Akey v. Parkview Hosp. Inc.

• Decision Date: 21 June 2011
• Docket Number: No. 02A04–1007–CT–441.,02A04–1007–CT–441.
• Citation: 941 N.E.2d 540
• Parties: Frank J. AKEY, as Personal Representative of the Estate of Wayne Akey, Appellant–Plaintiff,v.PARKVIEW HOSPITAL, INC., Edwin L. McEowen, M.D., and Professional Emergency Physicians, Inc., Appellees–Defendants.
• Court: Indiana Appellate Court

941 N.E.2d 540

Frank J. AKEY, as Personal Representative of the Estate of Wayne Akey, Appellant–Plaintiff,

v.PARKVIEW HOSPITAL, INC., Edwin L. McEowen, M.D., and Professional Emergency Physicians, Inc., Appellees–Defendants.

No. 02A04–1007–CT–441.

Court of Appeals of Indiana.

Jan. 25, 2011.Transfer Denied June 21, 2011.

Dennis R. Brown, Dennis H. Geisleman, Fort Wayne, IN, Attorneys for Appellant.Edward L. Murphy, Jr., Heidi K. Koeneman, Milford M. Miller, Mark W. Baeverstad, Andrew L. Palmison, Fort Wayne, IN, Attorneys for Appellees.

OPINION

SULLIVAN, Senior Judge.

Plaintiff–Appellant Frank J. Akey (Akey), as Personal Representative of the Estate of Wayne Akey, appeals the trial court's summary judgment in favor of Defendants–Appellees Parkview Hospital, Inc. (Hospital), Edwin L. McEowen, M.D., and Professional Emergency Physicians, Inc. (Physicians). We reverse and remand.

On December 7, 2002, Wayne Akey, age 89, came to the Hospital's emergency room suffering from an apparent heart attack. McEowen, the physician on duty, conferred with cardiologist Michael Mirro, M.D. Mirro ordered one-half dose of TNKase, which is a thrombolytic medicine that breaks up blood clots, one-half dose of ReoPro, which is a platelet inhibitor, and Heparin. The hospital staff administered the one-half dose of TNKase and the Heparin, but instead of ReoPro, the staff erroneously administered a one-half dose of Retavase, which is another thrombolytic medicine. On December 9, 2002, Wayne Akey suffered an intercranial hemorrhage, and he died on January 9, 2003.

Akey filed a proposed complaint for damages with the Indiana Department of Insurance against the Hospital, McEowen, and Physicians. The case was submitted to a medical review panel. Two members of the panel concluded that McEowen and Physicians' conduct met the appropriate standard of care, but the Hospital's conduct did not meet the appropriate standard of care. Those two panelists were unable to determine whether the Hospital's conduct was or was not a factor in the resultant damages. The third panelist concluded that there was a material issue of fact, not requiring expert opinion, bearing on liability.

The case proceeded to court, and the Hospital filed a motion for summary judgment. The Hospital noted that Mirro had offered an expert opinion as to causation on Akey's behalf and contended that Mirro's opinion was inadmissible. Furthermore, the Hospital argued that without Mirro's expert opinion, there was no dispute of material fact as to whether the Hospital caused Wayne Akey's injuries and death. McEowen and Physicians joined in the Hospital's motion. Akey filed a response, and the trial court conducted a hearing. On June 21, 2010, the trial court granted summary judgment in favor of the Hospital, McEowen, and Physicians. In its final judgment, the trial court determined, in relevant part:

The Court finds that Dr. Mirro's foregoing opinions would be inadmissible and therefore may not be considered by the Court in determining if a genuine issue of material fact as to causation exists. [Hospital] designates the Opinion of the Medical Review Panel in which two of the panelists were of the opinion that the conduct of [Hospital] was not a factor of Wayne Akey's damages. Akey has failed to offer evidentiary material that counters the opinions of the two panelists and demonstrates the existence of a genuine issue of material fact on the issue of causation.

Appellant's App. p. 13. This appeal followed.

Akey raises three issues, which we consolidate and restate as:

I. Whether the trial court abused its discretion in excluding Mirro's expert witness evidence.

II. Whether the trial court erred by granting summary judgment to the Hospital, McEowen, and Physicians.

I. EXCLUSION OF MIRRO'S EXPERT OPINION

The admission or exclusion of expert opinions is governed by Indiana Evidence Rule 702, which provides:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

In this case, there is no dispute that Mirro is qualified as an expert pursuant to Indiana Evidence Rule 702(a). Instead, the parties dispute whether Mirro's expert opinion on causation is based on reliable scientific principles pursuant to Indiana Evidence Rule 702(b).

