Indiana Court of Appeals Finds Affidavit of Patient’s Expert Insufficient to Survive Summary Judgment in Medical Malpractice Case

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of three healthcare providers in a medical malpractice case finding the affidavit of the patient’s expert was insufficient to create a genuine issue of material fact to refute a negative opinion of a medical review panel formed to review the case. In Korakis v. Mem’l Hosp. of S. Bend, Penny Korakis (Korakis) was involved in a car crash and went to Memorial Hospital of South Bend (the Hospital) where she was seen by emergency care physician David Halperin, M.D. (Dr. Halperin). Korakis reported pain from her left hand to her left shoulder and had x-rays of her left arm and hand. Dr. Halperin diagnosed her with an acute soft tissue injury. A week later Korakis returned to the Hospital and had additional x-rays, including x-rays of her left shoulder, elbow, and wrist. Korakis thereafter saw family physician Michael Messmer, D.O. (Dr. Messmer) who ordered additional x-rays of Korakis’s wrist and referred her to physical therapy. Later, Korakis obtained a second opinion from an orthopedic physician, who ordered an MRI of Korakis’s elbow. Korakis ultimately required corrective surgery for a fracture of her elbow, and she sued Dr. Halperin, Dr. Messmer, and the Hospital for failing to appropriately diagnose and treat her injuries.

To prevail in a medical malpractice case a patient must prove (1) the defendant owed the patient a duty, (2) the defendant failed to comply with the applicable standard of care, and (3) the defendant’s failure to comply with the applicable standard of care proximately caused injury to the patient. Under the Indiana Medical Malpractice Act, a medical malpractice claimant must present their case to a medical review panel comprised of three healthcare providers who issue an opinion as to whether a defendant failed to meet the applicable standard of care and whether the conduct complained of was a factor in the resultant damages. If a medical review panel finds a defendant complied with the applicable standard of care, a patient must then come forth with expert testimony to refute that opinion in order to survive summary judgment. Expert testimony necessary to refute a medical review panel opinion must establish (1) the applicable standard of care required by Indiana law, (2) how the defendant breached that standard of care, and (3) that the defendant’s negligence in breaching the standard of care proximately caused the injuries complained of.

Here, the Medical Review Panel formed to review Korakis’s case found the Defendants complied with the applicable standard of care, and the Defendants filed a motion for summary judgment based upon that opinion. In response, Korakis designated the affidavit of an orthopedic physician, James Kemmler, M.D. (Dr. Kemmler), who opined that Korakis suffered an occult fracture of her left elbow which was visible on the x-rays Korakis had at the Hospital; Dr. Halperin failed to diagnose the fracture; Dr. Messmer failed to order additional x-rays of Korakis’s elbow; Dr. Messmer should have done more testing; the delay in diagnosing and treating Korakis’s fracture worsened her condition and recovery; and Dr. Messmer’s treatment fell below the standard of care. The Defendants argued in turn that Dr. Kemmler’s affidavit was insufficient to create a genuine issue of material fact refuting the opinion of the Medical Review Panel. The trial court ultimately agreed with the Defendants and granted summary judgment in favor of the Defendants, and Korakis appealed.

On appeal, the Indiana Court of Appeals first disposed of Korakis’s claims against Dr. Halperin and the Hospital. The Court noted that while Dr. Kemmler’s affidavit stated that Dr. Halperin failed to diagnose Korakis’s fracture, Dr. Kemmler did not state Dr. Halperin breached the standard of care in failing to do so. As to the Hospital, the Court noted that Dr. Kemmler’s affidavit did not identify any particular negligence on behalf of the Hospital or state that it breached the standard of care. The Court therefore found Dr. Kemmler’s affidavit insufficient to create a genuine issue of material fact for Korakis to survive summary judgment as to Dr. Halperin and the Hospital.

As to Dr. Messmer, the Court ultimately found that, although Dr. Kemmler’s affidavit stated Dr. Messmer’s treatment fell below the standard of care, Dr. Kemmler did not state he was familiar with the applicable standard of care and what the applicable standard of care was, therefore making his testimony insufficient to create a genuine issue of material fact. Korakis argued on appeal that even if Dr. Kemmler did not explicitly state the standard of care, his averments implicitly set forth the standard of care. However, while recognizing contrary prior opinions by other panels of the Court, the Court here rejected Korakis’ argument as inconsistent with Indiana Supreme Court precedent as to what is required to be set forth regarding the standard of care. The Court reasoned that Korakis’s position would require undue speculation as to the applicable standard of care. Therefore, the Court affirmed summary judgment in favor of the Defendants. In so doing, the Court noted further guidance from the Indiana Supreme Court would be helpful to practitioners.

You can read the full opinion here.