                                                                             FILED
                                                                       Oct 09 2018, 5:25 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Steven K. Hahn                                             Robert R. Faulkner
Allyson R. Breeden                                         Evansville, Indiana
Molly E. Briles
ZIEMER STAYMAN WEITZEL &                                   H. Wayne Turpin
SHOULDERS, LLP                                             Evansville, Indiana
Evansville, Indiana
                                                           Richard L. Schultheis
Karl L. Mulvaney                                           Indianapolis, Indiana
Margaret M. Christensen
BINGHAM GREENEBAUM
DOLL LLP
Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

St. Mary’s Ohio Valley Heart                               October 9, 2018
Care, LLC, et al.,                                         Court of Appeals Case No.
Appellants-Defendants,                                     82A05-1711-PL-2594
                                                           Appeal from the Vanderburgh
        v.                                                 Circuit Court
                                                           The Honorable David D. Kiely,
Derek F. Smith,                                            Judge
Appellee-Plaintiff                                         Trial Court Cause No.
                                                           82C01-1405-PL-317



Altice, Judge.

Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018                      Page 1 of 16
                                                 Case Summary


[1]   In 2012, Elizabeth G. Butler, M.D. (Dr. Butler) removed a portion of Derek F.

      Smith’s lower left lung during a surgery that began with a wedge resection and

      biopsy. Pathologist Hongyu Yang, M.D. (Dr. Yang) provided intraoperative

      analysis of frozen section pathology slides (frozen slides) of the specimen. Dr.

      Yang interpreted the frozen slides as cancerous or suggestive of cancer and

      communicated his findings to Dr. Butler, who then proceeded with a

      lobectomy. The permanent section slides (permanent slides), which could not

      be read until the following day, however, revealed that the biopsy specimen was

      benign.


[2]   Smith filed a medical malpractice action against Dr. Butler, St. Mary’s Ohio

      Valley Heart Care, LLC, St. Mary’s Medical Center, and Ohio Valley Heart

      Care, Inc. (collectively, the Surgical Defendants), as well as Dr. Yang and Tri-

      State Pathology Associates (collectively, the Pathology Defendants). The

      Medical Review Panel (the Panel) unanimously found in favor of the Surgical

      Defendants and the Pathology Defendants. To rebut the Panel’s findings,

      Smith submitted the affidavit of E. Allen Griggs, M.D., J.D. (Dr. Griggs), an




      Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 2 of 16
      expert in pathology, who opined that Dr. Yang violated the pathological

      standard of care in his diagnosis of the frozen slides in this case.


[3]   The Surgical Defendants and the Pathology Defendants both filed motions for

      summary judgment, which were denied by the trial court. They now bring an

      interlocutory appeal, pursuant to Indiana Appellate Rule 14(B), of the denials

      of summary judgment.


[4]   We reverse and remand.


                                        Facts & Procedural History


[5]   On February 14, 2012, Smith sought emergency medical treatment due to

      shortness of breath and wheezing. An x-ray of his chest was abnormal, and a

      subsequent CT scan revealed a 1.3 cm noncalcified lesion on his left lower lung.

      Smith’s treating physician at the time noted that the lung mass did not “look

      terribly suspicious in a nonsmoker” and that Smith was to follow up with a

      pulmonologist for further evaluation. Appellants’ Appendix Vol. 2 at 117.


[6]   Pulmonologist Victor Chavez, M.D. (Dr. Chavez) evaluated Smith on March 9,

      2012, and obtained a history from him, which included that Smith had “worked

      in a coal mine, strip mine for the last 30 years.” Id. at 137. Dr. Chavez opined

      that the lung mass had a benign appearance but ordered a repeat chest CT in

      May to assess the lesion’s stability. The chest CT, performed on May 21, 2012,

      revealed that the mass had increased in size from about 15 mm in length to 20




      Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 3 of 16
      mm in length. As a result, Dr. Chavez referred Smith to Dr. Butler, a

      cardiothoracic surgeon, for a biopsy and possible lobectomy.


[7]   On May 30, 2012, Smith had a preoperative appointment with Dr. Butler, who

      evaluated Smith, assessed his treatment history, and reviewed the CT scans and

      a more-recent PET scan. Dr. Butler noted that Smith, although a nonsmoker,

      lived with two smokers and that he had worked in the coal mines for the last

      thirty years. Dr. Butler obtained informed consent from Smith to perform a

      biopsy of the left pulmonary nodule and a possible lobectomy if cancer was

      present. The surgery was scheduled for the following day at St. Mary’s Medical

      Center in Evansville.


