MEMORANDUM DECISION FILED Apr 17 2018, 7:49 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew P. Martin Karl L. Mulvaney Sachs & Hess, P.C. Nana Quay-Smith St. John, Indiana Bingham Greenebaum Doll, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Donald Bunger, April 17, 2018 Appellant-Plaintiff, Court of Appeals Case No. 45A05-1709-CT-2165 v. Appeal from the Lake Superior Court Jason A. Brooks, M.D., The Honorable Appellee-Defendant. John M. Sedia, Judge Trial Court Cause No. 45D01-1201-CT-15
Kirsch, Judge.
[1] Donald Bunger (“Bunger”) appeals the trial court’s grant of judgment on the
evidence in favor of Jason A. Brooks, M.D. (“Dr. Brooks”) in Bunger’s
malpractice action against Dr. Brooks. Bunger raises the following restated
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 1 of 24 issue for our review: whether the trial court erred in granting Dr. Brooks’s
motion for judgment on the evidence because Bunger asserts that he presented
sufficient evidence to make a prima facie showing of medical malpractice.
[2] We affirm.
Facts and Procedural History [3] At the time of his medical treatment with Dr. Brooks, Bunger was an eighty-
eight-year-old man who had cataracts and age-related dry macular degeneration
in both eyes. Both of these conditions are progressive and lead to a loss of
visual acuity and eventual blindness. Tr. Vol. 2 at 100, 165, 242; Tr. Vol. 3 at 6-
7. Vision loss caused by cataracts is often reversed by cataract surgery, but
there is no cure for age-related dry macular degeneration. Tr. Vol. 2 at 205, 241-
42.
[4] Macular degeneration presents in two forms: wet and dry. Wet macular
degeneration involves a sudden leakage of fluid into the retina which can be
halted by laser treatment. Dry macular degeneration typically presents as a
slow-moving progressive disintegration of the macula at the back of the eye. Id.
at 100-01, 223-25; Tr. Vol. 3 at 4. Once the disease encroaches on the center
part of the macula, which is called the fovea, significant loss of vision can occur
“automatically.” Tr. Vol. 2 at 223-25. Macular degeneration progresses at an
unpredictable rate, and a very small amount of progression so close to the
center of the macula can cause a sudden drop in vision.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 2 of 24 [5] At all times relevant to this case, Bunger suffered from age-related dry macular
degeneration, not wet macular degeneration.1 Dr. Serge de Bustros (“Dr. de
Bustros”), a retinal ophthalmologist, diagnosed Bunger with age-related
macular degeneration in 2000 and continued to monitor and treat Bunger’s
condition over the following decade whenever Bunger was in Indiana.2 Dr. de
Bustros also diagnosed Bunger with cataracts in both eyes.
[6] By 2009, Bunger’s vision had deteriorated substantially due to the progression
of both his macular degeneration and his cataracts. On June 17, 2009, Bunger
went to see Dr. de Bustros complaining that he was having difficulty reading
and that his vision was getting cloudy. After examining Bunger, Dr. de Bustros
diagnosed Bunger with a 3+ cataract and determined that the vision in his right
eye was 20/200 and the vision in his left eye was 20/60. At that same
appointment, Dr. de Bustros also had pictures taken of the macula in Bunger’s
left eye, which showed that the area of degenerative damage was close to the
center, or fovea, of Bunger’s left eye, which made that eye “very close to legal
blindness” due to the extent of the atrophy and damage. Tr. Vol. 2 at 220.
