Pursuant to Indiana Appellate Rule 65(E), the trial court and parties shall not
take any action in reliance upon this opinion until it is certified.
IN THE
Court of Appeals of Indiana
Jesse Oglesby, Individually and as Spouse of Nancy Oglesby, FILED
Deceased, Oct 02 2026, 9:44 am
Appellant-Plaintiff CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
v.
Unnamed Physician, Unnamed Personal Service Corporation,
Unnamed Limited Liability Company, Unnamed Certified
Registered Nurse Anesthetist and Unnamed Certified Registered
Nurse Anesthetist Personal Service Corporation,
Appellees-Defendants
October 2, 2026
Court of Appeals Case No.
26A-CT-143
Appeal from the Vanderburgh Superior Court
The Honorable Thomas A. Massey, Judge
Trial Court Cause No.
82D07-2010-CT-4342
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 1 of 23
Opinion by Chief Judge Tavitas
Judges Bradford and Felix concur.
Tavitas, Chief Judge.
Case Summary
[1] Jesse Oglesby (“Oglesby”), individually and as the surviving spouse of Nancy
Oglesby (“Nancy”), appeals the trial court’s grant of summary judgment to
Unnamed Physician, Unnamed Personal Service Corporation, Unnamed
Limited Liability Company, Unnamed Certified Registered Nurse Anesthetist,
and Unnamed Certified Registered Nurse Anesthetist Personal Service
Corporation (collectively, the “Providers”) on Oglesby’s medical malpractice
claim. The Providers filed a petition for preliminary determination and moved
for summary judgment on the ground that Nancy was contributorily negligent.
The trial court struck an expert affidavit designated by Oglesby after the
summary judgment hearing and granted summary judgment in favor of the
Providers.
[2] Oglesby appeals and argues that the trial court abused its discretion by striking
the affidavit, that the Providers failed to carry their burden as the moving
parties, and that genuine issues of material fact preclude summary judgment.
We agree with Oglesby. Accordingly, we reverse and remand.
Issues
[3] Oglesby raises three issues, which we consolidate and restate as:
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 2 of 23
I. Whether the trial court abused its discretion by striking
the affidavit of an expert physician.
II. Whether the trial court erred by granting summary
judgment to the Providers.
Facts
A. Nancy’s Prior Medical History
[4] Previously, on November 30, 2016, Nancy underwent a lumbar spinal fusion at
Norton Hospital in Louisville, Kentucky, and was “induced with general
endotracheal anesthesia.” Appellant’s App. Vol. II p. 44. Nancy thereafter
experienced intermittent confusion and encephalopathy, 1 and neurology was
consulted “to rule out any seizures.” Id. at 46. On December 1, 2016, an
electroencephalogram (“EEG”) was performed. The EEG was abnormal for
triphasic waves and generalized slowing, but the report stated that no
epileptiform activity was noticed during the recording and that “[n]o active
seizure has been reported or recorded.” Id. at 51. A CT scan of Nancy’s head
showed “no evidence of acute intracranial abnormality.” Id.
[5] A neurology consultation note dated December 2, 2016, stated: “[p]atient has
remarkable improvement today. . . . She is awake and alert today and follow[s]
full commands without any focal deficits.” Id. at 46. In the assessment section
1
Encephalopathy is "[a] disorder of the brain that can be caused by disease, injury, drugs, or chemicals."
Encephalopathy, OPENMD MEDICAL DICTIONARY, https://openmd.com/define?q=encephalopathy
[https://perma.cc/2VEZ-RMVY] (last visited Sept. 25, 2026).
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 3 of 23
of the same note, the consulting neurologist diagnosed Nancy with “[t]oxic
metabolic encephalopathy-resolving,” observed that her confusion was “likely
secondary to pain medication with a combination of anesthesia effect and
seems to be improving,” and recorded that “[n]eurology suggest[s] to avoid any
sedative medications.” Id. at 52. Nancy was discharged on December 5, 2016.
[6] On July 9, 2017, Nancy presented to the Deaconess Gateway Hospital
emergency department with complaints of chest pain and was admitted
overnight. The past medical history recorded during the visit lists
“Complication of anesthesia” among Nancy’s diagnoses. Appellant’s App.