The trial court is considered the gatekeeper for expert opinion evidence. Doe v. Shults–Lewis Child and Family Servs., Inc., 718 N.E.2d 738, 750 (Ind.1999). In determining whether scientific evidence is reliable, the trial court must determine whether such evidence appears sufficiently valid or, in other words, trustworthy, to assist the trier of fact. Shafer & Freeman Lakes Envtl. Conservation Corp. v. Stichnoth, 877 N.E.2d 475, 484 (Ind.Ct.App.2007), trans. denied. We will reverse the court's determination only if it is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable and actual deductions to be drawn therefrom. Id.

Our Supreme Court has not established a specific test for the scientific admissibility of evidence pursuant to Indiana Evidence Rule 702(b). See id. One helpful standard is the five factors set out by the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94, 113 S.Ct. 2786, 2796–97, 125 L.Ed.2d 469 (1993). Stichnoth, 877 N.E.2d at 484. However, our Supreme Court has not mandated the application of Daubert and has chosen alternative approaches in the past. In Shults–Lewis, the plaintiffs, as adults, sued a children's home where they had been subjected to sexual abuse as children. 718 N.E.2d at 742. One of the issues on appeal was the admissibility of an expert witness's opinion testimony on repressed memories of childhood sexual abuse. Id. The victims, in opposition to the children's home's motion for summary judgment, tendered an affidavit by an expert witness. Id. at 749. The Supreme Court held:

an expert opinion affidavit submitted in a summary judgment proceeding, in addition to asserting admissible facts upon which the opinion is based, must also state the reasoning or methodologies upon which it is based. The reliability of the scientific principles need not be established, but the trial court must be provided with enough information to proceed with a reasonable amount of confidence that the principles used to form the opinion are reliable.

Id. at 750–751. The Court determined that the expert witness's affidavit discussed the expert's experiences with patients and his readings on the subject of repressed memories of childhood sexual abuse. Id. at 751. Based on these experiences, the expert developed a list of traits for repressed memories of childhood sexual abuse and found that the victims shared those traits. Id. The Court concluded that the expert's affidavit adequately expressed his underlying methodologies and reasons for his opinion and raised a genuine issue of material fact. Id.

In this case, Akey attached to his summary judgment filings an affidavit by Mirro. In addition, the Hospital, McEowen, and Physicians took Mirro's deposition, and the parties provided excerpts from his deposition to the trial court in their summary judgment filings. In his affidavit submitted in opposition to the motion for summary judgment, Mirro stated that his expert opinions were based on his “education, training, and experience and are expressed within a reasonable degree of medical certainty.” Appellant's App. p. 150. The evidence reveals that Mirro, in addition to being a board certified cardiologist who maintains a private practice, is also a clinical professor at the Indiana University School of Medicine. He is also certified as a specialist in geriatric internal medicine. Mirro has conducted clinical research projects on a number of medications and participated in a published paper on the hemorrhagic complications of thrombolytic therapy. In his deposition, Mirro clarified the basis for his expert opinion as follows:

Q. If there's no scientific studies to say that that half-dose of Retavase increased his risk of bleeding on what basis do you form the opinion in your Affidavit?

A. As I mentioned, elderly patients, particularly very elderly, like this, who were given thrombolytic agents, they—there's—at least there's the suggestion that they're not cleared correctly, so we have no idea. That being stated, you'd have to—the primary result of any thrombolytic agent is intracranial hemorrhage. All the studies that—that we do on thrombolytics, all of them have shown a significant risk of intracranial hemorrhage. In this particular circumstance, we're giving a patient who is very old a combination of drugs that's never been studied. And, so I'd have to conclude that that is the primary factor in his poor outcome.

Q. How can you reach that conclusion when he had the same statistical risk of bleeding had he been given ReoPro instead of the Retavase?

A. We don't know that. He received two different drugs that could potentially have interacted, and we have no idea about the pharmakenetics of those drugs together in acute MI management.

Q. Well, if you don't have any of that information how can you form an opinion that it caused his bleed?

A. Due to the fact that I've taken care of a lot of patients, it's my opinion that that caused the bleed. And, I've taken care of a lot of patients, and elderly patients who have received thrombolytic therapy. And—again, you know, we actually looked at—going back to my CV, the—the article published by the student, we reviewed the case series from Parkview's experience on that particular complication.

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