Akey v. Parkview Hospital, Inc.

941 N.E.2d 540, 2011 Ind. App. LEXIS 89, 2011 WL 218495
CourtIndiana Court of Appeals
DecidedJanuary 25, 2011
Docket02A04-1007-CT-441
StatusPublished
Cited by6 cases

This text of 941 N.E.2d 540 (Akey v. Parkview Hospital, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akey v. Parkview Hospital, Inc., 941 N.E.2d 540, 2011 Ind. App. LEXIS 89, 2011 WL 218495 (Ind. Ct. App. 2011).

Opinion

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. MceEowen, 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. McFowen, 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, 2008.

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 MceFowen 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 Mir-ro'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. MceFowen 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.

*543 Appellant's App. p. 18. This appeal followed.

Akey raises issues, 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, MceFBowen, 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 dlspute 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), trams. denied. We will reverse the court's determination only if it is clearly against the logic and effect of the facts and cireumstances 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 dis *544 cussed the expert's experiences with patients and his readings on the subject of repressed memories of childhood sexual abuse. Id. at T51. 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 Mir-ro.

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