Vol. III p. 224. The same note states, “Source of History: Patient.” Id. at 223.
[7] On March 17, 2018, Nancy again presented to the Deaconess Gateway
emergency department with complaints of headache and nausea. Neither visit
concerned anesthesia. The Deaconess note for this visit states, “After back
surgery 11/2016 at Norton Spine Center - given a shot and had convulsions &
took 5 days to wake up post anesthesia,” and lists, immediately above that
entry, “Blood transfusion without reported diagnosis[,] 11/2016 - 2 pints at
Norton Spine Center - no reactions.” Id. at 230.
[8] On March 26, 2018, and July 23, 2018, Unnamed Physician (“Physician”)
performed multiple procedures on Nancy at Unnamed Limited Liability
Company (“Surgery Center”) under monitored anesthesia care provided by
Unnamed Certified Registered Nurse Anesthetist (“CRNA”). Id. at 56-58. The
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 4 of 23
operative reports for both procedures stated that Nancy tolerated the procedures
without complications. Id.
B. Medical Procedure At Issue
[9] On October 9, 2018, Nancy presented to the Surgery Center for bilateral greater
occipital nerve blocks, performed by Physician under monitored anesthesia care
provided by CRNA. On a pre-operative assessment form completed that day,
the box for “Seizure Disorder” was not marked. Id. at 68. On a pre-anesthesia
questionnaire, the box marked “no” was checked in response to the question,
“Any problems from anesthesia?” Id. at 69; see also id. at 201. CRNA
administered sedation during the procedure, and Physician completed the
blocks without complication. CRNA then transferred Nancy to the postanesthesia care unit (“PACU”), where she suffered a respiratory and cardiac
arrest. Nancy was transported by ambulance to St. Vincent Evansville, where
she died on October 18, 2018. 2
[10] A retrospective occurrence report prepared by the Surgery Center’s
administrator reflects that, after a nurse informed Oglesby of Nancy’s
condition, Oglesby responded that Nancy “had a similar incident a couple of
years ago after her back surgery” and that “she coded a couple of times and
2
The post-anesthetic assessment section of the anesthesia record contains marked boxes indicating that
Nancy was awake and stable, with satisfactory post-anesthesia recovery and no anesthesia complications. At
his deposition, CRNA testified that those entries did not reflect Nancy’s condition when he transferred her
from the procedure room to the PACU. CRNA explained that marking the boxes during the procedure was
“something that I do pre-charting, just a time-saver,” and that “it is a pre-charting” reflecting “what I
anticipated was going to happen.” Appellant’s App. Vol. III p. 169-70.
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 5 of 23
[was] in a coma for 5 days.” Appellant’s App. Vol. III p. 191. At his
deposition, Oglesby testified that he did not recall making that statement. A St.
Vincent Evansville discharge summary authored by a critical care physician
states: “Per the patient’s husband, the patient had a history of seizure after
receiving anesthesia in the past,” and lists in Nancy’s past medical history a
“history of seizure after anesthesia in the past in Louisville, which lasted for
about 5 days.” Id. at 34.
C. Medical Malpractice Claim Proceedings
[11] On October 7, 2020, Oglesby, individually and as the surviving spouse of
Nancy, filed a proposed complaint for damages with the Indiana Department of
Insurance and a complaint in the trial court. On May 16, 2025, before the
medical review panel rendered an opinion, the Providers filed a joint petition
for preliminary determination and motion for summary judgment, arguing that
Nancy was contributorily negligent because she failed to disclose her prior
complication with anesthesia. In support, the Providers designated selected
medical records from Norton Hospital, the Surgery Center, and St. Vincent
Evansville; deposition testimony of Oglesby; and the affidavit of Physician,
which provided in relevant part:
If [Nancy] or Mr. Oglesby had reported a prior complication
with anesthesia in the past, involving either seizures and/or a
coma, this would have impacted the care and treatment I would
have provided to [Nancy]. Specifically, [Nancy] would not have
received any sedation while receiving her occipital nerve blocks.
It is my opinion that the sedation was a factor in causing
[Nancy]’s cardiopulmonary arrest and death. Thus, it is my
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 6 of 23
opinion that [Nancy] [sic] failure to disclose her past
complications with anesthesia was a factor in causing Plaintiff’s
alleged damages.
