ILNews

Sunburned man gets no relief

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has ruled that a badly sunburned patient failed to meet the burden of res ipsa loquitur in a medical malpractice lawsuit against his dermatologist.  

Kenneth W. Smith was a patient of Dr. Alan R. Gilbert, a dermatologist at Dermatology Associates of Fort Wayne PC, a/k/a Dermatology & Laser Surgery Association of Fort Wayne PC, where he received Psoralen UVA treatments for his psoriasis. For a 10-year period starting in December 1994, he had 147 treatments which involved him taking the drug Psoralen and then being exposed to UVA light.

 After his last laser treatment on Dec. 8, 2004, he returned to work but became ill and eventually went to the emergency room. From there, he was admitted to the Burn Unit of St. Joseph Hospital in Fort Wayne with first and second degree burns to about 84 percent of his body.

On Feb. 6, 2009, Smith and his wife filed a complaint against the doctor’s office. They alleged that the negligence of the medical personnel or machine malfunction created a res ipsa loquitur inference that an act of malpractice may have occurred.

The trial court concluded the Smiths had failed to establish that the dermatology practice had exclusive control of the PUVA machine or that the injuries allegedly suffered by Smith would not have occurred without negligence. Also, the court found that the doctrine of res ipsa loquitur was inapplicable and that the Smiths had failed to meet their burden of establishing by direct or circumstantial evidence that DLSA breached its duty to care.

The Smiths appealed claiming the trial court erred by concluding that they had failed to present sufficient evidence to invoke the doctrine of res ipsa loquitur.

In affirming the trial court’s decision, the Indiana Court of Appeals found in Kenneth W. Smith and Deb-Anne Smith vs. Dermatology Associates of Fort Wayne, P.C. a/k/a Dermatology & Laser Surgery Associates of Fort Wayne, P.C., 02A03-1201-CT-41, that the Smiths were unable to meet the first element of res ipsa loquitur, that the medical office had exclusive control of the PUVA machine. In addition, the couple was unable to establish the second element of the doctrine that his injuries would not have occurred without negligence.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

ADVERTISEMENT