[7] Dr. de Bustros discussed with Bunger the option of surgery to remove the
cataract from his left eye as it was the only option available to try to improve
1 Bunger previously experienced one episode of wet macular degeneration. It was treated with a laser, and Bunger’s condition returned to the dry form of the disease. Tr. Vol. 2 at 213. 2 Bunger spent his winters in Florida, where his macular degeneration was monitored by another retinal ophthalmologist.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 3 of 24 Bunger’s vision. Id. at 205, 207. Dr. de Bustros believed that removing
Bunger’s cataract would improve his visual clarity, reduce the haze in his
vision, and improve the quality of the colors he saw. Id. at 205-06. Bunger’s
age and dry macular degeneration were not contraindications for cataract
surgery. Id. at 206, 241. Because Dr. de Bustros does not perform cataract
surgery, he referred Bunger to another ophthalmologist for consideration of the
surgery. Id. at 206-07. When making such referrals, it is Dr. de Bustros’s
custom and practice to advise the patient of the risks of the surgery, including
the risk of loss of vision. Id. at 207-08.
[8] Dr. de Bustros eventually referred Bunger to Dr. Brooks for consideration of
cataract surgery and lens implantation, and on July 8, 2009, Bunger was seen
for the first time by Dr. Brooks, a board-certified ophthalmologist. During
Bunger’s initial office visit, Dr. Brooks took his full medical history and
examined his eyes. He determined that Bunger’s left eye had a “3+ nuclear
sclerotic cataract,” which was cloudy and yellowish, and his visual acuity was
20/70. Id. at 7-8, 36. Dr. Brooks was aware that Bunger had no useful vision
in his right eye because he had a large area of macular degeneration in the
center of that eye. Id. at 11-12.
[9] Bunger told Dr. Brooks that he was having trouble reading in dimly-lit rooms,
was seeing “glare,” and he wanted to be able to drive a car. Id. at 10. Bunger
said he wanted cataract surgery on his left eye so that he could see better. Id. at
12. Because Bunger’s complaints about his vision were specific to the
progression of his cataracts, and he had expressed interest in having cataract
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 4 of 24 surgery, Dr. Brooks concluded that cataract surgery was appropriate for him.
Id. at 34. Dr. Brooks, like Dr. de Bustros, believed there was no contra-
indication for surgery. Id. at 39.
[10] Dr. Brooks testified that he gave Bunger his standard informed consent speech,
which included a description of what a cataract is, the surgery, the surgery’s
effectiveness rates, and its risks. Id. at 13. Dr. Brooks testified that he always
tells his patients there are risks with this surgery and that any complications can
lead to loss of vision or blindness. Id. at 14. Because Bunger had only one
good eye, Dr. Brooks verified that Bunger understood he would be operating on
his good eye and that the surgery created a risk of blindness or potential
functional vision loss in the good eye. Id. Dr. Brooks would not have
scheduled Bunger for surgery without Bunger’s understanding of these facts. Id.
at 15. Dr. Brooks’s operative report documented that, “[a]fter discussing all the
standard risks, benefits, and alternatives with the patient, he decided to
proceed.” Id. at 30. According to Dr. Brooks, these “standard risks” refer to
the inherent risks of cataract surgery, including the risk of blindness. Id. After
meeting with Bunger and having these discussions, Dr. Brooks scheduled
surgery for July 16, 2009.
[11] On the day of surgery, as Bunger was being prepped for surgery, a nurse gave
him a consent form, which he signed, in the presence of the nurse, who
witnessed his signature. The form stated, in pertinent part:
2. I acknowledge that no guarantee has been given by anyone as to the results that may be obtained. Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 5 of 24 ....
10. Your signature below constitutes your acknowledgement (1) that you have read and agree to the foregoing; (2) that the operation or procedure set forth above has been adequately explained to you, including the risks and benefits and available alternative methods of treatment, by the above-named physician or surgeon; (3) that you authorize and consent to the performance of the operation or procedure; (4) that you authorize and consent to the administration of anesthesia for the said operative procedure.
Ex. 6 at 32. Dr. Brooks testified that prior to surgery, he has his patients verify
their name, why they are there, the surgical site, and that they signed the
consent form; he also asks them if they have any questions and then signs the
consent form in the patient’s presence. Tr. Vol. 2 at 17.
[12] Bunger could not recall signing any forms before surgery or meeting with Dr.
