      MEMORANDUM DECISION                                                                 FILED
                                                                                      Apr 17 2018, 7:49 am
      Pursuant to Ind. Appellate Rule 65(D),
                                                                                          CLERK
      this Memorandum Decision shall not be                                           Indiana Supreme Court
                                                                                         Court of Appeals
      regarded as precedent or cited before any                                            and Tax Court

      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Andrew P. Martin                                          Karl L. Mulvaney
      Sachs & Hess, P.C.                                        Nana Quay-Smith
      St. John, Indiana                                         Bingham Greenebaum Doll, LLP
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Donald Bunger,                                            April 17, 2018
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                45A05-1709-CT-2165
              v.                                                Appeal from the
                                                                Lake Superior Court
      Jason A. Brooks, M.D.,                                    The Honorable
      Appellee-Defendant.                                       John M. Sedia, Judge
                                                                Trial Court Cause No.
                                                                45D01-1201-CT-15



      Kirsch, Judge.


[1]   Donald Bunger (“Bunger”) appeals the trial court’s grant of judgment on the

      evidence in favor of Jason A. Brooks, M.D. (“Dr. Brooks”) in Bunger’s

      malpractice action against Dr. Brooks. Bunger raises the following restated

      Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018            Page 1 of 24
      issue for our review: whether the trial court erred in granting Dr. Brooks’s

      motion for judgment on the evidence because Bunger asserts that he presented

      sufficient evidence to make a prima facie showing of medical malpractice.


[2]   We affirm.


                                  Facts and Procedural History
[3]   At the time of his medical treatment with Dr. Brooks, Bunger was an eighty-

      eight-year-old man who had cataracts and age-related dry macular degeneration

      in both eyes. Both of these conditions are progressive and lead to a loss of

      visual acuity and eventual blindness. Tr. Vol. 2 at 100, 165, 242; Tr. Vol. 3 at 6-

      7. Vision loss caused by cataracts is often reversed by cataract surgery, but

      there is no cure for age-related dry macular degeneration. Tr. Vol. 2 at 205, 241-

      42.


[4]   Macular degeneration presents in two forms: wet and dry. Wet macular

      degeneration involves a sudden leakage of fluid into the retina which can be

      halted by laser treatment. Dry macular degeneration typically presents as a

      slow-moving progressive disintegration of the macula at the back of the eye. Id.

      at 100-01, 223-25; Tr. Vol. 3 at 4. Once the disease encroaches on the center

      part of the macula, which is called the fovea, significant loss of vision can occur

      “automatically.” Tr. Vol. 2 at 223-25. Macular degeneration progresses at an

      unpredictable rate, and a very small amount of progression so close to the

      center of the macula can cause a sudden drop in vision.



      Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 2 of 24
[5]   At all times relevant to this case, Bunger suffered from age-related dry macular

      degeneration, not wet macular degeneration.1 Dr. Serge de Bustros (“Dr. de

      Bustros”), a retinal ophthalmologist, diagnosed Bunger with age-related

      macular degeneration in 2000 and continued to monitor and treat Bunger’s

      condition over the following decade whenever Bunger was in Indiana.2 Dr. de

      Bustros also diagnosed Bunger with cataracts in both eyes.


[6]   By 2009, Bunger’s vision had deteriorated substantially due to the progression

      of both his macular degeneration and his cataracts. On June 17, 2009, Bunger

      went to see Dr. de Bustros complaining that he was having difficulty reading

      and that his vision was getting cloudy. After examining Bunger, Dr. de Bustros

      diagnosed Bunger with a 3+ cataract and determined that the vision in his right

      eye was 20/200 and the vision in his left eye was 20/60. At that same

      appointment, Dr. de Bustros also had pictures taken of the macula in Bunger’s

      left eye, which showed that the area of degenerative damage was close to the

      center, or fovea, of Bunger’s left eye, which made that eye “very close to legal

      blindness” due to the extent of the atrophy and damage. Tr. Vol. 2 at 220.


[7]   Dr. de Bustros discussed with Bunger the option of surgery to remove the

      cataract from his left eye as it was the only option available to try to improve




      1
       Bunger previously experienced one episode of wet macular degeneration. It was treated with a laser, and
      Bunger’s condition returned to the dry form of the disease. Tr. Vol. 2 at 213.
      2
       Bunger spent his winters in Florida, where his macular degeneration was monitored by another retinal
      ophthalmologist.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018         Page 3 of 24
      Bunger’s vision. Id. at 205, 207. Dr. de Bustros believed that removing

      Bunger’s cataract would improve his visual clarity, reduce the haze in his

      vision, and improve the quality of the colors he saw. Id. at 205-06. Bunger’s

      age and dry macular degeneration were not contraindications for cataract

      surgery. Id. at 206, 241. Because Dr. de Bustros does not perform cataract

      surgery, he referred Bunger to another ophthalmologist for consideration of the

      surgery. Id. at 206-07. When making such referrals, it is Dr. de Bustros’s

      custom and practice to advise the patient of the risks of the surgery, including

      the risk of loss of vision. Id. at 207-08.


