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DTCI: Medical malpractice and summary judgment

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keaton-ashlie-mug-dtci By Ashlie Keaton

It is well known in medical malpractice law that to make a prima facie case for medical negligence, a plaintiff must establish that (1) there was a duty on the part of the defendant in relation to the plaintiff; (2) the defendant failed to conform to the applicable standard of care in treating the plaintiff; and (3) an injury to the plaintiff resulted from that failure. Lusk v. Swanson, 753 N.E.2d 748, 753 (Ind. Ct. App. 2001). Furthermore, to defeat summary judgment, the plaintiff must establish each of these elements through medical expert testimony. Oelling v. Rao, 593 N.E.2d 189, 191 (Ind. 1992).

When a defendant moves for summary judgment and shows there is no genuine issue of material fact as to any one of the elements above, the defendant is entitled to summary judgment as a matter of law, unless the plaintiff can establish by expert testimony a genuine issue of material fact for trial. Hoskins v. Sharp, 629 N.E. 2d 1271, 1277 (Ind. Ct. App. 1994). Furthermore, the unanimous opinion of the medical review panel finding the defendant did not breach the applicable standard of care is sufficient to negate the existence of a genuine issue of material fact. McGhee v. Bonaventura, 605 N.E.2d 792, 794 (Ind. Ct. App. 1993).

Recent appellate opinions regarding the sufficiency of medical expert testimony needed to create genuine issues of material fact to defeat summary judgment are raising the bar ever higher for health care defendants to succeed on summary judgment.

Summary judgment may be reversed even where plaintiff fails to designate medical expert evidence.

Although the bright-line rules in Indiana set forth the elements required to be established by medical expert testimony, recent appellate opinions have reversed the grant of summary judgment in favor of defendants, even where the plaintiff failed to designate any medical expert testimony.

In Chaffins v. Kauffman, 995 N.E.2d 707 (Ind. Ct. App. 2013), Chaffins alleged negligence on the part of the physician and hospital nursing staff for discharging her after a colonoscopy despite continued complaints of severe abdominal pain. A unanimous opinion of the medical review panel found that both the physician and hospital defendants met the applicable standard of care and the alleged conduct was not a factor in the plaintiff’s claimed injuries. The trial court granted summary judgment in favor of the defendants.

On appeal, the court determined that Chaffins produced medical expert testimony sufficient to refute the panel opinion as to the physician, although the physician argued the testimony was speculative.

As to the hospital, Chaffins conceded that she failed to designate any evidence to refute the expert opinion of the medical review panel. Despite the lack of medical expert testimony, the Court of Appeals reversed summary judgment in favor of the hospital.

The court held that where a deviation from the standard of care is a matter commonly known to lay persons, a plaintiff is not required to present expert testimony. Furthermore, where the complained-of conduct is “so obviously substandard that one need not possess medical expertise in order to recognize the breach,” the “common knowledge exception” is applicable. Chaffins at 713.

The court concluded the designated evidence established that Chaffins informed the nursing staff she was in severe pain and the nursing staff neither informed Dr. Kauffman nor documented the complaints of pain in her medical records. The court held that a reasonable trier of fact could infer this was a breach in the standard of care, and such an inference did not involve the “sophisticated subtleties” of medicine that necessitate expert testimony. Id.

This opinion widens the avenue for plaintiffs to pursue claims against health care providers premised upon subjective complaints of pain without requiring medical expert testimony.

In Siner v. Kindred Hospital, 51 N.E.3d 1184 (Ind. 2016), an opinion handed down by the Indiana Supreme Court, pro se plaintiffs failed to designate any medical expert testimony to refute the claims of the physician-defendant. Despite the lack of medical expert testimony, the Supreme Court reversed summary judgment for the defendants, concluding that the defendants’ own designated evidence was sufficient to create a genuine issue of material fact as to causation without any designated expert testimony from the plaintiffs.

In Siner, a medical review panel issued a unanimous opinion that the evidence “supports the conclusion that the defendants failed to comply with the appropriate standard of care, and that their conduct may have been a factor of some resultant damages, but not the death of the patient.”

The pro se plaintiffs filed a cause of action, and defendants Kindred Hospital and Dr. Majid each moved for summary judgment. Both defendants designated the opinion of the medical review panel and an affidavit from one of the panel members, Dr. Krueger. Dr. Krueger testified it was his opinion that Kindred Hospital and Dr. Majid “did not cause injury to Ms. Siner” in administering pulmonary care.

