Indiana Court of Appeals Finds Medical Malpractice Claimant Failed to Satisfy Second Prong of McKeen v. Turner Regarding Evidence of Malpractice Theory Raised Post-Panel

The Indiana Court of Appeals recently affirmed the grant of summary judgment in favor of an ophthalmologist in a medical malpractice case based on the Court’s precedent in McKeen v. Turner. In Radil v. Long, Ardith Radil and Larry Radil sued Dr. Kuumba Long and his group. Dr. Long had performed cataract surgery on Ardith’s right eye. Three days after surgery Ardith saw Dr. Long and noted vision problems. Dr. Long prescribed eye drops and told her to call him if she had any changes, decreased vision, or concerns. Six days after surgery Ardith called Dr. Long and reported pain and decreased vision. Dr. Long asked her to come into his office and he saw her the same day. Dr. Long diagnosed Ardith with endophthalmitis, a medical emergency. He referred her to a retina specialist, who performed surgery later the same day. Ardith ultimately lost vision in her right eye, and she and her husband filed a medical malpractice lawsuit for damages.

The parties tendered their submissions to a medical review panel formed to review the case. In the Radils’ submission, the Radils did not present any evidence concerning, or even mention, alleged calls Ardith made to Dr. Long on day 4 and day 5 post-surgery. In his submission, Dr. Long argued that while Ardith had a change in her vision on day 4 and day 5, she had not alerted him.

The medical review panel found in favor of Dr. Long. Based upon the panel’s opinion, Dr. Long filed a motion for summary judgment. In response, the Radils designated an affidavit from Ardith in which she stated she had called Dr. Long on day 4 and day 5 reporting her deteriorating vision and Dr. Long had told her to continue using the eye drops. The Radils also designated an expert affidavit from Dr. Bernard Spier, who opined that Dr. Long was negligent when he failed to examine or refer Ardith to another provider when Ardith contacted him on day 4 and day 5.

Dr. Long withdrew his initial motion for summary judgment. He later filed a motion a limine seeking to exclude any evidence of breaches in the standard of care not raised in Radils’ submission. The trial court granted Dr. Long’s motion in limine. Dr. Long then subsequently filed another motion for summary judgment arguing that because the Radils had not included any evidence in their submission as to the calls Ardith made on day 4 and day 5, and because Dr. Spier’s opinion was based solely upon those calls, he was entitled to summary judgment. After a hearing, the trial court granted Dr. Long’s motion for summary judgment and the Radils appealed.

The Indiana Court of Appeals affirmed summary judgment in favor of Dr. Long based upon its precedent in McKeen v. Turner. Under the Court’s holding in McKeen, plaintiffs are permitted to raise any theory of malpractice post-panel so long as (1) the proposed complaint encompasses the theory and (2) evidence related to the theory was provided to the panel. On appeal, Dr. Long acknowledged the Radils satisfied the first prong of McKeen; however, Dr. Long argued that by failing to present any evidence as to the calls on day 4 and day 5 the Radils failed to satisfy the second prong of McKeen, and therefore, failed to raise a genuine issue of material fact rebutting the unanimous opinion of the panel. While the Radils argued that the records submitted to the panel established that Ardith and Dr. Long communicated on day 4 and day 5, the Court disagreed, noting the records did not even support an inference of such communications. Accordingly, the Court found the Radils did not satisfy the second prong of McKeen and therefore failed to create a genuine issue of material fact with Dr. Spier’s affidavit to survive summary judgment.

You can read the full memorandum decision here.

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