162 N.E.3d 475
Ind. Ct. App.2020Background
- Pamela Scholl sued orthopedic surgeon Dr. Mohammed Majd for malpractice arising from a lumbar fusion and revision surgery; case proceeded to jury trial beginning September 2019.
- Scholl presented retired neurosurgeon Dr. Robert F. Sexton as her expert; Sexton had performed thousands of spine procedures (including dozens of fusions) but was "board eligible," not board-certified, and had retired from surgery in 2005–06.
- Dr. Sexton testified he disagreed with the medical review panel and opined Majd fell below the standard of care: he criticized a sparse preoperative workup, said a bone density test was prudent, stated fusion (with hardware) was controversial for Scholl and that a laminectomy or bone graft without hardware would have been appropriate, and opined a screw was placed too close to the iliac artery causing nerve damage.
- On cross-examination Sexton acknowledged poor outcomes do not always indicate malpractice and described the standard of care imprecisely (calling it "mythical"), but also quoted a panelist’s description of the standard as what a reasonably skilled doctor would do.
- After plaintiff rested, Majd moved for judgment on the evidence arguing Sexton failed to demonstrate familiarity with the applicable standard of care; the trial court granted the motion and entered judgment for Majd. Scholl’s post-trial motion was denied.
- The Court of Appeals reversed, holding Sexton’s testimony was sufficient to convey the applicable standard of care and breach issues to the jury and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff presented sufficient expert testimony of the applicable standard of care to avoid judgment on the evidence | Scholl: Dr. Sexton, experienced in spine surgery, showed familiarity with treating Scholl’s condition, articulated what a "prudent spine surgeon" would do, and identified specific breaches (e.g., choice of fusion, bone‑density testing, screw placement) | Majd: Sexton misstated or disparaged the standard of care, lacked familiarity with the legal standard applicable to a board‑certified orthopedic surgeon, leaving jurors to speculate | Court of Appeals: Reversed. Sexton’s experience and testimony sufficiently addressed the standard of care and breach to let the jury decide. |
Key Cases Cited
- Overshiner v. Hendricks Reg’l Health, 119 N.E.3d 1124 (Ind. Ct. App. 2019) (expert’s lack of familiarity with the applicable specialty standard can justify directed verdict)
- Aldrich v. Coda, 732 N.E.2d 243 (Ind. Ct. App. 2000) (expert’s opinion content may show familiarity with the applicable standard even if not explicitly stated)
- Allen v. Hinchman, 20 N.E.3d 863 (Ind. Ct. App. 2014) (elements required to prove malpractice at trial following adverse medical review panel opinion)
- Vergara by Vergara v. Doan, 593 N.E.2d 185 (Ind. 1992) (definition of physician standard of care)
- Killebrew v. Johnson, 404 N.E.2d 1194 (Ind. Ct. App. 1980) (reversing directed verdict where plaintiff’s expert adequately stated the standard of care)