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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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