FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

JAY T. HIRSCHAUER JANET A. MCSHARAR

Hirschauer & Hirschauer ALBERT BARCLAY WONG

Logansport, Indiana Harrison & Moberly, LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MICHAEL K. CURTS, Individually and as )

Personal Representative of the Estate of )

Dorothy J. Curts, Deceased, )

)

Appellant-Plaintiff, )

)

vs. ) No. 09A02-1112-CT-1191

)

MILLER’S HEALTH SYSTEMS, INC., a/k/a )

MILLER’S MERRY MANOR, )

LOGANSPORT, LLC, d/b/a MILLER’S )

MERRY MANOR, )

)

Appellees-Defendants. )

APPEAL FROM THE CASS SUPERIOR COURT

The Honorable Thomas C. Perrone, Judge

Cause No. 09D01-0611-CT-00021

August 15, 2012

OPINION - FOR PUBLICATION

ROBB, Chief Judge
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Case Summary and Issues

Michael Curts, acting individually and as personal representative of the Estate of 

Dorothy J. Curts, brought suit against Miller’s Merry Manor nursing home (“Manor”), 

claiming wrongful death, breach of contract, and negligent infliction of emotional distress. 

The trial court granted summary judgment in favor of Manor. Curts appeals, raising two 

issues: 1) whether Theresa Weitkamp, as a nurse and nursing home administrator, can qualify 

as an expert witness and offer an expert opinion as to whether Manor breached its standard of 

care and whether such alleged breach caused Dorothy Curts’s injuries and subsequent death; 

and 2) whether a genuine issue of material fact exists such that summary judgment is 

inappropriate. Concluding nurses can potentially have sufficient expertise to qualify as 

experts for the purposes of medical standards of care and medical causation, but that the 

evidence designated does not demonstrate that Weitkamp has sufficient expertise and thus no 

genuine issues of material fact exist, we affirm the trial court’s grant of summary judgment 

for Manor. 

Facts and Procedural History1

Dorothy Curts, an elderly woman in her eighties, was admitted to Manor. On May 7, 

2006, the evidence reveals Dorothy had an accident while in Manor’s care. She was taken to 

the local emergency room and treated, but approximately 24 hours after the incident she 

passed away. Dorothy’s son, Michael Curts, brought suit, acting individually and as personal 

representative of the Estate of Dorothy J. Curts. He raised claims of wrongful death, breach 

 

1 We held oral argument in this case on July 26, 2012, at the Indiana Court of Appeals Courtroom 
3

of contract, and negligent infliction of emotional distress. All three claims relied upon his 

factual assertions that Manor acted negligently in providing care for Dorothy and that such 

negligence caused Dorothy to fall out of her bed, hit her head, and die. 

Manor moved to stay the proceedings, alleging it was a qualified health care provider 

that opted to be covered under the Indiana Medical Malpractice Act. A medical review panel 

consisting of three medical doctors convened and ultimately determined, “[t]he evidence does

not support the conclusion that [Manor] failed to meet the appropriate standard of care as 

charged in the complaint and the conduct complained of was not a factor of the resultant 

damages.” Appendix to Brief of Appellant at 23. 

Thereafter, Manor moved for summary judgment, designating as evidence the medical 

review panel’s decision. Curts filed a response and designated as evidence both a deposition 

and report letter of Theresa Weitkamp, a registered nurse and nursing home administrator, a 

portion of a deposition of Michael Curts, and the admission contract between Dorothy and 

Manor. After a hearing, the trial court granted Manor’s motion for summary judgment.

In her report letter, Weitkamp summarized the clinical records relating to the care and 

services provided to Dorothy at Manor and at area hospitals when such medical care was 

necessary. Dorothy was admitted to Manor for nursing care after she suffered a stroke and 

made at least one trip to an emergency room. Her medical issues were varied, including 

weakness and contusions on her left side, fatigue, and diabetes. Dorothy had a history of 

falling, and her physician ordered a sensor alarm and bed and chair alarms for her room. 

 

in Indianapolis. We thank counsel for their capable advocacy.
4

Despite this, she fell at Manor on at least one occasion prior to the incident at issue, which 

resulted in a fractured left hip. 

