Expert’s Deficient Affidavit Doomed Malpractice Case: On August 3, 2017, Penny Korakis was in an automobile accident and was taken to the Hospital for emergency care. Among other things, Korakis reported pain extending from her left hand to her left shoulder. She received medical care
and treatment in the emergency room (ER) from Dr. Halperin. This treatment included x-rays of her left arm and hand. Dr. Halperin diagnosed Korakis with acute soft tissue injury.
Korakis returned to the Hospital on August 10, where she was treated by a nurse practitioner who ordered additional x-rays of, among other things, Korakis’s left shoulder, elbow, and wrist. Korakis was referred to and thereafter received treatment from Dr. Messmer on several occasions in August and September 2017. During his treatment, Dr. Messmer ordered additional x-rays of Korakis’s wrist and later referred her to physical therapy. Korakis began physical therapy but returned to Dr. Messmer in October 2017, due to continued and worsening pain in her elbow. Thereafter, Korakis sought a second opinion from Michael Kelbel, M.D., who ordered an MRI of her elbow. Korakis returned to Dr. Messmer for treatment on October 27 and November 9, 2017. According to Korakis, Dr. Messmer told her on November 9 that she may have had a fracture to her left elbow.
On June 6, 2019, Korakis filed a proposed complaint with the Indiana Department of Insurance (IDOI) against Dr. Halperin, Dr. Messmer, and the Hospital (collectively, Defendants), alleging that the care and treatment she received from them, including failures to diagnose and treat her, was negligent and fell below the standard of care. More specifically, Korakis alleged that Dr. Halperin “failed to identify and diagnose the true extent of [her] injuries, which
included broken bones.” She alleged that during her follow-up appointments with Dr. Messmer, he “failed to properly
examine [her] injuries and the x-rays taken thereof and failed to determine and disclose to [Korakis] the true extent of the injuries that she incurred on August 3, 2017, which included broken bones.”
A Medical Review Panel (“MRP”) was formed and, on or about March 11, 2021, the MRP issued its expert opinion that “the evidence does not support the conclusion that [Defendants] failed to meet the applicable standard of care as
charged in the complaint.”
On June 2, 2021, Korakis filed a complaint against Defendants in the trial court, which she amended on June 18, 2021. On July 15, 2021, Dr. Halperin filed a motion for summary judgment based on the favorable MRP opinion. Five days later, Dr. Messmer and the Hospital filed a motion for summary judgment, similarly based upon the MPR opinion. In September, Korakis filed a response to each of the motions for summary judgment. In support of each response, Korakis designated, among other things, the expert affidavit of James E. Kemmler, M.D. (“Dr. Kemmler”). The trial court subsequently issued an order on December 13, 2021, granting both motions for summary judgment. Korakis appealed.
Indiana Appellate Court Opinion
In Indiana, in opposing a Medical Review Panel (“MRP”) opinion favorable to the health care provider, “[t]he
plaintiff must present expert medical testimony establishing: (1) the applicable standard of care required by Indiana law; (2) how the defendant doctor breached that standard of care; and (3) that the defendant doctor’s negligence in
doing so was the proximate cause of the injuries complained of.” Failure to provide sufficient expert testimony will
usually subject the plaintiff’s claim to summary disposition.
In its opinion dated November 3, 2022, the Court of Appeals of Indiana stated that an unanimous opinion of the MRP that the defendant did not breach the applicable standard of care is sufficient to negate the existence of a genuine issue of material fact. Thus, when a MRP renders an opinion in favor of the defendant health care provider, the plaintiff must then come forward with expert medical testimony to rebut the panel’s opinion to survive summary judgment.
The Indiana Appellate Court stated that “while Dr. Kemmler averred that Dr. Halperin failed to identify the fracture and
misdiagnosed Korakis with a soft tissue injury, it did not state that Dr. Halperin’s failure to do so was a breach of the standard of care. Likewise, the affidavit does not identify any particular negligent acts or omissions on the part of the Hospital or opine that the Hospital breached the standard of care. Accordingly, Dr. Halperin’s [sic] affidavit did not create a genuine issue of material fact with regard to either Dr. Halperin or the Hospital, and each was entitled to summary judgment.” Furthermore, “Dr. Kemmler, who practiced orthopedic medicine, did not state that he is familiar with the standard of care for a D.O. in the same or similar circumstances as Dr. Messmer, and certainly, the standard of care for an orthopedist and a D.O. are not the same. For these reasons, Dr. Kemmler’s affidavit was insufficient to create a genuine issue of material fact with regard to Dr. Messmer … Because Dr. Kemmler provided no testimony about the requisite standard of care for a doctor in Dr. Messmer’s same or similar circumstances, the affidavit did not create a genuine issue of material fact precluding summary judgment for Dr. Messmer.”
Source Korakis v. Memorial Hospital of South Bend, Court of Appeals Case No. 22A-CT-867.
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