The Siners responded to the motions of both defendants but designated expert affidavits in response to Kindred’s motion only. They failed to designate any expert evidence in response to Dr. Majid’s motion. The trial court granted summary judgment to both defendants on the issue of causation.

The Court of Appeals unanimously reversed summary judgment for Kindred Hospital, finding the affidavit of plaintiffs’ expert was sufficient to create a genuine issue of material fact on proximate cause. A majority of the court affirmed summary judgment for Dr. Majid due to the Siners’ failure to designate any medical expert testimony in their response to his motion.

However, the Indiana Supreme Court subsequently held that by designating the opinion of the medical review panel in conjunction with the affidavit of panel member Dr. Krueger, the defendants’ own designated evidence was conflicting and established a genuine issue of material fact on the element of causation. The court reversed summary judgment in favor of Dr. Majid, holding that summary judgment is inappropriate whenever “a conflict of evidence may exist.” Id. at 1189. The court did not address the plaintiff’s failure to designate expert medical testimony to refute the panel opinion as to Dr. Majid, but rested solely on the conflicting evidence presented by the defendants in its decision to reverse summary judgment for Dr. Majid.

The courts have a preference for allowing non-meritorious issues to proceed to trial rather than risk cutting short a meritorious claim on summary judgment in Indiana.

In a January 2016 opinion, the Court of Appeals discussed its position regarding the “high bar” set for summary judgment in medical malpractice cases. In the case of Sorrells v. Reid-Renner, M.D., 49 N.E.3d 647 (Ind. Ct. App. 2016), the defendant moved for summary judgment on the basis of the panel opinion. Sorrells produced medical expert testimony to refute the opinion on the issue of causation, which Dr. Reid-Renner argued was speculative and insufficient to defeat summary judgment.

In its opinion, the court stated:

Our choice to heighten the summary judgment burden has been criticized because it may let summary judgment be precluded by as little as a non-movant’s mere designation of a self-serving affidavit. The observation is accurate … . In essence, Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.

Id. at 650-651 (citing Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014)).

The court reversed summary judgment for Dr. Reid-Renner, holding that to defeat summary judgment, “[a]dmissible medical expert testimony must only be more conclusive than ‘possibility’ when it stands alone as proof of proximate causation,” and “we consciously choose to err on the side of letting this case proceed to trial on the merits, rather than risk short-circuiting a meritorious claim.” Id. at 652.

Is a double standard being created for the evidentiary threshold imposed on plaintiffs and defendants on summary judgment?

In Scripture v. Roberts, 51 N.E.3d 248 (Ind. Ct. App. 2016), plaintiff Julia Roberts suffered an injury to her left eye requiring a corneal transplant. She subsequently filed a claim against her treating physicians. Roberts’ claim was submitted to a medical review panel, which concluded the defendants failed to comply with the appropriate standard of care and their conduct was a factor in the resultant damages. Thereafter, the plaintiff filed a motion for summary judgment, relying upon the opinion of the medical review panel.

The defendants filed a response in which they each designated their own affidavits as medical expert testimony to refute the opinion of the medical review panel. Each of the physicians set forth their medical credentials, stated they had provided care for Roberts, they were familiar with the treatment provided to Roberts by the other defendants, they were familiar with the standard of care, that the care and treatment provided to Roberts met the applicable standard of care, and the treatment provided was not a responsible cause of her alleged injuries.

Subsequently, the physicians filed a motion for leave to supplement their response to the summary judgment motion with supplemental affidavits attached that included additional facts about the medical care provided to Roberts. The trial court summarily denied the physicians’ motion for leave to supplement their affidavits and granted Roberts’ motion for summary judgment.

The physicians appealed the ruling, arguing their affidavits were sufficient to raise a genuine issue of material fact and that the trial court abused its discretion in denying their motion to supplement their response to Roberts’ summary judgment.

The Court of Appeals addressed whether the factual content of the physicians’ affidavits was specific enough to comply with T.R. 56(E) and was sufficient to raise a genuine issue of material fact. The court discussed prior case law that has required that affidavits set forth some factual basis to support the experts’ conclusions, even where the affidavits were “rather lacking in content.”

