ILNews

COA: No material discrepancy between deposition, testimony

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT