                                                                            FILED
                                                                       May 30 2018, 5:28 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Eric A. Frey                                              John D. Nell
      Frey Law Firm                                             Jere A. Rosebrock
      Terre Haute, Indiana                                      Wooden McLaughlin, LLP
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Rickie Henderson,                                         May 30, 2018
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                84A01-1710-CT-2566
              v.                                                Appeal from the Vigo Superior
                                                                Court
      Elliott Kleinman, D.P.M.,                                 The Honorable John T. Roach,
      Appellee-Respondent.                                      Judge
                                                                Trial Court Cause No.
                                                                84D01-1506-CT-4294



      Mathias, Judge.

[1]   Rickie Henderson (“Henderson”) filed a complaint in Vigo Superior Court

      against Dr. Elliott Kleinman (“Dr. Kleinman”). The complaint alleged that Dr.

      Kleinman failed to meet the applicable standard of care both in his record

      keeping and in his treatment of Henderson. Summary judgment proceedings

      ensued, and the trial court granted summary judgment in Dr. Kleinman’s favor


      Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018                   Page 1 of 14
      after concluding that the doctor was entitled to judgment as a matter of law.

      Henderson appeals and argues that the trial court erred when it granted Dr.

      Kleinman’s motions for summary judgment and disregarded the medical review

      panel’s opinion that Dr. Kleinman’s record keeping failed to meet the

      applicable standard of care.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Henderson was a patient of Dr. Kleinman’s for approximately five years, and

      during that time he performed three surgeries on Henderson’s right foot and

      ankle. The most recent surgery, which is at issue in this appeal, was performed

      on August 27, 2010. Henderson presented to Dr. Kleinman with continued pain

      in her right foot, and the doctor performed several surgical procedures on her

      foot on that date.


[4]   Henderson continued to experience pain after the surgery. After several follow

      up appointments with Dr. Kleinman, Henderson sought a second opinion from

      Dr. Dominic DiPierro in January 2012. Henderson reported her post-surgery

      pain to the doctor, and he believed that Henderson’s pain was the direct result

      of the 2010 surgery.




      Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018   Page 2 of 14
[5]   As required by Indiana’s Medical Malpractice Act, 1 on August 24, 2012,

      Henderson filed her proposed complaint against Dr. Kleinman with the Indiana

      Department of Insurance. Henderson’s complaint alleged that “[i]n performing

      the [August 27, 2010] surgery, Kleinman failed to meet the appropriate

      standard of care for podiatry and orthopedic surgery.” Appellant’s App. Vol. II,

      p. 27. And “as a proximate result of the failure of the defendant to meet the

      standard of care, plaintiff sustained severe and permanent damage to her right

      foot and ankle and is permanently impaired.” Id.


[6]   The Medical Review Panel (“the Panel”) reviewed her complaint and

      Henderson’s patient records. On April 16, 2015, the Panel issued the following

      opinion:


                 The panel is of the unanimous opinion that the record keeping of
                 the Defendant fails to meet the standard required, and that the
                 lack of documentation makes it impossible for the panel to decide
                 whether the evidence supports or does not support a conclusion
                 that the Defendant failed to comply with the appropriate
                 standard of care in his treatment of the Plaintiff.


      Appellant’s App. Vol. II, p. 86.

[7]   Thereafter, Henderson filed a complaint against Dr. Kleinman in Vigo Superior

      Court. The complaint alleged:




      1
          See Indiana Code § 34-18-8-4.


      Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018   Page 3 of 14
              2. In performing the surgery and preparing medical records of his
              care and treatment of the plaintiff, Dr. Kleinman failed to meet
              the appropriate standard of care for podiatrists and orthopedic
              surgeons.


              3. Plaintiff’s claim was presented to a medical review panel
              pursuant to Indiana’s Medical Malpractice Act, and the Medical
              Review Panel found that the defendant failed to meet the
              standard of care in keeping records of his care and treatment of
              the plaintiff and that the Panel could not determine as a result of
              those poor records that the actual surgery he performed was
              within the standard of care.


              4. That the plaintiff was injured and damaged as a result of the
              surgery and negligent failure of the defendant to perform within
              the applicable standard of care.


      Appellant’s App. Vol. II, pp. 16–17.


[8]   On June 28, 2017, Dr. Kleinman filed a motion for partial summary judgment

      and argued that Indiana law does not impose a legal duty on physicians to keep

      any particular type of patient medical records. And therefore, Henderson does

      not have an actionable claim arising out of Dr. Kleinman’s method of record

      keeping. Dr. Kleinman also argued that even if the duty did exist, Henderson

      has not established a causal connection between the breach of that duty and her

      alleged injuries.


