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Lusk v. Swanson8/14/2001
FOR PUBLICATION
OPINION-FOR PUBLICATION
Appellant-plaintiff Marita Lusk appeals the trial court's grant of summary judgment in favor of appellee-defendant James D. Swanson, M.D. Specifically, Lusk contends that the trial court erred in determining that her claims were barred by the statute of limitations and that she had failed to establish a prima facie case of negligence. In addition, Lusk contends that the trial court erred in not granting summary judgment in her favor.
FACTS
The facts most favorable to the non-moving party are that Lusk fell and injured herself on August 18, 1996. Subsequently, Dr. Swanson, an orthopedic surgeon at Dearborn County Hospital, diagnosed Lusk as having an upper arm fracture. Dr. Swanson continued to treat Lusk for her injury until January 17, 1997.
On August 31, 1998, Lusk filed a proposed complaint with the Indiana Department of Insurance (IDOI) alleging that Dr. Swanson and Dearborn County Hospital had committed medical malpractice by negligently failing to diagnose and treat a wrist fracture. Shortly thereafter, on September 9, 1998, the IDOI sent Dr. Swanson a letter informing him that he had not complied with the provisions of the Medical Malpractice Act (Act) and, therefore, the IDOI would have no jurisdiction over Lusk's claims against him. Record at 25. This letter was copied to Lusk's attorney.
The IDOI sent a second letter to Dr. Swanson on September 23, 1998, stating: "if Indiana Code 34-18-1-1, et seq. is applicable to this claim," either party may request formation of a Medical Review Panel. R. at 26. On June 28, 1999, the IDOI sent a third letter to Dr. Swanson notifying him that he was not covered by the Act. R. at 32. This letter was also copied to Lusk's attorney.
One month later, on July 29, 1999, Lusk filed her complaint against Dr. Swanson in the Dearborn Circuit Court. On June 29, 2000, Dr. Swanson filed a motion for summary judgment on the basis that Lusk's claims were barred by the two-year statute of limitations and that she had failed to establish a prima facie case of medical negligence. In support of her opposition to Dr. Swanson's motion, Lusk designated the affidavit of Dr. James M. Gaither, M.D., a pulmonologist, to establish that Dr. Swanson failed to meet the applicable standard of care in treating Lusk.
The trial court held a hearing on Dr. Swanson's motion on August 17, 2000. On October 3, 2000, the trial court entered summary judgment in favor of Dr. Swanson. Specifically, the trial court held that the statute of limitations barred Lusk's complaint. In addition, the trial court held that Lusk had not established a prima facie case of medical negligence because Dr. Gaither's affidavit failed to state: 1) that he was familiar with the standard of care of an orthopedic surgeon; 2) that he was familiar with the standard of care under the same or similar circumstances; 3) what the standard of care is; 4) and that Dr. Swanson's treatment of Lusk fell below that standard. Lusk now appeals.
DISCUSSION AND DECISION
I. Standard of Review
The standard of review of a summary judgment is well settled. 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 the 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. C
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