Pro se medical malpractice claim fails without expert testimony

December 24, 2014

The Indiana Court of Appeals chastised a pro se litigant for supporting his medical malpractice claim with only a “perfunctory and self-serving” affidavit instead of submitting expert testimony.

Lloyd Perry filed a proposed malpractice complaint against multiple defendants with the Indiana Department of Insurance in 2010. However, the medical review panel found the conduct of the physicians and hospitals did not cause Perry’s injuries.

Accordingly the Allen Superior Court granted the defendants’ motion for summary judgment.

The Court of Appeals affirmed the summary judgment in Lloyd G. Perry v. Anonymous Physician 1, Alias Medical Group 1, Inc., Anonymous Physician 2, et al., 02A03-1401-CT-43.
The Court of Appeals noted when the health care providers moved for summary judgment, Perry responded by only submitting a brief and did not provide expert testimony to rebut the review panel’s opinion.

In an extensive footnote, Judge Melissa May pointed out that pro se litigants are held to the same rules of procedure as licensed attorneys and therefore must cite authorities, statutes or parts of the record on appeal.

“We will not consider an assertion on appeal when there is not cogent argument supported by authority and references to the record as required by the rules,” May wrote. “… Nor will we become an advocate for a party or address arguments that are inappropriate or too poorly developed to be understood. As we may not become an advocate for Perry, we must conclude he has waived his argument on appeal.”

The Court of Appeals held plaintiffs are required in medical malpractice cases to provide expert opinion evidence in order to defeat summary judgment when the medical review panel has determined there was no breach of duty of care.

In a typical negligence action, the defendant’s conduct is judged against what a reasonable man would do under the circumstances. But the Court of Appeals noted a medical malpractice case involves questions of science and professional judgment that are outside the comprehension of the layperson.

“We therefore do not believe a medical malpractice plaintiff may defeat summary judgment with nothing more than a ‘perfunctory and self-serving’ affidavit that specifically controverts the moving party’s prima facie case,” May wrote for the court. “Perry offers no argument that he provided the required expert opinion testimony and the record does not reflect he did.”


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