[9]   Shortly thereafter, Dr. Kleinman filed a motion for summary judgment and

      argued that he performed the August 27, 2010 surgery within the applicable

      standard of care and was therefore entitled to judgment as a matter of law. In


      Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018       Page 4 of 14
       support of his summary judgment motions, Dr. Kleinman designated the

       affidavit of Dr. J. Michael Miller, D.P.M., F.A.C.A.S. (“Dr. Miller”). In his

       affidavit, Dr. Miller stated that Dr. Kleinman’s surgical and office visit records

       “provided [him] with sufficient information to reliably formulate and render”

       his opinion on whether Dr. Kleinman met the applicable standard of care.

       Appellant’s App. Vol. III, p. 19. The doctor stated that Dr. Kleinman met the

       applicable standard of care in his diagnosis and treatment of Henderson and

       concluded that “the surgical procedures which [Dr. Kleinman] employed to

       treat Mrs. Henderson on August 27, 2010 were performed appropriately and

       within the applicable standard of care.” Id.


[10]   In response to Dr. Kleinman’s motions, Henderson designated the Panel

       opinion and the depositions of the panel members discussing the inadequacy of

       Dr. Kleinman’s record keeping. Henderson did not designate any evidence to

       counter Dr. Miller’s opinion that Dr. Kleinman’s diagnoses and treatment of

       Henderson met the applicable standard of care.


[11]   On October 3, 2017, the trial court granted Dr. Kleinman’s motion for

       summary judgment and entered judgment in the doctor’s favor. Henderson now

       appeals. Additional facts will be provided as necessary.


                                           Standard of Review
[12]   When we review the entry of summary judgment, we apply the same standard

       as the trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585

       (Ind. 2017). Summary judgment is appropriate only when “the designated

       Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018     Page 5 of 14
       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). An issue is “genuine” if a trier of fact is required to resolve the

       truth of the matter; a fact is “material” if its resolution affects the outcome of

       the case. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[13]   Summary judgment is a “blunt instrument” by which the non-prevailing party

       is prevented from resolving its case at trial. Id. Because of this, our supreme

       court has cautioned that summary judgment “is not a summary trial” and

       courts on appeal should carefully “assess the trial court’s decision to ensure [a

       party] was not improperly denied [their] day in court.” Id. at 1003–04 (citations

       omitted). In other words, “Indiana consciously errs on the side of letting

       marginal cases proceed to trial on the merits, rather than risk short-circuiting

       meritorious claims.” Id. at 1004.


                                       Discussion and Decision
[14]   Henderson argues that a physician has a duty to maintain and keep adequate

       patient records. Therefore, the Panel opinion “establishes that there was

       evidence presented to the trial court demonstrating a failure to meet the

       standard of care with regard to defendant’s legal duty to keep and maintain

       adequate records of the plaintiff’s care.” Appellant’s Br. at 7.


[15]   To establish a prima facie case of medical malpractice, a plaintiff must

       demonstrate: (1) a duty on the part of the defendant in relation to the plaintiff;

       (2) a failure to conform her conduct to the requisite standard of care required by

       Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018     Page 6 of 14
       the relationship; and (3) an injury to the plaintiff resulting from that failure.

       Sorrells v. Reid–Renner, 49 N.E.3d 647, 651 (Ind. Ct. App. 2016) (citing Thomson

       v. St. Joseph Reg’l Med. Ctr., 26 N.E.3d 89, 93 (Ind. Ct. App. 2015)). The plaintiff

       must come forth with expert medical testimony establishing: (1) that the doctor

       owed a duty to the plaintiff; (2) that the doctor breached that duty; and (3) that

       the doctor’s breach proximately caused the plaintiff’s injuries. Siner v. Kindred

       Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016); Sorrells, 49 N.E.3d at 651.


[16]   A unanimous opinion of the medical review panel establishing that the doctor

       failed to comply with the appropriate standard of care and that the doctor’s

       conduct was a factor in causing the patients resultant damages is “ordinarily

       sufficient” to meet the patient’s initial burden to show that there was no

       genuine issue of material fact. See Siner, 51 N.E.3d at 1187–88; Scripture v.

       Roberts, 51 N.E.3d 248, 252 (Ind. Ct. App. 2016). The burden then shifts to the

       doctor to designate sufficient expert testimony “setting forth specific facts

       showing the existence of a genuine issue” of material fact. Scripture, 51 N.E.3d

       at 252.


[17]   Moreover, an Indiana summary judgment movant may not rely on a non-

       movant’s failure to designate evidence in support of each element of her claim.

       Hughley, 15 N.E.3d at 1003. Rather, Indiana practice places the burden on the

       movant affirmatively to negate—that is, to designate evidence disproving—an

       element of the non-movant’s claim. Id. If carried, the burden then shifts to the

       non-movant to come forward with contrary evidence requiring resolution by a

       trier of fact. Id.

       Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018     Page 7 of 14
[18]   This is an extremely unusual case. There is no statutory authority or reported

       case law establishing a duty to maintain “adequate” records. Indiana Code

       section 16-39-7-1 requires doctors to keep records, and it would not be

       unreasonable to conclude that the duty to keep records requires that the

       doctor’s records be adequate to determine what facts the doctor relied on to

       make a diagnosis, including the patient’s relevant medical history, and the

       course of treatment recommended by the doctor. At a minimum a doctor’s

       records should include sufficient information so that the Medical Review Panel

       can make a determination whether the doctor met the applicable standard of

       care. And if the sufficiency of medical records was a controlling factor in the

       determination of whether Dr. Kleinman's treatment of Henderson met the

       applicable standard of care, our review would end here.


[19]   However, even if we assume that a physician has a duty to keep adequate

       records, 2 whether Dr. Kleinman kept adequate records is a question of fact. In

       support of his motion for summary judgment, Dr. Kleinman designated the

       affidavit of Dr. Miller who stated that Dr. Kleinman’s surgical and office visit

       records “provided [him] with sufficient information to reliability formulate and

       render” his opinion on whether Dr. Kleinman met the applicable standard of

       care. Appellant’s App. Vol. III, p. 19. In response, Henderson designated the




       2
        In the trial and appellate proceedings in this case, Dr. Kleinman argued that even if the duty to maintain
       “adequate records” was recognized, and if a trier of fact found that he breached that duty, Henderson cannot
       establish that the breach was the proximate cause of any claimed injuries. Henderson failed to respond to that
       argument both at the trial level and in these proceedings.

       Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018                          Page 8 of 14
       Panel’s opinion that “the record keeping of the Defendant fail[ed] to meet the

       standard required.” Appellant’s App. Vol. II, p. 86. But under the facts and

       circumstances of this case, this factual issue does not mandate reversal of the

       trial court’s entry of summary judgment in favor of Dr. Kleinman.


[20]   Importantly, in his summary judgment motion, Dr. Kleinman also argued that

       in treating Henderson, he met the applicable standard of care. In support of his

       argument, he again designated Dr. Miller’s affidavit. Dr. Miller, whose

       specialty is also podiatry, reviewed Dr. Kleinman’s records of his office visits

       with Henderson and her surgical records. Dr. Miller concluded:


               Based upon my education, training and experience, and the
               records which I have reviewed, it is my opinion based upon a
               reasonable degree of medical certainty that Dr. Kleinman met the
               standard of care in all respects in his care and treatment of Mrs.
               Henderson and, in particular, with respect to his diagnoses and
               treatment rendered in 2010.


               Based on my training and experience, and Dr. Kleinman’s
               operative note, the surgical procedures which he employed to
               treat Mrs. Henderson on August 27, 2010 were performed
               appropriately and within the applicable standard of care.


       Appellant’s App. Vol. III, p. 19.


[21]   Dr. Kleinman also designated the deposition testimony of Panel member Dr.

       Oglesby who stated that there was nothing in the medical records that he

       reviewed that led him to believe that Dr. Kleinman failed to meet the standard

       of care in treating Henderson. Id. at 75. Dr. Henning, another review panel
       Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018   Page 9 of 14
       member, opined that Dr. Kleinman appropriately performed the surgical

       procedures during Henderson’s August 27, 2010 surgery. Id. at 77. The third

       panel member, Dr. McGowan also stated in his deposition that from the

       surgical records it appeared that the procedures were appropriately performed

       and the surgical procedures were within the range of appropriate treatment for

       Henderson’s diagnosis.3 Id. at 79.


[22]   In response to the motion for summary judgment, Henderson did not designate

       any evidence to that would establish that Dr. Kleinman’s treatment of her fell

       below the applicable standard of care. 4 And if Dr. Kleinman did not breach his

       duty to Henderson, her claim for medical malpractice fails as a matter of law.


[23]   Henderson believes that the Panel opinion rebuts Dr. Miller’s opinion that

       Kleinman met the applicable standard of care. But the Panel only found that

       “lack of documentation makes it impossible for the panel to decide whether the

       evidence supports or does not support a conclusion that the Defendant failed to

       comply with the appropriate standard of care in his treatment of the Plaintiff.”

       Appellant’s App. Vol. II, p. 86. We firmly believe that the presence or absence

       of medical records is certainly a factor in the determination of whether or not




       3
        From our review of the record, it appears that the panel was more concerned with the adequacy of
       Henderson’s office visit records, but not the surgical records. In their depositions, the panel members
       discussed omissions from the records of the office visits, including the lack of patient history and the lack of
       discussion of more conservative treatment options.
       4
        Henderson included her records of patient visits with Dr. Dominic DiPierro in her Appendix. But it does
       not appear from the record that these patient records were designated to the trial court with her response to
       Dr. Kleinman’s motion for summary judgment.

       Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018                             Page 10 of 14
       medical malpractice occurred in any case. However, in the face of an admissible

       affidavit from a competent expert opining that Dr. Kleinman’s care of

       Henderson was within the applicable standard of care notwithstanding his

       extremely poor recordkeeping and deposition testimony from Panel members

       that the surgeries were adequately performed and appropriate for Henderson’s

       diagnosis, it is inadequate as a matter of law to respond solely by pointing only

       to the Panel's finding that Dr. Kleinman's recordkeeping failed to meet the

       applicable standard.


[24]   Dr. Kleinman met his burden as the summary judgment movant to

       affirmatively negate an element of Henderson’s claim. The burden then shifted

       to Henderson to come forward with contrary evidence requiring resolution by a

       trier of fact. See Hughley v. State, 15 N.E.3d at 1003. Henderson failed to do so.5

       We therefore affirm the trial court’s grant of summary judgment in Dr.

       Kleinman’s favor.


[25]   Affirmed.


       Barnes, J., concurs.

       Najam, J., concurs with a separate opinion.




       5
        With her memorandum in opposition to Dr. Kleinman’s motions for summary judgment, Henderson only
       designated the Panel opinion and portions of Dr. Henning’s and Dr. McGowan’s depositions, who were both
       members of the Panel.

       Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018                   Page 11 of 14
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Rickie Henderson,                                         Court of Appeals Case No.
                                                                 84A01-1710-CT-2566
       Appellant-Petitioner,

               v.

       Elliott Kleinman, D.P.M.,
       Appellee-Respondent.




       Najam, Judge, concurring.

[26]   I concur, but write separately to emphasize the injustice caused by Dr.

       Kleinman’s failure to maintain adequate and accurate medical records, which

       prevented the Medical Review Panel from rendering an opinion on the merits

       of Henderson’s medical malpractice claim. As our Supreme Court has

       acknowledged, “the ‘[m]aintenance of health records by providers’ is . . . closely

       entwined with health care and . . . records in general are . . . important to a

       medical review panel’s assessment of whether the appropriate standard of care


       Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018               Page 12 of 14
       was met.” Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 186 (Ind. 2011).

       It should follow, then, that a health care provider’s failure to maintain

       documentation of a patient’s treatment sufficient to enable a Medical Review

       Panel to form an opinion on alleged medical malpractice would support a claim

       against the provider. I urge our Legislature to amend the Act to provide that

       health care providers have an affirmative duty to maintain adequate and

       accurate medical records and that a violation of that duty could support a prima

       facie medical malpractice claim.


[27]   A health care provider’s failure to maintain adequate and accurate medical

       records is the functional equivalent of spoliation of evidence. While our courts

       do not recognize an independent tort claim for first party spoliation of evidence,

       “[i]n Indiana, the exclusive possession of facts or evidence by a party, coupled

       with the suppression of the facts or evidence by that party, may result in an

       inference that the production of the evidence would be against the interest of

       the party which suppresses it.” Porter v. Irvin’s Interstate Brick & Block Co., 691

       N.E.2d 1363, 1364-65 (Ind. Ct. App. 1998). Such an inference could defeat a

       summary judgment motion. See, e.g., Dawson v. Hummer, 649 N.E.2d 653, 661

       (Ind. Ct. App. 1995) (holding where evidence gives rise to conflicting inferences

       summary judgment is inappropriate).


[28]   Here, Dr. Kleinman had exclusive control over the creation of Henderson’s

       medical records, which evidence was a necessary predicate for her medical

       malpractice claim. The inadequacy of those records is akin to the suppression

       of evidence and supports an inference that adequate medical records would

       Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018     Page 13 of 14
have been against Dr. Kleinman’s interest. As the majority observes, it would

be reasonable to assert that a health care provider has an affirmative duty to

maintain adequate and accurate records. Such a duty is wholly meaningless

without a consequence for a failure to comply. See, e.g., Shirey v. Flenar, 89

N.E.3d 1102, 1112 (Ind. Ct. App. 2017) (Baker, J., concurring). Here, the

Medical Review Panel’s inability to evaluate Henderson’s malpractice claim

due to a “lack of documentation” should be sufficient to withstand Dr.

Kleinman’s summary judgment motion. Appellant’s App. Vol. II at 86.

Nonetheless, we must strictly construe the Act, and because Henderson did not

designate any evidence to show that Dr. Kleinman’s conduct fell below the

applicable standard of care, I am compelled to agree with the majority that

summary judgment for Dr. Kleinman is required.




Court of Appeals of Indiana | Opinion 84A01-1710-CT-2566 | May 30, 2018   Page 14 of 14
