Indiana Supreme Court Sets Forth New Test for Expert Affidavits in Indiana Medical Malpractice Cases

We previously wrote a personal injury and medical malpractice blog about the decision of the Indiana Court of Appeals in Korakis v. Mem’l Hosp. of S. Bend in which the court affirmed summary judgment for three medical defendants based upon the insufficiency of the patient’s expert’s affidavit submitted to refute a negative medical review panel opinion. In the case, Penny Korakis (Korakis) suffered an occult radial fracture of her left elbow, which went undiagnosed and untreated and ultimately required corrective surgery. Korakis filed a lawsuit against an ER doctor, the hospital where she had two sets of x-rays a week apart, and a family practice physician, Dr. Michael R. Messmer, who had referred her to physical therapy without obtaining additional imaging of her elbow. The medical review panel in the Indiana Department of Insurance proceedings found for the medical defendants. After the lawsuit was filed in court, the defendants moved for summary judgment based on the panel opinion.

Generally, in Indiana, when a medical review panel finds against a patient, the patient must then present expert medical testimony to refute the panel’s opinion to survive summary judgment. Here, in response to the defendants’ motion for summary judgment, Korakis designated an affidavit from an orthopedic doctor, Dr. James E. Kemmler. In his affidavit, Dr. Kemmler opined that 1) Korakis suffered an occult fracture of her left elbow, which was evident in the two sets of x-rays she had at the hospital, 2) the ER doctor failed to identify the fracture during Korakis’ initial ER visit, 3) Dr. Messmer failed to order additional imaging “when appropriate,” 4) Dr. Messmer “should have done more testing” prior to sling placement and referring Korakis for therapy, 5) the delay in diagnosis and “appropriate treatment” likely worsened Korakis’ condition, and 6) Dr. Messmer’s treatment “fell below the standard of care.” In turn, the medical defendants argued, with the trial court agreeing, that Dr. Kemmler’s affidavit was insufficient to survive summary judgment.

The Indiana Court of Appeals affirmed the trial court’s judgment. The court noted Dr. Kemmler’s affidavit did not identify any negligence by the hospital or state it had breached the standard of care; while it stated the ER doctor failed to identify Korakis’ fracture, it did not state that such failure was a breach of the standard of care; and while it stated Dr. Messmer breached the standard of care, it did not explicitly state that Dr. Kemmler was familiar with the applicable standard of care or what the applicable standard of care was, therefore making the affidavit insufficient to survive summary judgment. On transfer to the Indiana Supreme Court, the Indiana Supreme Court summarily affirmed the Court of Appeals opinion as to the ER doctor and the hospital. However, the Court fashioned a new test for the sufficiency of an expert’s affidavit in medical malpractice cases, and as applied to Dr. Messmer’s care, found Dr. Kemmler’s affidavit sufficient to preclude summary judgment.

The Indiana Supreme Court identified the “core issue” in Korakis as whether experts must expressly state the applicable standard of care in their affidavits under Indiana’s summary-judgment standard. The Court reviewed two prior conflicting cases, each with their own line of subsequent cases, that provided different answers to that question. Ultimately, in Korakis, the Court rejected any requirement that a medical expert affidavit expressly state the applicable standard of care, so long as the standard of care can be inferred by the content in the affidavit. However, the Court retained the requirement that an affiant state that the subject care fell below the standard of care, as that statement functions as an “evidentiary fact” for summary judgment. Thus, under the Court’s new test, expert affidavits must (1) contain substantively sufficient information from which to infer the applicable standard of care and (2) state that the treatment fell below the standard of care.

In applying the Court’s new test, the Court found the content of Dr. Kemmler’s affidavit sufficient to preclude summary judgment for Dr. Messmer. Dr. Kemmler’s affidavit set forth his medical credentials, including his experience as an orthopedic doctor for around 25 years and his experience performing “standard of care reviews” in medical malpractice cases. His affidavit also set forth his medical judgment, based upon his review of the x-rays and medical records. Dr. Kemmler stated Korakis had a left elbow fracture visible on the x-rays, Dr. Messmer “failed to order additional x-rays… when appropriate,” Dr. Messmer “should have done more testing,” and the delay in identifying the fracture and providing “appropriate treatment” likely worsened Korakis’ condition. The Court found Dr. Kemmler’s affidavit to be a “detailed qualified judgment” about Dr. Messmer’s care. Dr. Kemmler’s affidavit also explicitly stated Dr. Messmer’s care fell below the standard of care. Concluding Dr. Kemmler’s affidavit passed its test and created a “conflict of evidence” to be resolved by a trier of fact, the Court reversed the trial court’s entry of summary judgment in favor of Dr. Messmer.

You can read the full opinion here.