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COA: South Bend med-mal appeal lacks issues of fact

September 14, 2018

The Indiana Court of Appeals affirmed a grant of summary judgment to a South Bend hospital after it upheld that res ipsa loquitur did not apply to facts in a hip-replacement related negligence claim.

In June 2011, Cindy Glon underwent a cementless total hip replacement of her right hip at Memorial Hospital of South Bend. The hospital administered a spinal epidural to Glon during the surgery, and she had no feeling or sensation from the waist down.

Glon alleged that after her surgery, a nurse and patient care assistant grabbed her leg and rolled her onto her side to provide access to remove the epidural. Glon heard three pops in her right leg near her knee while she was being rolled, but couldn’t feel any pain as she was still numb from the waist down.

After the epidural wore off, Glon said she had severe pain that would not subside. A subsequent x-ray presented by Glon’s surgeon Robert Clemency, M.D., revealed three displaced fractures in her right femur that occurred sometime after she was returned to her hospital room from surgery.

Glon and her husband then filed a complaint against the hospital after the medical review panel unanimously concluded the hospital did not fail to meet the applicable standard of care, and the trial court subsequently granted summary judgment.

In its ruling, the St. Joseph Superior Court determined that “it is not physically possible that the act by the nurse and patient care assistant of turning [Glon] on her side caused the injury to her femur” and that even if the Glon’s allegations against the hospital staff were true, “it is not physically possible that such an act could cause the injury.”

On appeal, Glon argued that the trial court erred in granting summary judgment to the hospital because there is a genuine issue of material fact as to when three fractures found in her femur occurred. She also contended that the doctrine of res ipsa loquitur was applicable to her case and the Hospital’s breach of the standard of care spoke for itself.

Glon maintained her injuries occurred after a hip replacement surgery because of negligent care rendered by the hospital, but the appellate court disagreed in its Friday opinion of Cindy and Ron Glon v. Memorial Hospital of South Bend, Inc. and/or its Employees and agents18A-CT-49. 

“This is an attractive argument, but it ignores several things,” Judge Paul Mathias wrote. “Dr. Clemency’s affidavit only spoke to when Glon’s injury occurred, not to whether the Hospital violated its standard of care when Glon’s femur suffered its displaced fracture.”

A second affidavit and deposition presented by Phillip H. Ireland, M.D, found that the three-part displaced fracture of Glon’s femur was a recognized complication of cementless hip replacement surgery even if due care is exercised. Ireland also concluded that it was not physically possible that a nurse’s act of rolling Glon over or grabbing Glon’s right leg and twisting it caused her fracture.

Then the appellate court found flaws in Glon’s argument that the trial court erred when it concluded that there were no genuine issues of material fact and the Hospital was entitled to judgment as a matter of law.

“If Glon had sustained the large displaced, three-part fracture in the operating room, this could be a different case; but the fracture at issue occurred during her post-operative care,” Mathias concluded. “Dr. Clemency’s affidavit is only a ‘not on my watch’ claim. His affidavit provides no evidence that conflicts with the Panel’s determination as to what the Hospital’s post-operative standard of care was, and no evidence to conflict with the Panel’s finding that the Hospital never breached that standard of care in its post-operative care of Glon.”

Judge Terry Crone dissented in a separate opinion, finding issue with the efficient cause of the displaced fracture and when it occurred.

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