Court of Appeals of Indiana | Memorandum Decision 55A01-1503-CT-93 | August 7, 2015 Page 1 of 11

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.

ATTORNEY FOR APPELLANT

Andrew P. Wirick

Hume Smith Geddes Green &

Simmons, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

David G. Field

Ashlie K. Keaton

Schultz & Pogue, LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Danny A. Lucas,

Appellant-Plaintiff,

v.

Morgan County Memorial 

Hospital, Dr. Claire L. Scheele, 

M.D., and Dr. Murat Polar, 

M.D.,

Appellees-Plaintiffs

August 7, 2015

Court of Appeals Case No.

55A01-1503-CT-93

Appeal from the Morgan Circuit 

Court

The Honorable Matthew G. Hanson, 

Judge

Cause No. 55C01-1406-CT-1158

Baker, Judge.
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[1] Danny Lucas appeals the judgment of the trial court granting summary 

judgment in favor of Morgan County Memorial Hospital, Dr. Claire Scheele, 

and Dr. Murat Polar. Finding that Lucas’s response in opposition to the 

defendants’ summary judgment motion was sufficient to raise issues of material 

fact, we reverse. 

Facts

[2] On March 7, 2010, Lucas arrived at the emergency department of Morgan 

County Hospital complaining of shortness of breath, cough, and chest 

congestion. Following an evaluation, he was diagnosed with pneumonia and 

admitted to the hospital. Throughout his stay at the hospital, Lucas received 

medical treatment from Dr. Murat Polar and Dr. Claire Scheele. 

[3] On March 10, 2010, Lucas began to complain of abdominal discomfort. Dr. 

Polar ordered an x-ray. On March 12, 2010, Lucas’s condition worsened. He 

began complaining of increased shortness of breath, abdominal gas, pain, and 

bloating. Dr. Polar ordered a CT scan. Dr. Scheele evaluated the results of this 

scan and noted that Lucas had developed increasing abdominal distension and 

constipation since he had been admitted. Dr. Scheele concluded that this could 

be the result of either a blockage or infection in Lucas’s intestine. 

[4] On March 13, 2010, Lucas’s condition had not improved and a new set of xrays revealed increasing abdominal distension. Lucas requested a transfer to St. 

Francis Hospital and was transferred later that day. 
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[5] On July 1, 2011, Lucas filed a proposed complaint for medical malpractice with 

the Indiana Department of Insurance. Lucas alleged that Morgan County 

Hospital, Dr. Polar, and Dr. Scheele (collectively, the defendants) were 

negligent in their care and treatment of Lucas, causing him bodily injury, 

additional medical expenses, pain and suffering, and mental anguish. On 

March 11, 2014, nearly three years after Lucas filed his complaint, the medical 

review panel issued a unanimous decision finding that the defendants had not 

failed to meet the standard of care and that their conduct was not a factor in 

Lucas’s damages.

[6] On May 30, 2014, Lucas filed a complaint in the Marion Circuit Court, 

reiterating the allegations contained in his complaint to the medical review 

panel. On June 18, 2014, both parties filed a joint motion to transfer venue and 

the case was transferred to the Morgan Circuit Court. On July 10, 2014, the 

defendants moved for summary judgment, arguing that Lucas’s claim must fail 

as he had neglected to designate any expert opinion to rebut the opinion of the 

medical review panel. Lucas filed a response to this motion, in which he 

designated the affidavit of Dr. Kevin Felner. Lucas designated Dr. Felner’s 

curriculum vitae (CV) as evidence of his credentials as a medical expert. 

[7] The trial court scheduled a hearing on the motion for January 15, 2015. On the 

day of the hearing, the defendants filed a motion to strike Dr. Felner’s affidavit, 

arguing that Dr. Felner’s affidavit did not establish his credentials as an expert 

and that Lucas’s inclusion of Dr. Felner’s CV as an exhibit was not sufficient. 

The defendants also argued that Dr. Felner’s affidavit did not provide sufficient 
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information regarding what Dr. Felner believed to be the applicable standard of 

care. 

[8] On February 12, 2015, the trial court denied the defendants’ motion to strike 

Dr. Felner’s affidavit. However, finding no genuine issues of material fact, the 

trial court granted the defendants’ motion for summary judgment. Lucas now 

appeals. 

Discussion and Decision

[9] When reviewing a trial court’s ruling on a motion for summary judgment, we 

apply the same standard as the trial court. Lusk v. Swanson, 753 N.E.2d 748, 

751 (Ind. Ct. App. 2001). We will liberally construe the evidence in the light 

most favorable to the non-moving party. Id. Summary judgment is only 

appropriate when the pleadings and evidence show that there is no genuine 

issue of material fact and that the moving party is entitled to judgment as a 

matter of law. Ind. Trial Rule 56(C). Ordinarily, summary judgment is not 

appropriate in medical malpractice cases based upon negligence. Aldrich v. 

Coda, 732 N.E.2d 243, 245 (Ind. Ct. App. 2000). “This is especially true when 

the question is whether a doctor exercised the requisite standard of care under 

the circumstances.” Id. 