Appellant’s App. Vol. II p. 132. Oglesby filed a memorandum in opposition
and a designation of evidence on June 16, 2025, designating medical records
from the Surgery Center, Norton Hospital, and Nancy’s pain management
clinic; the Surgery Center’s occurrence report; an emergency medical services
report; and deposition testimony of Physician, CRNA, a licensed practical
nurse, and Oglesby. The Providers replied on July 1, 2025.
[12] The trial court scheduled the hearing on the motion for summary judgment for
1:00 p.m. on August 8, 2025. At 11:12 a.m. that day, less than two hours
before the hearing, the Providers moved for leave to file a supplemental
designation of evidence adding select medical records from Deaconess Gateway
Hospital as Exhibit G. The records list “Complication of anesthesia” among
Nancy’s past medical history diagnoses and annotate that entry as “5 days to
wake up post anesthesia.” Appellant’s App. Vol. III p. 224. At the hearing
later that day, the trial court granted the motion over Oglesby’s objection. The
summary judgment hearing proceeded as scheduled. After the hearing, the trial
court then ordered: “Plaintiff granted leave to 8/22/25 to file Response to
Exhibit G. Hearing held on Defendants’ Motion for Preliminary
Determination and Summary Judgment. Court takes matter under advisement.
Parties shall have to and including 8/22/25 to file any post-hearing briefs or
additional authority.” Appellant’s App. Vol. II p. 8.
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 7 of 23 [13] On August 22, 2025, Oglesby filed a supplemental response in opposition and
designated the expert affidavit of Larry Travis Lay, M.D. (“Dr. Lay”), a boardcertified anesthesiologist and additional Norton Healthcare records for Nancy
dated November 14, 2016 to December 5, 2016. Dr. Lay averred that, in his
opinion, Nancy “did not experience any adverse reaction to anesthesia” during
the November 30, 2016 procedure; that no anesthesia complication was
recorded and no anesthesia medication was listed as an allergy, contrary to
customary practice following a true reaction; that there was “no evidence that
[Nancy] suffered any type of seizure activity or was in a coma”; and that
Nancy’s multiple procedures with the Providers from 2015 to 2018 without
incident indicated that her temporary encephalopathy was unrelated to the
anesthesia she received. Appellant’s App. Vol. IV pp. 9-11.
[14] On August 27, 2025, the Providers moved to strike Dr. Lay’s affidavit, arguing
that a non-moving party may not designate new evidence after the thirty-day
response period provided by Indiana Trial Rule 56(C) has expired. On
December 17, 2025, the trial court granted the motion to strike and granted
summary judgment to the Providers. The trial court found that, although it had
permitted the parties “to file post-hearing briefs or additional legal authority on
or before August 22, 2025,” it “did not in any way grant Plaintiff leave to file
new expert affidavit,” and it ordered, “[f]or all reasons set forth in Defendants’
filings,” that the affidavit “is not Designated Evidence” for purposes of the
motion. Appellant’s App. Vol. II pp. 11-12. The trial court then found “there
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 8 of 23
is no genuine issue of material fact present herein” and granted the motion. Id.
at 12. Oglesby now appeals.
Discussion and Decision
I. The trial court abused its discretion by striking the non-moving
party’s affidavit after it granted the moving parties’ motion to
designate additional medical records on the day of the summary
judgment hearing.
[15] Oglesby first argues that the trial court abused its discretion by striking the
affidavit of Dr. Lay. “A trial court has broad discretion in granting or denying
a motion to strike.” Auto-Owners Ins. Co. v. Bill Gaddis Chrysler Dodge, Inc., 973
N.E.2d 1179, 1182 (Ind. Ct. App. 2012), trans. denied. An abuse of discretion
occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before it. Webb v. City of Carmel, 101 N.E.3d 850,
857 (Ind. Ct. App. 2018). This discretion extends to rulings on motions to
strike where a party argues that a filing fails to comply with the summary
judgment rules. Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App. 2005).
