Medical malpractice reversal finds for providers

Health care providers who removed part of a man’s lung after a biopsy sample was misread as likely cancerous are entitled to summary judgment in his medical malpractice case, the Indiana Court of Appeals ruled Tuesday, reversing a trial court ruling.

Derek F. Smith, who had been a coal miner for decades and lived with smokers, underwent a lung biopsy in 2012 after seeking emergency medical treatment for shortness of breath and wheezing. An x-ray was abnormal, and after follow-ups, Dr. Elizabeth G. Butler performed surgery that began with a biopsy of Smith’s lung where a lesion had been found.

Pathologist Dr. Hongyu Yang analyzed a frozen slide of the biopsied specimen and informed Butler while she was in surgery that the tissue was cancerous or suggestive of cancer. Butler then performed a lobectomy on Smith that resulted in a loss of about 20 percent of his lung capacity. The next day, the specimen on a permanent section slide was determined to be benign.

Smith sued both the surgery and pathology defendants, claiming medical malpractice in St. Mary's Ohio Valley Heart Care, LLC, et al. v. Derek F. Smith, 82A05-1711-PL-2594. The Vanderburgh Circuit Court denied those health care providers’ motions for summary judgment, but a panel of the Indiana Court of Appeals reversed the trial court Tuesday on interlocutory appeal.

“Dr. Butler testified that regardless of whether Dr. Yang specifically reported to her that the frozen slides revealed cancer or that they were suggestive of cancer, she would have proceeded with the lobectomy under the circumstances presented,” Judge Robert Altice wrote for the panel.

Altice wrote that Smith’s designated expert “conceded that the frozen slides could not have been called normal/benign” while Smith was undergoing surgery, “and that they had characteristics that were in fact suggestive of cancer.” It was not until Yang consulted with experts at the Mayo Clinic that it was determined the biopsy was benign, the record says.

“We agree with the Surgical Defendants that this is not the type of case in which the applicable standard of care is within the realm of the common knowledge of a layperson,” Altice wrote. The panel noted the surgical team that proceeded with the lobectomy was considering not just the results of the biopsy, but also the potential risk of subjecting Smith to another surgery, as well as other factors.

“An evaluation of Dr. Butler’s conduct and the medical reasons for proceeding with the lobectomy in light of Smith’s entire clinical picture clearly require expert testimony, which Smith has not provided,” Altice said.

Likewise, Smith failed to prove what the standard of care is for Yang and the pathology defendants in this case, or whether that standard was breached. The court therefore remanded the case to the trial court with instructions to enter summary judgment in favor of both the surgery and pathology defendants.

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