Dorothy “had urinary frequency and had to be toileted often” and “was also 

incontinent at times.” Id. at 125. Weitkamp’s letter reports that Dorothy would regularly 

turn on her call light to obtain assistance in getting to the restroom, but such attempts were 

often neglected and Dorothy would either wait a lengthy period for help or try to make it to 

the restroom on her own. In December 2005, this resulted in staff responding to an alarm and

finding Dorothy lying on the floor in her room. She was unable to move without pain, but 

was otherwise uninjured. She was routinely reminded to ask for assistance before getting up 

from her bed. 

In early 2006, nurses noted occasions where Dorothy urinated every twenty to thirty 

minutes during the night. She began setting off her bed alarm in an effort to get assistance 

more quickly. In April 2006, she was found sitting next to her bed after she got up so she 

could “pee in the trash can.” Id. at 126. Despite all of these events, Weitkamp noted that no 

new measures were implemented to reduce Dorothy’s risk of falling.

Around 1:00 pm on May 7, 2006, a staff person responded to an alarm in Dorothy’s 

room and found her lying face down on the floor. She had a large knot and a laceration about 

two centimeters long on her forehead, and she was lying in a significant amount of blood. 

She was taken to the emergency room within a few minutes. Doctors discovered a fractured 

wrist and severe fractures to her spine. Although she was considered stable, she died at 

12:15 pm on May 8, 2006. 
5

Weitkamp concluded “it is my opinion that Miller’s Merry Manor . . . deviated from 

commonly accepted standards of care and practice as well as from OBRA regulations, federal 

law mandating care given in nursing homes.” Id. at 122. Specifically, she states Manor 

breached commonly accepted standards of care by “[f]ailing to provide adequate supervision 

to prevent accidents,” “[f]ailing to respond to alarms in a manner timely enough to prevent 

accidents,” “[f]ailing to take measures to determine the root cause of Mrs. Curts’ urinary 

problems,” “[f]ailing to provide staff in adequate numbers to meet the needs of their 

residents,” and “[f]ailing to provide care and services to enable residents to attain or maintain 

their highest practicable physical well-being.” Id. Weitkamp then states, “[a]s a result, Mrs. 

Curts fell multiple times, finally sustaining an injury which led to her untimely death.” Id. 

In Curts’s deposition, he states that he arrived at the nursing home just after Dorothy’s 

May 7 accident, and that when he came into the room he saw her lying on the floor in a large 

puddle of blood. Similar to Weitkamp, he also commented upon Dorothy’s difficulties and 

the nursing home’s lack of sufficient personnel to care for her in his deposition.

After a hearing, the trial court granted Manor’s motion for summary judgment. Curts 

now appeals.

Discussion and Decision

I. Standard of Review

On appeal from a grant of summary judgment, our standard of review is the same as 

that of the trial court. Cox v. Northern Indiana Pub. Serv. Co., Inc., 848 N.E.2d 690, 695 

(Ind. Ct. App. 2006). We thus apply a de novo standard of review. Id. Summary judgment 
6

is appropriate when the designated evidence demonstrates there are no genuine issues of 

material fact and the movant is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). 

“When the defendant is the moving party under T.R. 56(C), the defendant is entitled to 

summary judgment when it demonstrates undisputed material facts which negate at least one 

element of the plaintiff’s claim.” Nikou v. INB Nat’l Bank, 638 N.E.2d 448, 454 (Ind. Ct. 

App. 1994). 

II. Summary Judgment

Manor has met its initial burden of establishing a prima facie showing that no genuine 

issue of material fact exists because it included in its designated evidence the unanimous 

opinion of the medical review panel that “[t]he evidence does not support the conclusion that 

[Manor] failed to meet the appropriate standard of care as charged in the complaint and the 

conduct complained of was not a factor of the resultant damages.” App. to Br. of Appellant 

at 36; see McGee v. Bonaventura, 605 N.E.2d 792, 794 (Ind. Ct. App. 1993) (stating “a 

unanimous opinion of the [medical review] panel that the defendant did not breach the 

applicable standard of care is sufficient to negate the existence of a genuine issue of material 

fact.”). Therefore, the question we must address is whether Curts, the nonmoving party, has 

met his burden of establishing that a genuine issue of material fact does exist such that 

summary judgment is inappropriate.