[16] Indiana Trial Rule 56(C) governs the initial designation of evidence. It provides
that, “[a]t the time of filing the motion or response, a party shall designate to
the court all parts of pleadings, depositions, answers to interrogatories,
admissions, matters of judicial notice, and any other matters on which it relies
for purposes of the motion.” Ind. Trial Rule 56(C). An adverse party “shall
have thirty (30) days after service of the motion to serve a response and any
opposing affidavits.” Id.
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 9 of 23 [17] With respect to the non-moving party, our Supreme Court has consistently held
that the timeline imposed by Trial Rule 56(C) operates as a bright-line rule and
that, when a non-moving party fails to respond within thirty days, the trial court
“cannot consider summary judgment filings of that party subsequent to the 30-day period.” HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008)
(quoting Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n.5 (Ind. 2005)). This
Court recently reiterated that the bright-line rule precludes a trial court from
accepting belated summary judgment filings. Andry v. Thorbecke, 218 N.E.3d
600, 603-04 (Ind. Ct. App. 2023), trans. denied; see also Booher v. Sheeram, LLC,
937 N.E.2d 392, 395 (Ind. Ct. App. 2010) (“Our proverbial hands are tied,
however, inasmuch as our Supreme Court has made it clear that the trial court
simply had no discretion to accept the untimely filed documents, regardless of
the circumstances.”), trans. denied.
[18] For filing additional affidavits in supporting or opposing summary judgment,
Indiana Trial Rule 56(E) governs and provides, “[t]he court may permit
affidavits to be supplemented or opposed by depositions, answers to
interrogatories, or further affidavits.” Our Supreme Court in Indiana University
Medical Center, Riley Hospital for Children v. Logan established that Trial Rule
56(E) permits supplementing affidavits with further affidavits, and, as with most
evidentiary matters, the decision lies within the trial court’s discretion. 728
N.E.2d 855, 858-59 (Ind. 2000). In Estate of Collins v. McKinney, this Court
likewise held that the trial court has the discretion to accept additional filing of
supplemental affidavits after the summary judgment hearing but before the
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 10 of 23
court has ruled on the summary judgment motion. 936 N.E.2d 252, 258 (Ind.
Ct. App. 2010), trans. denied. 3
[19] Here, Oglesby timely responded to the Providers’ motion for summary
judgment. The Providers filed their motion on May 16, 2025. On June 16,
2025, Oglesby filed his response and designated exhibits, including medical
records and the depositions of Physician, CRNA, and Oglesby himself.
Oglesby, therefore, responded to the motion and designated his evidence within
the thirty-day period set by Trial Rule 56(C). 4
[20] On the day of the summary judgment hearing, August 8, 2025, less than two
hours before it was to begin and more than five weeks after they had filed their
July 1, 2025 reply, the Providers moved for leave to designate additional
evidence, identified as Exhibit G—a fifteen-page excerpt of Nancy’s records
from Deaconess Gateway Hospital. 5 The Providers asserted that the records
3
Additionally, Trial Rule 56(I) provides that, “[f]or cause found, the Court may alter any time limit set forth
in this rule upon motion made within the applicable time limit.” Our courts have construed this provision
strictly. A trial court “may exercise discretion and alter time limits under 56(I) only if the non-moving party
has responded or sought an extension within thirty days from the date the moving party filed for summary
judgment.” Desai v. Croy, 805 N.E.2d 844, 850 (Ind. Ct. App. 2004), trans. denied.
4
Trial Rule 6(A) governs the computation of the thirty-day period prescribed by Trial Rule 56(C). Under
Trial Rule 6(A), “the day of the act, event, or default from which the designated period of time begins to run
shall not be included.” The thirty-day period, thus, began to run on May 17, 2025, and the thirtieth day fell
on Sunday, June 15, 2025. Trial Rule 6(A) further provides that, where the last day of the period falls on a
Saturday, a Sunday, a legal holiday, or a day on which the office in which the act is to be done is closed
during regular business hours, “the period runs until the end of the next day” that is not one of those days.
Oglesby’s response was, therefore, due on Monday, June 16, 2025, and his filing on that date was timely.
5
Trial Rule 56 does not itself set a deadline for the moving party’s reply; the fifteen-day reply period derives
from Vanderburgh County Local Rule LR82-TR12-1.16(A)(1). We also note that it appears some of the
deadlines in the local rule may have been abrogated (e.g. Trial Rule 6(D) now specifically directs that a
response to most motions must be filed within twenty days and a reply is to be filed within fourteen days).
