                                                                              Jan 15 2016, 8:30 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Michael E. Simmons                                         Clay A. Edwards
      William D. Beyers                                          Andrew D. Pellino
      Hume Smith Geddes Green &                                  O’Bryan, Brown & Toner, PLLC
      Simmons, LLP                                               Louisville, Kentucky
      Indianapolis, Indiana

      Andrea Ciobanu
      Ciobanu Law, P.C.
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Debra R. Sorrells,                                         January 15, 2016
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 53A01-1506-CT-534
              v.                                                 Appeal from the Monroe Circuit
                                                                 Court
      Karen Reid-Renner, M.D.,                                   The Honorable Dena Benham
      Appellee-Defendant                                         Martin, Special Judge
                                                                 Trial Court Cause No.
                                                                 53C08-1202-CT-247



      Crone, Judge.


                                              Case Summary
[1]   Debra R. Sorrells filed a medical malpractice complaint against Karen Reid-

      Renner, M.D. (“Dr. Reid-Renner”), alleging that Dr. Reid-Renner failed to
      Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016                      Page 1 of 11
      communicate to her the results of a blood test which were indicative of her

      early-stage leukemia. Sorrells claimed that this resulted in a delay in diagnosis

      which, in turn, caused her injury and damages. Sorrells submitted her claim to

      a medical review panel as required by Indiana law. The panel opined that Dr.

      Reid-Renner indeed breached the applicable standard of care. However, the

      panel also opined that such breach was not a causative factor in any resultant

      injury or damages. Dr. Reid-Renner moved for summary judgment based upon

      the panel’s opinion as to lack of causation. Sorrells responded by coming forth

      with expert testimony to rebut the panel’s opinion. Following a hearing, the

      trial court entered summary judgment in favor of Dr. Reid-Renner. Concluding

      that Sorrells met her burden to establish that a genuine issue of material fact

      remains for trial, we reverse.


                                  Facts and Procedural History
[2]   The facts most favorable to Sorrells as the nonmoving party indicate that Dr.

      Reid-Renner is a family medicine physician practicing in Bloomington. On

      October 1, 2008, Sorrells was treated as a new patient by Dr. Reid-Renner.

      During that visit, Dr. Reid-Renner drew blood from Sorrells to send for testing.

      Results of the blood test showed that Sorrells had an elevated white blood cell

      count of 14.8. These results were never communicated to Sorrells, and Dr.

      Reid-Renner did not monitor Sorrells with any concerns for cancer. Sorrells

      saw Dr. Reid-Renner on one occasion during the following month.


[3]   More than a year later, on November 22, 2009, Sorrells went to see another

      physician. A blood test revealed that Sorrells’s white blood cell count was
      Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016   Page 2 of 11
      highly elevated to a level of 36. That physician referred Sorrells to oncologist

      Mark Dayton, Ph.D., M.D. (“Dr. Dayton”). Due to the urgency of her medical

      presentation, Dr. Dayton ordered a bone marrow biopsy the next day and

      diagnosed Sorrells with mantel cell lymphoma, a very serious form of cancer.

      Dr. Dayton told Sorrells and her family members that she had six to eight

      weeks to live. Believing that she had been suffering from an undiagnosed

      serious form of cancer for more than a year, and based upon the

      recommendation of Dr. Dayton, Sorrells immediately began R-CHOP

      chemotherapy along with Rituxan immunotherapy. Because she was starting

      R-CHOP, Sorrells had a port placed in her chest to receive the chemotherapy,

      and she proceeded with the aggressive treatment plan. Dr. Dayton eventually

      received pathology reports that revealed that Sorrells was suffering from

      lymphoproliferative disorder, a low-grade lymphoma and much less serious

      form of cancer.


[4]   Sorrells filed a proposed complaint against Dr. Reid-Renner with the Indiana

      Department of Insurance in September 2009. In May 2013, Sorrells filed a

      medical malpractice claim against Dr. Reid-Renner in Monroe Circuit Court.

      Specifically, Sorrells claimed that Dr. Reid-Renner’s failure to communicate to

      her the results of the initial blood test resulted in a thirteen-month delay in

      diagnosis which caused her to undergo additional treatments and procedures

      which would not have been necessary had her condition been properly

      diagnosed in 2008. Sorrells asserted that Dr. Reid-Renner’s negligence caused




      Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016   Page 3 of 11
      her permanent injuries and damages including but not limited to lost time for

      end-of-life planning and emotional distress.