Although Curts argues in passing his claim is one of negligence rather than medical 

malpractice, “[m]edical malpractice cases are no different from other kinds of negligence 

actions regarding that which must be proven.” Bader v. Johnson, 732 N.E.2d 1212, 1216-17 
7

(Ind. 2000). To survive the summary judgment stage, Curts is therefore required to establish 

the following elements: 1) Manor owed Dorothy a duty, 2) Manor breached its duty by 

acting below the applicable standard of care, and 3) such breach proximately caused the 

resulting harm. Id. at 1217. Curts argues the evidence establishes all three required elements 

and therefore a genuine issue of material fact exists. 

A. Nurses As Expert Witnesses

We have previously addressed whether nurses can testify as expert witnesses 

regarding medical causation and medical standards of care in a handful of cases, and we have 

generally concluded they cannot. In Nasser v. St. Vincent Hosp. & Health Servs., 926 

N.E.2d 43, 44 (Ind. Ct. App. 2010), trans. denied, the plaintiff argued the hospital 

“committed malpractice when the nursing staff did not respond to her repeated calls for help 

and allowed her to deliver two eighteen-week stillborn fetuses alone in her hospital bed,” and 

that such malpractice caused her to suffer severe emotional distress requiring medical care 

and medication. A medical review panel was formed, consisting of two medical doctors and 

one registered nurse. The doctors concluded the hospital did not fail to meet the applicable 

standard of care and the conduct complained of was not a factor of the resultant damages, but 

the nurse concluded the hospital failed to meet the standard of care and such failure was a 

factor of the resultant damages. 

We ultimately concluded that even though nurses are qualified to serve on medical 

review panels pursuant to the Medical Malpractice Act,2the expert opinion of a medical 

 

2

Indiana Code section 34-18-2-14 defines “health care provider,” and includes in its definition 
8

review panel is admissible,3and members of medical review panels can be called to testify, 

Indiana Evidence Rule 702 prevents nurses from qualifying as experts regarding medical 

causation even where they served on the medical review panel in a case. Id. at 51-52. 

Because the plaintiff did not designate any evidence on the issue of causation other than the 

nurse’s minority opinion from the review panel process, we affirmed the trial court’s grant of 

summary judgment in favor of the hospital. Id. at 52. See also Clarian Health Partners, Inc. 

v. Wagler, 925 N.E.2d 388 (Ind. Ct. App. 2010) (concluding nurse’s affidavit inadmissible 

for purposes of determining the cause of plaintiff’s injuries where the plaintiff suffered leg 

damage and deformity after undergoing open heart surgery during which a complication 

arose and her femoral artery was compromised because of the “significant difference in the 

education, training, and authority to diagnose and treat diseases between physicians and 

nurses”), trans. denied; Long v. Methodist Hosp. of Indiana, Inc., 699 N.E.2d 1164 (Ind. Ct. 

App. 1998) (addressing whether potential missteps during open heart surgery caused a staph 

infection, we concluded “[b]ecause there is a significant difference in the education, training, 

and authority to diagnose and treat diseases between physicians and nurses, we hold that the 

determination of the medical cause of injuries, which is obtained through diagnosis, for 

purposes of offering expert testimony is beyond the scope of nurses professional expertise” 

 

“registered or licensed practical nurse.” Indiana Code section 34-18-10-5 states, “[e]xcept for health care 

providers who are health facility administrators, all health care providers in Indiana, whether in the teaching 

profession or otherwise, who hold a license to practice in their profession shall be available for selection as 

members of the medical review panel.” 

3

Indiana Code section 34-18-10-23 provides: “A report of the expert opinion reached by the medical 

review panel is admissible as evidence in any action subsequently brought by the claimant in a court of law. 

However, the expert opinion is not conclusive, and either party, at the party’s cost, has the right to call any 
9

and nurses are therefore not qualified to offer expert testimony as to the medical cause of 

injuries), trans. denied; Stryczek v. The Methodist Hosps., 694 N.E.2d 1186 (Ind. Ct. App. 

1998) (concluding nurse not qualified to testify regarding whether hospital failed to timely 

communicate a proper diagnosis prior to patient undergoing a course of radiation treatment or 

whether such alleged failure to timely communicate a proper diagnosis caused cardiac 

damage), trans. denied. 

