## Facts

- Cloyd A. Payne, age 65, was admitted to Marion General Hospital on June 6, 1983, with multiple serious conditions, including malnutrition, uremia, hypertensive cardiovascular disease, and chronic obstructive lung disease.
- By June 10–11, Payne’s condition deteriorated; he ate poorly, and his breathing became labored. Dr. Miles W. Donaldson examined him on June 11 but did not change treatment.
- On the evening of June 11, nurses suctioned mucus from Payne’s lungs; Payne appeared awake and alert.
- Nurses contacted Payne’s sister and also called Dr. Donaldson, who was not at the hospital.
- After observing Payne, the sister told a nurse she did not want Payne resuscitated if he began to die.
- Dr. Donaldson spoke by telephone with the nurse and the sister, ordered minor treatment adjustments, and directed that a “no code” (do-not-resuscitate) order be written on Payne’s chart.
- Payne remained conscious and able to communicate until shortly before death, but Dr. Donaldson did not discuss the no-resuscitation decision with Payne.
- Payne died shortly after midnight on June 12, 1983; no CPR was attempted.
- Dr. Donaldson later sued the Estate for unpaid medical bills; the Estate counterclaimed for malpractice/informed-consent violations against Dr. Donaldson and Marion Family Practice and sued the Hospital for negligence, including failure to maintain policies and procedures governing “no code” orders.
- A medical review panel found no negligence; the trial court granted summary judgment for all defendants.

## Issues

1. Whether summary judgment for Dr. Donaldson and Marion Family Practice was proper where defendants relied on a favorable medical review panel opinion and the Estate offered no expert evidence rebutting negligence, informed-consent breach, or causation.
2. Whether summary judgment for the Hospital was proper on the Estate’s negligence claim alleging institutional failures, including lack of written policies and procedural safeguards for “no code” orders.

## Decision

- The court affirmed summary judgment for Dr. Donaldson and Marion Family Practice.
- The medical review panel opinion, submitted in support of summary judgment, established a prima facie showing of no malpractice.
- The Estate failed to present expert medical testimony sufficient to rebut the panel’s opinion on standard of care and related medical questions.
- Even assuming a duty to obtain informed consent for a decision to withhold CPR, the Estate produced no expert proof that CPR would likely have prevented death; thus proximate cause was not shown.
- The court reversed summary judgment for Marion General Hospital and remanded.
- The Hospital claim was treated as ordinary (institutional) negligence concerning administrative/policy failures, not solely professional medical judgment.
- Evidence suggesting the Hospital lacked written “no code” policies and permitted implementation based on a family request without documented patient wishes created genuine issues of material fact for trial.

## Legal Principles

- In Indiana medical-malpractice summary judgment practice, a defendant may establish a prima facie case by submitting a favorable medical review panel opinion; the plaintiff must respond with competent evidence, typically expert medical testimony, to create a triable issue on malpractice.
- Medical questions such as patient competency in a clinical setting, appropriateness of withholding resuscitation, and likely outcomes from CPR generally require expert evidence.
- Informed-consent theories still require proof of causation; without evidence that the omitted disclosure/consent likely changed the outcome, the claim fails as a matter of law.
- A hospital may face direct institutional liability in ordinary negligence for administrative or policy-level omissions (e.g., failure to adopt or enforce procedures for DNR orders) independent of physician malpractice.
- Where evidence supports a reasonable inference that the absence of hospital policies governing “no code” orders breached institutional duties of reasonable care, summary judgment is improper.

## Conclusion

The court held that the Estate’s malpractice and informed-consent claims against the physician defendants failed for lack of expert evidence rebutting the medical review panel opinion and establishing causation, but that the Hospital could still be tried for ordinary negligence because disputed facts existed about whether the Hospital’s lack of DNR policies and procedural safeguards contributed to a resuscitation decision made without documented patient input.


Payne v. Marion Gen. Hosp., 549 N.E.2d 1043 (Ind. Ct. App. 1990)