holding that an attempt to incorporate an entire argument raised and argued in the trial court by reference in a footnote does not comply with either the letter or the spirit of the former Appellate Rules
How later courts described this case
- holding that an attempt to incorporate an entire argument raised and argued in the trial court by reference in a footnote does not comply with either the letter or the spirit of the former Appellate Rules
- holding that injuries incurred when surgical lamp inadequately attached to the wall fell on patient not covered by Indiana's Medical Malpractice Act
- detachment of surgical lamp that fell on newborn’s head, although positioned by nurse, did not sound in medical' malpractice because jurors’ common knowledge and experience would enable them to understand circumstances
- noting that the facts therein were akin to one of the examples posited by the patient in Lomax
Written by the judges who cited it.
The opinion
SULLIVAN, Judge,
dissenting
The majority holds that, as a matter of law, the claim is not a medical malpractice claim. In doing so, the court states, also as a matter of law, that the light fell on Pluard “because it was not properly attached to the wall.” Op. at 1038.
We do know that the overhead light fell and that Pluard was injured. We do not know that it fell because it was not properly attached. The injury occurred when the lamp became disconnected as a result of the nurse’s positioning of the lamp as an integral part of the medical treatment.
It may be that the facts will disclose that the lamp was negligently installed or maintained but it also may be that the conduct of the nurse in positioning the light was negligent in some manner and was a cause if not the cause.
Even in the Lomax case, relied upon by the majority, the court recognized:
“that the question of whether a particular claim falls within the Act is extremely fact sensitive and that a broad band of gray lies in the middle of the spectrum from pure medical malpractice to ordinary non-medical negligence.” 465 N.E.2d at 740.
In Ogle v. St. John’s Hickey Memorial Hospital (1985) Ind.App., 473 N.E.2d 1055 , tram, denied, a patient in a psychiatric unit was raped by another patient. This court held that plaintiffs allegation that the hospital negligently failed to provide security and protection brought the claim within the purview of the Medical Malpractice Act. Although the facts of Ogle may fall at the very margin of what constitutes health care, the case demonstrates that we have previously included within the scope of the Act, conduct which is not clearly “medical negligence.” See Harts v. Caylor-Nickel Hospital Inc. (1990) Ind.App., 553 N.E.2d 874, 880-81 (Sullivan J., dissenting), trans. denied.
The fact that it was a surgical lamp which was the immediate and physical agency causing the injury does not automatically render the matter a common law case of premises liability. The answer to that question depends upon whether or not the nurse was negligent in the manner in which she positioned the lamp and whether that negligence, if any, was a proximate cause of the injury.
In any event, the issue appears to me to be particularly fact sensitive and was inappropriately resolved by summary judgment.
I would reverse and remand for further proceedings.