[8]   Dr. de Bustros eventually referred Bunger to Dr. Brooks for consideration of

      cataract surgery and lens implantation, and on July 8, 2009, Bunger was seen

      for the first time by Dr. Brooks, a board-certified ophthalmologist. During

      Bunger’s initial office visit, Dr. Brooks took his full medical history and

      examined his eyes. He determined that Bunger’s left eye had a “3+ nuclear

      sclerotic cataract,” which was cloudy and yellowish, and his visual acuity was

      20/70. Id. at 7-8, 36. Dr. Brooks was aware that Bunger had no useful vision

      in his right eye because he had a large area of macular degeneration in the

      center of that eye. Id. at 11-12.


[9]   Bunger told Dr. Brooks that he was having trouble reading in dimly-lit rooms,

      was seeing “glare,” and he wanted to be able to drive a car. Id. at 10. Bunger

      said he wanted cataract surgery on his left eye so that he could see better. Id. at

      12. Because Bunger’s complaints about his vision were specific to the

      progression of his cataracts, and he had expressed interest in having cataract

      Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 4 of 24
       surgery, Dr. Brooks concluded that cataract surgery was appropriate for him.

       Id. at 34. Dr. Brooks, like Dr. de Bustros, believed there was no contra-

       indication for surgery. Id. at 39.


[10]   Dr. Brooks testified that he gave Bunger his standard informed consent speech,

       which included a description of what a cataract is, the surgery, the surgery’s

       effectiveness rates, and its risks. Id. at 13. Dr. Brooks testified that he always

       tells his patients there are risks with this surgery and that any complications can

       lead to loss of vision or blindness. Id. at 14. Because Bunger had only one

       good eye, Dr. Brooks verified that Bunger understood he would be operating on

       his good eye and that the surgery created a risk of blindness or potential

       functional vision loss in the good eye. Id. Dr. Brooks would not have

       scheduled Bunger for surgery without Bunger’s understanding of these facts. Id.

       at 15. Dr. Brooks’s operative report documented that, “[a]fter discussing all the

       standard risks, benefits, and alternatives with the patient, he decided to

       proceed.” Id. at 30. According to Dr. Brooks, these “standard risks” refer to

       the inherent risks of cataract surgery, including the risk of blindness. Id. After

       meeting with Bunger and having these discussions, Dr. Brooks scheduled

       surgery for July 16, 2009.


[11]   On the day of surgery, as Bunger was being prepped for surgery, a nurse gave

       him a consent form, which he signed, in the presence of the nurse, who

       witnessed his signature. The form stated, in pertinent part:


               2. I acknowledge that no guarantee has been given by anyone as
               to the results that may be obtained.
       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 5 of 24
               ....


               10. Your signature below constitutes your acknowledgement (1)
               that you have read and agree to the foregoing; (2) that the
               operation or procedure set forth above has been adequately
               explained to you, including the risks and benefits and available
               alternative methods of treatment, by the above-named physician
               or surgeon; (3) that you authorize and consent to the
               performance of the operation or procedure; (4) that you authorize
               and consent to the administration of anesthesia for the said
               operative procedure.


       Ex. 6 at 32. Dr. Brooks testified that prior to surgery, he has his patients verify

       their name, why they are there, the surgical site, and that they signed the

       consent form; he also asks them if they have any questions and then signs the

       consent form in the patient’s presence. Tr. Vol. 2 at 17.


[12]   Bunger could not recall signing any forms before surgery or meeting with Dr.