The court upheld summary judgment in favor of the plaintiff, concluding the physicians’ affidavits did not set forth specific facts regarding Roberts’ care, but instead echoed the denials of their pleadings contrary to the requirements of T.R. 56(E). Nor did the court find an abuse of discretion in the trial court’s refusal to allow the defendants to supplement their affidavits.

Although the court left for another day the issue of whether a physician’s own affidavit, standing alone, could be sufficient to defeat summary judgment, it did note that in dicta from Perry v. Anonymous Physician 1, 25 N.E.3d 103, 107 (Ind. Ct. App. 2014), it was implied that in order to defeat summary judgment, a medical professional’s designated expert testimony must be the testimony of another physician. See also Simms v. Schweikher, 651 N.E.2d 348, 351 (Ind. Ct. App. 1995) (Barteau, J., dissenting: “I question whether a self-serving affidavit by the defendant, and an affidavit by a surgical technician amount to qualified ‘expert’ testimony sufficient to require [the plaintiff] to come forward with expert medical testimony of her own.”).

The Scripture Court found the factual content of the physicians’ affidavits was not specific enough to raise a genuine issue of material fact to defeat summary judgment. But consider the holding of the Siner Court in discussing the sufficiency of the factual content of plaintiff’s designated evidence to defeat summary judgment. The Siner Court held that, although a medical review panel opinion contained no specific facts, its medical conclusions created a genuine issue of material fact. Furthermore, the court held that “[a]ny lack of detail goes to the weight and credibility to be assigned to [the opinion], not to whether it is adequate to create a question of fact.” Siner at 1190 (citing Jordan v. Deery, 609 N.E.2d 1104, 1106, 1111 (Ind. 1993) (holding that a doctor’s affidavit designated by the plaintiffs with ‘no discernible facts’ demonstrated ‘the existence of a material fact’ when it concluded the defendants violated the standard of care causing injuries)).

Thus, while the courts have been willing to accept self-serving and perfunctory affidavits with “no discernible facts” as sufficient for plaintiffs to defeat summary judgment, the same has not held true for health care defendants attempting to defeat summary judgment.•

Ms. Keaton is a member of the Health Law Litigation Section of DTCI and a shareholder in the Indianapolis office of Keaton and Keaton P.C., where she concentrates her practice in litigation with a focus on medical malpractice defense and the defense of complex general liability matters. The opinions expressed in this article are those of the author.
 

