33 N.E.3d 377
Ind. Ct. App.2015Background
- Geraldine Siner, an 86‑year‑old with advanced dementia, was admitted to Kindred Hospital in October 2007; her son John held power of attorney and repeatedly requested she be a “full code.”
- In November 2007 Kindred’s Ethics Committee unilaterally changed her status to DNR; the family protested and transferred her to Methodist Hospital on December 8, 2007, where she presented with a collapsed left lung, overwhelming infection, and septic shock; she died December 28, 2007.
- In 2009 Kathy Siner filed a medical malpractice claim; a 2012 medical review panel unanimously concluded defendants breached the standard of care and their conduct may have caused some damages but not death.
- One panel member (Dr. Krueger) later executed an affidavit reversing his view as to Kindred’s responsibility for pulmonary care; his later affidavit was unexplained and based on unspecified additional record review.
- Plaintiffs sued Kindred and Dr. Majid in 2013. At summary judgment, the Siners failed to timely designate expert evidence against Majid; they did designate Dr. Timothy Pohlman’s affidavit against Kindred asserting that the DNR and prolonged CPAP/BiPAP use breached the standard of care and "more likely than not" caused damages.
- The trial court granted summary judgment for both defendants; the appellate court affirmed as to Dr. Majid (no admissible causation proof) and reversed as to Kindred (Pohlman’s affidavit raised a genuine issue on causation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs produced expert evidence creating a genuine factual dispute on causation for Kindred | Pohlman opined Kindred’s DNR and prolonged non‑invasive ventilation breaches "more likely than not" caused additional injury and suffering | Kindred argued plaintiffs’ affidavits did not address causation and IU Pulmonary directed pulmonary care so Kindred reasonably deferred | Reversed: Pohlman’s affidavit sufficiently addressed causation under Noblesville Casting and created a material issue of fact precluding summary judgment against Kindred |
| Whether the medical review panel opinion alone establishes causation against Dr. Majid | Panel opinion indicated defendants’ conduct "may have been a factor" in damages; plaintiffs relied on that opinion | Majid argued the panel’s speculative language is insufficient to prove causation at trial | Affirmed: the panel opinion alone was speculative and did not meet the preponderance/causation standard to defeat summary judgment against Majid |
| Proper standard for admissibility/weight of expert medical causation testimony | Plaintiff urged that expert testimony expressing possibility can be probative | Defendants urged that speculative opinions are insufficient without supporting evidence | Court applied Noblesville Casting: speculative "possible" opinions alone usually insufficient; opinions of "probable" or "more likely than not" may suffice standing alone; reliability and context matter |
| Whether a single panel member’s post‑hoc affidavit undermines the panel opinion | Plaintiffs pointed to panel unanimity; defendants relied on Dr. Krueger’s later affidavit to refute causation | Kindred used Krueger affidavit to argue no breach/causation on pulmonary care | Court treated Krueger’s late affidavit as irrelevant to plaintiffs’ burden because the panel opinion was inconclusive on causation and plaintiffs still needed admissible expert proof; concurrence criticized allowing one panel member’s ex parte affidavit to undercut panel process |
Key Cases Cited
- Roberts v. Sankey, 813 N.E.2d 1195 (Ind. Ct. App.) (standard of review for summary judgment)
- Briggs v. Finley, 631 N.E.2d 959 (Ind. Ct. App.) (summary judgment and burden to prove essential elements)
- Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388 (Ind. Ct. App.) (plaintiff must prove negligence and proximate causation by expert testimony)
- Noblesville Casting Div. of TRW, Inc. v. Prince, 438 N.E.2d 722 (Ind.) (expert medical opinions couched in probabilistic terms admissible; "probable"/"more likely than not" may suffice; "possible" often insufficient standing alone)
- Malooley v. McIntyre, 597 N.E.2d 314 (Ind. Ct. App.) (plaintiff must show causative nexus in malpractice case)
- Topp v. Leffers, 838 N.E.2d 1027 (Ind. Ct. App.) (reiterating Noblesville Casting principles regarding speculative expert opinions)
- City of Indianapolis v. Parker, 427 N.E.2d 456 (Ind. Ct. App.) (preponderance standard for causation)