Surburg v. Stoops, 22A-CT-468

Case DateNovember 17, 2022
CourtCourt of Appeals of Indiana

Matthew J. Surburg, Appellant-Defendant,

Shannon G. Stoops, Appellee-Plaintiff

No. 22A-CT-468

Court of Appeals of Indiana

November 17, 2022

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Interlocutory Appeal from the Hancock Circuit Court The Honorable R. Scott Sirk, Judge Trial Court Cause No. 30C01-2011-CT-1735

ATTORNEYS FOR APPELLANT Jarrod A. Malone Nathan A. Pagryzinski Stoll Keenon Ogden PLLC


Crone, Judge.


Case Summary

[¶1] Shannon G. Stoops filed a complaint against Matthew J. Surburg, M.D., alleging that he provided negligent medical care to her deceased husband Tracy. Dr. Surburg filed a motion for summary judgment asserting that he did not cause the injuries alleged in Shannon's complaint. The trial court denied the motion. Dr. Surburg now appeals, arguing that the trial court erred. We disagree and therefore affirm.

Facts and Procedural History

[¶2] According to Shannon's amended complaint, Dr. Surburg was Tracy's primary care physician. On July 7, 2017, Tracy went to Dr. Surburg complaining of severe back pain. Dr. Surburg diagnosed a rhomboid muscle strain and prescribed opioids and muscle relaxers. On January 5, 2018, another physician diagnosed Tracy with stage IV lung cancer. Tracy died on May 6, 2018.

[¶3] In June 2019, Shannon filed a pro se proposed complaint for damages against Dr. Surburg with the Indiana Department of Insurance. The complaint alleged that "medical care or treatment rendered by" Dr. Surburg "was negligent and below the appropriate standard of care" and that "as a proximate result" of this negligence Tracy "incurred medical expenses, additional treatment, related expenses, lost wages and/or intangible damages of a nature as to require compensation." Appellant's App. Vol. 2 at 15. In October 2020, the medical review panel members unanimously opined that Dr. Surburg "failed to meet the applicable standard of care as charged in the Proposed Complaint" but that they


were "unable to conclude whether the conduct complained of was a factor of any resultant damages." Id. at 37.

[¶4] In November 2020, Shannon filed a pro se complaint against Dr. Surburg, which was later amended. The amended complaint includes the following allegations:

7. Mutually agreed upon by the medical review panel board members, Tracy Stoops, was not given proper medical evaluation within the appropriate amount of time by Matthew Surburg. The agreed upon time was no later than the end of August of 2017. By that given time, Matthew Surburg did not have enough understanding of what was wrong with Tracy Stoops. Since Tracy had no improvement from July 7, 2017 further testing should have been done such as radiological imaging, blood work, and/or sedimentation rate. A more aggressive paradigm is what a reasonable, prudent practitioner would do at the time of care
9.....August 21, 2017, Tracy developed a lump on the right side of his throat that Matthew Surburg'[s] nurse practitioner diagnosed as a salivatory [sic] gland stone. Tracy Stoops was given antibiotics and a CT scan was ordered. August 26, 2017, the CT scan report showed there was a mass of the parotid gland measuring 2.4 x 1.8 x 1.9 cm that was concerning for an abscess, parotid neoplasm (benign &malignant tumors), or supportive lymphadenopathy (infection considered less likely) and was said to benefit from an ultrasound for further evaluation and ultrasound-guided aspiration. The ultrasound and aspiration were never done. On [the] December 14, 2017 CT scan ordered by the oncologist, this was found to be a heterogenous right paratracheal mass measuring 3.0 x 3.1 cm. Proper evaluation and early treatment of this cancer could have stopped the spreading of Tracy's cancer.
16. December 6, 2017, Tracy Stoops had his first consultation with Dr. Fred Butler. Dr. Butler did a bone marrow biopsy and ran a series of blood test[s]. December 15, 2017, Dr. Butler consulted with Dr. Julia Compton about treating Tracy and decided to start radiation treatment at St. Vincent hospital. Tracy started radiation after he spent a week in St. Vincent hospital. January 5, 2018, Tracy, and Shannon Stoops are made aware of the exact cancer Tracy Stoops had, ALK Positive Non-small Cell Stage IV Lung Cancer. Dr. Butler treated Tracy with the first line therapy chemotherapy drug, Alectinib. Studies show that overall survival rate of patients is 6.8 years with early diagnosis. Dr. Julia Compton treated Tracy with palliative radiotherapy to shrink the cancer and slow its growth.
17. February 14, 2018, Dr. Fred Butler ordered a CT scan of Tracy's chest, abdomen, and pelvic area. One and a half months of radiation and chemotherapy treatments, there was overall significant improvement in metastatic disease. There were no new lesions. One lesion was completely gone. Others were shrunk by half the size. The medical review panel stated Matthew Surburg missed something in August and he should have done radiological testing. The testing would have shown Tracy Stoops' cancer, which could have been treated early, and the cancer could have been in remission by this time.
18. Tracy Stoops continued radiation and chemotherapy treatments until April 30, 2018. Dr. Julia Compton informed Tracy and Shannon Stoops that the cancer had spread to Tracy's brain . . ..
19. Tracy W. Stoops passed away on May 6, 2018 . . ..
20. By reason of the Defendant's, Matthew Surburg, negligence, failure to meet the applicable standard of care, lack of proper
medical evaluation and breach of duty, Tracy Stoops suffered severe

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