Justices reverse summary judgment for doctor, clarify requirements of medical experts’ affidavits

A doctor must face a patient’s medical malpractice complaint after the Indiana Supreme Court overturned a summary judgment ruling. In its decision, the high court clarified that a medical expert is not required to expressly state the applicable standard of care in an affidavit.

In August 2017, Penny Korakis was taken to Memorial Hospital of South Bend for pain from her left hand to her left shoulder. She received emergency care and treatment from Dr. David A. Halperin, who diagnosed her with an acute soft tissue injury.

Korakis returned a week later, this time receiving treatment from a nurse practitioner who ordered additional X-rays of her left shoulder, elbow and wrist. The nurse practitioner referred Korakis to treatment with Dr. Michael R. Messmer.

Messmer ordered more X-rays of Korakis’ wrist but did not order a magnetic resonance imaging exam of her left elbow. He also referred her to physical therapy.

Korakis began physical therapy but returned to Messmer due to lasting and worsening pain in her left elbow. A nurse from Messmer’s office called Korakis and told her she could choose to return to physical therapy, wait two weeks to schedule an MRI or see Dr. John Kelbel.

Korakis chose to see Kelbel, who noted that the initial X-rays revealed an occult radial fracture in her left elbow. The injury had enough time to heal and had likely reached maximum medical improvement. He ordered an MRI of her left elbow along with her right ankle.

Korakis returned to Messmer to discuss the results from the MRIs. He explained that the results were fine, but after she informed him about the possible occult radial fracture, he reported in his notes that she may have suffered a facture.

In 2019, Korakis filed a proposed complaint with the Indiana Department of Insurance against Halperin, Messmer and the hospital, alleging the care and treatment she received from them was negligent and below the standard of care.

A medical review panel concluded that the evidence didn’t support a finding that the defendants failed to meet the applicable standard of care as charged in the complaint.

Korakis then filed a lawsuit in which she alleged the defendants failed to properly identify, diagnose and treat her injuries, which included broken bones that required corrective surgery. She also claimed negligence and negligent infliction of emotional distress that resulted in economic and noneconomic damages.

Halperin moved for summary judgment based on the MRP opinion along with Messmer and the hospital.

Korakis designated a medical expert affidavit from Dr. James E. Kemmler, who testified about the relevant medical record and the chronology of her treatment.

Halperin argued that the affidavit was insufficient because Kemmler did not state whether he was familiar with the applicable standard of care for an emergency medicine physician in the same or similar circumstances.

The St. Joseph Circuit Court granted both summary judgment motions in favor of the defendants.

Following an unsuccessful motion to correct error, Korakis appealed to the Court of Appeals of Indiana. The appellate court affirmed the trial court’s judgment in November 2022.

The high court granted transfer last May, then addressed the applicable standard of care in the Jan. 25 opinion.

The court cited Jordan v. Deery, 609 N.E.2d 1104 (Ind. 1993), which it embraced. It also retired the portion of Oelling v. Rao, 593 N.E.2d 189 (Ind. 1992), that required a medical expert to expressly state the applicable standard of care in his affidavit.

“Thus, an express statement of the standard was not required to defeat summary judgment. Rather, it could be inferred based on the content in the affidavit,” Justice Mark Massa wrote.

The high court then found that Kemmler’s affidavit created a genuine issue of material fact as to Messmer’s alleged breach of the applicable standard of care.

“In sum, Dr. Kemmler put forth a detailed qualified judgment about the care Dr. Messmer provided to Korakis,” Massa wrote.

The high court thus reversed summary judgment for Messmer. However, it affirmed summary judgment for Halperin and the hospital.

All justices concurred in Penny Korakis v. Memorial Hospital of South Bend, Michael R. Messmer, D.O., and David A. Halperin, M.D., 23S-CT-109.

This article was first published in The Indiana Lawyer.

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