The Court of Appeals of Indiana (“Indiana Appellate Court”) held in its opinion filed on October 9, 2018 that the trial court erred in failing to grant summary judgment to the Medical Malpractice defendants in a case where a surgeon removed a lobe of the plaintiff’s lung after an intraoperative pathology report suggested that the frozen slides from the biopsy were suggestive of cancer but a final interpretation of the permanent slides after the surgery determined that there was no cancer.

The Indiana Medical Review Panel had unanimously found in favor of all of the Indiana Medical Malpractice Defendants, concluding that the evidence did not support the conclusion that any of the defendants failed to meet the applicable standard of care as charged in the complaint.

After the plaintiff filed his Indiana medical malpractice claim in court, the medical malpractice defendants filed motions for summary judgment. The trial court denied the defendants’ motions for summary judgment, and the defendants appealed.

In Indiana, generally the nonmovant is not required to come forward with contrary evidence until the party seeking summary judgment demonstrates the absence of a genuine issue of material fact. In medical malpractice cases, however, a unanimous opinion of the medical review panel that the physician did not breach the applicable standard of care is ordinarily sufficient to establish prima facie evidence negating the existence of a genuine issue of material fact entitling the physician to summary judgment. Consequently, in such situations, the burden shifts to the plaintiff, who may rebut with expert medical testimony in order to survive summary judgment. Failure to provide expert testimony will usually subject the plaintiff’s claim to summary disposition.

The plaintiff’s expert had conceded in the present case that a clear diagnosis of no cancer was not appropriate because the frozen slides were a “tough call” and demonstrated characteristics that were suggestive of cancer. The day after the plaintiff’s lobectomy, the defendant pathologist viewed the permanent slides and continued to find the slides difficult to interpret. Therefore, he sent the slides and tissue blocks to a world-renowned expert at the Mayo Clinic, who determined that the permanent slides were all benign but noted the difficulty of making a diagnosis based on the frozen slides (“I think this case illustrates one of the classic traps at frozen section. Scarring and metaplasia may be an extremely difficult diagnosis at the time of frozen section … I think the original wedge biopsy shows marked peribronchiolar metaplasia which is a well known mimic of what used to be called bronchioloalveolar carcinoma”). The surgeon testified in her deposition that she planned to perform the lobectomy unless “the diagnosis of the frozen section at the time was clearly not cancerous.”

The Indiana Appellate Court stated: “The whole of [the plaintiff’s expert’s] deposition testimony does not definitively and unequivocally demonstrate what the standard of care is and that [the defendant pathologist] breached it. Rather … [the plaintiff’s expert] testified in terms of what he would have done differently or what [the defendant pathologist] should have done. [The plaintiff’s expert] did not testify that it was malpractice not to have deferred the diagnosis, and he expressly indicated that [the defendant pathologist] could have properly stated, along with the deferral, that the frozen slides were suggestive of cancer.”

The Indiana Appellate Court stated that the plaintiff “has designated no contrary evidence that [the surgeon], the ultimate decisionmaker regarding the lobectomy, would have changed course had [the defendant pathologist] provided an intraoperative diagnosis of inconclusive and deferred for analysis of the permanent slides the next day.” Hence, the designated evidence presented no question of fact regarding causation, and the Indiana Appellate Court remanded the case to the trial court with an order to enter summary judgment in favor of the defendants.

Source St. Mary’s Ohio Valley Heart Care, LLC v. Smith, Opinion 82A05-1711-PL-2594.

If you or a family member may be the victim of cancer medical malpractice in Indiana or in another U.S. state, you should promptly consult with an Indiana medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you or your family member in a medical malpractice case, if appropriate.

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