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 11 of 23
had not been available to them earlier and offered them to show that Nancy had
experienced, and was aware of, a prior complication from anesthesia. At the
hearing, however, the trial court was advised that the records had been
produced to the parties on June 10 or June 16, 2025, before the Providers filed
their reply. Oglesby objected to the designation as an “unfair surprise” with
“undue prejudice” and moved to strike Exhibit G. Tr. Vol. II p. 8.
[21] The trial court granted the Providers’ motion to designate Exhibit G on August
8, 2025. Oglesby does not ask us to disturb that ruling on appeal, and we do
not. A party may supplement its designation at the reply stage without first
seeking leave, subject to the trial court’s discretion to admit or exclude the
material. Luse Thermal Techs., LLC v. Graycor Indus. Constructors, Inc., 221
N.E.3d 701, 711-12 (Ind. Ct. App. 2023), trans. denied. We note that Exhibit G,
however, was not filed at the reply stage; it was filed more than five weeks after
the reply and less than two hours before the summary judgment hearing.
[22] The trial court, however, did not admit Exhibit G in isolation. At the hearing,
the trial court granted Oglesby leave to respond to the newly designated
records. At the close of the hearing, the trial court stated: “I’m going to allow
both sides to file any additional authority or any post-hearing arguments they
want to make . . . based upon the issues that were raised here if anyone feels
like there’s something they want to additionally comment on, please go ahead
and do it, that will be due by close of business on the 22nd.” Tr. Vol. II p. 22.
The trial court’s written entry on August 8, 2025 memorialized both rulings,
granting Oglesby leave until August 22, 2025, to file a “Response to Exhibit G”
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 12 of 23
and granting both parties until the same date to file “any post-hearing briefs or
additional authority.” Appellant’s App. Vol. II p. 8. The entry, therefore,
contains two distinct grants of leave: a grant to Oglesby to file a response to
Exhibit G, and a grant to both parties to file post-hearing briefs or additional
authority.
[23] On August 22, 2025, Oglesby filed a supplemental response and designated two
exhibits: the affidavit of Dr. Lay and his curriculum, and additional Norton
Healthcare records for Nancy dated November 14, 2016, through December 5,
2016. 6 Dr. Lay, a board-certified anesthesiologist, addressed the specific
notation in Exhibit G on which the Providers relied—that Nancy had been
“given a shot and had convulsions & took 5 days to wake up post anesthesia”—
and opined regarding whether that notation reflected a prior anesthesia
complication. Appellant’s App. Vol. IV pp. 9-11; Appellant’s App. Vol. III p.
230. The affidavit also responded to the affidavit of Physician regarding the
same subject. The Providers filed nothing within the period the trial court had
allowed.
[24] On August 27, 2025, Providers moved to strike Dr. Lay’s affidavit as untimely.
The trial court granted the motion to strike on December 17, 2025. Its order
reasoned:
6
The Norton Healthcare records designated on August 22, 2025, begin on November 14, 2016,
approximately two weeks before the November 30, 2016 surgery.
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 13 of 23
When the Court held Oral Argument on August 8, 2025, the
Court allowed the parties to file post-hearing briefs or additional
legal authority on or before August 22, 2025. The Court did not
in any way grant Plaintiff leave to file new expert affidavit to
Oppose Defendants’ August 8, 2025 Motion for Summary
Judgment.
Appellant’s App. Vol. II p. 11. The trial court then found no genuine issue of
material fact and granted summary judgment to the Providers.
[25] The trial court’s order mentions only that it granted both parties leave to file
“post-hearing briefs or additional legal authority” in its August 8, 2025 order,
and it concludes that this grant did not extend to a new expert affidavit.
Appellant’s App. Vol. II p. 11. The trial court, however, fails to mention the
trial court’s CCS entry granting Oglesby “leave to 8/22/25 to file Response to
Exhibit G.” Id. at 8 (emphasis added). Exhibit G consisted of medical records.
