Expert Testimony Required in Nearly All Medical Malpractice Cases

The Indiana Court of Appeals recently issued an opinion in St. Mary’s Ohio Valley Heart Care, LLC v. Smith concerning claims of medical malpractice against a cardiothoracic surgeon, a pathologist, and their respective medical groups arising out of a lung lobectomy performed for suspected, but not confirmed, lung cancer.

During the wedge resection portion of the procedure, the pathologist interpreted the intraoperative frozen section pathology slides as cancerous or suggestive of cancer, which was communicated to the cardiothoracic surgeon, who then proceeded to perform the lobectomy. The permanent section slides, however, were later interpreted as being benign, and the patient filed a lawsuit for damages.

A medical review panel was convened to review the case pursuant to the requirements of the Indiana Medical Malpractice Act and it returned a unanimous expert opinion in favor of the Defendants. After the patient filed an amended complaint for medical malpractice in state court, the Defendants filed motions for summary judgment based upon the opinion of the medical review panel that the evidence did not support the conclusion that the Defendants failed to meet the applicable standard of care.

Under Indiana law, expert testimony is generally required to establish the applicable standard of care and to show breach of that standard, and when a plaintiff does not have supporting expert evidence to rebut the opinion of the medical review panel, judgment will be entered against the plaintiff and the plaintiff’s claim dismissed.

The patient responded to the motions for summary judgment filed by the Defendants by claiming the legal doctrine of res ipsa loquitur, which is a limited exception to the general rule that the mere fact of injury will not create an inference of negligence, applied to the claim against the cardiothoracic surgeon. As for the claim against the pathologist, the patient provided expert testimony of another pathologist to rebut the opinion of the medical review panel. While the trial court denied the motions for summary judgment, the Indiana Court of Appeals reversed and directed the trial court to enter judgment in favor of the Defendants.

The Court found that the doctrine of res ipsa loquitur did not apply to the claim against the cardiothoracic surgeon because the claim was not within the realm of the common knowledge of a lay person, and thus required expert testimony, which the patient did not have. While the patient did have expert testimony regarding the claim against the pathologist, the Court found that the plaintiff’s expert’s testimony did not definitively and unequivocally demonstrate what the standard of care was and that the pathologist breached it.

The Court further found that, even if the plaintiff’s expert’s testimony raised a question of fact as to breach, it did not raise a question of fact as to causation because the cardiothoracic surgeon would have performed the surgery regardless of whether the Defendant pathologist deferred the diagnosis with a leaning towards the lung mass being cancer, which the plaintiff’s expert indicated was within the standard of care, whether the Defendant pathologist indicated that the slides were suggestive of cancer, or whether the Defendant pathologist diagnosed the specimen as cancer.

When a patient fails to obtain favorable opinion testimony during Indiana’s medical review panel process, the patient will be required to obtain admissible and material expert testimony before being able to present their claim to a jury.  Failure to obtain such testimony will generally be fatal to the patient’s claim.


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