112 N.E.3d 1144
Ind. Ct. App.2018Background
- In May 2012 Dr. Butler performed a wedge resection and sent frozen section slides to Dr. Yang, who interpreted them as cancerous or "suggestive" of cancer; Butler then completed a lobectomy, reducing plaintiff Smith’s lung capacity by ~20%.
- Permanent sections reviewed the next day (and later by Mayo Clinic pathologist Dr. Colby) showed the lesion was benign; Dr. Yang amended his final report accordingly.
- Smith filed a malpractice suit against the surgeon/hospital (Surgical Defendants) and the pathologist/practice (Pathology Defendants). A Medical Review Panel unanimously found for all defendants.
- Smith designated pathology expert Dr. Griggs to rebut the Panel as to the Pathology Defendants; Griggs criticized Dr. Yang for not deferring the frozen-section diagnosis but conceded the frozen slides were difficult and could be described as "suggestive" of cancer.
- Trial court denied summary judgment for both defendant groups; defendants appealed interlocutorily under App. R. 14(B).
- Court of Appeals reversed: it ordered summary judgment for the Surgical Defendants (res ipsa loquitur inapplicable; expert required) and for the Pathology Defendants (no genuine issue on causation even assuming a breach).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment for the Surgical Defendants was improper because res ipsa loquitur made expert testimony unnecessary | Smith: doctrine of res ipsa applies so no expert on surgeon’s negligence required | Surgical Defendants: res ipsa not applicable; surgeon’s decision required expert proof of standard/breach; Panel opinion shifts burden to plaintiff | Court: res ipsa inapplicable; evaluation of Butler’s decision requires expert evidence; grant summary judgment for Surgical Defendants |
| Whether Dr. Griggs’s testimony rebutted the Medical Review Panel as to Pathology Defendants | Smith: Griggs’s affidavit/deposition shows Dr. Yang breached standard by failing to defer frozen diagnosis | Pathology Defendants: Griggs did not definitively say Yang breached standard and conceded a lean/suggestive remark would be acceptable | Court: Griggs’s testimony equivocal on breach; even assuming breach, designated evidence shows no causation because Butler testified she would have proceeded absent a clearly benign intraoperative diagnosis; grant summary judgment for Pathology Defendants |
| Whether causation exists for pathology malpractice claim | Smith: but-for Dr. Yang’s conduct, lobectomy would not have occurred | Pathology Defendants: Butler would have done lobectomy given clinical picture and suggestive frozen slides; only a clear benign intraop diagnosis would have changed course | Held: no genuine issue of material fact on causation; causation fails as a matter of law |
Key Cases Cited
- Stafford v. Szymanowski, 31 N.E.3d 959 (Ind. 2015) (medical review panel unanimous opinion ordinarily negates a breach and shifts burden to plaintiff at summary judgment)
- Bhatia v. Kollipara, 916 N.E.2d 242 (Ind. Ct. App. 2009) (failure to provide expert testimony typically subjects malpractice claim to summary judgment)
- Narducci v. Tedrow, 736 N.E.2d 1288 (Ind. Ct. App. 2000) (medical malpractice requires expert proof of standard and breach; bad outcome alone insufficient)
- Syfu v. Quinn, 826 N.E.2d 699 (Ind. Ct. App. 2005) (res ipsa loquitur is a limited exception; expert testimony required when issue is beyond lay understanding)
- Methodist Hosps., Inc. v. Johnson, 856 N.E.2d 718 (Ind. Ct. App. 2006) (res ipsa in medical context limited to obvious substandard conduct that jurors can recognize without expert input)
- Vogler v. Dominguez, 624 N.E.2d 56 (Ind. Ct. App. 1993) (elements of res ipsa loquitur explained)
- Oelling v. Rao, 593 N.E.2d 189 (Ind. 1992) (affirming summary judgment where plaintiff’s expert only said he would have treated differently and did not state defendant fell below standard of care)
- Carey v. Ind. Physical Therapy, Inc., 926 N.E.2d 1126 (Ind. Ct. App. 2010) (proximate cause requires but-for causation)
- Green v. Robertson, 56 N.E.3d 682 (Ind. Ct. App. 2016) (restating elements of malpractice: duty, breach, causation)