welsh v. Indiana Heart Hospital (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be FILED

regarded as precedent or cited before any Apr 05 2017, 5:29 am

court except for the purpose of establishing CLERK

the defense of res judicata, collateral Indiana Supreme Court

Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Cynthia S. Rose Robert G. Zeigler

Arthur R. Baxter, Jr. Marilyn A. Young

Baxter James & Rose LLP Erin E. Bowles

Indianapolis, Indiana Zeigler Cohen & Koch

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Debra K. Ford, Personal April 5, 2017

Representative of the Estate of Court of Appeals Case No.

Darlene M. Welsh, 49A04-1606-CT-1334

Appellant-Plaintiff, Appeal from the Marion Superior

Court

v. The Honorable James B. Osborn,

Judge

Indiana Heart Hospital, Trial Court Cause No.

Appellee-Defendant 49D14-1510-CT-037696

Mathias, Judge.

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[1] Darlene M. Welsh (“Welsh”) died while recovering from open heart surgery at

the Indiana Heart Hospital (“the Hospital”)1 in Indianapolis. Debra K. Ford

(“Ford”), Welsh’s daughter and the personal representative of her estate, sued

the Hospital for medical negligence. The trial court granted summary judgment

in the Hospital’s favor. From that grant, Ford now appeals, claiming her

designation created a fact issue as to the applicable standard of care and

precluded judgment as a matter of law.

[2] We reverse.

Facts and Procedural Posture

[3] Darlene Welsh was an eighty-two-year-old woman, described with medical

objectivity as “quite functional for her age and very active.” Appellant’s App. p.

59. On May 2, 2011, Welsh received previously scheduled open heart surgery at

the Hospital to repair her mitral valve and to bypass a blocked coronary artery.

[4] Once the repair and bypass were completed, the surgeon, Dr. John Storey

(“Storey”), placed a single “pacing wire” in Welsh’s chest. Pacing wires

connect the heart to an artificial pacemaker and may be placed temporarily in

the chests of postoperative open heart surgery patients to help regulate (“pace”)

heart rhythms and blood flow until the heart can function normally on its own.

See id. p. 90. Storey anchored one end of the pacing wire in Welsh’s

1

The Hospital now operates under a different name.

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myocardium, the heart muscle, and ran the other end through the sternotomy

incision in the left side of Welsh’s chest.

[5] By all accounts, the surgery went well. On May 3, 2011, the first day after

surgery, Storey noted, “[Welsh]’s doing fine. Cardiac function is fine. Labs

okay . . . . We will discontinue her tubes lines and wires . . . .” Id. p. 29 (sic).

Storey could not later say what “wires” referred to here. Id. p. 84. In any event,

Welsh’s pacing wire was not removed on that day. Storey’s outlook on May 4,

2011, was similarly optimistic, and Welsh had “no complaints.” Id. p. 30. On

and after May 5, 2011, Storey was on vacation in New York City, and a new

doctor supervised Welsh’s care in his absence. “[N]o new issues” were reported

that day by the new doctor. Id. p. 31.

[6] On May 6, 2011, the fourth day after surgery, Welsh was scheduled to go home

from the Hospital. Lindsay Cool (“Cool”), a nurse practitioner, had been asked

by the new doctor to remove (“pull”) the pacing wire from Welsh’s chest. The

doctor had apparently planned to pull the wire himself but forgot to do so on

his rounds earlier that morning. Id. p. 73. “There were a few of the nurse

practitioners that worked for the cardiologists that were comfortable removing

pacemaker wires, but they did not routinely do that. It was up to [surgical nurse

practitioners like Cool] on [their] rounds to do that” if a physician was not

available. Id. p. 74. Cool testified that, when she pulled Welsh’s pacing wire,

she was not following a written policy, procedure, or protocol, because the

Hospital did not have one, nor did the physician group within the Hospital for

which Cool worked. Id. p. 72.

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[7] Welsh was sitting comfortably in a reclining chair in her hospital room as Cool

pulled the wire. Cool felt no resistance “whatsoever” as she pulled the wire out

from Welsh’s myocardium through her chest; if Cool had felt any, she would

have stopped. Id. p. 73. “That wasn’t bad,” Welsh said when Cool was finished.

Id.

[8] About ten minutes later, around 8:35 a.m., Welsh was sitting in bed getting

ready to eat breakfast. She suddenly felt unwell and lost consciousness. A

“Code Blue” was called and “extensive” emergency resuscitation was

attempted by responding Hospital staff — to no avail. Id. p. 37. An

echocardiogram indicated a “large” pericardial effusion. Id. Cardiac

tamponade, a potentially fatal compression of the heart by the pressure of the

accumulating blood and other fluid around it, see id. p. 89, was suspected. This

could have been treated surgically, but Welsh was judged “really far too

unstable” for immediate surgery. Id. p. 37. Over one liter of blood and other

fluid was drawn from her chest by aspiration, “but this did not result in any

improvement in [Welsh’s] clinical status.” Id. After about fifty minutes, further

resuscitative efforts were deemed futile. Welsh was pronounced dead at 9:21

a.m.

[9] Ford, Welsh’s daughter and the personal representative of her estate, brought

suit, alleging medical negligence. On April 5, 2013, as required by Indiana’s

Medical Malpractice Act, Ind. Code art. 34-18, Ford first filed her proposed

complaint with a medical review panel, id. § 8-4, naming the Hospital, Storey,

and Cool as proposed defendants. Appellant’s App. p. 14. On August 11, 2015,

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the panel issued its opinion, here in full: “The evidence does not support the

conclusion that the [proposed] Defendants failed to meet the applicable

standard of care as charged in the [proposed] complaint.” Id. p. 17. On October

30, 2015, the panel’s opinion notwithstanding, Ford filed her complaint in

Marion Superior Court, naming only the Hospital as defendant.

[10] On January 8, 2016, the Hospital moved for summary judgment, designating in

support the panel’s opinion finding no breach of the standard of care. The

Hospital argued that the opinion “demonstrate[d] the absence of a genuine

issue of material fact on the elements of breach of the standard of care and

proximate causation.” Id. p. 22. In response, Ford designated excerpts of

Welsh’s medical records, excerpts of Storey’s and Cool’s deposition testimony,

and the affidavit of Amanda Dillow (“Dillow”), a registered nurse and certified

nurse legal consultant (“the Dillow affidavit”).

[11] The Dillow affidavit set out Dillow’s relevant training and experience. Id. p. 77

¶¶ 2-6. Dillow affirmed that her experience included “developing and educating

nursing staff in the care of patients with temporary . . . pacemakers [and] pre-

op[erative] and post-op[erative] care according to policies and procedures . . . .”

Id. ¶ 4. Dillow affirmed further that she was “familiar with the standard of care

for . . . removing temporary pacing wires in post-op[erative] open heart

[surgery] patients,” id. ¶ 6, and that she had reviewed Ford’s and the Hospital’s

submissions. Id. ¶ 7. Dillow concluded the Hospital “did not meet the standard

of care” in Welsh’s case. Id. ¶ 8. Particularly:

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[a]mong other issues, Ms. Cool stated in her deposition that she

did not follow a hospital policy and procedure when she removed

the pacing wires.

In addition and among other issues, Ms. Cool stated that there

was no policy and procedure at the . . . Hospital for the removal

of temporary pacing wires in May, 2011.

There are other ways in which the . . . Hospital, through the acts

of its employees did not meet the standard of care in these

circumstances.

Id. ¶¶ 9-11 (sic passim) (internal citations and subdivisions omitted).

[12] The trial court heard argument on the Hospital’s motion on May 9, 2016, and

took it under advisement. On May 11, 2016, the court granted the motion

without entering its findings or conclusions.

[13] Ford timely filed notice of appeal on June 9, 2016. The parties join issue on

whether the Dillow affidavit was sufficient to create a genuine issue of material

fact preclusive of summary judgment. We hold that it was.

Standard of Review

[14] As a purely legal question, we review de novo the trial court’s grant of

judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

We will not affirm unless the designated evidence shows there is no genuine

issue as to any material fact. Id. “A fact is material if its resolution would affect

the outcome of the case, and an issue is genuine if a trier of fact is required to

resolve the parties’ differing accounts of the truth, or if the undisputed material

facts support conflicting reasonable inferences.” Id. (internal quotation and

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citation omitted). We draw all reasonable inferences in the non-movant’s favor.