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  • MARK TRAINA V. LRMC and RAY JENNINGS
    MARK ANTHONY TRAINA V. LAKEVIEW REGIONAL MEDICAL CENTER: LEGAL UPDATE: 05/12/2017 On MAY the 11th, of 2017, I was ordered by JUDGE RICHARD SWARTZ at the 22nd JUDICIAL COURTHOUSE, DIVISION C to pay a SECURITY of COST BOND to cover the COST of the MEDICAL REVIEW PANEL to the CLERK of COURT in the amount of $3,046.95. This BOND will be paid in-full within the next 30-days! I look forward to working with the DEFENDENTS in this LAWSUIT to reach an equitable SETTLEMENT AGREEMENT, or go to TRIAL, if necessary! FACT: Telling an ICU PATIENT, just out of CORONARY BYPASS SURGERY to MAN UP, STOP ACTING LIKE A LITTLE GIRL, YOU ARE NOT BEING A GOOD SOLDIER, I REALLY DON’T GIVE A SHIT, and refusing to call an ICU PATIENT’s FAMILY MEMBERS will never be TOLERATED by the GREAT CITIZENS of the STATE of LOUISIANA! MARK ANTHONY TRAINA – PRO SE LITIGANT [link to www.facebook.com (secure)] [link to american-citizens-network.mn.c o (secure)] [link to www.facebook.com (secure)]
  • MARK ANTHONY TRAINA V. LAKEVIEW REGIONAL MEDICAL CENTER
    22ND JUDICAL DISTRICT COURT FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA Mark Anthony Traina, Plaintiff, vs. Lakeview Regional Medical Center and Ray Jennings, Defendants COMPLAINT Plaintiff brings forth the following causes of action and alleges the following: Plaintiff is an individual and a resident of Slidell, Louisiana, USA. Defendant number one is a corporation, and at the time of this complaint, a business located in Mandeville, Louisiana. Defendant number two is an individual, and at the time of this complaint, a resident of Terry, Mississippi, USA. 04-27-2015, Plaintiff contracted with the Defendants to provide care for him, before, during and after under-going a Coronary Bypass Surgical Procedure at the Lakeview Regional Medical Center. On or about 04-27-2015, Plaintiff and Defendants signed a contract stating the terms of the medical procedure that was to be performed, and the professional care that would be provided to him before, during and after under-going the Coronary Bypass Medical Procedure. On or about 04-28-2015, Plaintiff awoke still intubated, hands tied to a gurney, after Coronary Bypass Surgery at or about 12:30 AM crying and withering in severe right shoulder pain. I was trying to let ICU Nurse Ray Jennings know that the pain in my right shoulder was excruciating, which 7 days later a CT Scan was done showing it was fractured, but he refused to provide me with a Pain Level Chart, or any other type of Non-Verbal Assistive Technical Communication Device that I could use to let him know exactly where I was hurting, or how badly I was hurting! Instead of providing me Pain Level Chart that I could point at or any other type of Non-Verbal Assistive Technical Device to communicate with him, Nurse Jennings said, “YOU JUST HAD OPEN HEART SURGERY, WHAT DID YOU EXPECT”! I was not looking for more pain medication, but rather a pillow to prop up my right shoulder or a heating pad to relieve some of the pain! In response to all my crying and withering Nurse Jennngs said to me, “I AM NOT GOING THERE WITH YOU”, as he walked out of my ICU Room he said, “I’M OFF TO SAVE MORE LIVES!” When Nurse Jennings returned to my bedside, instead of providing me a Pain Assessment Chart, or some other non-verbal communication assistive technical devise, Nurse Jennings said, “YOU HAVE GOTTEN ALL THE PAIN MEDICATION THAT YOU ARE GOING TO GET, AND YOU ARE NOT GOING TO GET ANYMORE”! At or about 3:30 AM, Nurse Jennings, assisted by Respiratory Therapist Carla Gibson removed my breathing tubes! It was at that time that I told Nurse Jennings, “YOU HAVE NO IDEA WHO YOU ARE FUCKING WITH”, and his response to me, in front of Respiratory Therapist Carla Gibson was, “I REALLY DON’T GIVE A SHIT”. I responded by saying, “THAT’S OBVIOUS, BUT YOU ARE GONNA GIVE SHIT BEFORE THIS IS ALL OVER!” Additionally, Nurse Jennings continuously refused to call my wife, in spite of my crying, constant pleas, and telling Nurse Jennings, “I FEEL LIKE I AM DYING, I WANT MY WIFE”! Nurse Jennings kept saying, “I AM NOT GOING TO CALL YOUR WIFE AT 3:30 AM IN THE MORNING AND INCONVIENCE HER!” Fortunately, for me two ICU Staff Members Mia Yepez and ICU Nurse Jessica Dennis over-heard Nurse Jennings and I bickering about calling my wife, and Ms. Yepez came into my ICU Room and told Nurse Jennings, “EITHER YOU ARE GOING TO CALL MR. TRAINA’S WIFE OR I AM GOING TO CALL MR. TRAINA’S WIFE, BUT SOMEONE IS GOING TO CALL MR. TRAINA’S WIFE!” Nurse Jennings responded to Ms. Yepez saying, “HE’S MY PATIENT, AND I’LL DO WHATEVER I WANT!” Shortly thereafter, I could hear Nurse Jennings on the phone talking to my wife, asking her whether or not I was easily agitated. Nurse Jennings went on to assure my wife that I was doing fine and that she should get some rest and come back to the ICU later in the day. At no time did Nurse Jennings tell my wife that I wanted to talk to her or have her to come to the ICU as soon as possible, because I felt like I was dying. Moments later, Ms. Yepez came to my bedside with a phone in her hand and said, “MR. TRAINA I HAVE YOUR DAUGHTER’S VOICEMAIL READY, IF YOU WOULD LIKE TO LEAVE HER A MESSAGE!” I