Court of Appeals of Indiana | Memorandum Decision 02A03-1511-PL-2030 | May 25, 2016 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

David Van Gilder

Andrew P. Simmons

Lindsay A. Davenport

Van Gilder & Trzynka, P.C.

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Kathleen A. Kilar

Andrew S. Williams

Jeremy D. Lemon

Hunt Suedhoff Kalamaros LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

The Estate of Diana K. Blake by 

Nicole Walker, Personal 

Representative,

Appellant-Plaintiff,

v.

Select Specialty Hospital-Fort 

Wayne, Inc.,

Appellee-Defendant.

May 25, 2016

Court of Appeals Case No.

02A03-1511-PL-2030

Appeal from the 

Allen Superior Court

The Honorable 

Stanley A. Levine, Judge

Trial Court Cause No.

02D03-1412-PL-469

Kirsch, Judge.

[1] The Estate of Diana K. Blake (“Blake”) by Nicole Walker, Personal 

Representative (“the Estate”), appeals the trial court’s grant of summary 
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judgment in favor of Select Specialty Hospital-Fort Wayne, Inc. (“the 

Hospital”) on the Estate’s medical malpractice claim. The Estate raises two 

issues of which we find the following dispositive: whether the trial court erred 

in granting summary judgment in favor of the Hospital because the Estate 

contends that the designated evidence established a genuine issue of material 

fact that the Hospital breached its standard of care to Blake.

[2] We reverse and remand.

Facts and Procedural History

[3] On January 26, 2011, Blake underwent a left femoral anterior tibial bypass 

surgery, which was performed by John F. Csicsko, M.D. (“Dr. Csicsko”), a 

thoracic surgeon with Lutheran Hospital. The surgery entailed a left-side groin 

wound in which a section of vein was grafted into an artery in Blake’s leg. 

Following the surgery, Blake was transferred to St. Joseph Hospital for 

continuing care. While there, she was treated for an infection due to a nonhealing left leg wound. On February 19, 2011, Blake underwent a second 

surgery, in which a debridement was performed by Dr. Csicsko, and a section 

of Blake’s sartorius muscle was pulled and sutured over the vein graft to help 

protect the graft. To assist in healing, a Vacuum Assisted Closure (“VAC”) 

system was applied over the wound. On February 24, 2011, Blake was 

transferred to the Hospital for continuing care, including wound care which 

involved changing the VAC dressing every three days.
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[4] Patricia Gerig, RN (“Nurse Gerig”), who was employed by the Hospital, 

performed the wound care on February 25, and again on February 28, by 

changing the VAC dressing. Nurse Gerig testified that, on each date, she 

applied an adaptic layer over the wound in Blake’s left groin before applying the 

black sponge, which was part of the VAC dressing. However, Blake’s medical 

records did not contain any notations indicating that the adaptic layer was 

applied during either of the VAC dressing changes. On February 28, Nurse 

Gerig completed the wound care at 11:30 a.m. At approximately 4:30 p.m. on 

February 28, a code was called due to Blake having developed an acute bleed 

from her left groin wound. Blake was not able to be resuscitated, and she died. 

During the code, Dr. Csicsko observed that the sartorius muscle was dislodged, 

and the vein graft was clearly visible in the wound. 

[5] On April 27, 2012, the Estate filed a Proposed Complaint against the Hospital 

with the Indiana Department of Insurance. A Medical Review Panel was 

formed consisting of two physicians and one nurse. On September 17, 2014, 

the Medical Review Panel reached a unanimous opinion that the Hospital did 

not breach its standard of care and that the “conduct complained of was not a 

factor of the resultant damages.” Appellant’s App. at 5-10. On December 4, 

2014, the Estate filed a civil complaint in the Allen County Superior Court 

against the Hospital. The Hospital filed a motion for summary judgment based 

on the Medical Review Panel’s determination. After the Estate filed its 

response to the summary judgment motion and designated evidence, the 

Hospital moved to strike portions of the designated evidence, including an 
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affidavit by Carol White (“White”), a registered nurse and nurse practitioner 

(“the Affidavit”). A hearing was held on the motion to strike, and the trial 

court granted the motion, striking the Affidavit. A hearing was later held on 

the Hospital’s motion for summary judgment, and on October 28, 2015, the 

trial court granted summary judgment in favor of the Hospital. The Estate now 

appeals.

Discussion and Decision

[6] When reviewing the grant of summary judgment, our standard of review is the 

same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 

1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of 

Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in 

the shoes of the trial court and apply a de novo standard of review. Id. (citing 

Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our 

review of a summary judgment motion is limited to those materials designated 

to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d 

461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate 

only where the designated evidence shows there are no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of law. 

T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on 

the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view 

the pleadings and designated materials in the light most favorable to the nonmoving party. Id. Additionally, all facts and reasonable inferences from those 

facts are construed in favor of the non-moving party. Id. (citing Troxel Equip. 
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Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans. 

denied). Under Indiana’s summary judgment procedure, the party moving for 

summary judgment has the burden of establishing that no genuine issue of 

material fact exists. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937 

N.E.2d 853, 865-66 (Ind. Ct. App. 2010) (citing Jarboe v. Landmark Cmty. 

Newspapers, 644 N.E.2d 118, 123 (Ind. 1994)). Only after the moving party has 

met this burden with a prima facie showing that no genuine issue of material 

fact exists does the burden then shift to the non-moving party to establish that a 

genuine issue of material fact does in fact exist. Id. at 866.