[8]   While in the operating room on May 31, 2012, Dr. Butler performed a wedge

      resection of the left lower lobe of Smith’s lung, and the specimen was sent to the

      pathology lab for intraoperative consultation and analysis of frozen slides. Dr.

      Yang had difficulty interpreting the slides and consulted with his partner.

      Ultimately, Dr. Yang determined that the frozen slides were highly suspicious

      of cancer.


[9]   Dr. Yang communicated his diagnosis via intercom into the surgery suite.

      According to Dr. Butler’s operative notes, the frozen slides “came back

      bronchoalveolar carcinoma.” Id. at 169. Dr. Yang, however, avers that he

      informed Dr. Butler at the time that the frozen slides were “very difficult to

      interpret and not straightforward” but that they were “suggestive of a well-

      differentiated adenocarcinoma with bronchioalveolar features.” Id. at 193. Dr.


      Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 4 of 16
       Butler does not recall Dr. Yang qualifying his diagnosis, but she testified during

       her deposition that pathologists often relay diagnoses in terms of “suspicious or

       suggestive” of cancer. Id. at 198. Regardless of whether Dr. Yang used the

       definitive or the suggestive language, Dr. Butler testified that she would have

       proceeded with the lobectomy as she did. Dr. Butler explained:


               In a patient who has spent 30 years in the coal mines, who
               presented with dyspnea, who was followed by a pulmonologist,
               who has a mass that has enlarged on CT scan, who lived with
               two smokers, I think that there is, given the entire clinical picture,
               a good chance that if a pathology frozen section demonstrates
               cancer, I would go ahead and do a lobectomy….[W]e are
               treating the entire clinical picture. That’s often why a pathologist
               may say suggestive but they are not privy to all the studies and
               patient history that the surgeon has reviewed.


       Id. at 199-200. Dr. Butler testified that she planned to perform the lobectomy

       unless “the diagnosis of the frozen section at the time was clearly not

       cancerous”. Appellants’ Appendix Vol. 3 at 16. The lobectomy resulted in a

       reduction of Smith’s lung capacity by approximately twenty percent.


[10]   The day after the lobectomy, Dr. Yang examined the permanent slides and

       continued to find the slides difficult to interpret. Accordingly, he sent the slides

       and tissue blocks to Thomas V. Colby, M.D. of the Mayo Clinic (Dr. Colby), a

       renowned expert in the field, for a second opinion. Dr. Colby determined that

       the permanent slides were all benign but noted the difficulty of making a

       diagnosis based on the frozen slides:




       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 5 of 16
               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. This is a reflection of some bronchiolar scarring….


       Appellants’ Appendix Vol. 2 at 184. After receiving Dr. Colby’s report, Dr. Yang

       completed his final surgical pathology report on June 8, 2012, with a final

       diagnosis indicating no evidence of malignancy identified. Dr. Yang

       communicated the discrepancies between the final diagnosis and the frozen

       section diagnosis with Dr. Butler that same day.


[11]   Smith initiated this medical malpractice action in May 2014 against Dr. Butler,

       Dr. Yang, their respective practice groups, and the hospital where the

       lobectomy was performed. Pursuant to the Indiana Medical Malpractice Act,

       Smith also submitted his proposed complaint for consideration by the Panel.

       The Panel members included two cardiothoracic surgeons and one pathologist.

       On March 11, 2015, after reviewing the written submissions of the parties, the

       Panel entered its unanimous expert opinion in favor of each of the 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.


[12]   On August 14, 2015, Smith filed his amended complaint seeking damages from

       the Surgical Defendants and the Pathology Defendants. Smith disclosed one

       expert witness, Dr. Griggs, to rebut the Panel’s findings regarding the Pathology

       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 6 of 16
       Defendants. Dr. Griggs provided an affidavit in January 2016 and was deposed

       in December 2016. In Dr. Griggs’s expert opinion, Dr. Yang should have

       deferred his diagnosis of the “unusual tumor” until he could review the

       permanent section slides. Id. at 91. Dr. Griggs, however, testified that he

       would not have faulted Dr. Yang for offering a leaning along with the deferred

       diagnosis (i.e. that the slides were suggestive of cancer). Dr. Griggs conceded

       that the frozen slides could not have been called normal/benign at the time and

       that they had characteristics that were in fact suggestive of cancer.


[13]   The Pathology Defendants and the Surgical Defendants filed separate motions

       for summary judgment on May 30, 2017, and June 29, 2017, respectively.

