Judges disagree if testimony is hypothetical

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Indiana Court of Appeals judges disagreed over whether two doctors' expert witness testimony in a medical malpractice case used hypothetical language that couldn't raise a genuine issue of fact.

The majority in Myers Blaker vs. Ronald Young II M.D. and Indianapolis Neurosurgical Group, No. 49A02-0811-CV-1038, determined the opinions of plaintiff Myers Blaker's expert witnesses - Drs. Mitesh Shah and Joel Boaz - were based on speculation and conjecture, not facts established by designated evidence in the case.

Both doctors used the words "if" and "assume" in their testimony, leading Chief Judge John Baker and Judge Ezra Friedlander to find their testimony insufficient to raise a genuine issue of material fact.

The doctors testified on behalf of Blaker in his suit against Dr. Ronald Young, following a surgery to treat Blaker's subocciptal headaches and neck pain. In his operative report, Young noted the left tonsillar branch of the posterior inferior cerebellar artery, or PICA, but never mentioned the right one. Immediately after surgery, Blaker appeared to be fine, but later went into respiratory arrest, had to be intubated, and couldn't move his extremities. An MRI three years later showed he suffered a stroke in the area of the brain supplied by the PICA.

A medical review board found Young complied with the appropriate standard of care. The trial court granted the doctor summary judgment in Blaker's malpractice action. The trial court also denied Blaker's request to supplement his designated evidence.

The majority ruled the affidavits of Shah and Boaz confirm the finding of the panel that there isn't any evidence Young didn't meet the standard of applicable care.

"Both doctors agreed that, hypothetically, if Dr. Young did not identify the right PICA, then he deviated from the standard of care," wrote Judge Friedlander. "Moreover, there is no evidence in the record to provide a factual basis for the hypothetical situation on which their opinions are based."

Judge Patricia Riley dissented, noting both doctors' affidavits satisfy the requirements under Jordan v. Deery, 609 N.E.2d 1104, 1110 (Ind. 1993), which ruled an expert opinion in the context of summary judgment proceedings should recite the expert's credentials and the records reviewed and relied upon by the expert.

Judge Riley also noted Indiana Rule of Evidence 702(a) doesn't establish any threshold of certainty for expert opinion, and that the appellate court found a statement using "if" in Bunch v. Tiwari, 711 N.E.2d 844, 850 (Ind. Ct. App. 1999), to be admissible and sufficient to refute the medical review panel's opinion.

"Likewise here, the statement contained in Dr. Shah's and Dr. Boaz's affidavits do not rise to the level of a hypothetical situation and should have been admitted. Specifically, both experts testified it would be substandard care if Dr. Young failed to identify the right PICA," she wrote.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

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