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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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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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