Id. “[A]lthough the [non-movant] has the burden on appeal of persuading us

that the grant of summary judgment was erroneous, we carefully assess the trial

court’s decision to ensure that she was not improperly denied her day in court.”

Id. (internal quotation and citation omitted).

[15] In contrast to federal practice, an Indiana summary judgment movant may not

rely on a non-movant’s failure to designate evidence in support of each element

of her claim. Id. Rather, Indiana practice places the burden on the movant

affirmatively to negate — that is, to designate evidence disproving — an

element of the non-movant’s claim. Id. If carried, the burden then shifts to the

non-movant to come forward with contrary evidence requiring resolution by a

trier of fact. Id. Such evidence precludes judgment as a matter of law. This rule

reflects our policy of “consciously err[ing] on the side of letting marginal cases

proceed to trial on the merits, rather than risk short-circuiting meritorious

claims.” Id. at 1004.

[16] The elements of a medical malpractice claim are three: that defendant

healthcare provider owed plaintiff patient a duty; that defendant breached that

duty; and that plaintiff’s injuries were proximately caused by that breach. Siner

v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016). The unanimous

opinion of a medical review panel designated by a movant ordinarily suffices to

shift the burden to the non-movant on the elements to which the opinion

speaks, requiring the non-movant to rebut the opinion with her own expert

medical testimony on those elements. Id. at 1187-88. If the non-movant’s expert

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designation contradicts the panel’s opinion, her case is “by definition

inappropriate for summary judgment, because weighing evidence is a matter for

trial . . . .” Id. at 1088 (internal citation and quotation omitted).

Discussion and Decision

[17] Ford argues that the Dillow affidavit was legally and factually sufficient under

the applicable standard to create a genuine fact issue as to the existence and

breach of the standard of care. The Hospital raises several arguments in support

of the judgment below, but only one is properly presented for our review: that

the Dillow affidavit was legally and factually insufficient to create a genuine

fact issue. The rest are challenges to the admissibility of the affidavit which the

Hospital did not raise below and therefore waived.2 Paramo v. Edwards, 563

2

The Hospital argues that Dillow was incompetent to give expert testimony as to the existence or breach of

the standard of care by the Hospital or Cool, and that the medical records designated with the affidavit were

not certified as required by Indiana Trial Rule 56(E). These challenges to admissibility were not raised in the

trial court. Waiver notwithstanding, we note the following.

As to the first argument, it presents precisely the sort of question that cannot be intelligently decided without

the record developed by contemporaneous objection. While it is true that, under Indiana Evidence Rule 702,

we have held that nurses are generally incompetent to give expert testimony on the standard of care for

physicians or on medical causation, Long v. Methodist Hosp. of Ind., Inc., 699 N.E.2d 1164, 1168-69 (Ind. Ct.

App. 1998), we have also expressly declined to propound “a blanket rule that nurses cannot qualify as expert

witnesses” with respect to duty and breach by any and every nonphysician health care provider, Curts v.

Miller’s Health Systems, Inc., 972 N.E.2d 966, 971 (Ind. Ct. App. 2012), such as nursing homes, id., hospitals,

or nurse practitioners. Indeed, it seems reasonable to expect that a nurse would be qualified to give expert

testimony on whether nurses, whether registered nurses like Dillow or nurse practitioners like Cool, should

be governed by written protocols when extracting metal wires from beating hearts. We could not say whether

a ruling to this effect, or its contrary, would constitute abuse of the trial court’s “broad discretion,” Ford v.

Jawaid, 52 N.E.3d 874, 877 (Ind. Ct. App. 2016), in the absence of an objection, and thus a record, below.

As to the second argument, even if the medical records had been objected to and struck, as the Hospital itself

concedes, the Dillow affidavit “did not refer to any specific facts found in [them] . . . .” Appellee’s Br. p. 13.

Dillow referred to them only to say she had reviewed them, as required of medical expert affiants in this

context, Jordan v. Deery, 609 N.E.2d 1104, 1110 (Ind. 1993), and Ford apparently designated them only in an

attempt to comply with T.R. 56(E), requiring “[s]worn or certified copies . . . of all papers . . . referred to in

an affidavit . . . .” In other words, the records were and are not part of Ford’s substantive argument on

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N.E.2d 595, 600 (Ind. 1990) (“A complaining party has a duty to direct the trial

court’s attention to a defective affidavit, and failure to raise an objection

constitutes waiver. We decline to excuse the lack of timely objection despite the

defendants’ argument that a reviewing court is bound to affirm a trial court’s

grant of summary judgment if sustainable on any theory or basis found in the

record.” (original emphasis, internal citations omitted)); Dunaway v. Allstate Ins.

Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004) (“Issues not raised before the

trial court on summary judgment cannot be argued for the first time on appeal

and are waived.”); Long v. Methodist Hosp. of Ind., Inc., 699 N.E.2d 1164, 1166

(Ind. Ct. App. 1998) (“[A]ny objection raised to an affidavit after a ruling on

summary judgment is . . . waived as untimely.”); Bankmark of Fla., Inc. v. Star

Fin. Card Servs., Inc., 679 N.E.2d 973, 980 (Ind. Ct. App. 1997) (“[A] party

complaining that an affidavit is defective has a duty to direct this complaint to

the trial court, and the failure to do so constitutes waiver.”). We therefore

confine our review to the question of the Dillow affidavit’s sufficiency.

[18] In medical malpractice cases, the otherwise admissible affidavit of a medical

expert designated by a non-movant, controverting the movant’s position as to

whether the applicable standard of care has been satisfied, is ordinarily

sufficient to preclude summary judgment in the movant’s favor. Siner v. Kindred

Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1190 (Ind. 2016) (reversing grant of summary

summary judgment. See Mills v. Berrios, 851 N.E.2d 1066, 1072 (Ind. Ct. App. 2006) (“[W]e conclude that

[plaintiff’s expert’s] affidavit [relying on plaintiff’s medical records] is not legally insufficient merely because

[plaintiff’s] medical records were not attached or designated.”).

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judgment). “[E]xpert opinions which conflict on ultimate issues necessarily

defeat summary judgment.” Id. A different result is required only in the

exceptional case, not presented here, where a party-physician affiant,

unsupported by other evidence, attempts to bootstrap his naked litigation

position into admissible evidence. Scripture v. Roberts, 51 N.E.3d 248 (Ind. Ct.

App. 2016) (affirming grant of summary judgment).3

[19] In Chi Yun Ho v. Frye, 880 N.E.2d 1192 (Ind. 2008) (affirming denial of

summary judgment), our supreme court considered “whether conflicting

opinions [in medical malpractice cases] regarding whether a physician met the

applicable standard of care, in the absence of facts supporting such opinions, operate

to create a genuine issue of material fact precluding summary judgment.” Id. at

1201 (emphasis added). It was held that such conflicting opinions preclude

summary judgment. Id. There, defendant physician resisted plaintiff patient’s

motion for summary judgment by designating one affidavit, his own, and parts

of the deposition testimony of a second physician, not a party to the suit, who

treated the plaintiff after the defendant. Id. at 1200. The designation was

“extremely sparse in factual content,” id., did not set out in terms what the

3

The Hospital relies heavily on Scripture. There, we expressly reserved the question “whether a defendant

doctor’s own affidavit standing alone is sufficient to defeat summary judgment.” Id. at 251 n.2. We did not

discuss Chi Yun Ho v. Frye, 880 N.E.2d 1192 (Ind. 2008), discussed here infra. Rather, in Scripture, we held

that defendant physicians’ unsupported and conclusory affidavits did not defeat summary judgment in the

plaintiffs’ favor, because the affidavits “cited no facts that would support that they met the standard of care or

that their conduct did not cause the [plaintiffs’] damages.” Id. at 254. To the extent that Scripture and Chi Yun

Ho conflict, of course the former must yield to the latter. However, we do not think they do conflict, if

Scripture is understood to stand for the proposition recited here and contemplated (though reserved) there.

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applicable standard of care was, see id., but affirmed that the defendant had met

it. Id.

[20] In Chi Yun Ho, our supreme court held that, together, the affidavit and

deposition extract sufficed to preclude summary judgment in the plaintiff’s

favor because they created a genuine issue of material fact. Id. at 1201.

“Medical negligence is . . . not generally a conclusion that may be reached by a

jury without . . . an expert opinion [as to the applicable standard of care] among

the evidence presented. Such expert opinion takes on the character of an

evidentiary fact in medical malpractice cases.” Id. In such cases, therefore, “an

opinion on the ultimate fact of whether a defendant physician’s conduct fell

below the applicable standard of care may be seen as qualitatively different,”

id., from cases where mere “speculation, not evidence” is designated by a

defendant in an attempt to furnish nonnegligent explanations for his conduct.