Brooks before or after the surgery, but did not dispute the validity of his
signature on the consent form. Id. at 69. Bunger “did not recall Dr. Brooks
discussing with him any potential risks of surgery at their first meeting,” only
that the surgery would improve his vision. Id. at 62. Bunger recalled only that
Dr. Brooks spent about ten minutes with him at that initial meeting, where he
only explained the nature of the cataract surgery, not its risks or the potential
for blindness in his left eye. Id. at 64-65. When he left Dr. Brooks’s office,
Bunger did “not really” realize that blindness in his left eye was a possibility,
and that if he had any “inclination that anything would go wrong . . . [he]
wouldn’t have been in there.” Id. at 66.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 6 of 24 [13] On the morning of July 16, 2009, Bunger’s eyesight was cloudy, and although
he could still watch television “within reason,” he could not distinguish
between different cans of food. Id. at 68. During Bunger’s cataract surgery on
July 16, an unexpected but common complication occurred, a tear of the
posterior capsule, which is the rear surface of the eye’s “bag” or posterior
chamber where Dr. Brooks places the artificial lens. Id. at 20. The tear was
corrected by Dr. Brooks performing a vitrectomy, and this allowed Dr. Brooks
to complete the surgery and successfully move the lens back into position,
remove it, and insert the new artificial lens. A capsular tear in the posterior
chamber of the eye is not an uncommon complication of cataract surgery, and
its occurrence does not suggest there was a breach of the standard of care. Id. at
168-169. After the vitrectomy was performed, the surgery on Bunger’s left eye
was completed, and Bunger was sent home to rest with his eye bandaged.
[14] Dr. Brooks saw Bunger the day after surgery, and at that time, he removed the
bandage on Bunger’s left eye and replaced it with a shield to be worn for a
week. At that time Bunger could not see the eye chart, but he could see Dr.
Brooks waving his hand in front of his eye. Improvement in vision following
cataract surgery varies with the individual, and there can be more postsurgical
swelling of the cornea when the cataract surgery is complicated. Visual
improvement may take anywhere from a few weeks to a few months. Dr.
Brooks saw Bunger numerous times after his surgery to evaluate his vision and
to check on the healing of his eye. Bunger’s cornea healed successfully, but his
visual acuity did not improve. Bunger’s last appointment with Dr. Brooks was
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 7 of 24 on October 20, 2009, and at that time, the vision in his left eye was 20/200. Id.
at 23.
[15] There are only two potential causes of Bunger’s loss of vision: (1) the surgery,
directly or indirectly; or (2) the unrelated progression of his macular
degeneration. Id. at 44. No test exists that can confirm that Bunger’s loss of
vision was caused by the independent progression of his macular degeneration;
that conclusion can only be reached by eliminating all other potential causes.
Id. at 44-45. The practice of performing cataract surgery on patients with
macular degeneration has been extensively studied, and the consensus of the
medical community is that there is no relationship between the surgery and the
progression of a patient’s dry macular degeneration. Id. at 29, 210, 226.
Cataract surgery does not affect macular degeneration because the lens and the
macula are in separate parts of the eye. Id. at 28. Likewise, the capsular tear
that occurred during Bunger’s cataract surgery is “one of the more common
complications” of that surgery and it “in and of itself does not cause loss of
vision.” Id. at 25.
[16] The only other possibility was that the capsular tear caused a secondary
complication which then affected Bunger’s vision. A capsular tear “does
increase your risk for post-operative complications, things like macular edema .
. . retinal detachment . . . hemorrhage or infection,” which could have affected
Bunger’s vision. Id. Dr. Brooks looked for these things, which were all ruled
out because Bunger “did not have any of those things.” Id. Because those
potential complications were ruled out, Dr. Brooks concluded that Bunger’s
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 8 of 24 loss of vision must have resulted from the independent progression of his
macular degeneration. Id.
