Indiana University Medical Center, Riley Hospital for Children v. Logan

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DAVID J. MALLON, JR. JOHN D. RAIKOS

JENNIFER M. WEFLEN Indianapolis, Indiana

Ice Miller Donadio & Ryan

Indianapolis, Indiana D. CHARLES GANTZ

Gantz & Associates

Greenwood, Indiana

IN THE

SUPREME COURT OF INDIANA

INDIANA UNIVERSITY MEDICAL )

CENTER, RILEY HOSPITAL FOR )

CHILDREN, )

)

Appellant-Defendant, ) Supreme Court Cause Number

) 49S02-0003-CV-220

v. )

) Court of Appeals Cause Number

BRENDA LOGAN, Mother and Natural, ) 49A02-9812-CV-997

Guardian of JORDAN DAVIS, a Minor, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT, ROOM NO. 4

The Honorable Cynthia J. Ayers, Judge

Cause No. 49D04-9605-CT-0721

ON PETITION TO TRANSFER

May 26, 2000

RUCKER, Justice

Case Summary

Brenda Logan filed a complaint for medical malpractice against

Indiana University Medical Center, Riley Hospital for Children (referred to

as “Hospital”). The complaint was based on the allegation that Logan’s

minor son Jordan sustained injures while in Hospital’s care. Hospital

responded with a motion for summary judgment arguing that its conduct was

not the proximate cause of Jordan’s injuries. The trial court denied the

motion, and Hospital appealed. In a memorandum decision the Court of

Appeals reversed, concluding that Logan’s response to Hospital’s motion was

untimely. Indiana University Medical Center v. Logan, No 49A02-9812-CV-997

(Ind. Ct. App. Oct. 19, 1999). Having previously granted transfer, we

affirm the trial court’s denial of Hospital’s motion for summary judgment.

Facts and Procedural History

In March 1991, Logan took her then thirteen-month-old son Jordan to

Hospital for treatment of a respiratory disorder. More specifically Jordan

suffered from asthma and was having difficulty breathing. A treating

physician ordered that Jordan receive certain medication intravenously.[1]

After an initial infusion, the medication was apparently administered for

nearly two hours in a dosage much greater than ordered. In short, Jordan

was overdosed. Logan contends that immediately thereafter Jordan exhibited

nervousness, restlessness, insomnia, muscle twitching, reflex hyper-

excitability, behavioral disturbances and confusion.

Logan filed a proposed complaint against Hospital with the Indiana

Department of Insurance. The complaint alleged negligence in Hospital

administering an overdose of medication and contended that as a result

Jordan suffers neurological damage and impairment. On February 23, 1996, a

medical review panel rendered a unanimous opinion concluding that Hospital

“failed to comply with the appropriate standard of care as charged in the

complaint . . . .” R. at 66. The panel also concluded however “the

conduct complained of was not a factor of the resultant damages.” R. at

67. Thereafter Logan filed a complaint in the Marion Superior Court

setting forth the same allegations as those in her proposed complaint. On

January 30, 1998, Hospital filed a motion for summary judgment contending

its conduct was not the proximate cause of Jordan’s injuries. Hospital

submitted a memorandum, a certified copy of the panel opinion, and the

affidavit of Dr. David Dunn who stated that the overdose of medication did

not cause Jordan’s alleged injuries. The trial court set a hearing date of

May 4, 1998. The trial court also granted Logan an extension of time until

April 15, 1998, to respond to Hospital’s summary judgment motion.

On the response deadline date, Logan filed her own affidavit in

opposition to summary judgment which included twelve attached exhibits.

Without seeking further extensions of time, Logan filed additional exhibits

and a memorandum in opposition on May 4, 1998, the day of the hearing, as

well as May 21 and August 10, 1998. Hospital moved to strike all filings

on grounds that they were either untimely or otherwise inadmissible. The

trial court denied all of Hospital’s motions to strike with the exception

of one non-expert affidavit. The trial court also denied Hospital’s motion

for summary judgment. Hospital then pursued an interlocutory appeal. The

Court of Appeals reversed and remanded with instructions to enter summary

judgment in Hospital’s favor, ruling that with the exception of Logan’s own

affidavit, all memorandums and exhibits Logan filed were either untimely or

inadmissible and should have been stricken. The Court of Appeals then

concluded that because there was no expert evidence contradicting the

medical review panel’s finding of no causation, Hospital was entitled to

summary judgment as a matter of law. Thereafter, we granted Logan’s

Petition for Transfer.

