COURT OF APPEALS OF INDIANA
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE:
AUDREY A. NARDUCCI, M.D.:
DANNY E. GLASS JOSEPH L. VERKAMP
Fine & Hatfield Jasper, Indiana
ATTORNEYS FOR APPELLANT
SISTERS OF THE LITTLE COMPANY
OF MARY, INC.
L. ALAN WHALEY
SEAN T. DEVENNEY
AUDREY A. NARDUCCI, M.D., )
and SISTERS OF THE LITTLE )
COMPANY OF MARY, INC., d/b/a )
MEMORIAL HOSPITAL AND )
HEALTH CARE CENTER, ) )
Appellants-Defendants, ) No. 19A04-0006-CV-230
DALE TEDROW, )
APPEAL FROM THE DUBOIS CIRCUIT COURT
The Honorable William E. Weikert, Judge
Cause No. 19C01-9802-CP-33
October 30, 2000
Appellants-defendants Dr. Audrey A. Narducci and Memorial Hospital and Health Care Center (the
hospital), appeal the trial courts denial of their motions for summary judgment.
Specifically, they contend that the trial court erred in concluding that the doctrines
of res ipsa loquitur and common knowledge apply to the plaintiff-appellee, Dale Tedrows,
medical malpractice claim against Dr. Narducci and the hospital. Thus, they contend
that Tedrow should have been required to present expert testimony regarding the requisite
standard of care in order to establish negligence.
Dr. Narducci is a medical doctor licensed to practice medicine in the
State of Indiana and a board certified specialist in general surgery. She
currently maintains a general surgery practice in Jasper, Indiana. On January 30,
1996, Dr. Narducci performed a procedure on Tedrow that revealed a tumor of
the colon. A subsequent biopsy of the tumor revealed that it was
cancerous, and, therefore, Dr. Narducci scheduled Tedrow for colon surgery.
Prior to the surgery on February 5, 1996, Tedrow signed a consent form
that provided, in part, I hereby authorize Dr. Narducci to perform the following
procedure/operation: Sigmoidectomy, and such additional operations/procedures as are considered necessary by the doctor
on the basis of findings during the course of treatment, procedure, and/or operation.
Record at 97. During the surgical procedure, the attending anesthesiologist experienced
some difficulty in positioning the neo-gastric tube and made several attempts before the
tube was positioned and functioning correctly. As Dr. Narducci was working
in the left abdomen, she noticed bleeding coming from above where she was
working. Upon investigation, she discovered that the source of the bleeding was
a tear in Tedrows spleen. After efforts to stop the bleeding proved
unsuccessful, Dr. Narducci was forced to remove Tedrows spleen. Following the surgery,
Dr. Narducci informed Tedrow that during the course of surgery his spleen had
been accidentally nicked and had to be removed. R. at 119.
On February 4, 1998, Tedrow filed a cause of action against Dr. Narducci
and the hospital, alleging medical malpractice in connection with the surgery Dr. Narducci
performed on him. Specifically, Tedrow claimed that his spleen was lacerated and
had to be removed during colon surgery as the result of the negligence
of Dr. Narducci and unknown employees of the hospital who assisted in the
surgery. R. at 17. Tedrow filed the action in the trial
court without first presenting his proposed complaint to the Indiana Department of Insurance.
On February 5, 1998, Tedrow rectified his error by filing an amended
complaint wherein he requested damages in the amount of $15,000 or less, thereby
avoiding the necessity of prior filing with the Department of Insurance.See footnote
Dr. Narducci filed a motion for summary judgment on January 18, 1999, and
the hospital filed a motion for summary judgment on March 1, 1999.
In their motions, they claimed that they were entitled to judgment as
a matter of law because Tedrow had failed to set forth any expert
testimony establishing the appropriate standard of care for a general surgeon, and had
failed to establish that Dr. Narduccis conduct had fallen below that standard when
she performed the colon surgery.
In support of her motion, Dr. Narducci provided the affidavit of Dr. Hoover,
a medical doctor licensed to practice medicine in Indiana and board certified in
the speciality of general surgery, who testified that he was familiar with the
requisite standard of care for general surgeons, and that Dr. Narducci had not
breached that standard when she operated on Tedrow. Specifically, Dr. Hoover testified
that due to the nature of the spleen and its location, when surgery
of the sort at issue here is done, bleeding can occur because of
unavoidable trauma or even for no apparent reason. When this bleeding occurs,
it is most commonly in spite of the efforts of a careful and
skilled surgeon and not because of the negligence of that surgeon. R.
The trial court heard oral argument on Dr. Narduccis motion on March 18,
1999. Thereafter, on April 29, 1999, the trial court denied Dr. Narduccis
motion for summary judgment. Specifically, the trial court found that the doctrines
of res ipsa loquitur and common knowledge applied to Tedrows claims against
Dr. Narducci, and, thus, Tedrow was not required to present expert testimony regarding
the requisite standard of care in order to establish negligence on the part
of Dr. Narducci. Because the issues presented in Dr. Narduccis summary judgment
motion were essentially the same as those presented in the hospitals motion, on
May 4, 1999, the hospital withdrew its motion for summary judgment.