[17] On August 6, 2009, Bunger saw Dr. de Bustros’s partner, Dr. Kourous Rezaei
(“Dr. Rezaei”), for a follow-up retinal consultation, and Dr. Rezaei determined
that Bunger’s dry macular degeneration had progressed and that he had
temporary swelling in the cornea, which is in the front of the eye. Id. at 226;
Ex. 4 at 43. During this appointment, Dr. Rezaei performed an OCT test,
“which did not indicate any macular edema.” Ex. 4 at 43, 53. Dr. Rezaei
concluded that Bunger’s reduced vision was most likely due to corneal changes.
Id. at 43.
[18] Dr. de Bustros saw Bunger on September 2, 2009 to evaluate his vision. Dr. de
Bustros took Bunger’s medical history, conducted an eye exam, and performed
various tests, including a fluorescein angiogram and another OCT. Tr. Vol. 2 at
209-10; Ex. 4 at 51. Those tests revealed no thickening in Bunger’s macula, no
macular hemorrhage, and no leakage of fluid in his left eye. Ex. 4 at 51. Dr. de
Bustros recognized that Bunger’s corneal swelling was a temporary condition
that would improve over a few months and was unlikely to cause any long-term
damage or vision loss. Tr. Vol. 2 at 226-27. Dr. de Bustros concluded that the
“most logical cause” of Bunger’s loss of vision was the independent progression
of his macular degeneration and delayed corneal healing after cataract surgery.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 9 of 24 Id. at 210.3 This conclusion was consistent with the November 2009 report Dr.
de Bustros received from Bunger’s doctor in Florida, who examined Bunger
and found a new area of macular degeneration in the left eye. Id. at 222-23.
[19] On June 8, 2010, Bunger filed a proposed complaint for medical malpractice
against Dr. Brooks with the Indiana Department of Insurance. The proposed
complaint alleged that Dr. Brooks improperly performed Bunger’s cataract
surgery, failed to assess Bunger’s medical condition, failed to properly assess the
risks of cataract surgery, and failed to inform Bunger of the surgery’s material
risks. The medical review panel issued a unanimous opinion, which
determined that the evidence did not support the conclusion that Dr. Brooks’s
surgery and treatment of Bunger failed to meet the applicable standard of care
as alleged in the complaint. The panel also determined there was a material
issue of fact on liability regarding the issue of informed consent.
[20] Bunger subsequently filed his complaint in Lake Superior Court, and he again
asserted that Dr. Brooks failed to properly assess his medical condition or the
risks of cataract surgery and failed to inform him of the material risks of
surgery. However, he no longer claimed that Dr. Brooks’s surgery or treatment
fell below the standard of care. Bunger produced one expert witness, Dr. Harry
Knopf (“Dr. Knopf”), a retired ophthalmologist and professor of clinical
3 Slower corneal healing is expected in patients who undergo a vitrectomy. Tr. Vol. 2 at 118. Dr. de Bustros last saw Bunger on September 2, 2009, which was well within the one to two-month period that Bunger’s corneal healing was expected to take. Id. at 118, 219.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 10 of 24 ophthalmology at Washington University in St. Louis medical school, to testify
in support of his lack of informed consent claim. After deposing Dr. Knopf on
December 4, 2012, Dr. Brooks moved for summary judgment on the basis there
was no genuine issue of material fact regarding causation. In response to Dr.
Brooks’s motion for summary judgment, Bunger submitted an affidavit of Dr.
Knopf, which stated he believed that the cataract surgery to Bunger’s left eye
and subsequent complication was the proximate cause of his sudden and acute
blindness. Dr. Brooks moved to strike Dr. Knopf’s affidavit as being
contradictory to Dr. Knopf’s deposition testimony. The trial court agreed,
struck the affidavit, and granted summary judgment to Dr. Brooks, finding that
Dr. Knopf’s averments in his affidavit were inconsistent with his deposition
testimony.