       Brooks before or after the surgery, but did not dispute the validity of his

       signature on the consent form. Id. at 69. Bunger “did not recall Dr. Brooks

       discussing with him any potential risks of surgery at their first meeting,” only

       that the surgery would improve his vision. Id. at 62. Bunger recalled only that

       Dr. Brooks spent about ten minutes with him at that initial meeting, where he

       only explained the nature of the cataract surgery, not its risks or the potential

       for blindness in his left eye. Id. at 64-65. When he left Dr. Brooks’s office,

       Bunger did “not really” realize that blindness in his left eye was a possibility,

       and that if he had any “inclination that anything would go wrong . . . [he]

       wouldn’t have been in there.” Id. at 66.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 6 of 24
[13]   On the morning of July 16, 2009, Bunger’s eyesight was cloudy, and although

       he could still watch television “within reason,” he could not distinguish

       between different cans of food. Id. at 68. During Bunger’s cataract surgery on

       July 16, an unexpected but common complication occurred, a tear of the

       posterior capsule, which is the rear surface of the eye’s “bag” or posterior

       chamber where Dr. Brooks places the artificial lens. Id. at 20. The tear was

       corrected by Dr. Brooks performing a vitrectomy, and this allowed Dr. Brooks

       to complete the surgery and successfully move the lens back into position,

       remove it, and insert the new artificial lens. A capsular tear in the posterior

       chamber of the eye is not an uncommon complication of cataract surgery, and

       its occurrence does not suggest there was a breach of the standard of care. Id. at

       168-169. After the vitrectomy was performed, the surgery on Bunger’s left eye

       was completed, and Bunger was sent home to rest with his eye bandaged.


[14]   Dr. Brooks saw Bunger the day after surgery, and at that time, he removed the

       bandage on Bunger’s left eye and replaced it with a shield to be worn for a

       week. At that time Bunger could not see the eye chart, but he could see Dr.

       Brooks waving his hand in front of his eye. Improvement in vision following

       cataract surgery varies with the individual, and there can be more postsurgical

       swelling of the cornea when the cataract surgery is complicated. Visual

       improvement may take anywhere from a few weeks to a few months. Dr.

       Brooks saw Bunger numerous times after his surgery to evaluate his vision and

       to check on the healing of his eye. Bunger’s cornea healed successfully, but his

       visual acuity did not improve. Bunger’s last appointment with Dr. Brooks was


       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 7 of 24
       on October 20, 2009, and at that time, the vision in his left eye was 20/200. Id.

       at 23.


[15]   There are only two potential causes of Bunger’s loss of vision: (1) the surgery,

       directly or indirectly; or (2) the unrelated progression of his macular

       degeneration. Id. at 44. No test exists that can confirm that Bunger’s loss of

       vision was caused by the independent progression of his macular degeneration;

       that conclusion can only be reached by eliminating all other potential causes.

       Id. at 44-45. The practice of performing cataract surgery on patients with

       macular degeneration has been extensively studied, and the consensus of the

       medical community is that there is no relationship between the surgery and the

       progression of a patient’s dry macular degeneration. Id. at 29, 210, 226.

       Cataract surgery does not affect macular degeneration because the lens and the

       macula are in separate parts of the eye. Id. at 28. Likewise, the capsular tear

       that occurred during Bunger’s cataract surgery is “one of the more common

       complications” of that surgery and it “in and of itself does not cause loss of

       vision.” Id. at 25.


[16]   The only other possibility was that the capsular tear caused a secondary

       complication which then affected Bunger’s vision. A capsular tear “does

       increase your risk for post-operative complications, things like macular edema .

       . . retinal detachment . . . hemorrhage or infection,” which could have affected

       Bunger’s vision. Id. Dr. Brooks looked for these things, which were all ruled

       out because Bunger “did not have any of those things.” Id. Because those

       potential complications were ruled out, Dr. Brooks concluded that Bunger’s

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 8 of 24
       loss of vision must have resulted from the independent progression of his

       macular degeneration. Id.


[17]   On August 6, 2009, Bunger saw Dr. de Bustros’s partner, Dr. Kourous Rezaei

       (“Dr. Rezaei”), for a follow-up retinal consultation, and Dr. Rezaei determined

       that Bunger’s dry macular degeneration had progressed and that he had

       temporary swelling in the cornea, which is in the front of the eye. Id. at 226;

       Ex. 4 at 43. During this appointment, Dr. Rezaei performed an OCT test,

       “which did not indicate any macular edema.” Ex. 4 at 43, 53. Dr. Rezaei

       concluded that Bunger’s reduced vision was most likely due to corneal changes.

       Id. at 43.