In the cases discussed above, the medical causation issues were rather complex. In 

Nasser, the question was whether the hospital’s failure to respond to a patient’s calls and the 

patient’s having delivered two stillborn fetuses in her hospital bed caused her severe 

emotional distress such that medical care and medication were required. In Clarian Health 

Partners, Inc., the question was whether a complication during open heart surgery caused the 

patient’s leg damage and deformity. Similarly, in Long, the issue was whether missteps 

during and/or after open heart surgery caused a staph infection. In Stryczek, the question was 

whether a more timely diagnosis was possible and whether the alleged untimely diagnosis 

caused cardiac damage. In cases such as these, having sufficient expertise to qualify as an 

expert witness for the purpose of opining on medical causation or medical standards of care 

would likely require more experience and understanding than that of even a highlyexperienced nurse. However, the case before us asks whether a nursing home failed to meet 

its standard of care and whether injuries from Dorothy’s fall caused her death approximately 

 

member of the medical review panel as a witness. If called, a witness shall appear and testify.” 
10

twenty-four hours later. In a scenario such as this, we cannot foreclose the possibility that 

some nurses have sufficient expertise to qualify as an expert witness.

We conclude we are not prepared to declare a blanket rule that nurses cannot qualify 

as expert witnesses under Indiana Evidence Rule 702 and testify as to whether a healthcare 

provider breached a standard of care or whether an alleged breach caused an injury. Indiana 

Evidence Rule 702(a) provides “a witness qualified as an expert by knowledge, skill, 

experience, training, or education, may testify thereto in the form of an opinion or 

otherwise.” Just as the Rule states, we hold a nurse could qualify as an expert regarding 

medical standards of care and causation in some circumstances. The determinative question 

is whether the nurse has sufficient expertise, as provided in Rule 702(a), with the factual 

circumstances giving rise to the claim and the patient’s injuries. 

Here, Curts has not presented sufficient evidence of Weitkamp’s expertise for us to 

conclude she qualifies as an expert concerning Manor’s alleged breach of care and whether 

such alleged below-standard care caused Dorothy’s demise. In her deposition she briefly 

discussed her education and work history, but there is nothing in the record indicating she 

regularly deals with matters of this kind, has acquired education and/or training specific to a 

patient like Dorothy and her needs, has expert knowledge of the governing federal 

regulations, has sufficient expertise to comment on the manner and cause of Dorothy’s death, 

or anything else which could demonstrate she qualifies as an expert. 
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B. Genuine Issue of Material Fact

Having concluded insufficient evidence was designated establishing Weitkamp’s 

qualifications as an expert, we must also conclude Curts has failed to meet his burden of 

establishing a genuine issue of material fact. Other than a doctor’s order that Dorothy’s bed 

and chair should be equipped with sensor alarms, the record is void of any indication whether 

a medical doctor had issued specific orders for Dorothy’s treatment and care and, if such 

orders were given, whether Manor’s care for Dorothy adhered to those orders. Other than 

Weitkamp’s testimony, the record is also void of evidence demonstrating Manor’s alleged 

failure to provide proper care caused Dorothy’s death. Thus, the only evidence designated 

concerning whether Manor breached its standard of care and whether the alleged negligent 

conduct caused Dorothy’s fall and death is the unanimous medical review panel opinion, 

which conclusively states Manor did not breach its standard of care and the alleged 

misconduct was not a factor in the resulting injuries and death of Dorothy. 

Curts’s argument that common sense supports a conclusion that Manor breached its 

duty of care and caused Dorothy’s injuries and death is unpersuasive. Merely because an 

elderly person falls and injures herself in a nursing home, even when it has happened before, 

does not establish that it was the nursing home’s responsibility based upon professional 

medical standards to protect her from such a fall. Additionally, the fact that Dorothy fell and 

injured her head does not necessitate a conclusion that the fall caused her death. Dorothy 

was taken to a hospital and treated after she fell from her bed. The actions or inactions of 

paramedics or hospital staff which occurred after Dorothy’s fall could have caused her 
12

demise, or, given her age, her death could have resulted from natural causes. Curts therefore 

cannot rely on common sense in arguing he has established a genuine issue of material fact.

Conclusion

While we hold it is possible for a nurse to have sufficient expertise to qualify as an 

expert witness under Indiana Evidence Rule 702 and opine on whether the care of certain 

healthcare providers fell below the requisite standard of care and whether such inadequate 

care caused a particular medical injury, here, Curts designated insufficient evidence to 

establish Weitkamp has such expertise. Curts has therefore failed to meet his burden of 

establishing a genuine issue of material fact, and we conclude summary judgment is 

appropriate for Manor and affirm the trial court.

Affirmed.

BAILEY, J., and MATHIAS, J., concur.