Discussion and Decision

When reviewing a grant or denial of summary judgment our well-settled

standard of review is the same as it is for the trial court: whether there

is a genuine issue of material fact, and whether the moving party is

entitled to judgment as a matter of law. Landmark Health Care Assoc., L.P.

v. Bradbury, 671 N.E.2d 113, 116 (Ind. 1996). Summary judgment should be

granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows

that there is no genuine issue of material fact and the moving party

deserves judgment as a matter of law. T.R. 56(C); Blake v. Calumet Const.

Corp., 674 N.E.2d 167, 169 (Ind. 1996). All evidence must be construed in

favor of the opposing party, and all doubts as to the existence of a

material issue must be resolved against the moving party. Tibbs v. Huber,

Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996).

First, we agree with the Court of Appeals that the exhibits Logan

submitted on April 15, 1998, although timely were inadmissible. The twelve

exhibits consisted of uncertified documents and unsworn statements.[2]

Unsworn statements and unverified exhibits do not qualify as proper Rule 56

evidence. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind. Ct. App.

1996). However, the exhibits Logan submitted after the deadline date

require a different analysis. It is true that under Rule 56(C) a party

opposing summary judgment has thirty (30) days to file a response.

Further, when a party fails to file a response within thirty days, the

trial court may not consider materials filed thereafter. Markley

Enterprises, Inc. v. Grover, 716 N.E.2d 559, 563 (Ind. Ct. App. 1999),

Carroll v. Jagoe Homes, Inc., 677 N.E.2d 612, 616 n.1 (Ind. Ct. App. 1997);

Seufert v. RWB Medical Income Properties I Ltd. Partnership, 649 N.E.2d

1070, 1073 (Ind. Ct. App. 1995). However, Trial Rule 56(E) provides in

pertinent part: “the court may permit affidavits to be supplemented or

opposed by depositions, answers to interrogatories, or further affidavits.”

(emphasis added). It is within the trial court’s discretion to accept an

affidavit filed later than the date specified in the rule. Jordan v.

Deery, 609 N.E.2d 1104, 1109 (Ind. 1993); Winbush v. Memorial Health

System, Inc., 581 N.E.2d 1239, 1242-43 (Ind. 1991); see also Pekin Ins. Co.

v. Charlie Rowe Chevrolet, Inc., 556 N.E.2d 1367, 1369 (Ind. Ct. App. 1990)

(“[A]ffidavits filed by the movant the day before trial to supplement the

original, timely filed affidavits may properly be considered by the trial

court.”).

The record shows that Logan timely submitted her own affidavit in

response to Hospital’s motion for summary judgment. Among other things the

affidavit dictated:

The panel did not have the medical evidence which I provided to my

attorney, and was available but not included in my submission to the

Panel, which was the written medical opinion of Arthur R. Schramm,

M.D., on the prior 17th day of January 1995, [a] copy of which is

attached hereto as Exhibit “C” pp. 27, 28 and made a part hereof by

reference, wherein Doctor Schramm at p. 28 concluded:

Based on my review of all available records, the only stressor

identified which could be associated with causation of the

clinical problems is the theophylline overdose.

R. at 87. As the Court of Appeals correctly determined, the attached

exhibit containing Dr. Schramm’s opinion was inadmissible because it was

not sworn. An unsworn letter from an expert may not be considered in

summary judgment proceedings. Johnston v. State Farm Mut. Auto. Ins. Co.,

667 N.E.2d 802, 806 (Ind. Ct. App. 1996). However it is nonetheless the

case that Logan’s affidavit refers to Dr. Schramm and the fact that he had

an opinion concerning Jordan’s care. Logan’s submissions on May 21, 1998,

included a properly verified affidavit of Dr. Schramm that dictated in

pertinent part:

It is my opinion based upon a reasonable degree of medical certainty,

that the medical care and treatment rendered to Jordan Davis by

University Medical Center, and Riley Hospital for Children fell below

a reasonable standard of care in the theophylline overdose documented

in the medical records in the hospitalization of Jordan Davis at Riley

Hospital.

