Medical Malpractice News: Health Care Providers Found Entitled to Summary Judgment

By:  Courtney M. McCormick

The Indiana Court of Appeals recently reversed a trial court ruling finding that health care providers who removed part of a patient’s lung after a biopsy sample was misread as likely cancerous were entitled to summary judgment in St. Mary’s Ohio Valley Heart Care, LLC, et al. v. Smith, 2018 WL 4868712.

In 2012, Derek F. Smith, a non-smoker who lived with two smokers and had worked in a coal mine for the last thirty years, sought out emergency medical treatment due to shortness of breath and wheezing.  Work-up included an abnormal chest x-ray and repeat chest CTs showing a noncalcified lesion in the left lower lung that was increasing in size.  Smith was subsequently referred to Elizabeth G. Butler, M.D., a cardiothoracic surgeon, for a biopsy and possible lobectomy.

While in the operating room, Dr. Butler performed a wedge resection of Smith’s left lower lobe and sent the specimen to pathology for analysis.  Pathologist, Hongyu Yang, M.D., ultimately interpreted the frozen slides as suspicious of cancer and communicated his findings to Dr. Butler via intercom.  Dr. Butler then proceeded with a lobectomy, which resulted in a twenty percent reduction of Smith’s lung capacity.  The next day, the permanent slides were determined to be benign.

In 2014, Smith sued Dr. Butler, Dr. Yang, their respective practice groups, and the hospital where the lobectomy was performed claiming medical malpractice.  Pursuant to Indiana’s Medical Malpractice Act, the matter was presented to a medical review panel.  The panel, which was comprised of two cardiothoracic surgeons and one pathologist, rendered a unanimous opinion in favor of the defendants, finding that the evidence did not support the conclusion that any of the defendants failed to meet the applicable standard of care.  After receiving the panel opinion, Smith moved forward in state court, amending his complaint seeking damages from the surgical defendants and the pathology defendants and disclosed an expert, Dr. Griggs, to rebut the panel’s finding as to Dr. Yang.

Dr. Yang and Dr. Butler filed separate motions for summary judgment, which were denied by the trial court.  A panel of the Indiana Court of Appeals reversed the trial court’s rulings on October 9, 2018, on interlocutory appeal.

On appeal, Dr. Butler argued that she was entitled to summary judgment because Smith failed to present expert testimony to rebut the medical review panel’s unanimous opinion in her favor.  Smith did not dispute that he presented no expert testimony regarding the standard of care applicable to Dr. Butler, but instead argued that the doctrine of res ipsa loquitur applied, making expert testimony unnecessary.

Res ipsa loquitur is Latin for “the thing speaks for itself.”  It is a legal doctrine which allows an inference or presumption of negligence to be made by the mere fact that an injury occurred.  A plaintiff seeking to rely on this doctrine can argue that expert opinion is not needed to establish standard of care because the doctor’s conduct can be understood by the jury without extensive technical input.

In analyzing Dr. Butler’s contention that the doctrine of res ipsa loquitur did not apply to Smith’s claims against her, Judge Robert Altice wrote:

Here, Dr. Butler’s surgical decision to perform the lobectomy was informed by her review of Smith’s medical and social history, as well as Dr. Yang’s intraoperative pathology consultation.  Further weighing in on Dr. Butler’s decision was the advantage of doing a single surgery rather than waiting for the permanent slides and possibly having to put Smith through the risks of a second thoracic surgery.  Dr. Butler testified that regardless of whether Dr. Yang specifically reported to her that the frozen slides revealed cancer or that they were suggestive of cancer, she would have proceeded with the lobectomy under the circumstances presented.

Judge Altice noted that Smith’s designated expert “conceded that the frozen slides could not have been called normal/benign” while Smith was undergoing surgery, “and that they had characteristics that were in fact suggestive of cancer.”  He further noted that the record indicated that it was not until Dr. Yang consulted with experts at the Mayo Clinic that it was determined the biopsy was benign.

The Court agreed with Dr. Butler that this was not the type of case in which the applicable standard of care is within the common knowledge of the jury.  In drawing this conclusion, the Court cited Narducci v. Tedrow, 736 N.E.2d 1288 (Ind. Ct. App. 2000), a previous Indiana Court of Appeals decision, which showed that injury and removal of spleen during colon surgery did not trigger the doctrine of res ipsa loquitur, because it was not “apparent that a fact-finder possesses the knowledge and expertise necessary to render an informed decision on the issue of negligence,” including “some understanding of the procedures involved in the colon surgery, the location in the body of the various organs at issue, and the nature of the spleen.”  Id. at 1293-94.  “An evaluation of Dr. Butler’s conduct and the medical reasons for proceeding with the lobectomy in light of Smith’s entire clinical picture clearly require expert testimony, which Smith has not provided,” Judge Altice stated.

Similarly, the Court found that Smith had failed to prove what the standard of care was for Dr. Yang or whether that standard was breached.  Rather, Altice wrote: “. . . Dr. Griggs testified in terms of what he would have done differently or what Dr. Yang should have done.”  The Court cited Oelling v. Rao, 593 N.E.2d 189 (Ind. 1992), a previous Indiana Supreme Court decision, which affirmed summary judgment when the plaintiff’s expert affidavit stated only how the expert would have treated the patient differently and did not specifically state that the defendant’s treatment fell below the applicable standard of care.  Id. at 190-91.  Even if Dr. Grigg’s expert testimony had created a question of fact as to whether Dr. Yang breached the standard of care, the Court further held that the designated evidence presented no question of fact regarding causation, as Smith had designated no contrary evidence that Dr. Butler would have changed her course had Dr. Yang provided an intraoperative diagnosis of inconclusive and deferred analysis of the permanent slides for the next day.

For the foregoing reasons, the Court of Appeals found that the trial court erred when it denied Dr. Butler and Dr. Yang’s motions for summary judgment and remanded the case to the trial court with instructions to enter summary judgment in favor of both Dr. Butler and Dr. Yang.