[18]   Dr. de Bustros saw Bunger on September 2, 2009 to evaluate his vision. Dr. de

       Bustros took Bunger’s medical history, conducted an eye exam, and performed

       various tests, including a fluorescein angiogram and another OCT. Tr. Vol. 2 at

       209-10; Ex. 4 at 51. Those tests revealed no thickening in Bunger’s macula, no

       macular hemorrhage, and no leakage of fluid in his left eye. Ex. 4 at 51. Dr. de

       Bustros recognized that Bunger’s corneal swelling was a temporary condition

       that would improve over a few months and was unlikely to cause any long-term

       damage or vision loss. Tr. Vol. 2 at 226-27. Dr. de Bustros concluded that the

       “most logical cause” of Bunger’s loss of vision was the independent progression

       of his macular degeneration and delayed corneal healing after cataract surgery.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 9 of 24
           Id. at 210.3 This conclusion was consistent with the November 2009 report Dr.

           de Bustros received from Bunger’s doctor in Florida, who examined Bunger

           and found a new area of macular degeneration in the left eye. Id. at 222-23.


[19]       On June 8, 2010, Bunger filed a proposed complaint for medical malpractice

           against Dr. Brooks with the Indiana Department of Insurance. The proposed

           complaint alleged that Dr. Brooks improperly performed Bunger’s cataract

           surgery, failed to assess Bunger’s medical condition, failed to properly assess the

           risks of cataract surgery, and failed to inform Bunger of the surgery’s material

           risks. The medical review panel issued a unanimous opinion, which

           determined that the evidence did not support the conclusion that Dr. Brooks’s

           surgery and treatment of Bunger failed to meet the applicable standard of care

           as alleged in the complaint. The panel also determined there was a material

           issue of fact on liability regarding the issue of informed consent.


[20]       Bunger subsequently filed his complaint in Lake Superior Court, and he again

           asserted that Dr. Brooks failed to properly assess his medical condition or the

           risks of cataract surgery and failed to inform him of the material risks of

           surgery. However, he no longer claimed that Dr. Brooks’s surgery or treatment

           fell below the standard of care. Bunger produced one expert witness, Dr. Harry

           Knopf (“Dr. Knopf”), a retired ophthalmologist and professor of clinical




       3
         Slower corneal healing is expected in patients who undergo a vitrectomy. Tr. Vol. 2 at 118. Dr. de Bustros last
       saw Bunger on September 2, 2009, which was well within the one to two-month period that Bunger’s corneal
       healing was expected to take. Id. at 118, 219.

           Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018            Page 10 of 24
       ophthalmology at Washington University in St. Louis medical school, to testify

       in support of his lack of informed consent claim. After deposing Dr. Knopf on

       December 4, 2012, Dr. Brooks moved for summary judgment on the basis there

       was no genuine issue of material fact regarding causation. In response to Dr.

       Brooks’s motion for summary judgment, Bunger submitted an affidavit of Dr.

       Knopf, which stated he believed that the cataract surgery to Bunger’s left eye

       and subsequent complication was the proximate cause of his sudden and acute

       blindness. Dr. Brooks moved to strike Dr. Knopf’s affidavit as being

       contradictory to Dr. Knopf’s deposition testimony. The trial court agreed,

       struck the affidavit, and granted summary judgment to Dr. Brooks, finding that

       Dr. Knopf’s averments in his affidavit were inconsistent with his deposition

       testimony.


[21]   Bunger appealed the summary judgment order to this court in Bunger v. Brooks,

       12 N.E.3d 275 (Ind. Ct. App. 2014) (“Bunger I”). This court reversed, holding

       that the trial court had abused its discretion in striking Dr. Knopf’s affidavit

       because it was not inconsistent with his deposition testimony. Bunger I, 12

       N.E.2d at 281. This court also reversed the trial court’s grant of summary

       judgment, concluding that Dr. Knopf’s deposition testimony and affidavit

       constituted evidence sufficient to create a genuine issue of material fact and

       remanded the case for trial. Id. at 284.


[22]   After the case was remanded to the trial court, Dr. Knopf gave a new

       videotaped evidentiary deposition on June 13, 2017 in preparation for trial.

       During his second deposition, Dr. Knopf opined that macular swelling from

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 11 of 24
       complications that occurred during Bunger’s cataract surgery caused his loss of

       vision, either by inflaming the retina, or accelerating the progression of his

       preexisting macular degeneration.


[23]   A jury trial commenced on August 21, 2017. Dr. Knopf’s videotape deposition

       of June 13, 2017 was the sole expert testimony Bunger presented in support of

       his lack of informed consent claim. Dr. Knopf acknowledged that Dr. Brooks’s

       surgery on Bunger was done correctly and that the complication of the posterior

       capsular tear was handled “very well.” Tr. Vol. 2 at 116-17. Dr. Knopf testified

       that he believed that Dr. Brooks’s informed consent and disclosure of the risks

       to Bunger was inadequate because Bunger had monocular vision and Dr.