On November 16, 1999, Dr. Narducci renewed her motion for summary judgment, and
the hospital renewed its motion for summary judgment on December 17, 1999.
On April 12, 2000, the trial court denied Dr. Narduccis renewed motion for
summary judgment on the same basis as the original motion. The trial
court granted the hospitals motion in part and denied it in part.
Specifically, the trial court found that the hospital was not vicariously liable for
the actions of Dr. Narducci under the doctrine of respondeat superior, but that
the hospital remained liable under the theory of res ipsa loquitur as to
any employees who were present or participated in the surgery on Tedrow.See footnote
Dr. Narducci and the hospital now appeal.
DISCUSSION AND DECISION
I. Standard of Review
In reviewing the denial of a motion for summary judgment, this court applies
the same standard as the trial court. USA Life One Ins. Co.
v. Nuckolls, 682 N.E.2d 534, 537 (Ind. 1997). We do not weigh
the evidence designated by the parties. Instead, we liberally construe the evidence
in the light most favorable to the non-moving party. Id. Summary
judgment is appropriate only if the pleadings and evidence show both the absence
of a genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. Ind. Trial Rule 56(C);
Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996). Where
material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment
is inappropriate. Id.
II. Dr. Narduccis and the Hospitals Claim
Dr. Narducci and the hospital contend that the trial court erred in applying
the doctrine of res ipsa loquitur and the common knowledge exceptions to the
requirement of expert evidence in this case. Specifically, they claim that application
of res ipsa loquitur is improper because the uncontradicted expert testimony is that
a patients spleen can accidentally be injured during colon surgery absent any negligence
on the part of the surgeon. Dr. Narducci and the hospital also
claim that the common knowledge exception should not apply because the determination of
whether Dr. Narducci complied with the requisite standard of care during the colon
surgery requires the education, training, and experience of a surgeon and is beyond
the common knowledge of a layperson.
In addressing Dr. Narducci and the hospitals contention that the doctrines of res
ipsa loquitur and common knowledge do not apply to Tedrows claims against them,
we initially observe that medical malpractice actions are similar to other negligence actions.
Slease v. Hughbanks, 684 N.E.2d 496, 498 (Ind. Ct. App. 1997).
Generally, the mere fact that an injury occurred will not give rise to
a presumption of negligence. Baker v. Coca Cola Bottling Works, 132 Ind.
App. 390, 394, 177 N.E.2d 759, 762 (1961). The plaintiff must prove
that the defendant owed him a duty and that the defendant breached that
duty, which proximately caused an injury to the plaintiff. Slease, 684 N.E.2d
at 498. Physicians are not held to a duty of perfect care.
Id. Instead, the doctor must exercise the degree of skill and
care ordinarily possessed and exercised by a reasonably skillful and careful practitioner under
the same or similar circumstances. Id. at 498-99. To establish the
applicable standard of care and to show a breach of that standard, a
plaintiff must generally present expert testimony. Id. at 499. Because medicine
is an inexact science, an inference of negligence will not arise simply because
there is a bad result without proof of some negligent act. Carpenter
v. Campbell, 149 Ind. App. 189, 194, 271 N.E.2d 163, 166 (1971).
However, the doctrine of res ipsa loquitur is a qualified exception to the
general rule that the mere fact of injury will not create an inference
of negligence. Baker, 132 Ind. App. at 394, 177 N.E.2d at 762.
Res ipsa loquitur literally means the thing speaks for itself. Id. at 394,
177 N.E.2d at 761. Consequently, the facts or circumstances accompanying an injury
may be such as to raise a presumption, or at least permit an
inference, of negligence on the part of the defendant. Id. The
doctrine of res ipsa loquitur is a rule of evidence which allows an
inference of negligence to be drawn from certain surrounding facts. Vogler v.
Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1993), trans. denied. Application
of the doctrine does not in any way depend on the standard of
care imposed by law but, rather, depends entirely upon the nature of the
occurrence out of which the injury arose. Id. Whether the doctrine
applies in any given negligence case is a mixed question of law and
fact. Id. The question of law is whether the plaintiffs evidence
included all of the underlying elements of res ipsa loquitur. Shull v.
B.F. Goodrich Co., 477 N.E.2d 924, 928 (Ind. Ct. App. 1985), trans. denied.
Specifically, this court has held that:
Under the doctrine of res ipsa loquitur, negligence may be inferred where 1)
the injuring instrumentality is shown to be under the management or exclusive control
of the defendant or his servants, and 2) the accident is such as
in the ordinary course of things does not happen if those who have
management of the injuring instrumentality use proper care.