Trial Rule 56(E) expressly provides that affidavits may be “opposed by . . .
further affidavits.” Dr. Lay’s affidavit directly responds to the medical records
the Providers filed on the day of the summary judgment hearing. We conclude
that admitting the Providers’ records while striking Oglesby’s response to them
was an abuse of the trial court’s discretion. 7
7
The Providers contend that Trial Rule 56(E) authorizes only the supplementation of an affidavit already on
file and that, because Oglesby had designated no expert affidavit with his initial response, there was nothing
for Dr. Lay’s affidavit to supplement. Trial Rule 56(E) permits affidavits to be “supplemented or opposed”
by further affidavits. The case law does not confine Trial Rule 56(E) to elaboration of an existing
designation. See Spudich v. N. Ind. Pub. Serv. Co., 745 N.E.2d 281, 288-89 (Ind. Ct. App. 2001) (permitting
additional designations and arguments not made in the original motion), trans. denied.
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 14 of 23 [26] The Providers contend that “the supplemental Exhibit G did not contain any
new or expert evidence requiring an in-kind response from Oglesby,” and that
Dr. Lay’s affidavit relies not on Exhibit G but on “records from Norton
Healthcare, which records had been part of the designated materials since the
Motion for Summary Judgment was filed.” Appellees’ Br. pp. 16-17. That
characterization is incomplete. Dr. Lay’s affidavit quotes the Deaconess
notation from Exhibit G that Nancy was “given a shot and had convulsions &
took 5 days to wake up post anesthesia”; Dr. Lay opines that the statement “is
wholly inconsistent with the Norton Healthcare records and does not indicate
an anesthesia reaction as no such ‘shot’ would cause such a reaction.”
Appellant’s App. Vol. IV p. 10. Moreover, whether a medical record reflects an
anesthesia complication is a matter on which expert testimony is the ordinary
form of proof in a medical malpractice action. See Singh v. Lyday, 889 N.E.2d
342, 357 (Ind. Ct. App. 2008) (“[W]hen the issue of cause is not within the
understanding of a lay person, testimony of an expert witness on the issue is
necessary.”), trans. denied. An anesthesiologist’s affidavit is, therefore, an inkind response to medical records offered to prove or disprove a prior anesthesia
complication.
[27] In Luse Thermal, this Court affirmed an order striking a supplemental
designation because the trial court, faced with new evidence filed a month
before the hearing, had two options: admit the evidence and continue the
hearing to permit the opposing party to respond, or exclude it. 221 N.E.3d at
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 15 of 23
712. The trial court chose exclusion, and we found no abuse of discretion in
that choice. Id.
[28] Here, the trial court admitted the Providers’ late designation over objection and
afforded Oglesby a period in which to respond. When Oglesby filed the
response the trial court had invited, the trial court struck it on the ground that it
had never granted leave for such a filing. The trial court’s construction of its
own order cannot be reconciled. Having exercised its discretion to admit
Exhibit G on terms that included a response, the trial court abused that
discretion when it refused to consider the response. We conclude, therefore,
that the trial court abused its discretion by striking the affidavit of Dr. Lay.
II. The trial court erred by granting summary judgment to the
Providers.
[29] Oglesby next argues that the trial court erred by granting summary judgment to
the Providers on the affirmative defense of contributory negligence. Oglesby
contends, first, that the Providers failed to carry their initial burden because
they designated no competent expert opinion that Nancy experienced a prior
anesthesia complication at all; and, second, that the designated evidence—with
or without Dr. Lay’s affidavit—raises a genuine issue of material fact on that
question. We agree that summary judgment was improper.
[30] “We review summary judgment decisions de novo, and Trial Rule 56(C)
supplies the framework.” Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 684
(Ind. 2024). “The moving party is entitled to summary judgment only if the
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 16 of 23
evidence it designates in support of its motion ‘shows that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.’” Id. at 684-85 (quoting Ind. Trial Rule 56(C)). The purpose
of summary judgment is to withdraw issues from the jury only when there are
no genuine material factual issues for the jury to decide. Id. at 685.
[31] The summary judgment movant has the initial burden of making a prima facie
showing that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. Isgrig v. Trs. of Indiana Univ., 256 N.E.3d 1238,
1244 (Ind. 2025). The burden then shifts to the non-moving party to show the
existence of a genuine issue of material fact. Id. On appellate review, we draw
“all factual and reasonable inferences in favor of the non-moving party.”