       Brooks did not “really . . . make [Bunger] understand what the possible

       ramifications of a complicated surgery would be” and should have warned him

       about the implications of functional blindness since Bunger had no vision in his

       right eye. Id. at 120-22, 155-56.


[24]   When Dr. Knopf was asked about the cause of Bunger’s loss of vision, he

       admitted that Bunger did not suffer any hemorrhage or infection in his left eye

       as a result of the surgery and agreed that Bunger’s macular degeneration had

       not been active (wet) for several years, and as long as it was not active, there

       was no contraindication for cataract surgery. Id. at 125-26, 152-53. Dr. Knopf

       also agreed that a patient who suffers from macular degeneration is not at any

       greater risk of vision loss from a routine cataract surgery than one who does

       not. Id. at 154.



       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 12 of 24
[25]   On direct examination, Dr. Knopf testified that, in his opinion, Bunger’s vision

       loss was caused because “the surgical complication of posterior capsular rupture

       with vitreous loss produced enough inflammation that the retinal tissue was

       compromised and that never recovered . . . .” Id. at 118. On cross-

       examination, Dr. Knopf explained his opinions and the reasons for reaching

       them:


               Q. Okay. And now, today, I believe you testified that you
               believe that . . . the deterioration of the visual acuity post-cataract
               surgery was due to inflammation of the retina as a result of the
               vitreous loss and vitrectomy?


               A. Correct. I’m saying -- we’re saying the same thing, though.


               A. Are all those three things the same thing?


               A. Yeah. If you -- you have two problems when you have
               vitrectomy. Postoperatively you get macular edema. And I
               believe if you look at the post-operative notes where the OCT
               was done on [Bunger], he actually did have some edema of the
               retina. And in fact, routine patients often get edema after they
               have vitrectomy, but then they recover and the edema goes away
               and the patient’s vision improves. But also the underlying retina,
               the neovascular membranes and the exudate that occurs under a
               retina when you have hemorrhagic macular degeneration or you
               have wet macular degeneration can be aggravated by
               inflammation. And when you do a vitrectomy, you get
               inflammation as well which then can aggravate the underlying
               retina.


               Q. Okay. What studies would allow you to determine if there
               was aggravation of the macular degeneration?

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 13 of 24
               A. . . . a fluorescein angiogram after surgery, or again, OCT
               would help if you could see that the retina was intact over the
               macular area. But the fluorescein would probably be the best
               way to tell.


               Q. Fluorescein would be the best way to tell if there was
               progression of the macular degeneration?


               A. Yeah, yes, because it would show where leakage is if there
               was more leakage.


       Id. at 157-58.


[26]   Dr. Knopf believed that macular edema from Bunger’s surgical complication

       could have caused his vision loss by either aggravating Bunger’s wet macular

       degeneration or causing inflammation that affected the retina. Id. Dr. Knopf

       testified that it could be determined whether macular edema from the surgical

       complication had aggravated Bunger’s macular degeneration by a fluorescein

       angiogram, but Dr. Knopf could not confirm that possibility because he had not

       reviewed any of Bunger’s fluorescein angiogram tests. Id. at 158. Dr. Knopf

       also confirmed that an OCT test would show whether there was swelling in

       Bunger’s retina post-surgery, and he believed that an OCT test in Dr. de

       Bustros’s medical records had shown transient swelling of Bunger’s retina. Id.

       at 160-61. However, after reviewing Dr. de Bustros’s records, Dr. Knopf

       admitted that he did not find the documentation that he thought had existed

       demonstrating swelling of Bunger’s retina. Id. at 161.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 14 of 24
[27]   Dr. Knopf reviewed the OCT test that was performed by Dr. Rezaei, on August

       6, 2009 and the OCT test administered by Dr. de Bustros on September 2, 2009.

       He also examined the letter from Dr. Rezaei that summarized the results of the

       August 6 OCT test which confirmed that there was no sign of macular edema.

       Id. at 162-63. Dr. Knopf agreed that if there were swelling of the macula or the

       retina as a result of the vitrectomy, you would expect swelling to be evident

       within a month of the surgery on the OCT. Id. at 163. Dr. Knopf then agreed

       that macular or retinal swelling was not present one month post-operation. Id.

       at 163-64.


               Q. You would expect -- if there were swelling of the macula or
               the retina as a result of the vitrectomy that needed to be
               performed because of the complication, you would expect that to
               be evident within a month on the OCT --


               A. I would.


               Q. -- Is that correct? And that was not present -- ?


               A. Correct.


               Q. -- One month post-op --


               A. Correct.


       Id. Dr. Knopf was then asked:


               Q. . . . But with regard to the two potential causes with the
               deterioration of the vision that you’ve discussed . . . there’s no

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 15 of 24
               documented evidence of either. Is that fair to say? I know that
               you believe that the loss in vision --


               A. Yes.


               Q. -- is evidence of that fact, but there’s no objective testing that
               supports either one of those two potential causes?