spoke into the phone saying, “BOBBEE, PLEASE COME TO THE ICU, AS SOON AS YOU CAN, I AM SCARED OF THIS NURSE, AND I FEEL LIKE I AM DYING!” It should be noted that Nurse Jennings continuously disrespected and humiliated me and attacked my dignity for over 7-hours repeatedly making unprofessional and unethical statements like, “YOU NEED TO MAN UP”, “YOU NEED TO STOP ACTING LIKE A LITTLE GIRL”, “YOU ARE NOT BEING A GOOD SOLDIER”, he also made this statement in front of my wife and daughter, “I CAN PUT YOUR PULSE METER ON YOUR EAR LOBE, BUT THAT WOULD MAKE YOU LOOK LIKE A LITTLE GIRL”, as well as, telling my Wife and Daughter, shortly after they arrived at the ICU, “I HAVE TREATED A LOT OF PATIENTS OVER THE PAST 26-YEARS, MOST HAVE GOTTEN HERE IN FOUR OR FIVE DAYS, BUT I DON’T FORESEE THAT HAPPENING WITH THIS ONE, BECAUSE HE’S NOT COOPERATIVE!” It should also be noted that before leaving for the day, Nurse Jennings approached my bedside and stated in front of all my Family Members, “I’M SORRY IF I WAS A MEAN NURSE”! He went on to say, “I AM LEAVING HERE TODAY, GOING TO MISSISSIPPI, FOR THE NEXT SEVEN DAYS, BUT I WILL BE TAKING YOU WITH ME”! Nurse Jennings also told his replacement Nurse Michelle Delhom, “GOOD LUCK WITH THAT ONE”, as he was leaving for the day! The Lakeview Regional Medical Center provides Patients and Visitors to their Medical Facility with a free copy of their Patient Guide Handbook. On page 16, of the LRMC’s Patient Guide Handbook it specifically states that all Patients entering their Hospital are to receive high-quality, ethical, safe, considerate and respectful professional care. This is not the type of care that I received from ICU Nurse Ray Jennings on the morning of April 28, 2015. Furthermore, a study of case law reveals that in most Patient Rights Violations Lawsuits you need a Medical Expert to testify that the Medical Care that you received did not meet the required professional standard, however, that claim is mute, according to the Common Knowledge Exception, whereas, the behavior is so egregious, that no such testimony is warranted. Patient’s at all licensed medical facilities in the United States of America, as well as, every U.S. Territory have the right to expect and receive high-quality, ethical, safe, considerate and respectful professional care. COUNT 1 – NEGLIGENCE Defendants failed to perform their duties as described in Lakeview Regional Medical Center’s Patient Guide in a safe and effective manner leading to the injuries sustained by the Plaintiff. Resulting in both patient and human rights violations involving the use of both ridicule and humiliation tactics as a means of patient encouragement. COUNT 2 - NEGLIGENCE Defendants failed to perform their duties as described in Lakeview Regional Medical Center’s Patient Guide in a safe and effective manner leading to the injuries sustained by the Plaintiff. Resulting in a prolonged recovery process with many other medical complications. The Plaintiff experienced such things as crying spells, breathing difficulties, sleeping difficulties, terror and physical exhaustion. COUNT 3- NEGIGENCE Defendants failed to perform their duties as described in Lakeview Regional Medical Center’s Patient Guide in a safe and effective manner leading to the injuries sustained by the Plaintiff, resulting in cruelty to an infirmed ICU Patient. The Plaintiff suffered from humiliation, extreme ridicule and persecution at the hands of the Defendants. COUNT 4 – NEGLIGENCE Defendants failed to perform their duties as described in Lakeview Regional Medical Center’s Patient Guide in a safe and effective manner leading to the injuries sustained by the Plaintiff. Resulting in patient seclusion and isolation from family members. Plaintiff was intentionally denied access to family members during a critical time period of his recovery process. COUNT 5 – NEGLIGENCE Defendants failed to perform their duties as described in Lakeview Regional Medical Center’s Patient Guide in a safe and effective manner leading to the injuries sustained by the Plaintiff. Resulting in elder abuse. The Plaintiff, a fifty-eight year old man, with a long history of medical problems including type II diabetes, heart disease, high blood pressure, high cholesterol, a bipolar disorder, and a sleep disturbance, should never have been subjected to ridicule and humiliation tactics as a means of patient encouragement. SUMMATION Obviously, the ICU is no place for a mean nurse to be working. DAMAGES WHEREFORE, the Plaintiff seeks compensatory damages in the amount of $500.000.00 with legal fees and court costs. Dated the 8th of February, 2017 ________________________________ Mark Anthony Traina – Pro Se Attorney

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  1. Don't we have bigger issues to concern ourselves with?

  2. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  3. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  4. Different rules for different folks....

  5. I would strongly suggest anyone seeking mediation check the experience of the mediator. There are retired judges who decide to become mediators. Their training and experience is in making rulings which is not the point of mediation.

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