Wilson v. Anonymous Defendant 1, 183 N.E.3d 289, 293 (Ind. 2022). “In
determining whether summary judgment is proper, we consider only the
evidentiary material specifically designated by the parties to the trial court . . . .”
Isgrig, 256 N.E.3d at 1244.
[32] The Comparative Fault Act does not apply to claims brought under the Medical
Malpractice Act; accordingly, the common-law defense of contributory
negligence is available to defendants in medical malpractice actions. Cavens v.
Zaberdac, 849 N.E.2d 526, 529 (Ind. 2006). Under the common law doctrine of
contributory negligence, any degree of negligence on the part of the patient that
proximately contributes to her injury operates as a complete bar to recovery.
Wilson v. Lawless, 64 N.E.3d 838, 846 (Ind. Ct. App. 2016), trans. denied.
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 17 of 23 [33] Not every form of patient fault, however, triggers the bar. A patient’s
negligence operates as a complete bar only if it satisfies three requirements: (1)
it must be a proximate cause of the plaintiff's injury; (2) it must be simultaneous
with the fault of the defendant; and (3) it must unite with the defendant’s fault
to enter into the creation of the cause of action. Foster v. Owens, 844 N.E.2d
216, 221 (Ind. Ct. App. 2006), trans. denied; Johnson v. Wait, 947 N.E.2d 951,
958 (Ind. Ct. App. 2011), trans. denied. Indiana courts have recognized several
categories of patient conduct that may support a contributory negligence
defense, including a patient’s failure to provide a complete and accurate
medical history to a treating physician, failure to follow a physician’s
instructions, and refusal of recommended examination or treatment. See Fall v.
White, 449 N.E.2d 628, 634 (Ind. Ct. App. 1983); Johnson, 947 N.E.2d at 959;
Foster, 844 N.E.2d at 222.
[34] The burden of proving contributory negligence rests with the defendant.
Johnson, 947 N.E.2d at 958. Contributory negligence “is generally a question of
fact and is not an appropriate matter for summary judgment ‘if there are
conflicting factual inferences.’” Funston v. Sch. Town of Munster, 849 N.E.2d
595, 599 (Ind. 2006) (quoting Butler v. City of Peru, 733 N.E.2d 912, 917 (Ind.
2000)). The question becomes one of law, however, only “where the facts are
undisputed and only a single inference can reasonably be drawn therefrom.”
Jones v. Gleim, 468 N.E.2d 205, 207 (Ind. 1984).
[35] Here, Providers argue that Nancy was contributorily negligent because she
failed to disclose prior anesthesia complications and seizures. To prove that
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 18 of 23
Nancy was contributorily negligent, the Providers, therefore, must show that
Nancy in fact experienced a complication from anesthesia during her
November 2016 admission and that she, thereafter, withheld that history from
the Providers when asked. The Providers designated four categories of
evidence in support of their contributory negligence defense: (1) Nancy’s
medical records from her November 30, 2016 admission at Norton Hospital,
where, following spinal fusion surgery, she experienced decreased oxygen
saturation, somnolence, intermittent confusion, and encephalopathy; (2)
Nancy’s intake materials from the October 9, 2018 procedure, on which the box
for “Seizure Disorder” on her Pre-Op Admissions Assessment Form was not
marked, on which she answered “no” to the question “Any problems from
anesthesia?” on her Pre-Anesthesia Questionnaire, and on which CRNA’s preanesthetic assessment recorded no prior anesthesia history; (3) the records of
statements Oglesby made after Nancy’s cardiopulmonary arrest, in which he
reported that something similar had happened to Nancy following a prior back
surgery, that she had coded and had been in a coma for five days, and that she
had a history of seizure after receiving anesthesia; and (4) the records from
Deaconess Gateway Hospital reciting Nancy’s medical history, including a July
9, 2017 patient-reported entry listing “Complication of anesthesia[:] 5 days to
wake up post anesthesia.” Appellant’s App. Vol. II pp. 46, 52-53, 112-13, 119,
130; Appellant’s App. Vol. III pp. 34, 224.