               A. Correct, there’s no acute hemorrhage that was seen, and . . .
               there is no sign at this point that there’s anything active going on.


               Q. So there’s no sign of -- on testing of progression or that you
               could find on progression of his . . . macular degeneration, nor is
               there any testing that supports any retinal swelling?


               A. Correct.


       Id. at 164-65. Dr. Knopf agreed that he did not know what Bunger’s vision

       would have been in 2010 if he had not had cataract surgery because the

       progression of either his macular degeneration or his cataracts could have

       remained the same or could have accelerated. Id. at 166-67.


[28]   At the end of Bunger’s case in chief, Dr. Brooks moved for judgment on the

       evidence because Dr. Knopf’s opinion was without factual foundation and

       therefore speculative. Id. at 176. Dr. Brooks argued that Dr. Knopf’s causation

       opinion depended on his unsupportable assumption that Bunger’s loss of vision

       was caused by retinal swelling from the cataract surgery, but Dr. Knopf had

       already admitted that Bunger had not experienced any post-surgical retinal

       swelling, as demonstrated by his medical records and post-surgical testing. Id.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 16 of 24
       at 176; Appellee’s App. Vol. 2 at 81-85. The trial court denied the motion for

       judgment on the evidence at that time, and Dr. Brooks proceeded to present his

       case-in-chief.


[29]   During his case-in-chief, Dr. Brooks presented the testimony of two experts, Dr.

       Joseph Garber (“Dr. Garber”), an ophthalmologist who performs cataract

       surgeries, and Dr. Jack Cohen (“Dr. Cohen”), a retinologist who specializes in

       retinal and vitreous diseases of the eye. In his testimony, Dr. Garber confirmed

       that cataract surgery does not increase the risk of progression in patients with

       dry macular degeneration and opined that Bunger’s decrease in vision was

       related to the progression of his macular degeneration which happened

       independently of his cataract surgery. Tr. Vol. 2 at 239, 247. Dr. Cohen

       testified that dry macular degeneration is not affected by cataract surgery

       because the lens, which is what is affected by a cataract, and the macula are not

       in the same area of the eye. Tr. Vol. 3 at 8. Dr. Cohen also gave his opinion

       that Bunger’s surgical complication had no bearing on his vision loss and did

       not cause any retinal detachment, glaucoma, or macular edema; he also opined

       that Bunger’s dry macular degeneration did not change to wet macular

       degeneration. Id. at 14, 15-16, 21. Dr. Cohen explained that the OCT test

       performed after Bunger’s surgery looked at changes in his macula, and this

       “objective” testing did not find any macular edema, and it was Dr. Cohen’s

       opinion that “there is no direct evidence on any examination or objective

       testing that there was a complication from cataract surgery that directly created

       vision loss.” Id. at 20, 31.


       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 17 of 24
[30]   At the conclusion of all of the evidence, Dr. Brooks renewed his motion for

       judgment on the evidence. The trial court granted the motion, focusing on the

       fact that Dr. Knopf’s causation opinion rested on the assumption that swelling

       had occurred, but he had acknowledged that Bunger’s OCT test results revealed

       no retinal swelling. Id. at 41-59. The trial court concluded there was nothing

       for the jury to weigh, because Dr. Knopf had based his opinion on something

       that he conceded did not happen. Id. at 59. After granting the motion for

       judgment on the evidence, the trial court released the jury and entered judgment

       in favor of Dr. Brooks. Bunger now appeals.


                                      Discussion and Decision
[31]   The standard of review for a challenge to a ruling on a motion for judgment on

       the evidence is the same as the standard governing the trial court in making its

       decision. Weinberger v. Gill, 983 N.E.2d 1158, 1162 (Ind. Ct. App. 2013).

       Judgment on the evidence is proper only where all or some of the issues are not

       supported by sufficient evidence. Id. The court looks only to the evidence and

       the reasonable inferences drawn most favorable to the nonmoving party, and

       the motion should be granted only where there is no substantial evidence

       supporting an essential issue in the case. Id.


[32]   The determination of whether the evidence is sufficient to support a party’s

       contentions requires both a quantitative and a qualitative analysis. Purcell v. Old

       Nat’l Bank, 972 N.E.2d 835, 840 (Ind. 2012) (citing Am. Optical Co. v.