It is my further opinion based upon a reasonable degree of medical

certainty that the ultimate medical condition and injuries, received

by Jordan Davis between March 4 through March 8, 1991, i.e., massive

physiological stress of the theophylline overdose documented by the

Hospital Records, is clearly the type of stressor which can

precipitate the clinical appearance of the symptoms of the bipolar

disorder, and more probably than not was caused by the inappropriate

care rendered by the Riley Hospital staff.

R. at 267-68. Dr. Schramm’s affidavit expands on the reference to him and

his opinion found in Logan’s own timely filed affidavit. We therefore view

the Dr. Schramm affidavit as merely a supplement to Logan’s affidavit. See

T.R. 56(E). Thus, the question is whether the trial court abused its

discretion in considering the late-filed affidavit when ruling on

Hospital’s motion for summary judgment. An abuse of discretion occurs when

the trial court’s decision is against the logic and effect of the facts and

circumstances before it. Vernon v. Kroger Co., 712 N.E.2d 976, 982 (Ind.

1999).

The record here shows that on the date originally scheduled for

hearing on Hospital’s motion for summary judgment, Hospital filed among

other things a motion to strike Logan’s affidavit and attached exhibits.

The trial court took the motion to strike under advisement, ordered the

parties to submit briefs by May 22, and subsequently rescheduled the

summary judgment hearing until August 11. It was during this period, more

specifically on May 21, that Logan submitted the affidavit of Dr. Schramm.

Admitting the affidavit, filed after the deadline date but well before the

date of the hearing, was not against the logic and effect of the facts and

circumstances before the court. In sum, the trial court did not abuse its

discretion. This case has been pending since the filing of Logan’s

complaint in May 1996. Both parties have engaged in extensive discovery

including depositions, interrogatories, and requests for admissions.

Indeed, prior to Hospital’s motion for summary judgment, the trial court

had conducted a pre-trial conference, and this case was scheduled for a

four-day jury trial in June 1998. Hospital has neither argued nor

demonstrated that the supplemental affidavit works to its prejudice. On

the other hand, absent the affidavit there is no issue of material fact

concerning the cause of Jordan’s injuries.[3] With the affidavit there is

such a dispute, and accordingly the trial court properly denied Hospital’s

motion for summary judgment.

Conclusion

We vacate the opinion of the Court of Appeals, affirm the trial

court’s denial of summary judgment, and remand for further proceedings.

SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.

SULLIVAN, J., not participating.

-----------------------

[1] In her brief Logan identifies the medication as “Theophylline.”

In her complaint she identified the medication as “Aminophylline.” In its

submissions to the trial court Hospital referred to the medication as

“Aminophylline (also known as Theophylline).”

[2] Specifically the exhibits included: A) Logan’s unsworn

submissions to the medical review panel and uncertified medical records; B)

an uncertified copy of the opinion of the Medical Review Panel; C) an

unsworn letter of Dr. Schramm, a medical doctor who treated Jordan; D) an

uncertified laboratory report; E) a newspaper article; F) the unsworn

statement of Jordan’s grandmother; G) the unsworn statement of Jordan’s

former babysitter; H) the unsworn statement of a pastor; I) a portion of an

article from the internet; J) a second article from the internet; K) an

excerpt from The American Druggist’s Complete Family Guide; and L)

uncertified school records.

[3] It has been held that expert opinion is usually required to

establish a causal connection between the acts or omissions of the

physician and the injury to the patient. Bowman v. Beghin, 713 N.E.2d 913,

917 (Ind. Ct. App. 1999); Daub v. Daub, 629 N.E.2d 873, 878 (Ind. Ct. App.

1994); see also Cahoon v. Cummings, 715 N.E.2d 1, 17 (Ind. Ct. App. 1999)

(declaring, “It is well settled that in a medical negligence claim, the

plaintiff must prove by expert testimony not only that the defendant was

negligent, but also that the defendant’s negligence proximately caused the

plaintiff’s injury.”), reh’g. denied, (quoting Schaffer v. Roberts, 650

N.E.2d 341, 342 (Ind. Ct. App. 1995)). This court has never addressed the

precise issue of whether a “causation” expert is required in a medical

negligence case. Here however, Logan’s affidavit absent the improperly

attached exhibits does not mention causation. Thus, even if expert

testimony is not required on this point, without the Dr. Schramm affidavit

Logan presented no issue of material fact on the question of causation.