[5]   Sorrells’s claim was submitted to a medical review panel. In June 2013, the

      panel unanimously found in favor of Sorrells as to liability but against Sorrells

      as to causation. Specifically, the panel’s opinion reads, “the evidence supports

      the conclusion that the Defendant, Karen Reid-Renner, M.D., failed to comply

      with the appropriate standard of care as charged in the complaint; however, the

      conduct complained of was not a factor of the resultant damages.” Appellant’s

      App. at 32.


[6]   Dr. Reid-Renner filed a motion for summary judgment in September 2014,

      designating, among other things, the medical review panel’s opinion and the

      medical records of Dr. Dayton. 1 Sorrells filed a motion for enlargement of time

      to respond to the summary judgment motion so that she could depose Dr.

      Dayton. The trial court granted the motion for enlargement of time, and Dr.

      Dayton was subsequently deposed. Thereafter, Sorrells responded to Dr. Reid-

      Renner’s summary judgment motion by designating excerpts from Dr. Dayton’s

      deposition testimony. Dr. Reid-Renner replied by also designating excerpts

      from Dr. Dayton’s deposition testimony.




      1
        The record indicates that Dr. Reid-Renner previously filed a motion for summary judgment on June 21,
      2013. That motion was denied by the trial court on August 1, 2013.

      Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016                    Page 4 of 11
[7]   In his deposition, Dr. Dayton stated that if Sorrells had been appropriately

      monitored and tested early on, before he ever saw her, he would have had “a

      much better idea of what her disease process was and [he] likely would not have

      started chemotherapy with the urgency that [he] did.” Id. at 183. Dr. Dayton

      testified that he “would probably have treated her with Rituxan alone and not

      included chemotherapy.” Id. at 184. Moreover, if Sorrells had been treated

      with Rituxan alone, “[s]he probably would not have had a port placed.” Id. at

      187. Further, if Sorrells had never started R-CHOP, she would not have

      needed two full years of Rituxan immunotherapy as maintenance following the

      chemotherapy. Id. at 125. Rather, she likely would have received a regimen of

      Rituxan alone once per week for four weeks with only the potential of needing

      Rituxan again at some point in the future. On cross-examination, Dr. Dayton

      conceded that any alleged delay in obtaining a correct diagnosis of Sorrells’s

      disease did not affect her prognosis or life expectancy. Appellee’s App. at 102.


[8]   The trial court held a hearing on the summary judgment motion on January 23,

      2015. On January 29, 2015, the trial court granted summary judgment in favor

      of Dr. Reid-Renner and dismissed Sorrells’s claim with prejudice. Sorrells filed

      a motion to correct error, which was denied on May 21, 2015. This appeal

      ensued.


                                      Discussion and Decision
[9]   Our supreme court often reiterates the appellate standard of review in summary

      judgment cases:


      Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016   Page 5 of 11
                We review a trial court’s order granting summary judgment de
                novo. And we apply the same standard as the trial court:
                summary judgment is appropriate only where the moving party
                demonstrates there is no genuine issue of material fact and he is
                entitled to judgment as a matter of law. If the moving party
                carries his burden, the non-moving party must then demonstrate
                the existence of a genuine issue of material fact in order to
                survive summary judgment. Just as the trial court does, we
                resolve all questions and view all evidence in the light most
                favorable to the non-moving party, so as to not improperly deny
                him his day in court.


       Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind. 2014)

       (citations omitted).


[10]   More specifically, our supreme court recently described the “high bar” set for

       summary judgment motions in Indiana:

                Even though Indiana Trial Rule 56 is nearly identical to Federal
                Rule of Civil Procedure 56, we have long recognized that
                Indiana’s summary judgment procedure ... diverges from federal
                summary judgment practice. In particular, while federal practice
                permits the moving party to merely show that the party carrying
                the burden of proof lacks evidence on a necessary element, we
                impose a more onerous burden: to affirmatively negate an
                opponent’s claim. Our choice to heighten the summary
                judgment burden has been criticized because it may let summary
                judgment be precluded by as little as a non-movant’s mere
                designation of a self-serving affidavit.[ 2]




       2
         We note that in Perry v. Anonymous Physician, 25 N.E.3d 103 (Ind. Ct. App. 2014), trans. denied, cert. denied
       (2015), this Court observed that, unlike other plaintiffs, a medical malpractice plaintiff may not defeat
       summary judgment with merely a self-serving affidavit, and that Hughley cannot be read to eliminate the

       Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016                           Page 6 of 11
                That observation is accurate, but using it as the basis for criticism
                overlooks the policy behind that heightened standard. Summary
                judgment is a desirable tool to allow the trial court to dispose of
                cases where only legal issues exist. But it is also a blunt ...
                instrument, by which the non-prevailing party is prevented from
                having his day in court. We have therefore cautioned that
                summary judgment is not a summary trial, and the Court of
                Appeals has often rightly observed that it is not appropriate
                merely because the non-movant appears unlikely to prevail at
                trial. In essence, Indiana consciously errs on the side of letting
                marginal cases proceed to trial on the merits, rather than risk
                short-circuiting meritorious claims.


       Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014) (citations, parenthetical,

       and quotation marks omitted).


[11]   We note that medical malpractice cases are rarely appropriate for disposal by

       summary judgment. Allen v. Hinchman, 20 N.E.3d 863, 869 (Ind. Ct. App.

       2014), trans. denied (2015). To establish a prima facie case of medical

       malpractice, a plaintiff must demonstrate: (1) a duty on the part of the

       defendant in relation to the plaintiff; (2) a failure to conform her conduct to the

       requisite standard of care required by the relationship; and (3) an injury to the

       plaintiff resulting from that failure. Thomson v. St. Joseph Reg'l Med. Ctr., 26

       N.E.3d 89, 93 (Ind. Ct. App. 2015). Indeed, the plaintiff must come forth with




       requirement in medical malpractice cases “that a plaintiff, to defeat summary judgment for a health care
       provider when the medical review panel has determined there was no breach of the duty of care or that any
       breach was not the cause of a plaintiff's injury, must provide expert opinion evidence.” Id. at 107. Although
       this is a welcomed clarification regarding medical malpractice cases, it does not alter our heightened
       summary judgment standard and the policy underlying that standard as eloquently explained by the Hughley
       court.


       Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016                        Page 7 of 11
       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. Allen, 20 N.E.3d at 870.


[12]   Before commencing a medical malpractice action, a plaintiff must present a

       proposed complaint to a medical review panel. Ind. Code § 34-18-8-4. “When

       the medical review panel opines that the plaintiff has failed to satisfy any one of

       the elements of his prima facie case, the plaintiff must then come forward with

       expert medical testimony to refute the panel’s opinion in order to survive

       summary judgment.” Allen, 20 N.E.3d at 870. Where, as here, a medical

       review panel opines as to lack of causation by the physician, the burden shifts to

       the patient-plaintiff to produce expert testimony to rebut that opinion. 3 Hassan

       v. Begley, 836 N.E.2d 303, 307 (Ind. Ct. App. 2005).


[13]   Under Indiana law, the evidentiary standard required to establish the fact of

       causation is by a preponderance of the evidence. Siner v. Kindred Hosp. Ltd.

       P’ship, 33 N.E.3d 377, 383 (Ind. Ct. App. 2015), trans. pending. “Expert

       opinions offered with reasonable medical certainty (in terms of their

       scientific/methodological reliability) which opine that a given injury was

       ‘probable’ or ‘more likely than not’ caused by defendant's actions, fulfill the

       plaintiff’s burden to meet the preponderance standard, and may support a




       3
           The only issue facing this Court is whether there is a genuine issue of material fact as to causation.


       Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016                              Page 8 of 11
       verdict standing alone.” Id. “Admissible medical expert testimony must only be

       more conclusive than ‘possibility’ when it stands alone as proof of proximate

       causation.” Id. (citation omitted). Further, to withstand a motion for

       summary judgment, medical expert testimony regarding proximate causation

       need only create a genuine issue of material fact for trial. Thomson, 26 N.E.3d

       at 96.


