26 N.E.3d 89
Ind. Ct. App.2015Background
- Plaintiff Jamie Thomson underwent a hysterectomy at St. Joseph Regional Medical Center; anesthesiologist Dr. Michael Borkowski was providing anesthesia. During the operation an arm board supporting Thomson’s right arm detached and her arm hung toward the floor for an unknown period.
- Dr. Borkowski noticed the detached arm board during surgery, reattached it, and documented the incident. Thomson awoke with right-arm pain and was later diagnosed by neurologist Dr. Zimmerman with a probable radial nerve injury from compression.
- Thomson submitted a proposed complaint to a medical review panel; the three-member panel concluded neither defendant breached the standard of care and their conduct was not a significant factor in any permanent injury.
- Thomson sued in court; defendants moved for summary judgment reliance on the panel opinion. Thomson designated Dr. Zimmerman’s deposition, an affidavit from nurse Abigail Stanley, and deposition testimony from panelist Dr. Robert Gill in opposition.
- The trial court granted summary judgment, finding (1) Dr. Gill’s equivocal testimony did not rebut the panel as to standard-of-care for Dr. Borkowski, and (2) Dr. Zimmerman’s opinion did not establish causation. Thomson appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to rebut the medical review panel on standard of care for Dr. Borkowski | Res ipsa loquitur/common-knowledge applies because the arm board detaching and causing injury permits an inference of negligence; expert opinion not required | Panel opinion stands; plaintiff must present expert evidence to rebut panel | Res ipsa loquitur exception applies here; expert testimony was not required to rebut panel on standard of care for Borkowski |
| Whether Stanley’s affidavit and other evidence created a material issue re: hospital’s standard of care | Stanley’s affidavit shows SJRMC breached standard by failing to ensure/monitor arm board attachment | Defendants sought summary judgment based on panel opinion | Court treated Stanley’s affidavit as creating a genuine issue of fact re: SJRMC compliance (defendant conceded this point) |
| Whether Dr. Gill’s equivocal deposition rebutted the panel on Borkowski’s standard of care | Gill’s equivocations create a fact question about whether Borkowski breached standard | Gill’s equivocations reflect no change from panel opinion and are insufficient | Court did not rely on Gill; because res ipsa applied, it did not need to decide Gill’s sufficiency |
| Whether Dr. Zimmerman’s testimony created a material question on causation | Zimmerman opined within a reasonable degree of medical certainty that the arm board collapse caused a radial nerve injury, based on exam and mechanism (compression at the radial spiral groove) | Defendants argued Zimmerman only established temporal relationship and thus failed to prove causation | Court held Zimmerman’s opinion rested on clinical findings and a plausible mechanism, not merely temporality, and was sufficient to rebut the panel on causation |
Key Cases Cited
- McIntosh v. Cummins, 759 N.E.2d 1180 (Ind. Ct. App. 2001) (burden-shifting and summary judgment standards in medical-malpractice context)
- Bunch v. Tiwari, 711 N.E.2d 844 (Ind. Ct. App. 1999) (elements required to establish medical malpractice and requirement to rebut medical review panel)
- Vogler v. Dominguez, 624 N.E.2d 56 (Ind. Ct. App. 1993) (analysis of exclusive control and shared nondelegable duties for res ipsa loquitur)
- Malooley v. McIntyre, 597 N.E.2d 314 (Ind. Ct. App. 1992) (res ipsa loquitur and exception to expert testimony requirement)
- Gold v. Ishak, 720 N.E.2d 1175 (Ind. Ct. App. 1999) (elements of res ipsa loquitur defined)
- Cleary v. Manning, 884 N.E.2d 335 (Ind. Ct. App. 2008) (res ipsa loquitur permits inference of negligence but does not conclusively determine liability)
- Gresser v. Dow Chemical Co., 989 N.E.2d 339 (Ind. Ct. App. 2013) (expert opinion insufficient for causation when based only on temporal relationship)