It is well known in medical malpractice law that to make a prima facie case for medical negligence, a plaintiff must establish that (1) there was a duty on the part of the defendant in relation to the plaintiff; (2) the defendant failed to conform to the applicable standard of care in treating the plaintiff; and (3) an injury to the plaintiff resulted from that failure. Lusk v. Swanson, 753 N.E.2d 748, 753 (Ind. Ct. App. 2001). Furthermore, to defeat summary judgment, the plaintiff must establish each of these elements through medical expert testimony. Oelling v. Rao, 593 N.E.2d 189, 191 (Ind. 1992).
When a defendant moves for summary judgment and shows there is no genuine issue of material fact as to any one of the elements above, the defendant is entitled to summary judgment as a matter of law, unless the plaintiff can establish by expert testimony a genuine issue of material fact for trial. Hoskins v. Sharp, 629 N.E. 2d 1271, 1277 (Ind. Ct. App. 1994). Furthermore, the unanimous opinion of the medical review panel finding the defendant did not breach the applicable standard of care is sufficient to negate the existence of a genuine issue of material fact. McGhee v. Bonaventura, 605 N.E.2d 792, 794 (Ind. Ct. App. 1993).
Recent appellate opinions regarding the sufficiency of medical expert testimony needed to create genuine issues of material fact to defeat summary judgment are raising the bar ever higher for health care defendants to succeed on summary judgment.
Summary judgment may be reversed even where plaintiff fails to designate medical expert evidence.
Although the bright-line rules in Indiana set forth the elements required to be established by medical expert testimony, recent appellate opinions have reversed the grant of summary judgment in favor of defendants, even where the plaintiff failed to designate any medical expert testimony.
In Chaffins v. Kauffman, 995 N.E.2d 707 (Ind. Ct. App. 2013), Chaffins alleged negligence on the part of the physician and hospital nursing staff for discharging her after a colonoscopy despite continued complaints of severe abdominal pain. A unanimous opinion of the medical review panel found that both the physician and hospital defendants met the applicable standard of care and the alleged conduct was not a factor in the plaintiff’s claimed injuries. The trial court granted summary judgment in favor of the defendants.
On appeal, the court determined that Chaffins produced medical expert testimony sufficient to refute the panel opinion as to the physician, although the physician argued the testimony was speculative.
As to the hospital, Chaffins conceded that she failed to designate any evidence to refute the expert opinion of the medical review panel. Despite the lack of medical expert testimony, the Court of Appeals reversed summary judgment in favor of the hospital.
The court held that where a deviation from the standard of care is a matter commonly known to lay persons, a plaintiff is not required to present expert testimony. Furthermore, where the complained-of conduct is “so obviously substandard that one need not possess medical expertise in order to recognize the breach,” the “common knowledge exception” is applicable. Chaffins at 713.
The court concluded the designated evidence established that Chaffins informed the nursing staff she was in severe pain and the nursing staff neither informed Dr. Kauffman nor documented the complaints of pain in her medical records. The court held that a reasonable trier of fact could infer this was a breach in the standard of care, and such an inference did not involve the “sophisticated subtleties” of medicine that necessitate expert testimony. Id.
This opinion widens the avenue for plaintiffs to pursue claims against health care providers premised upon subjective complaints of pain without requiring medical expert testimony.
In Siner v. Kindred Hospital, 51 N.E.3d 1184 (Ind. 2016), an opinion handed down by the Indiana Supreme Court, pro se plaintiffs failed to designate any medical expert testimony to refute the claims of the physician-defendant. Despite the lack of medical expert testimony, the Supreme Court reversed summary judgment for the defendants, concluding that the defendants’ own designated evidence was sufficient to create a genuine issue of material fact as to causation without any designated expert testimony from the plaintiffs.
In Siner, a medical review panel issued a unanimous opinion that the evidence “supports the conclusion that the defendants failed to comply with the appropriate standard of care, and that their conduct may have been a factor of some resultant damages, but not the death of the patient.”
The pro se plaintiffs filed a cause of action, and defendants Kindred Hospital and Dr. Majid each moved for summary judgment. Both defendants designated the opinion of the medical review panel and an affidavit from one of the panel members, Dr. Krueger. Dr. Krueger testified it was his opinion that Kindred Hospital and Dr. Majid “did not cause injury to Ms. Siner” in administering pulmonary care.
The Siners responded to the motions of both defendants but designated expert affidavits in response to Kindred’s motion only. They failed to designate any expert evidence in response to Dr. Majid’s motion. The trial court granted summary judgment to both defendants on the issue of causation.
The Court of Appeals unanimously reversed summary judgment for Kindred Hospital, finding the affidavit of plaintiffs’ expert was sufficient to create a genuine issue of material fact on proximate cause. A majority of the court affirmed summary judgment for Dr. Majid due to the Siners’ failure to designate any medical expert testimony in their response to his motion.
However, the Indiana Supreme Court subsequently held that by designating the opinion of the medical review panel in conjunction with the affidavit of panel member Dr. Krueger, the defendants’ own designated evidence was conflicting and established a genuine issue of material fact on the element of causation. The court reversed summary judgment in favor of Dr. Majid, holding that summary judgment is inappropriate whenever “a conflict of evidence may exist.” Id. at 1189. The court did not address the plaintiff’s failure to designate expert medical testimony to refute the panel opinion as to Dr. Majid, but rested solely on the conflicting evidence presented by the defendants in its decision to reverse summary judgment for Dr. Majid.