Cox v. Paul, 828 N.E.2d 907, 913 (Ind. 2005).

[21] “Of course, [such conclusory] opinions would be greatly enhanced by detailing

the factual circumstances upon which they were based. Numerous cases,

however, have treated such detailing as affecting the weight and credibility to be

given to the opinion [by the trier of fact] rather than its admissibility” and

sufficiency to defeat a motion for summary judgment. Jordan v. Deery, 609

N.E.2d 1104, 1111 (Ind. 1993) (“reluctantly” reversing summary judgment)

(quoting Kopec v. Memorial Hosp. of South Bend, 557 N.E.2d 1367 (Ind. Ct. App.

1990), trans. denied). Our supreme court has emphasized that the question on

summary judgment is not whether the evidence would support a verdict in favor

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of the non-moving party, but whether “a conflict of evidence may exist” on a

material issue. Siner, 51 N.E.3d at 1189 (original emphasis) (quoting Purcell v.

Old Nat’l Bank, 972 N.E.2d 835, 841 (Ind. 2012)).

[22] Chi Yun Ho is to be further distinguished from cases in which an affiant

physician affirmed merely that “he would have treated [the patient] differently,

not that [defendant physician]’s treatment fell below the applicable standard [of

care].” Oelling v. Rao, 593 N.E.2d 189, 190–91 (Ind. 1992) (original emphasis).

Such a designation is insufficient as a matter of law to preclude summary

judgment because it does not address the applicable legal standard: whether the

patient’s treatment fell below the applicable standard of care. Thus, “[t]o refute

the defendants’ evidence, the affidavit needed to set out the applicable standard

of care and a statement that the treatment in question fell below that standard.”

Id. at 190.

[23] Under this approach, for example, Indiana appellate courts have deemed the

following sufficient to preclude summary judgment: a medical review panel

opinion that defendants’ “conduct may have been a factor of some resultant

damages,” Siner, 51 N.E.3d at 1189; a defendant’s affidavit that he “took all the

necessary and reasonable steps, in accordance with the standard of care, to

remove all sponges from [the plaintiff’s] abdomen,”4 Chi Yun Ho, 880 N.E.2d at

4

“The fact that the nursing staff made and recorded sponge counts showing all sponges accounted for and

reported that fact to [defendant physician] does not preclude [his] liability [because] a surgeon may not

escape his responsibility to remove sponges used during the surgery simply by delegating responsibility for

tracking surgical sponges to attending nurses.” Chi Yun Ho, 880 N.E.2d at 1200. That fact, averred in the

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1200; a plaintiff’s expert’s affidavit that “set forth her conclusion that the

defendants violated the standard of care in their treatment of the child and that

such treatment caused the complained-of injuries” without being “informative

in any way as to the nature of the deviation,” Deery, 609 N.E.2d at 1111; and a

plaintiff’s expert’s affidavit that “he is familiar with the standard of care of

physicians engaged in abdominal surgery in [the county], he reviewed the

relevant medical records of [the plaintiff] and the depositions, and he was of the

opinion that the care rendered to [the plaintiff] by all Defendants was below the

applicable standard of care and was causative in [the plaintiff’s] death.”

Randolph Cnty. Hosp. v. Livingston, 650 N.E.2d 1215, 1219 (Ind. Ct. App. 1995).

[24] Here, resolving, as we must, all reasonable inferences and all ambiguities in

Ford’s favor, we conclude that a fair reading of the Dillow affidavit reveals that

Dillow first stated her experience included “developing and educating nursing

staff in the care of patients with temporary . . . pacemakers [and] pre-op[erative]

and post-op[erative] care according to policies and procedures,” Appellant’s

App. p. 77 ¶ 4, and that she was “familiar with the standard of care for this

procedure of removing temporary pacing wires in post-op[erative] open heart

patients.” Id. ¶ 6. She then stated the Hospital fell short of the standard of care

in Welsh’s case. Id. ¶ 8. “Among other issues,” she then identified two

particular ways in which the Hospital did so: by allowing Cool to pull Welsh’s

defendant’s affidavit, therefore was judged irrelevant to the question of whether the affidavit operated to

create a genuine fact issue as to duty and breach. Compare this with Appellee’s Brief p. 14 (asserting that

defendant in Chi Yun Ho “did provide facts and indeed established the standard of care . . . .”).