[10] Here, Lucas designated the affidavit of Dr. Felner to rebut the opinion of the 

medical review panel. The affidavit reads as follows:

1. I am over 18 years of age and I have personal knowledge of all 

facts stated herein.
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2. There was a deviation in the standard of care with regards to 

use of timely antibiotic. In addition, if there was pleural fluid 

present in setting of pneumonia with persistently elevated white 

blood cell count, that would need to be sampled if there was 

sufficient amount of fluid; if there was evidence of sufficient 

pleural fluid on chest X-ray of abdominal ct scan, then it would 

have been a deviation to not sample it.

3. The patient according to the records reflect the patient had a 

high fever (102.9) and elevated white blood cell count 19k and 

left lower lobe pneumonia. 

4. The first issue is that the patient did not get antibiotics until the 

day after admission which is the first issue, delayed antibiotics 

for a patient with sepsis.

5. The second issue is that with persistently elevated white blood 

cell count, several issues needs to be considered.

6. Is the patient on the correct antibiotics—this was partly 

addressed by the addition of clindamycin, though I am not sure 

that is what most practitioners would have added.

7. The more important issue is whether there was the 

development of a complication causing the white blood cell 

count to stay elevated implying that the infection was not being 

controlled with the antibiotics alone.

8. A pleural fluid collection is not uncommon and usually needs 

to be assessed for if a patient is not completely improving—

persistent fever (not sure if this was present, I believe not from 

one note) or persistently elevated white blood cell count. 

9. This fluid collection count be assessed for with chest X-ray, 

ultrasound (not as commonly used in 2010 as it is today) or

chest CT.

10. Of particular interest to me is the abdominal chest CT the 

patient had at the first hospital—the top of the abdominal CT 

usually includes lower cuts of the chest and if a significant 

amount of fluid was visible on that scan, then that would have 

triggered either a dedicated chest CT or an ultrasound and 

sampling of the fluid (if significant amount present) to assess for 

parapneumonic effusion (fluid that would usually improve with 

antibiotics alone) vs an empyema (fluid that would require 
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drainage with a chest tube versus removal in the operating 

room by thoracic surgery). 

11. I hold all of the opinions above to a reasonable degree of 

medical certainty. 

Appellant’s App. p. 189-90. 

[11] The defendants first argue that this affidavit is insufficient to defeat summary 

judgment because it does not meet the requirements of Indiana Trial Rule 

56(E). This rule provides that, upon a motion for summary judgment, 

“[s]upporting and opposing affidavits shall be made on personal knowledge, 

shall set forth such facts as would be admissible in evidence, and shall show 

affirmatively that the affiant is competent to testify to the matters stated 

therein. ” T.R. 56(E). The defendants argue that Dr. Felner’s affidavit does not 

comport with this rule because it “fails to establish his credentials as a medical 

expert qualified to provide opinion testimony regarding standard of care and 

causation.” Appellee’s Br. p. 12. 

[12] Lucas attempted to establish Dr. Felner’s credentials by designating Dr. 

Felner’s CV as an exhibit. However, the defendants argue that Dr. Felner’s CV 

is insufficient as it “is not a sworn statement—it contains no verification, 

certification, or oath, nor does it bear Dr. Felner’s signature.” Appellee’s Br. p. 

13. The defendants point out that “[u]nsworn statements and unverified 

exhibits do not qualify as proper Rule 56 evidence.” Ind. Univ. Med. Ctr. v. 

Logan, 728 N.E.2d 855, 858 (Ind. 2000). 
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[13] The defendants are correct to point out that the requirements of Trial Rule 56 

are mandatory and that, when an affidavit does not meet these requirements, 

“the court may disregard it upon its own motion.” Miller v. Monsanto, 626 

N.E.2d 538, 543 (Ind. Ct. App. 1993). However, the trial court may also 

permit affidavits to be supplemented. T.R. 56(E). In this case, the defendants 

filed a motion to strike Dr. Felner’s affidavit on the morning of the summary 

judgment hearing, allowing Lucas no time to supplement his response. The 

trial court denied the defendants’ motion, noting that “the late motion filed by 

the Defendants to strike the affidavit is troubling and they should not be 

rewarded for waiting until the last minute to file their motion so that no 

response could be provided.” Appellant’s App. p. 7. 

[14] We agree with the trial court. Here, the defendants do not contest the accuracy 

of Dr. Felner’s CV, nor do they assert that Dr. Felner is not qualified to testify 

on such matters.1 While they are correct that Lucas has failed to strictly comply 

with the requirements of Rule 56(E), it is for the trial court to determine how 

best to deal with this situation. Here, the trial court denied the defendants’ 

motion to strike because it had been filed at the last minute. We have every 

reason to believe that, had the trial court not disposed of this case by granting 

the defendants’ motion for summary judgment, it would have allowed Lucas an 

 

1 Dr. Felner’s CV indicates that he has an extensive educational and professional background in medicine 

and that he is currently certified in internal, pulmonary, and critical care medicine. Appellant’s App. p. 183-

86. 
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opportunity to supplement Dr. Felner’s affidavit. Accordingly, the defendants’ 

argument on this point fails. 

