Doctors’ affidavits cannot defeat summary judgment

February 1, 2016

The affidavits submitted as evidence by the treating physicians being sued for medical malpractice were factually inadequate and did not raise a genuine issue of material fact regarding their care of the plaintiff, the Indiana Court of Appeals held Monday.

Julia and Steven Roberts filed a medical malpractice complaint against Drs. Kevin Scripture, Richard Mangan, Judy Risch and Whitewater Eye Centers LLC regarding care and treatment Julia Roberts received on her left eye, leading to a corneal transplant. The medical review panel unanimously found the doctors failed to comply with the appropriate standard of care and that their conduct was a factor of the resultant damages.

The Robertses then sued and sought summary judgment. The defendant doctors’ responses to the summary judgment motion contained medical-expert testimony from each of the doctors, which simply set for their medical credentials and stated the care and treatment provided by each doctor met the applicable standard of care and was not responsible for her alleged injuries or damages.

Eighty one days later, the doctors filed a motion to supplement their affidavits with more factual information about case and treatment of Julia Roberts. The trial court denied the doctors’ motion and granted summary judgment for the plaintiffs.

The Court of Appeals affirmed in Kevin T. Scripture, M.D., Richard Mangan, O.D., Judy D. Risch, O.D., and Whitewater Eye Centers, LLC v. Julia and Steven Roberts, 49A02-1504-CT-211, finding the doctors’ affidavits did not set for specific facts regarding Julia Roberts’ care, but instead, echoed the denials of their pleading contrary to the requirements of Ind. Trial Rule 56(E), Chief Judge Nancy Vaidik wrote.

The doctors cited the Indiana Supreme Court’s decision in Hughley v. State, 15 N.E.3d 1000, 1002 (Ind. 2014), to support their argument their affidavits – even if self-serving and conclusory – can defeat summary judgment.

“Unlike in Hughley, however, here the Doctors cited no facts that would support that they met the standard of care or that their conduct did not cause the Robertses’ damages. The Doctors merely restated the denials in their pleadings. Hughley is inapposite,” Vaidik wrote.

The COA also affirmed the denial to supplement, noting that Trial Rule 56(C) provides that a party opposing a motion for summary judgment has 30 days to serve a response or any other opposing affidavits, and in this case, the doctors did not file their supplemental affidavits until 81 days later.


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