       Weidenhamer, 457 N.E.2d 181, 184 (Ind. 1983)). “Evidence fails quantitatively


       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 18 of 24
       only if it is wholly absent; that is, only if there is no evidence to support the

       conclusion.” Id. “If some evidence exists, a court must then proceed to the

       qualitative analysis to determine whether the evidence is substantial enough to

       support a reasonable inference in favor of the non-moving party.” Id. Evidence

       fails qualitatively “‘when it cannot be said, with reason, that the intended

       inference may logically be drawn therefrom; and this may occur either because

       of an absence of a witness or because the intended inference may not be drawn

       therefrom without undue speculation.’” Id. (quoting Am. Optical, 457 N.E.2d at

       184). In other words, “‘[i]f there is evidence that would allow reasonable

       people to differ as to the result, judgment on the evidence is improper.’” Best

       Formed Plastics, LLC v. Shoun, 51 N.E.3d 345, 351 (Ind. Ct. App. 2016) (quoting

       Smith v. Baxter, 796 N.E.2d 242, 243 (Ind. 2003)), trans. denied.


[33]   Bunger argues that the trial court erred when it granted Dr. Brooks’s motion for

       judgment on the evidence. Bunger contends that he presented sufficient expert

       medical evidence, through the testimony of Dr. Knopf, to make a prima facie

       showing of medical malpractice. Bunger asserts that Dr. Knopf’s testimony

       was sufficient to establish that the proximate causation of Bunger’s sudden loss

       of vision in his left eye was the complication from the cataract surgery

       performed by Dr. Brooks, which resulted in retinal swelling and caused his

       blindness. Bunger maintains that this was sufficient evidence of proximate

       causation, and the trial court erred in granting the motion for judgment on the

       evidence because there was sufficient evidence to allow the jury to decide the

       issue.


       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 19 of 24
[34]   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.

       Sorrells v. Reid-Renner, 49 N.E.3d 647, 651 (Ind. Ct. App. 2016) (citing 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 expert medical testimony establishing: (1) that

       the doctor owed a duty to the plaintiff; (2) that the doctor breached that duty;

       and (3) that the doctor’s breach proximately caused the plaintiff’s injuries. Siner

       v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016); Sorrells, 49

       N.E.3d at 647. Under Indiana law, the evidentiary standard required to

       establish the fact of causation is by a preponderance of the evidence. Id.

       “Generally, ‘[p]roximate cause involves two inquiries: (1) whether the injury

       would not have occurred but for the defendant’s negligence; and (2) whether the

       plaintiff’s injury was reasonably foreseeable as the natural and probable

       consequence of the act or omission.’” Laycock v. Sliwkowski, 12 N.E.3d 986, 991

       (Ind. Ct. App. 2014) (quoting Nasser v. St. Vincent Hosp. & Health Servs., 926

       N.E.2d 43, 48 (Ind. Ct. App. 2010), trans. denied), trans. denied. A plaintiff’s

       burden of proof may not be carried with evidence based upon mere supposition

       or speculation. Roberson v. Hicks, 694 N.E.2d 1161, 1163 (Ind. Ct. App. 1998),

       trans. denied. Speculation will not pass for an expert opinion under Indiana

       Evidence Rule 702. Chaffins v. Kauffman, 995 N.E.2d 707, 712 (Ind. Ct. App.

       2013) (citing Clark v. Sporre, 777 N.E.2d 1166, 1170 (Ind. Ct. App. 2002)), trans.

       denied. Although proximate cause is generally a question of fact, it becomes a
       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 20 of 24
       question of law where only a single conclusion can be drawn from the

       designated evidence. Carey v. Ind. Physical Therapy, Inc., 926 N.E.2d 1126, 1129

       (Ind. Ct. App. 2010), trans. denied.


[35]   In the present case, Bunger alleged that he was not properly informed by Dr.

       Brooks about all of the potential risks of the cataract surgery, including

       blindness to his left eye, prior to agreeing to have the surgery. He contended

       that, had he been properly advised of all of the potential risks, he would not

       have gone forward with the surgery, and therefore would not have lost his

       vision in his left eye. To submit this claim to the jury, Bunger was obligated to

       introduce testimony by a medical expert to establish that Dr. Brooks’s alleged

       breach of the standard of care -- the failure to obtain Bunger’s informed consent

       to surgery – proximately caused Bunger’s post-operative loss of vision.


