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
SUPREME COURT OF INDIANA
INDIANA UNIVERSITY MEDICAL )
CENTER, RILEY HOSPITAL FOR )
Appellant-Defendant, ) Supreme Court Cause Number
) Court of Appeals Cause Number
BRENDA LOGAN, Mother and Natural, ) 49A02-9812-CV-997
Guardian of JORDAN DAVIS, a Minor, )
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
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 Logans minor son Jordan sustained injures while in Hospitals
care. Hospital responded with a motion for summary judgment arguing that its
conduct was not the proximate cause of Jordans injuries. The trial court
denied the motion, and Hospital appealed. In a memorandum decision the Court
of Appeals reversed, concluding that Logans response to Hospitals 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 courts denial of
Hospitals 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.
See footnote 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 Jordans 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 Jordans 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 Hospitals 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
Hospitals motions to strike with the exception of one non-expert affidavit. The
trial court also denied Hospitals motion for summary judgment. Hospital then pursued
an interlocutory appeal. The Court of Appeals reversed and remanded with instructions
to enter summary judgment in Hospitals favor, ruling that with the exception of
Logans 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 panels finding
of no causation, Hospital was entitled to summary judgment as a matter of
law. Thereafter, we granted Logans 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.
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.
See footnote 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 courts 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
Hospitals 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. Schramms 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
Logans affidavit refers to Dr. Schramm and the fact that he had an
opinion concerning Jordans care. Logans 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
R. at 267-68. Dr. Schramms affidavit expands on the reference to him
and his opinion found in Logans own timely filed affidavit. We therefore
view the Dr. Schramm affidavit as merely a supplement to Logans 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 Hospitals motion for
summary judgment. An abuse of discretion occurs when the trial courts 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
Hospitals motion for summary judgment, Hospital filed among other things a motion to
strike Logans 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 Logans complaint in May 1996. Both parties have
engaged in extensive discovery including depositions, interrogatories, and requests for admissions. Indeed,
prior to Hospitals 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 Jordans injuries.
With the affidavit there is such a dispute, and accordingly the trial court
properly denied Hospitals motion for summary judgment.
We vacate the opinion of the Court of Appeals, affirm the trial courts
denial of summary judgment, and remand for further proceedings.
SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.
SULLIVAN, J., not participating.
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
Footnote: Specifically the exhibits included: A) Logans 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 Jordans grandmother; G) the unsworn statement of
Jordans 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 Druggists Complete Family Guide; and L) uncertified
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 defendants negligence proximately caused the plaintiffs injury.), rehg.
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, Logans 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.