Vogler, 624 N.E.2d at 61. A plaintiff relying on res ipsa loquitur
may establish the second prong, and show that the event or occurrence was
more probably the result of negligence, by relying upon common knowledge or expert
testimony. Id. Expert testimony is required only when the issue
of care is beyond the realm of the lay person. Stumph v.
Foster, 524 N.E.2d 812, 815 (Ind. Ct. App. 1988). In other words,
the standard of care need not be established by expert opinion when the
doctors conduct was understandable by the jury without extensive technical input. Id.
The common knowledge exception to the general rule that the standard of care
required of a doctor must be established by expert testimony, is applicable
in select situations. Malooley v. McIntyre, 597 N.E.2d 314, 318 (Ind. Ct.
App. 1992). Specifically, this exception will apply where the complained-of conduct is
so obviously substandard that one need not possess medical expertise in order to
recognize the breach of the applicable standard of care, Id. at 319.
It also applies where the doctors conduct is understandable without extensive technical input.
Stumph, 524 N.E.2d at 815. Otherwise, expert opinion is required when
the question involves the delicate inter-relationship between a particular medical procedure and the
causative effect of that procedure upon a given patients structure, endurance, biological make-up,
and pathology. Malooley, 597 N.E.2d at 319.
Here, there is no dispute that the first prong of the res ipsa
loquitur doctrine is satisfied, as Tedrows spleen was perforated in a setting under
the exclusive control of Dr. Narducci and those hospital employees who assisted in
the surgery. The issue, therefore, is whether the second prong of the
doctrine is satisfied; specifically, whether the accident would ordinarily not have occurred if
Dr. Narducci and the hospital had used proper care.
The undisputed expert testimony is that Dr. Narducci and the hospital met the
standard of care [in their] treatment of Mr. Tedrow. R. at 204-05.
According to Dr. Michael B. Hoover, [i]t is medically incorrect to
conclude that the patients bleeding, regardless of cause, would not have occurred absent
negligence . . . . In fact, due to the nature of
the spleen and its location, when surgery of the sort at issue here
is performed, bleeding can occur because of unavoidable trauma [regardless of the] utmost
care by all health care providers involved. R. at 204-05. Despite
this testimony, Tedrow asserts that the common knowledge exception applies to satisfy the
second prong of the doctrine because it is within the cognitive abilities of
a layperson to conclude that removal of ones spleen is not the natural
or usual outcome of colon surgery. Indeed, at oral argument, counsel
for Tedrow asked this court to follow the lead of Illinois and establish
the rule that whenever a medical procedure results in an unexpected outcome,
the doctrine of res ipsa loquitur and the common knowledge exception are applicable.
Under the facts of this case, it is not apparent that a fact-finder
possesses the knowledge and expertise necessary to render an informed decision on the
issue of negligence. Specifically, the determination of whether Dr. Narducci and the
hospital met the relevant standard of care in its treatment of Tedrow requires
some understanding of the procedures involved in colon surgery, the location in the
body of the various organs at issue, and the nature of the spleen.
Simply put, such information is beyond the common knowledge of laypersons.
Thus, we decline to adopt the rule proposed by Tedrow, as we
are not prepared to find as a matter of law that Tedrows spleen
would not have been perforated but for negligence, particularly in light of Dr.
Hoovers testimony to the contrary.
The judgment is reversed, and this cause is remanded with instructions to enter
summary judgment for Dr. Narducci and the hospital.
Reversed and remanded.
NAJAM, J., and BAILEY, J., concur.
Footnote: This court heard oral argument in this cause on October 10,
2000, at Vincennes University.
Ind. Code § 34-18-8-4 provides that before a medical malpractice claim
may be commenced in court in Indiana, the claimant must present his or
her proposed complaint to a medical review panel.
I.C. § 34-18-8-6 provides, in part, that a patient may commence
an action against a health care provider without submitting a proposed complaint to
a medical review panel if the patients pleading includes a declaration that the
patient seeks damages from the health care provider in an amount not greater
than fifteen thousand dollars ($15,000).
Footnote: The trial court also concluded that the hospital had no obligation to
obtain consent to the medical treatment from Tedrow. R. at 261-62.
Footnote: Specifically, counsel cited Illinois statute, 735
Ill. Comp. Stat. 5/2-1113
(2000). This statute provides:
In all cases of alleged medical or dental malpractice, where the plaintiff relies
upon the doctrine of res ipsa loquitur, the court shall determine whether the
doctrine applies. In making that determination, the court shall rely upon either
the common knowledge of laymen, if it determines that to be adequate, or
upon expert medical testimony, that the medical result complained of would not have
ordinarily occurred in the absence of negligence on the part of the defendant.
Proof of an unusual, unexpected, or untoward medical result which ordinary does
not occur in the absence of negligence will suffice in the application of
the doctrine. (emphasis supplied).