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ATTORNEYS FOR APPELLANTS Sherrill Wm. Colvin Lori W. Jansen Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE LAREA VANHOEY Cathleen M. Shrader Michael H. Michmerhuizen John M. Clifton, Jr. Fort Wayne, Indiana ATTORNEYS FOR APPELLEES FORT WAYNE OB/GYN CONSULTANTS, LLC AND MARVIN E. EASTLUND, M.D. Edward L. Murphy, Jr. Jason A. Scheele Fort Wayne, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 02S04-0608-CV-292 W. RUTH MULLINS AND JOHNCE MULLINS, JR., Appellants (Plaintiffs below), v. PARKVIEW HOSPITAL, INC., PREFERRED ANESTHESIA CONSULTANTS, P.C., KATHRYN B. CARBONEAU, M.D., UNIVERSITY OF SAINT FRANCIS OF FORT WAYNE, INDIANA, INC., LAREA VANHOEY, FORT WAYNE OB/GYN CONSULTANTS, LLC, AND MARVIN E. EASTLUND, M.D., Appellees (Defendants below). _________________________________ Appeal from the Allen Superior Court, No. 02D01-0212-CT-508 The Honorable Frederick A. Schurger, Special Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 02A04-0412-CV-671 _________________________________ May 2, 2007 Sullivan, Justice.

With appropriate permission and supervision, an emergency medical technician student performed a procedure on a patient at the outset of surgery. The procedure was not performed correctly and the patient sued the student for battery. We hold that the trial court properly granted the student summary judgment because there was no evidence that the student intended the harmful contact with the patient, a requirement of the tort of battery.

Background A few weeks before she was to have a vaginal hysterectomy, Ruth Mullins told her gynecologist, Dr. Marvin Eastlund, that she preferred privacy during her surgery. To this end, she crossed out two portions of his consent form before she signed it: first, she crossed out "I consent to the presence of healthcare learners," and second, she crossed out "I consent to the photography o[r] videotaping of the surgical, diagnostic, and/or medical procedure to be performed providing my name and identity is not revealed." (App. at 36.)

On the morning that her surgery was to be performed at Parkview Hospital by Dr. Eastlund, Ruth received assurance from the attending anesthesiologist, Dr. Kathryn Carboneau, that she would personally be handling Ruth's anesthesia. Dr. Carboneau's consent form, which Ruth signed, read in part: "I understand that my anesthesia care will be given to me by the undersigned or a physician privileged to practice anesthesia." (App. at 38.)

After Ruth was under anesthesia, Colin White, a Parkview Hospital employee, entered the operating room with LaRea VanHoey, a student in a University of St. Francis emergency medical technician ("EMT") certification program. This course of study requires students to perform a specified number of patient intubations. 1 White is referred to in the record as VanHoey's "preceptor," apparently the Parkview Hospital employee assigned to facilitate the EMT certification program. (App. at 324.)

1

See Mullins v. Parkview Hosp., Inc., 830 N.E.2d 45, 50 n.2 (Ind. Ct. App. 2005) ("Intubation is a procedure that is performed as part of general anesthesia to make certain that a sedated person's airway remains open.").

2

White asked Dr. Carboneau if Ruth was a patient upon whom VanHoey might practice intubation, and Dr. Carboneau said she was. VanHoey tried to intubate Ruth, but failed. After VanHoey's last try, both Dr. Eastlund and Dr. Carboneau saw blood on the tip of VanHoey's laryngoscope. Dr. Carboneau completed the intubation.

Two days after the surgery, tests showed that Ruth's esophagus had been lacerated during intubation and additional surgery was required. An extended period of recuperation followed; Ruth continues to experience pain and inconvenience.

Ruth and her husband, Johnce Mullins, Jr., filed a complaint charging Parkview Hospital, Dr. Eastlund (and his practice, Fort Wayne OB-GYN Consultants, LLC), Dr. Carboneau (and her practice, Preferred Anesthesia Consultants, P.C.), VanHoey, and University of St. Francis of Fort Wayne, Indiana, Inc., with multiple counts of negligence and other misconduct. Pursuant to procedures mandated by the Indiana Medical Malpractice Act, Ind. Code

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