       Following a summary judgment hearing, the transcript of which has not been

       provided on appeal, the trial court denied both summary judgment motions in

       September 2017. Thereafter, the Pathology Defendants and the Surgical

       Defendants sought certification of the summary judgment orders for

       interlocutory appeal pursuant to App. R. 14(B)(1), which the trial court granted.

       On December 15, 2017, this court accepted jurisdiction pursuant to App. R.

       14(B)(2) and consolidated the two appeals under the current cause number.

       The trial court’s denial of the motions for summary judgment is now properly

       before us. Additional information will be provided below as needed.


                                            Discussion & Decision


[14]   Our standard of review of a summary judgment decision is well-settled.

       Summary judgment shall be granted where “the designated evidentiary matter


       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 7 of 16
       shows that there is no genuine issue as to any material fact and that the moving

       party is entitled to a judgment as a matter of law.” Trial Rule 56(C). “We

       construe all evidence in favor of and resolve all doubts as to the existence of a

       material issue in favor of the non-moving party.” Stafford v. Szymanowski, 31

       N.E.3d 959, 961 (Ind. 2015). 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. Id. “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.” Id. Consequently, in such situations, the burden shifts to the

       plaintiff, who may rebut with expert medical testimony in order to survive

       summary judgment. Id.; see also Bhatia v. Kollipara, 916 N.E.2d 242, 245 (Ind.

       Ct. App. 2009). “Failure to provide expert testimony will usually subject the

       plaintiff’s claim to summary disposition.” Bhatia, 916 N.E.2d at 246.


                                           The Surgical Defendants


[15]   The Surgical Defendants argue that they are entitled to summary judgment

       because Smith failed to present expert testimony rebutting the Panel’s

       unanimous opinion in favor of Dr. Butler. Smith does not dispute that he

       presented no expert testimony regarding the standard of care applicable to Dr.

       Butler or whether she breached that standard of care. He argues, instead, that

       the doctrine of res ipsa loquitur applies, making expert testimony unnecessary.

       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 8 of 16
[16]   Like other negligence actions, a medical malpractice plaintiff must prove that

       the defendant owed him a duty and that the defendant breached that duty,

       which proximately caused an injury to the plaintiff. Narducci v. Tedrow, 736

       N.E.2d 1288, 1292 (Ind. Ct. App. 2000). “Physicians are not held to a duty of

       perfect care.” Id. “Instead, the doctor must exercise the degree of skill and care

       ordinarily possessed and exercised by a reasonably skillful and careful

       practitioner under the same or similar circumstances.” Id. As noted above,

       expert testimony is generally required to establish the applicable standard of

       care and to show a breach of that standard. Id. “Because medicine is an

       inexact science, an inference of negligence will not arise simply because there is

       a bad result without proof of some negligent act.” Id.


[17]   Nevertheless, the doctrine of res ipsa loquitur is a limited exception to the general

       rule that the mere fact of injury will not create an inference of negligence. Syfu

       v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005). It recognizes that “the

       facts or circumstances accompanying an injury may be such as to raise a

       presumption, or at least permit an inference, of negligence on the part of the

       defendant.” Id. “Application of the doctrine does not in any way depend on

       the standard of care imposed by law but, rather, depends entirely upon the

       nature of the occurrence out of which the injury arose.” Id.


[18]   Determining whether the doctrine applies in any given negligence case is a

       mixed question of law and fact, with the question of law being whether the

       plaintiff’s evidence included all of the underlying elements of res ipsa loquitur.

       Id. at 703-04.

       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 9 of 16
               Under the doctrine of res ipsa loquitur, negligence may be inferred
               where 1) the injuring instrumentality is shown to be under the
               management or exclusive control of the defendant or his
               servants, and 2) the accident is such as in the ordinary course of
               things does not happen if those who have management of the
               injuring instrumentality use proper care.


       Id. at 704 (quoting Vogler v. Dominguez, 624 N.E.2d 56, 61 (Ind. Ct. App. 1993),

       trans. denied). A plaintiff may establish the second element – the one at issue

       here – by relying on common knowledge or expert testimony. Id. Expert

       testimony is required only when the issue of care is beyond the realm of the

       layperson. Id.


[19]   “In the medical malpractice context, application of this exception is limited to

       situations in which the defendant’s conduct is so obviously substandard that a

       jury need not possess medical expertise in order to recognize the defendant’s

       breach of the applicable standard of care.” Methodist Hosps., Inc. v. Johnson, 856

       N.E.2d 718, 721 (Ind. Ct. App. 2006); see also Syfu, 826 N.E.2d at 705 (“expert

       testimony is not required when the fact-finder can understand that the

       physician’s conduct fell below the applicable standard of care without technical

       input from an expert witness”). “Such actions have typically arisen from

       physicians leaving a foreign object in the patient’s body; juries can understand

       without independent explanation that the object should have been removed.”

