Jeffery L. Ireland v. Tri-State Orthopaedic Surgeons and ProRehab, P.C. (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 Feb 04 2019, 9:09 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen B. Caplin TRI-STATE ORTHOPAEDIC Stephen B. Caplin SURGEONS Professional Corporation Margaret M. Christensen Indianapolis, Indiana Karl L. Mulvaney Bingham Greenebaum Doll LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEE PROREHAB, P.C. Allyson R. Breeden L. Katherine Boren Ziemer, Stayman, Weitzel & Shoulders, LLP Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeffery L. Ireland, February 4, 2019 Appellant-Plaintiff, Court of Appeals Case No. 18A-CT-1015 v. Appeal from the Vanderburgh Circuit Court Tri-State Orthopaedic Surgeons The Honorable David D. Kiely, and ProRehab, P.C., Judge Appellees-Defendants The Honorable Michael J. Cox, Magistrate

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Trial Court Cause No. 82C01-1510-CT-5429

Vaidik, Chief Judge.

Case Summary [1] Jeffery Ireland appeals the trial court’s grant of summary judgment in favor of

Tri-State Orthopaedic Surgeons and ProRehab, P.C., in Ireland’s action for

medical malpractice. We affirm.

Facts and Procedural History [2] In April 2014, a Tri-State doctor performed shoulder surgery on Ireland. Tri-

State sent Ireland to ProRehab for post-surgery therapy. During a rehab visit

on July 8, 2014, an athletic trainer used a machine called a “BTE” on Ireland.

Ireland complained that there was too much tension, but the trainer did not

stop the machine. Eventually, Ireland felt a “pop” in his shoulder. At another

rehab visit on July 17, Ireland reported that his pain was “continuing to get

better” and that he was “ready to get back to work,” Appellant’s App. Vol. III

p. 99, but by early August his pain had gotten worse. A note from a follow-up

appointment with Tri-State on August 7 includes this passage: “[Ireland]

complains of acute onset of neck pain and stiffens [sic] over the last several

days. Prior to that he had been having trouble with his shoulder still that

seemed to happen while he had been working on the BTE machine.” Id. at 10.

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It was decided that Ireland would have another surgery. On September 3, 2014,

the Tri-State surgeon discovered and repaired “a longitudinal rent in the

interval between the posterior portion of the supraspinatus tendon and the

anterior portion of the infraspinatus tendon[.]” Id. at 8. [3] Ireland later filed a proposed medical-malpractice complaint against Tri-State

and ProRehab with the Indiana Department of Insurance as well as a lawsuit

against Tri-State and ProRehab in the Vanderburgh Circuit Court. A medical

review panel was convened in the Department of Insurance matter, and it

unanimously determined that (1) the evidence did not support the conclusion

that either Tri-State or ProRehab “failed to comply with the appropriate

standard of care” and (2) the conduct of Tri-State and ProRehab “was not a

factor in causing the Plaintiff resultant damage.” Appellant’s App. Vol. II pp.

46, 50. [4] Shortly after the panel issued its opinions (one for each defendant), Tri-State

moved for summary judgment in the court case. Tri-State asserted that Ireland

“has no expert testimony to overcome the opinion of the Medical Review

Panel,” id. at 27, and cited the well-established principle that “when the medical

review panel opines that the plaintiff has failed to make a prima facie case, the

plaintiff must rebut the panel’s opinion with expert medical testimony in order

to survive summary judgment,” id. at 26 (citing Oelling v. Rao, 593 N.E.2d 189,

190 (Ind. 1992); Perry v. Driehorst, 808 N.E.2d 765, 769 (Ind. Ct. App. 2004),

reh’g denied, trans. denied; and Marquis v. Battersby, 443 N.E.2d 1202, 1203 (Ind.

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Ct. App. 1982)). ProRehab then filed its own motion for summary judgment

on the same ground. [5] In his response to the defendants’ motions, Ireland did not dispute that he

lacked expert evidence of his own to rebut the opinions of the medical review

panel. Instead, he argued that this is not the type of case in which expert

testimony is necessary. After a hearing on the motions, the trial court granted

summary judgment for the defendants. [6] Ireland now appeals.

Discussion and Decision [7] Ireland contends that the trial court erred by granting the defendants’ motions

for summary judgment. We review such motions de novo, applying the same

standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

That is, “The judgment sought 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). [8] On appeal, as in the trial court, Ireland acknowledges that he has no expert

evidence to rebut the medical review panel’s opinions but asserts that “there is

no requirement for expert testimony because of the common knowledge

exception.” Appellant’s Reply Br. p. 15. He cites our decision in Malooley v.

McIntyre, where we recognized that medical malpractice might be so obvious

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that no expert evidence is required. 597 N.E.2d 314, 318-19 (Ind. Ct. App.

1992). Ireland maintains that there was obvious medical malpractice in this

case. [9] Without even reaching the issue of whether Tri-State and/or ProRehab

breached the applicable standard of care, we see two fatal problems regarding

the issue of causation. First, Ireland repeatedly says that he was “injured,” but

he never tells us what his alleged “injury” was. He states only that he felt a

“pop” in his shoulder during a rehab visit. But a “pop” inside a shoulder is not

obviously or necessarily an “injury.” It is a sound or a feeling that may or may

not be associated with an injury. Second, to the extent that the “injury” Ireland

relies on is the “longitudinal rent in the interval between the posterior portion of

the supraspinatus tendon and the anterior portion of the infraspinatus tendon”

that was discovered and repaired during the second surgery in September 2014,

we agree with Tri-State that it is by no means obvious that that injury was

caused by or even related to the “pop” Ireland felt in July 2014. See Tri-State’s

Br. pp. 42-43. (Notably, Ireland offers no response to this argument by Tri-

State in his reply brief.) Therefore, the “common knowledge” exception to the

expert-evidence requirement does not apply in this case, and because Ireland

did not present any expert evidence to rebut the medical review panel’s

opinions, the trial court properly granted summary judgment in favor of the

defendants. [10] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-1015 | February 4, 2019 Page 5 of 6 Riley, J., and Kirsch, J., concur. Court of Appeals of Indiana | Memorandum Decision 18A-CT-1015 | February 4, 2019 Page 6 of 6