Debra R. Sorrells v. Karen Reid-Renner, M.D. , 2016 Ind. App. LEXIS 6 ( 2016 )

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