       Syfu, 826 N.E.2d at 705.


[20]   Here, Dr. Butler’s surgical decision to perform the lobectomy was informed by

       her review of Smith’s medical and social history, as well as Dr. Yang’s

       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 10 of 16
       intraoperative pathology consultation. Further weighing in on Dr. Butler’s

       decision was the advantage of doing a single surgery rather than waiting for the

       permanent slides and possibly having to put Smith through the risks of a second

       thoracic surgery.1 Dr. Butler testified that regardless of whether Dr. Yang

       specifically reported to her that the frozen slides revealed cancer or that they

       were suggestive of cancer, she would have proceeded with the lobectomy under

       the circumstances presented.


[21]   We agree with the Surgical Defendants that this is not the type of case in which

       the applicable standard of care is within the realm of the common knowledge of

       a layperson. See Naducci, 736 N.E.2d at 1293-94 (injury and removal of spleen

       during colon surgery did not trigger the doctrine of res ipsa loquitur because it

       was not “apparent that a fact-finder possesses the knowledge and expertise

       necessary to render an informed decision on the issue of negligence”, including

       “some understanding of the procedures involved in the colon surgery, the

       location in the body of the various organs at issue, and the nature of the

       spleen”). An evaluation of Dr. Butler’s conduct and the medical reasons for

       proceeding with the lobectomy in light of Smith’s entire clinical picture clearly

       require expert testimony, which Smith has not provided. Accordingly, the trial

       court erred when it denied the Surgical Defendants’ motion for summary




       1
        The risks associated with the surgery included death, infection, bleeding, “prolonged air leak”, and
       “prolonged mechanical ventilation”. Appellants’ Appendix Vol. 2 at 146. Additionally, following surgery,
       Smith would continue to have a chest tube and be in the hospital “as long as the chest tube is in.” Id.

       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018                      Page 11 of 16
       judgment. On remand, the trial court is directed to enter summary judgment in

       favor of the Surgical Defendants.


                                           The Pathology Defendants


[22]   We now turn to the denial of the Pathology Defendants’ motion for summary

       judgment.2 The Pathology Defendants acknowledge that Smith designated

       expert testimony to rebut the Panel’s opinion that Dr. Yang did not breach the

       applicable standard of care. They argue, however, that Dr. Griggs’s testimony

       failed to create a genuine issue of material fact because he found “no fault with

       Dr. Yang’s intraoperative diagnosis and testified that Dr. Yang did not breach

       the applicable standard of care in interpreting the frozen slides.” Pathology

       Defendants Appellants’ Brief at 15. Alternatively, the Pathology Defendants argue

       that Dr. Butler’s testimony reveals that she would have performed the

       lobectomy had Dr. Yang given any intraoperative diagnosis other than a

       definitive diagnosis that the lesion was benign and, therefore, the designated

       evidence establishes a lack of causation.


[23]   During his deposition, Dr. Griggs acknowledged that pathologists regularly

       provide intraoperative diagnoses to surgeons based on frozen slides – even

       though frozen slides are inferior to permanent slides. “The usual standard of

       care is a frozen section and then it’s turned into a permanent section and




       2
         Smith argues that the doctrine of res ipsa loquitur also applies to the Pathology Defendants. For the reasons
       set out in the discussion of the Surgical Defendants, it does not apply here either.

       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018                        Page 12 of 16
       finalized that way.” Appellants’ Appendix Vol. 3 at 39. According to Dr. Griggs,

       in the vast majority of cases, a pathologist can make a clear diagnosis

       (cancerous or noncancerous) based on frozen slides, which are then confirmed

       with permanent slides. In cases where the frozen slides are inconclusive, Dr.

       Griggs testified that the pathologist should defer the diagnosis until review of

       the permanent slides. Dr. Griggs acknowledged that when communicating a

       deferral to a surgeon intraoperatively, the pathologist may, without deviating

       from the standard of care, indicate a leaning along with the deferral.


[24]   Dr. Griggs’s opinion was not contingent on whether Dr. Yang reported

       intraoperatively that the specimen was cancer or suggestive of cancer. Dr.

