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COA: No material discrepancy between deposition, testimony

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The Indiana Court of Appeals reversed summary judgment in favor of a doctor in a lawsuit alleging medical malpractice, finding the trial court should not have stricken the affidavit of the plaintiffs’ expert witness.

Donald Bunger was 88 years old when Dr. Jason Brooks performed cataract surgery on his left eye. Bunger suffered from age-related macular degeneration and was able to see out of his left eye, but was functionally blind in his right eye due to the AMD. During surgery, Bunger experienced a capsular tear in the eye, which can occur in the absence of negligence during a cataract surgery. After surgery, the vision in Bunger’s eye rapidly decreased to the point he is now functionally blind in the left eye.

Bunger and his wife filed a complaint with the Indiana Department of Insurance alleging malpractice; the medical review panel ruled in favor of Brooks regarding surgery and treatment, but found a material issue of fact regarding the issue of informed consent.

In their lawsuit, the Bungers provided deposition testimony and an affidavit from their expert witness, Dr. Harry Knopf. Brooks moved for – and the court granted the motion – to strike the affidavit because Knopf’s statement that the surgery caused the visual loss differed from his statements in the deposition in which Knopf couldn’t conclude whether Bunger’s vision would be better or worse today if he hadn’t had the surgery.

The trial court granted summary judgment in favor of Brooks, but in Donald Bunger and Flora Bunger v. Jason A. Brooks, M.D., 45A03-1309-CT-360, the Court of Appeals reversed.

The judges found in reading Knopf’s deposition testimony, it was entirely consistent with his affidavit. The doctor was testifying regarding two separate topics. In his deposition, he testified to the likely natural progression of the AMD over the course of several years. And in his affidavit, he testified to the rapid progression of the AMD immediately following surgery, Judge Edward Najam wrote.

Also, at his deposition, Knopf testified at length regarding the apparent connection between the surgery and the sudden loss of vision thereafter. His affidavit corroborated that testimony. That evidence is sufficient to create a genuine issue of material fact, and the trial court erred when it entered summary judgment in favor of Dr. Brooks.

The judges found a genuine issue of material fact as to whether the surgery proximately caused Bunger’s injuries and whether – and to what extent – his pre-existing condition contributed to his injuries. The case goes back to the trial court for further proceedings.
 

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  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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