[36]   We conclude that Bunger failed to meet his burden of establishing proof of

       causation. At trial, Bunger only presented the testimony of Dr. Knopf to

       support his claim of medical malpractice against Dr. Brooks. Dr. Knopf’s

       testimony on cross-examination showed that, although he claimed that the

       cataract surgery performed by Dr. Brooks caused Bunger’s loss of vision, his

       theory of causation was based on facts that were contradicted by the undisputed

       medical test results. On cross-examination, Dr. Knopf admitted that, although

       they were inherent risks of cataract surgery, Bunger did not suffer any

       hemorrhage or eye infection as a result of the surgery and that Bunger’s

       macular degeneration had not been active (wet) for several years so there was

       no contraindication for cataract surgery. Tr. Vol. 2 at 125-26, 152-153. Dr.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 21 of 24
       Knopf also acknowledged that patients with macular degeneration benefit from

       cataract surgery and that they have no greater risk of vision loss from routine

       cataract surgery. Id. at 154.


[37]   Dr. Knopf’s causation theories relied on the presumption that Bunger’s loss of

       vitreous and the need for the vitrectomy had caused macular edema which had

       inflamed his retina or aggravated his macular degeneration. Id. at 156-57.

       When asked what studies or tests would allow him to determine if there had

       been an aggravation of the macular degeneration, Dr. Knopf replied that a

       fluorescein angiogram was the best way because it would show leakage if any

       was present. Id. at 158. Dr. Knopf initially admitted that he could not confirm

       if the vitrectomy had aggravated Bunger’s macular degeneration because he had

       not reviewed the tests, and after reviewing Bunger’s medical records, Dr. Knopf

       acknowledged that the fluorescein angiogram showed no aggravation of

       Bunger’s macular degeneration had occurred. Id. at 160-61.


[38]   As to the theory that the surgery resulted in swelling of Bunger’s retina or

       macular, Dr. Knopf testified that an OCT test would show whether any

       swelling occurred. He initially stated his belief that test results in Bunger’s

       medical records showed transient swelling of the retina, but after reviewing the

       medical records, Dr. Knopf admitted that there was no evidence of swelling of

       Bunger’s retina. Id. at 161. After reviewing the OCT test performed by Dr.

       Rezaei on August 6, 2009, his letter summarizing the results, and the OCT

       done by Dr. de Bustros on September 2, Dr. Knopf admitted that this objective

       testing showed no sign of macular edema. Id. at 163. Furthermore, Dr. Knopf

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 22 of 24
       agreed that if there had been swelling of the macular or the retina as a result of

       the vitrectomy, that swelling would be evident in the OCT results within a

       month of the surgery. Id. at 163-64. Based on this, Dr. Knopf then agreed that

       Bunger had not experienced retinal or macular swelling, and he admitted that

       there was no documented medical evidence supporting either of his two

       causation theories. Id. at 163-65. Dr. Knopf ultimately agreed that he did not

       know what Bunger’s vision would have been in 2010 had he not had cataract

       surgery, because his macular degeneration or his cataracts could have

       accelerated, resulting in vision loss. Id. at 166-67.


[39]   Dr. Knopf’s opinion on the causation of Bunger’s loss of vision was

       unsupported by, and contrary to, Bunger’s post-surgical test results. Dr. Knopf

       admitted that there was no evidence Bunger experienced any aggravation of his

       macular degeneration, and Bunger’s OCT tests showed he had no swelling or

       inflammation of his retina. It was also shown that Dr. Knopf gave his

       causation opinion on direct examination without any knowledge of Bunger’s

       actual medical history, so Dr. Knopf did not have a basis upon which to render

       his opinion. Chaffins, 995 N.E.2d at 712. Therefore, Dr. Knopf’s opinion was

       based on facts that were not proven and shown not to exist, and consequently,

       there was no substantial evidence supporting the essential issue of causation in




       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018   Page 23 of 24
       the present case. Weinberger, 983 N.E.2d at 1162. We conclude that the trial

       court properly granted Dr. Brooks’s motion for judgment on the evidence.4


[40]   Affirmed.


[41]   Bailey, J., and Pyle, J., concur.




       4
         In arguing that the trial court erred, Bunger relies on O’Banion v. Ford Motor Co., 43 N.E.3d 635 (Ind. Ct.
       App. 2015), trans. denied, where this court found an engineer’s scientific opinion to be admissible because he
       had “examined the evidence in great detail” and did not “make bald assertions based on no evidence.” Id. at
       644. Bunger’s reliance is misplaced because in the present case Dr. Knopf’s opinion on causation was shown
       to not be based on any proven facts and to be contrary to the undisputed medical evidence.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018            Page 24 of 24