       Griggs explained:


               [M]y concern is that the intraoperative consultation as we see
               here, suggestive of – would have – they – the pathologist could
               have had that discussion with the surgeon. Yeah, I think it’s
               suggestive of, but I think it – the frozen section should have been
               deferred and there should have been a written frozen section
               diagnosis given to the surgeon. I think that’s the standard of care
               in – in hospitals, an accreditation requirement….[T]he diagnosis
               would have been positive for cancer or negative for cancer or
               deferred…. I think what he should have done was defer it here.


       Id. at 41.3 Dr. Griggs went on to clarify that the tumor in question was “an

       unusual tumor” and that “the frozen slides had components that certainly




       3
        When asked if he would withdraw his criticism if Dr. Yang gave a “less than definitive” cancer diagnosis,
       Dr. Griggs responded that he would not withdraw his criticism and explained: “I think that by not deferring

       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018                     Page 13 of 16
       closely mirrored or mimicked carcinoma”, making the slides difficult to

       interpret. Id. at 41, 45. Although Dr. Griggs would not have faulted Dr. Yang

       for indicating in a “sidebar conversation” with Dr. Butler that the slides were

       suggestive of cancer, Dr. Griggs remained critical of Dr. Yang’s failure to defer

       the diagnosis. Id. at 48. In Dr. Griggs’s opinion, if Dr. Yang had deferred,

       Smith “would not have lost the lobe of his lung.” Id. at 44.


[25]   The whole of Dr. Griggs’s deposition testimony does not definitively and

       unequivocally demonstrate what the standard of care is and that Dr. Yang

       breached it. Rather, as set out above, Dr. Griggs testified in terms of what he

       would have done differently or what Dr. Yang should have done. Dr. Griggs

       did not testify that it was malpractice not to have deferred the diagnosis, and he

       expressly indicated that Dr. Yang could have properly stated, along with the

       deferral, that the frozen slides were suggestive of cancer. See Oelling v. Rao, 593

       N.E.2d 189, 190-91 (Ind. 1992) (“affirming grant of summary judgment when

       plaintiff’s expert’s affidavit stated only how expert would have treated patient

       differently and did not specifically state that defendant’s treatment fell below

       the applicable standard of care).


[26]   But even if Dr. Griggs’s testimony establishes a counterpoint to the medical

       review panel’s opinion creating a question of fact as to whether Dr. Yang

       breached the applicable standard of care, the Pathology Defendants have




       it the confusion was allowed to occur. Or the message didn’t get across…. I think they should have deferred
       it then.” Id. at 48.

       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018                     Page 14 of 16
designated evidence that Smith’s alleged injury was not caused by Dr. Yang’s

performance.4 Indeed, the designated evidence establishes that Dr. Butler

intended to proceed with the lobectomy unless the intraoperative diagnosis was

“clearly not cancerous”. Appellants’ Appendix Vol. 3 at 16. Dr. Griggs conceded

that such a diagnosis was not appropriate in this case, as the frozen slides were

a “tough call” and demonstrated characteristics that were suggestive of cancer.

Id. at 46. Dr. Colby of the Mayo Clinic similarly noted the difficulty of making

a diagnosis based on the frozen slides in this case. Given that the slides were

difficult to interpret and were suggestive of cancer, along with Smith’s entire

clinical picture and patient history, Dr. Butler’s deposition testimony reveals

that she would have proceeded with the lobectomy regardless of whether Dr.

Yang deferred with a lean, indicated that the slides were suggestive of cancer, or

diagnosed the specimen as cancerous. Smith has designated no contrary

evidence that Dr. Butler, the ultimate decisionmaker regarding the lobectomy,

would have changed course had Dr. Yang provided an intraoperative diagnosis

of inconclusive and deferred for analysis of the permanent slides the next day.

See Carey v. Ind. Physical Therapy, Inc., 926 N.E.2d 1126, 1129 (Ind. Ct. App.

2010) (“Proximate cause requires, at a minimum, that the harm would not have

occurred but for the defendant’s conduct.”), trans. denied. Thus, the designated




4
 In a medical malpractice action, a plaintiff generally must establish three elements: (1) the physician owed a
duty to the plaintiff; (2) the physician breached that duty; and (3) the breach proximately caused the
plaintiff’s injuries. See Green v. Robertson, 56 N.E.3d 682, 692 (Ind. Ct. App. 2016), trans. denied.

Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018                       Page 15 of 16
       evidence presents no question of fact regarding causation. On remand, the trial

       court shall enter summary judgment in favor of the Pathology Defendants.


[27]   Judgment reversed and remanded.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 82A05-1711-PL-2594 | October 9, 2018   Page 16 of 16