The courts have a preference for allowing non-meritorious issues to proceed to trial rather than risk cutting short a meritorious claim on summary judgment in Indiana.
In a January 2016 opinion, the Court of Appeals discussed its position regarding the “high bar” set for summary judgment in medical malpractice cases. In the case of Sorrells v. Reid-Renner, M.D., 49 N.E.3d 647 (Ind. Ct. App. 2016), the defendant moved for summary judgment on the basis of the panel opinion. Sorrells produced medical expert testimony to refute the opinion on the issue of causation, which Dr. Reid-Renner argued was speculative and insufficient to defeat summary judgment.
In its opinion, the court stated:
Our choice to heighten the summary judgment burden has been criticized because it may let summary judgment be precluded by as little as a non-movant’s mere designation of a self-serving affidavit. The observation is accurate … . In essence, Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.
Id. at 650-651 (citing Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014)).
The court reversed summary judgment for Dr. Reid-Renner, holding that to defeat summary judgment, “[a]dmissible medical expert testimony must only be more conclusive than ‘possibility’ when it stands alone as proof of proximate causation,” and “we consciously choose to err on the side of letting this case proceed to trial on the merits, rather than risk short-circuiting a meritorious claim.” Id. at 652.
Is a double standard being created for the evidentiary threshold imposed on plaintiffs and defendants on summary judgment?
In Scripture v. Roberts, 51 N.E.3d 248 (Ind. Ct. App. 2016), plaintiff Julia Roberts suffered an injury to her left eye requiring a corneal transplant. She subsequently filed a claim against her treating physicians. Roberts’ claim was submitted to a medical review panel, which concluded the defendants failed to comply with the appropriate standard of care and their conduct was a factor in the resultant damages. Thereafter, the plaintiff filed a motion for summary judgment, relying upon the opinion of the medical review panel.
The defendants filed a response in which they each designated their own affidavits as medical expert testimony to refute the opinion of the medical review panel. Each of the physicians set forth their medical credentials, stated they had provided care for Roberts, they were familiar with the treatment provided to Roberts by the other defendants, they were familiar with the standard of care, that the care and treatment provided to Roberts met the applicable standard of care, and the treatment provided was not a responsible cause of her alleged injuries.
Subsequently, the physicians filed a motion for leave to supplement their response to the summary judgment motion with supplemental affidavits attached that included additional facts about the medical care provided to Roberts. The trial court summarily denied the physicians’ motion for leave to supplement their affidavits and granted Roberts’ motion for summary judgment.
The physicians appealed the ruling, arguing their affidavits were sufficient to raise a genuine issue of material fact and that the trial court abused its discretion in denying their motion to supplement their response to Roberts’ summary judgment.
The Court of Appeals addressed whether the factual content of the physicians’ affidavits was specific enough to comply with T.R. 56(E) and was sufficient to raise a genuine issue of material fact. The court discussed prior case law that has required that affidavits set forth some factual basis to support the experts’ conclusions, even where the affidavits were “rather lacking in content.”
The court upheld summary judgment in favor of the plaintiff, concluding the physicians’ affidavits did not set forth specific facts regarding Roberts’ care, but instead echoed the denials of their pleadings contrary to the requirements of T.R. 56(E). Nor did the court find an abuse of discretion in the trial court’s refusal to allow the defendants to supplement their affidavits.
Although the court left for another day the issue of whether a physician’s own affidavit, standing alone, could be sufficient to defeat summary judgment, it did note that in dicta from Perry v. Anonymous Physician 1, 25 N.E.3d 103, 107 (Ind. Ct. App. 2014), it was implied that in order to defeat summary judgment, a medical professional’s designated expert testimony must be the testimony of another physician. See also Simms v. Schweikher, 651 N.E.2d 348, 351 (Ind. Ct. App. 1995) (Barteau, J., dissenting: “I question whether a self-serving affidavit by the defendant, and an affidavit by a surgical technician amount to qualified ‘expert’ testimony sufficient to require [the plaintiff] to come forward with expert medical testimony of her own.”).
The Scripture Court found the factual content of the physicians’ affidavits was not specific enough to raise a genuine issue of material fact to defeat summary judgment. But consider the holding of the Siner Court in discussing the sufficiency of the factual content of plaintiff’s designated evidence to defeat summary judgment. The Siner Court held that, although a medical review panel opinion contained no specific facts, its medical conclusions created a genuine issue of material fact. Furthermore, the court held that “[a]ny lack of detail goes to the weight and credibility to be assigned to [the opinion], not to whether it is adequate to create a question of fact.” Siner at 1190 (citing Jordan v. Deery, 609 N.E.2d 1104, 1106, 1111 (Ind. 1993) (holding that a doctor’s affidavit designated by the plaintiffs with ‘no discernible facts’ demonstrated ‘the existence of a material fact’ when it concluded the defendants violated the standard of care causing injuries)).
Thus, while the courts have been willing to accept self-serving and perfunctory affidavits with “no discernible facts” as sufficient for plaintiffs to defeat summary judgment, the same has not held true for health care defendants attempting to defeat summary judgment.•
Ms. Keaton is a member of the Health Law Litigation Section of DTCI and a shareholder in the Indianapolis office of Keaton and Keaton P.C., where she concentrates her practice in litigation with a focus on medical malpractice defense and the defense of complex general liability matters. The opinions expressed in this article are those of the author.