[36] The Norton Hospital records, which Oglesby designated in response to
Providers’ motion for summary judgment, however, support a contrary
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 19 of 23
inference. Those records reflect that the anesthesiologist’s post-anesthesia
evaluation for the November 30, 2016 procedure recorded “Anesthesia
complications or comments: None,” and found Nancy’s heart rate and blood
pressure stable, her mental status “acceptable,” and her pain and nausea
“adequately controlled.” Appellant’s App. Vol. IV p. 87. A CT scan of
Nancy’s head was negative, and the December 1, 2016 electroencephalogram
was read as showing “[n]o epileptiform activity . . . during the recording” and
that “[n]o active seizure ha[d] been reported or recorded.” Appellant’s App.
Vol. II p. 51. Neurology assessed “[t]oxic metabolic encephalopathyresolving,” and attributed Nancy’s confusion to “pain medication with a
combination of anesthesia effect,” on December 2, 2016. Id. at 52. A
December 4, 2016 progress note by the attending physician assessed the
improving encephalopathy as likely attributable to opiate withdrawal in a
patient receiving high-dose opiate therapy at home and considered seizure or
medication effect less likely causes. Nancy was discharged the following day.
Nothing in the Norton Hospital records reflects that Nancy suffered a seizure or
was in a coma after receiving anesthesia.
[37] Drawing all reasonable inferences in favor of Oglesby, as we must, the Norton
Hospital records support the inference that Nancy did not experience a seizure
or a coma following her November 2016 surgery and that her postoperative
confusion was attributable to her pain medication or to opiate withdrawal.
That inference conflicts directly with the inference the Providers ask us to draw.
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 20 of 23 [38] This conflict cannot be resolved on summary judgment. Whether Nancy’s 2016
post-operative symptoms were caused by anesthesia, by her pain medication, or
by opiate withdrawal is a complex medical question, and the Providers
themselves maintained below that such a question requires expert testimony.
Resolving that question would also require a fact-finder to determine who
supplied the histories recorded at Deaconess Gateway Hospital, what Nancy
understood about her 2016 admission, and what weight should be given to the
statements attributed to Oglesby, which he disputes having made. The
designated evidence, therefore, presents “conflicting factual inferences,” and
thus, contributory negligence is not an appropriate matter for summary
judgment. Funston, 849 N.E.2d at 599.
[39] Because the designated evidence supports more than one reasonable inference
regarding whether Nancy experienced a prior anesthesia complication and
whether she withheld that information from the Providers, genuine issues of
material fact exist. The Providers did not make the prima facie showing that
Trial Rule 56(C) requires, and the trial court erred by entering summary
judgment in their favor. 8
8
Our conclusion does not depend upon Dr. Lay’s affidavit; the conflict appears on the face of the timely
designated records. We express no opinion on whether Nancy was contributorily negligent. That question,
and the weight to be given the competing accounts within the designated evidence, is for the trier of fact. Nor
do we address the merits of Oglesby’s allegations of medical negligence, which remain before the medical
review panel.
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 21 of 23
Conclusion
[40] The trial court abused its discretion by striking the affidavit of Dr. Lay. The
designated evidence raises a genuine issue of material fact regarding whether
Providers were negligent in their care of Nancy, and the trial court, therefore,
erred by entering summary judgment for the Providers. Accordingly, we
reverse and remand.
[41] Reversed and remanded.
Bradford, J., and Felix, J., concur.
ATTORNEY FOR APPELLANT
Emily A. DeVuono
Moore Law Group, PLLC
Louisville, Kentucky
ATTORNEYS FOR APPELLEES
Nicholas G. Brunette
Reminger Co., L.P.A.
Indianapolis, Indiana
Benjamin J. Weigel
Clay A. Edwards
Morgan N. Blind
O’Bryan, Brown & Toner, PLLC
Louisville, Kentucky
Sarah N. Vrabel
O’Bryan, Brown & Toner, PLLC
Indianapolis, Indiana
Ryan T. Wood
Kyle L. Childress
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026
Page 22 of 23
Barnes Maloney, PLLC
Louisville, Kentucky
Court of Appeals of Indiana Opinion 26A-CT-143 October 2, 2026 Page 23 of 23