COA affirms for doctors, hospital in negligence suit, seeks guidance from Supreme Court

IL file photo

Doctors who failed to properly read a woman’s X-rays of broken bones won judgment from the Court of Appeals of Indiana Thursday, which concluded that the patient’s expert affidavit was insufficient to create a genuine issue of material fact about the standard of care she should have received.

After being treated at Memorial Hospital of South Bend following a car accident, Penny Korakis brought a medical malpractice action against emergency medicine physician Dr. David A. Halperin and osteopathic medicine Dr. Michael R. Messmer, as well as the hospital, alleging negligent care and treatment.

Korakis had reported pain extending from her left hand to her left shoulder after the accident and subsequent X-rays and a diagnosis by Halperin revealed she was suffering from an acute soft tissue injury. Korakis was then referred to treatment by Messmer, who conducted several additional X-rays and ordered her to physical therapy.

The pain in her elbow continued to worsen, however, so Korakis sought a second opinion from a different doctor. It was then she learned that her elbow might have a fracture, prompting Korakis to sue Halperin, Messmer and the hospital for the care and treatment she received from them, including failures to diagnose and treat her.

The suit claimed the defendants were negligent and fell below the standard of care, including that they “failed to identify and diagnose the true extent of [her] injuries, which included broken bones.”

A medical review panel, however, opined that the evidence didn’t support the conclusion that the defendants failed to meet the applicable standard of care as charged in Korakis’ complaint.

The defendants were ultimately granted their motions for summary judgment based on the MPR opinion after the trial court ruled that Korakis’ expert affidavit from orthopedic doctor James Kemmler failed to “address the actions of each Defendant” and “state the standard of care expected by each Defendant and detail how each Defendant breached that standard of care.”

The Court of Appeals affirmed in Penny Korakis v. Memorial Hospital of South Bend, Michael R. Messmer, D.O., David A. Halperin, M.D., 22A-CT-867, disagreeing with Korakis’ assertion that Kemmler’s affidavit created genuine issues of fact making summary judgment for the defendants improper.

The COA noted that in order to oppose an MRP opinion favorable to a health care provider, Korakis was required to present expert medical testimony establishing three things:

  • The applicable standard of care required by Indiana law;
  • How the defendant doctor breached that standard of care; and
  • That the defendant doctor’s negligence in doing so was the proximate cause of the injuries complained of.

Judges found that Kemmler’s affidavit averred that Messmer’s treatment of Korakis “fell below the standard of care,” but rendered no similar opinion as to either Halperin or the hospital.

“That is, while Dr. Kemmler averred that Dr. Halperin failed to identify the fracture and misdiagnosed Korakis with a soft tissue injury, it did not state that Dr. Halperin’s failure to do so was a breach of the standard of care,” Judge Robert R. Altice wrote for the panel. “Likewise, the affidavit does not identify any particular negligent acts or omissions on the part of the Hospital or opine that the Hospital breached the standard of care.”

As such, the COA concluded that the affidavit did not create a genuine issue of material fact with regard to either Halperin or the hospital, and each was entitled to summary judgment.

It found similarly in Kemmler’s observation of Messmer’s treatment of Korakis, noting that again, there was no explanation of the standard of care.

“Here, Dr. Kemmler, who practiced orthopedic medicine, did not state that he is familiar with the standard of care for a D.O. in the same or similar circumstances as Dr. Messmer, and certainly, the standard of care for an orthopedist and a D.O. are not the same,” Altice wrote. “For these reasons, Dr. Kemmler’s affidavit was insufficient to create a genuine issue of material fact with regard to Dr. Messmer.”

The COA rejected Korakis’ argument that even if Kemmler did not explicitly state what the proper standard of care was, the standard of care was implicit in his “very specific statements” about how Messmer’s treatment fell below the standard of care. Thus, she claimed, the trial court should draw inferences as to the standards of care.

However, drawing any inference about the standard of care applicable to Messmer would require undue speculation, the COA decided. As such, it found that affidavit did not create a genuine issue of material fact precluding summary judgment for Messmer.

In a footnote, the appellate court recognized that “there exists some divergence on the extent of what must be explicitly stated with regard to the standard of care in the plaintiff’s expert’s affidavit,” with some panels of the appellate court concluding that it is “sufficient if the expert sets forth evidence from which it ‘was evident’ that the affiant was familiar with the relevant standard of care.”

“We respectfully offer that further guidance from our Supreme Court on this matter would be helpful to practitioners,” the COA concluded in the footnote.

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