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.