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pacing wire unregulated by a “hospital policy and procedure,” id. ¶ 9, and by

failing to establish such a “policy and procedure” with respect to “removal of

temporary pacing wires” to begin with. Id. ¶ 10.

[25] In sum, Dillow affirmed that, given her training and experience as a registered

nurse who educates other nurses in the care of postoperative open heart surgery

patients according to protocol, and given her familiarity with the standards for

pacing wire removal, the Hospital fell short of the standard of care when it

allowed a nurse practitioner to remove a pacing wire unregulated by written

protocols, and when the Hospital failed to establish such protocols at all. While

the affidavit expressly stated only the minor premise and the conclusion of the

argument, the implied major premise, that the standard of care requires

regulation by written protocols of pacing wire removal by nurse practitioners, is

only one reasonable inferential step away. We believe this was sufficient to

create a genuine fact issue requiring resolution by the trier of fact.

[26] The Hospital cites our decision in Payne v. Marion General Hospital, 549 N.E.2d

1043 (Ind. Ct. App. 1990), trans. denied, for the proposition that a plaintiff

alleging a hospital’s negligent failure to establish a written policy must produce

evidence of “policies used by [another] hospital” or evidence that “other

hospitals use written policies” to rebut a medical review panel’s conclusion of

no breach and survive summary judgment. Id. at 1051. However, Payne

established no such rule. There, defendant physician entered a do-not-

resuscitate order without any attempt to obtain plaintiff patient’s informed

consent. We excused the plaintiff from the ordinary requirement to present

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expert evidence as to defendant physician’s alleged breach of the standard of

care because the plaintiff’s situation was “within the realm of the ordinary

laym[a]n’s comprehension.” Id. at 1050. No expert testimony was needed to

help a jury decide whether the plaintiff would have been physically and

mentally competent to give his consent had defendant physician sought it. Id.

[27] However, in Payne, we also declined to excuse the plaintiff’s complete lack of

expert testimony as to his claim against defendant hospital for failure to have a

written policy regulating a physician’s entry of do-not-resuscitate orders. In

other words, we held only that the plaintiff’s claim against the hospital was

subject to the ordinary requirements of proof in medical negligence cases. Id. at

1051 (“Although we have determined that [plaintiff’s] claim against [defendant

physicians] qualifies for exceptional treatment, we cannot come to a similar

conclusion concerning [plaintiff’s] claim against the Hospital.”). Here, in

contrast, we have concluded that the Dillow affidavit satisfied those

requirements.

[28] It is, of course, irrelevant to the questions of duty and breach whether a

Hospital policy regulating the removal of pacing wires by nurse practitioners

would have caused Cool to proceed differently in pulling Welsh’s wire, and

whether that different procedure would have prevented Welsh’s death. Those

questions go to causation, as to which the Hospital designated no evidence

below. It was therefore never Ford’s burden to designate evidence on causation

in rebuttal. Bunch v. Tiwari, 711 N.E.2d 844, 850-51 (Ind. Ct. App. 1999)

(“When the movant on summary judgment relies only upon the opinion of the

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medical review panel which found no breach of the standard of care but was

silent as to the other elements . . . , the plaintiff non-movant is only obligated to

present expert testimony on the standard of care element . . . .”) (quoting

Randolph Cnty. Hosp., 650 N.E.2d at 1219).

[29] Judge Baker’s dissent on this point rests on the assumption that, as a matter of

law, there is no factual situation in which Hospital policy could have prevented

Welsh’s death, so long as Cool otherwise (that is, other than in failing to follow

Hospital policy) met the nurse practitioner’s standard of care for pulling pacing

wires. This inference is a reasonable one, and may in fact be true. However, it is

also an inference drawn in the movant’s favor, and the movant has not shown it

to be true and did not argue the point in these terms. It cannot, therefore, afford

the Hospital a basis for relief at the summary judgment stage.

Conclusion

[30] Because the Dillow affidavit sufficiently stated that the Hospital breached the

standard of care in Welsh’s case, it created a genuine issue of material fact as to

duty and breach, and the trial court’s grant of summary judgment was

inappropriate. We therefore reverse that grant and remand for further

proceedings.

