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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

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  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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