[15] The defendants next argue that the affidavit is insufficient to defeat summary 

judgment because it fails to establish a prima facie case of medical malpractice. 

To establish a prima facie case of medical malpractice based on negligence, the 

plaintiff must show: (1) a duty on the part of the defendant in relation to the 

plaintiff; (2) failure on the part of the defendant to conform to the requisite 

standard of care required by the relationship; and (3) an injury to the plaintiff 

resulting from that failure. Lusk, 753 N.E.2d at 753. 

[16] “Because of the complex nature of medical diagnosis and treatment, expert 

testimony is generally required to establish the applicable standard of care.” Id. 

When this expert testimony is presented in the form of an affidavit, “the 

affidavit must set forth that the expert is familiar with the proper standard of 

care under the same or similar circumstances, what that standard of care is, and 

that the defendant’s treatment of the plaintiff fell below that standard of care.” 

Id. 

[17] Initially, the defendants reframe their previous argument and point out that

“Dr. Felner’s affidavit does not provide any information from which this Court 

could determine whether he is familiar with the standard of care” and that “his 

affidavit does not identify his area of practice, educational background, board 

certification, or other specialty training.” Appellee’s Br. p. 10-11. The 

defendants again overlook the fact that all of this information was included in 
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the record in Dr. Felner’s CV. Appellant’s App. p. 183. We decline their 

repeated requests to elevate form over substance. 

[18] The defendants next argue that Dr. Felner’s affidavit does not state: (1) what 

the standard of care is; (2) that the defendants’ conduct fell below that standard; 

and (3) that the defendants’ conduct caused Lucas’s injury. However, we 

believe that the defendants interpret these requirements too literally. 

[19] While it may be prudent for an affiant to include separate sentences or 

paragraphs addressing each of these issues in turn, there is no requirement that 

affidavits be broken into sentences such as: “I am familiar with the standard of 

care.”; “The standard of care in this case is . . .” and so on. We must be 

mindful that the purpose of these requirements is to ensure that the affiant is 

competent and that his opinion actually rebuts that of the medical review panel. 

However well- or poorly-drafted an affidavit may be, it is sufficient if these three 

essential points can be gleaned from it. 

[20] With this in mind, we focus on the following language from Dr. Felner’s 

affidavit:

2. There was a deviation in the standard of care with regards to 

use of timely antibiotic. 

***

4. The first issue is that the patient did not get antibiotics until the 

day after admission which is the first issue, delayed antibiotics 

for a patient with sepsis.
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Appellant’s App. p. 189. The following is implicit in these statements: (1) Dr. 

Felner believes the standard of care requires that a patient in Lucas’s position be 

given antibiotics shortly after arrival, and (2) Dr. Felner believes that the 

defendants failed to do this. 

[21] The only remaining requirement, that this conduct caused Lucas’s injury, 

necessarily follows from these statements when one considers the nature of the 

injury that Lucas claims. In his complaint, Lucas claimed that:

As a result of the careless and negligent acts and/or omissions of [the 

defendants], [Lucas] suffered bodily injury, much of which may be 

permanent in nature, additional medical expenses, pain and suffering, 

mental anguish, and other losses, expenses, costs, and damages 

recoverable under Indiana law.

Appellant’s App. p. 10. There can be little doubt that failure to give a patient 

antibiotics in a timely manner will result in that patient being in the hospital 

longer and that, as a result of this, the patient will incur medical costs which he 

would not have incurred had he received timely antibiotics. Simply put, that 

the defendants’ actions caused injury is implicit in Dr. Felner’s statements. We 

see no need to require Dr. Felner to insert a separate statement to make that 

clearer to us. 

[22] Summary judgment is not simply “a procedural device to be used to avoid weak 

claims.” Henderson v. Ind. Med. Network, Inc., 750 N.E.2d 798, 808 (Ind. Ct. 

App. 2001). Rather, “[s]ummary judgment proceedings are primarily designed 

to provide a speedy determination of whether a genuine issue of fact is present 

and must be tried.” Lindsey v. DeGroot, 898 N.E.2d 1251, 1256 (Ind. Ct. App. 
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2009). That Lucas’s claim may ultimately fail or that he may not be found to be 

entitled to all the damages he seeks is of no concern at this stage of the 

proceedings. In opposing a motion for summary judgment, a plaintiff need not 

prove his case by a preponderance of the evidence. Brannon v. Wilson, 733 

N.E.2d 1000, 1001 (Ind. Ct. App. 2000).

[23] Here, although Dr. Felner’s affidavit is far from a template for future affiants to 

follow, at the very least, it raises the question of whether the antibiotic was 

given in a timely fashion. As this is a question of material fact, summary 

judgment is inappropriate. 

[24] The judgment of the trial court is reversed and the cause is remanded for further 

proceedings. 

Bailey, J., and Mathias, J., concur.