[31] Reversed.

Pyle, J., concurs.

Baker, J., dissents with separate opinion.

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IN THE

COURT OF APPEALS OF INDIANA

Debra K. Ford, Personal Court of Appeals Case No.

Representative of the Estate of 49A04-1606-CT-1334

Darlene M. Welsh,

Appellant-Plaintiff,

v.

Indiana Heart Hospital,

Appellee-Defendant

Baker, Judge, dissenting.

[32] Because I believe that the majority’s analysis is missing the forest for the trees, I

respectfully dissent.

[33] Ford is attempting to recover damages under two theories. Under the first

theory, Ford alleges that the manner in which Nurse Cool pulled the pacing

wire from Welsh’s chest fell below the standard of care, which resulted in

Welsh’s death. Under the second theory, Ford alleges that the Hospital’s

failure to have a policy and procedure for the removal of pacing wires fell below

the standard of care. But in order to recover under the second theory, Ford will

still need to show, ultimately, that the Hospital’s failure to have such a policy

and procedure led to Cool pulling the pacing wire in a substandard way, which

resulted in Welsh’s death. In other words, under either theory, Ford will need to

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prove that Cool pulled the pacing wire incorrectly. If Cool did everything she

was supposed to do despite the absence of a policy, if she did not remove the

pacing wire in a substandard manner, then the existence or absence of policies

and procedures regarding pacing wires would be inconsequential and irrelevant.

[34] The Hospital designated evidence—the unanimous opinion of the medical

review panel—that Cool did not pull the wire in a substandard manner. The

burden then shifted to Ford to rebut that opinion with her own expert

testimony. Siner, 51 N.E.3d at 1187-88.

[35] In rebuttal, Ford designated the affidavit of Registered Nurse Amanda Dillow.

As the majority notes, Dillow has extensive experience in providing

cardiovascular care, removing pacing wires, and educating nursing staff to do

the same. After reviewing the relevant depositions, medical records, and

documentation, Dillow did not testify that Cool pulled the wire in a substandard

manner. Instead, Dillow testified only that the Hospital did not meet the

standard of care because it did not have a “policy and procedure . . . for the

removal of temporary pacing wires . . . .” Appellant’s App. p. 78. In short, the

Hospital designated evidence disproving Ford’s allegation that the manner in

which Cool removed the pacing wire fell below the standard of care, and Ford

failed to rebut that evidence.

[36] This clearly precludes Ford, as a matter of law, from recovering under her first

theory. But the majority believes that Dillow’s affidavit saves Ford’s second

theory from summary judgment. I cannot agree.

Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1334 | April 5, 2017 Page 18 of 19

[37] Dillow’s affidavit certainly creates a question of fact of whether the Hospital

should have had a policy and procedure for pulling pacing wires. But the

majority is wrong to write that “the Hospital designated no evidence below”

regarding causation on this issue. Slip Op. at *15. Under the second theory,

Ford will need to show that the Hospital’s lack of policy caused Cool to pull the

wire incorrectly, or that the lack of policy otherwise led Cool or the Hospital to

act in a manner that fell below the standard of care, leading to Welsh’s death.

The Hospital’s designated evidence goes precisely to this issue: the unanimous,

unrebutted opinion of the medical review panel is that Cool did not pull the

wire incorrectly. More than an inference, this is evidence designated by the

summary judgment movant that shows that there is no causal link between the

lack of a policy, the care that was provided, and Welsh’s death.

[38] Because the Hospital designated evidence showing that there is no causal link,

the burden then shifted to Ford to designate evidence showing that there was a

causal link. Again, Ford’s expert witness reviewed the entire case and declined

to say that the lack of policy led to the provision of substandard care. Because

the Hospital’s evidence was unrebutted, there is no genuinely disputed fact that

the Hospital’s lack of a policy did not cause Welsh’s death. Without proof of

causation, Ford cannot recover. Even under the second theory, the Hospital is

entitled to judgment as a matter of law.

[39] For the foregoing reasons, I would affirm the trial court’s grant of summary

judgment. I respectfully dissent.

Court of Appeals of Indiana | Memorandum Decision 49A04-1606-CT-1334 | April 5, 2017 Page 19 of 19