[14]   We conclude that Sorrells has met her burden to survive summary judgment on

       the issue of causation. Dr. Dayton testified that if Sorrells had been

       appropriately monitored and tested early on, he would have had “a much better

       idea of what her disease process was and [he] likely would not have started

       chemotherapy with the urgency that [he] did.” Appellant’s App. at 183. Dr.

       Dayton indicated that he “would probably have treated her with Rituxan alone

       and not included chemotherapy.” Id. at 184. Also, if Sorrells had been treated

       with Rituxan alone, “[s]he probably would not have had a port placed.” Id. at

       187. Further, if Sorrells had never started R-CHOP, she would not have

       needed two full years of Rituxan immunotherapy as maintenance following the

       chemotherapy. Id. at 125. Instead, she likely would have received a much

       shorter regimen of Rituxan alone with only the potential of needing Rituxan

       again at some point in the future.


[15]   This testimony is sufficient to rebut the medical review panel’s opinion as to

       causation, in that Dr. Dayton’s testimony creates a genuine issue of material

       fact regarding whether Dr. Reid-Renner’s negligence caused Sorrells’s alleged

       injuries and damages, including unnecessary medical treatments and

       Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016   Page 9 of 11
       procedures, as well the accompanying emotional distress caused by the delayed

       diagnosis. 4 While we acknowledge Dr. Reid-Renner’s assertion that there are

       additional excerpts of Dr. Dayton’s deposition that may call into question the

       causal connection between the thirteen-month delay in diagnosis and the

       alleged unnecessary medical treatments that followed, we remind Dr. Reid-

       Renner that we must resolve all questions in favor of Sorrells as the nonmoving

       party.


[16]   Moreover, we disagree with Dr. Reid-Renner’s implication that the only

       significant inquiry is whether the delay in diagnosis affected Sorrells’s ultimate

       prognosis or life expectancy. It is undisputed that it did not. However, merely

       because the delayed diagnosis did not exacerbate Sorrells’s disease, that is not

       to say that it was not the proximate cause of some injury or damages to her.

       After reviewing the evidence designated by both parties, we are left with far

       more questions than answers on the issue of causation. This is not a case where

       only legal issues exist; rather, there are unique facts and circumstances that a

       jury should be permitted to weigh and consider.




       4
         Although neither party directly addresses it, we observe that Sorrells's negligent infliction of emotional
       distress claim appears to be based upon a direct impact theory, in which she seeks to recover for emotional
       trauma sustained as the result of a direct impact, that is, unnecessary medical procedures performed due to
       the delayed diagnosis. See Spangler v. Bechtel, 958 N.E.2d 458, 466 (Ind. 2011) (explaining that the modified
       impact rule arises when the defendant owes a legal duty to the plaintiff or a third-party and the direct impact
       to the plaintiff is proximately caused by the defendant's breach of that duty); but see Keim v. Potter, 783
       N.E.2d 731, 735 (Ind. Ct. App. 2003) (plaintiff permitted to maintain claim for negligent infliction of
       emotional distress against doctor who misdiagnosed plaintiff with hepatitis C even though plaintiff did not
       suffer physical impact).

       Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016                         Page 10 of 11
[17]   In sum, we conclude that Dr. Dayton’s expert testimony, when viewed in the

       light most favorable to Sorrells, is sufficient to demonstrate a genuine issue of

       material fact as to whether Dr. Reid-Renner’s alleged negligence was the

       proximate cause of the injuries and damages complained of. Those injuries and

       damages include additional aggressive and expensive medical treatments and

       procedures that would have been unnecessary had Dr. Reid-Renner complied

       with the applicable standard of care, as well as the emotional distress suffered as

       a result of the chain of events that transpired. Based upon the record before us,

       we consciously choose to err on the side of letting this case proceed to trial on

       the merits, rather than risk short-circuiting a meritorious claim. See Hughley, 15

       N.E.3d at 1004. The trial court’s entry of summary judgment is reversed. 5


[18]   Reversed.


       Vaidik, C.J., and Bailey, J. concur.




       5
         Because we reverse the trial court’s entry of summary judgment, we need not address Sorrells’s additional
       claim that the trial court considered improper hearsay evidence designated by Dr. Reid-Renner.

       Court of Appeals of Indiana | Opinion 53A01-1506-CT-534| January 15, 2016                      Page 11 of 11