[7] A trial court’s grant of summary judgment is clothed with a presumption of 

validity, and the party who lost in the trial court has the burden of 

demonstrating that the grant of summary judgment was erroneous. FLM, 973 

N.E.2d at 1173. Where a trial court enters specific findings and conclusions, 

they offer insight into the rationale for the trial court’s judgment and facilitate 

appellate review, but are not binding upon this court. Id. We will affirm upon 

any theory or basis supported by the designated materials. Id. When a trial 

court grants summary judgment, we carefully scrutinize that determination to 

ensure that a party was not improperly prevented from having his or her day in 

court. Id.

[8] Cases involving medical malpractice are no different from other kinds of 

negligence actions regarding that which must be proven. Giles v. Anonymous 

Physician I, 13 N.E.3d 504, 510 (Ind. Ct. App. 2014), trans. denied. “Specifically, 

a plaintiff in a medical malpractice action must prove: (1) duty owed to the 
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plaintiff by the defendant; (2) breach of duty by allowing conduct to fall below 

the applicable standard of care; and (3) compensable injury proximately caused 

by the defendant’s breach of duty.” Id.

[9] When a medical review panel renders an opinion in favor of the physician or 

hospital, the plaintiff must then come forward with expert medical testimony to 

rebut the panel’s opinion in order to survive summary judgment. Mills v. 

Berrios, 851 N.E.2d 1066, 1070 (Ind. Ct. App. 2006); Bunch v. Tiwari, 711 

N.E.2d 844, 850 (Ind. Ct. App. 1999). “However, a medical malpractice case 

based upon negligence is rarely appropriate for disposal by summary judgment, 

particularly when the critical issue is whether the defendant exercised the 

appropriate standard of care under the circumstances.” Mills, 851 N.E.2d at 

1070. This issue is generally inappropriate for resolution as a matter of law and 

is a question that should be reserved for the trier of fact. Id. In order to be 

sufficient to demonstrate the existence of a material fact and make summary 

judgment inappropriate, an affidavit must establish an expert’s credentials, state 

that the expert has reviewed the relevant medical records, and set forth the 

expert’s conclusion that the defendants violated the standard of care in their 

treatment which in turn caused the complained of injury. Id. 

[10] In support of its motion for summary judgment, the Hospital submitted the 

opinion of the Medical Review Panel, which determined unanimously that the 

Hospital did not breach its standard of care and that the challenged conduct 

was not a factor of the resultant damages. Appellant’s App. at 19-24. That 

satisfied the Hospital’s burden to show there was no genuine issue of material 
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fact. It was then up to the Estate to designate sufficient expert testimony setting 

forth facts showing the existence of a genuine issue of material fact for trial. See 

Mills, 851 N.E.2d at 1070. In support of its response in opposition to the 

Hospital’s motion for summary judgment, the Estate designated, among other 

things, the following evidence: an affidavit by Dr. Csicsko, excerpts from the 

deposition of Dr. Csicsko, excerpts from the deposition of Nurse Gerig, and 

excerpts from the deposition of Brian Youn, M.D., who assisted in the 

attempted resuscitation of Blake. Appellant’s App. at 33-34.

[11] Dr. Csicsko stated in his affidavit that he is a licensed and practicing physician, 

specializing in the field of thoracic surgery, and was one of the treating

physicians of Blake. The affidavit stated that Dr. Csicsko reviewed Blake’s 

medical records from the Hospital and set forth the relevant facts of Blake’s 

surgery and hospitalization. Dr. Csicsko then stated:

12. A properly working wound vac will not dislodge the 

sartorius muscle flap that I sutured over the vein graft site; the 

wound vac sponge sticking to the muscle could dislodge it if the 

vac sponge was not carefully removed. If an adaptic layer had 

been used the sartorius flap would not likely have been dislodged 

and the vein graft would not have been directly exposed to the 

vac pressure.

. . . .

15. Based on my review of the records and my observations: (a) 

the grafted vein was not deteriorated due to infection; (b) the 

protective sartorius muscle flap was dislodged, most likely during 

a wound vac change; (c) there is no record that an adaptic layer 
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was applied in the wound vac dressing change on February 25 or 

February 28, 2011; (d) the vac reservoir was filled with about 

1500cc of blood; and (e) the cause of Diane [sic] Blake’s cardiac 

arrest was the acute bleeding through a hole in the grafted vein. 

It is my opinion that the responsible cause of her death on 

February 28 was more likely than not a disruption to the vein 

and subsequent bleed out through the wound vac. 

16. It is my opinion that had Ms. Blake been properly cared for 

at Select Specialty Hospital more likely than not she would have 

survived.

Id. at 98-99. 

[12] This testimony was competent to establish that the standard of care for the use 

of a wound VAC dressing was to use an adaptic layer between the VAC sponge 

and the fragile vein graft. Additionally, the Estate designated portions of Nurse 

Gerig’s deposition testimony, in which she stated that, in her nursing judgment, 

an adaptic layer should be used because she “knew the wound vac should be 

used with caution in graft sites and that it was recommended to use a release 

layer” and that an adaptic layer should have been used in a vein graft site such 

as Blake’s “[s]o that the sponge doesn’t stick to the wound when you’re 

removing it.” Id. at 113. We find this evidence sufficient to refute the Medical 

Review Panel’s opinion and create a genuine issue of material fact as to 

whether the Hospital complied with the appropriate standard of care. The trial 
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court, therefore, erred in granting summary judgment in favor of the Hospital.1 

We reverse the grant of summary judgment in favor of the Hospital and remand 

for further proceedings.

[13] Reversed and remanded.

[14] Riley, J., and Pyle, J., concur.

 

1 Because we have concluded that the Estate designated sufficient evidence to refute the Medical Review 

Panel’s opinion and to create a genuine issue of material fact without reference to White’s affidavit, we do 

not reach the issue of whether the trial court erred in granting the Hospital’s motion to strike White’s 

affidavit.