[21] Bunger appealed the summary judgment order to this court in Bunger v. Brooks,
12 N.E.3d 275 (Ind. Ct. App. 2014) (“Bunger I”). This court reversed, holding
that the trial court had abused its discretion in striking Dr. Knopf’s affidavit
because it was not inconsistent with his deposition testimony. Bunger I, 12
N.E.2d at 281. This court also reversed the trial court’s grant of summary
judgment, concluding that Dr. Knopf’s deposition testimony and affidavit
constituted evidence sufficient to create a genuine issue of material fact and
remanded the case for trial. Id. at 284.
[22] After the case was remanded to the trial court, Dr. Knopf gave a new
videotaped evidentiary deposition on June 13, 2017 in preparation for trial.
During his second deposition, Dr. Knopf opined that macular swelling from
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 11 of 24 complications that occurred during Bunger’s cataract surgery caused his loss of
vision, either by inflaming the retina, or accelerating the progression of his
preexisting macular degeneration.
[23] A jury trial commenced on August 21, 2017. Dr. Knopf’s videotape deposition
of June 13, 2017 was the sole expert testimony Bunger presented in support of
his lack of informed consent claim. Dr. Knopf acknowledged that Dr. Brooks’s
surgery on Bunger was done correctly and that the complication of the posterior
capsular tear was handled “very well.” Tr. Vol. 2 at 116-17. Dr. Knopf testified
that he believed that Dr. Brooks’s informed consent and disclosure of the risks
to Bunger was inadequate because Bunger had monocular vision and Dr.
Brooks did not “really . . . make [Bunger] understand what the possible
ramifications of a complicated surgery would be” and should have warned him
about the implications of functional blindness since Bunger had no vision in his
right eye. Id. at 120-22, 155-56.
[24] When Dr. Knopf was asked about the cause of Bunger’s loss of vision, he
admitted that Bunger did not suffer any hemorrhage or infection in his left eye
as a result of the surgery and agreed that Bunger’s macular degeneration had
not been active (wet) for several years, and as long as it was not active, there
was no contraindication for cataract surgery. Id. at 125-26, 152-53. Dr. Knopf
also agreed that a patient who suffers from macular degeneration is not at any
greater risk of vision loss from a routine cataract surgery than one who does
not. Id. at 154.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 12 of 24 [25] On direct examination, Dr. Knopf testified that, in his opinion, Bunger’s vision
loss was caused because “the surgical complication of posterior capsular rupture
with vitreous loss produced enough inflammation that the retinal tissue was
compromised and that never recovered . . . .” Id. at 118. On cross-
examination, Dr. Knopf explained his opinions and the reasons for reaching
them:
Q. Okay. And now, today, I believe you testified that you believe that . . . the deterioration of the visual acuity post-cataract surgery was due to inflammation of the retina as a result of the vitreous loss and vitrectomy?
A. Correct. I’m saying -- we’re saying the same thing, though.
A. Are all those three things the same thing?
A. Yeah. If you -- you have two problems when you have vitrectomy. Postoperatively you get macular edema. And I believe if you look at the post-operative notes where the OCT was done on [Bunger], he actually did have some edema of the retina. And in fact, routine patients often get edema after they have vitrectomy, but then they recover and the edema goes away and the patient’s vision improves. But also the underlying retina, the neovascular membranes and the exudate that occurs under a retina when you have hemorrhagic macular degeneration or you have wet macular degeneration can be aggravated by inflammation. And when you do a vitrectomy, you get inflammation as well which then can aggravate the underlying retina.
Q. Okay. What studies would allow you to determine if there was aggravation of the macular degeneration?
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 13 of 24 A. . . . a fluorescein angiogram after surgery, or again, OCT would help if you could see that the retina was intact over the macular area. But the fluorescein would probably be the best way to tell.
Q. Fluorescein would be the best way to tell if there was progression of the macular degeneration?
A. Yeah, yes, because it would show where leakage is if there was more leakage.
Id. at 157-58.
[26] Dr. Knopf believed that macular edema from Bunger’s surgical complication
could have caused his vision loss by either aggravating Bunger’s wet macular
degeneration or causing inflammation that affected the retina. Id. Dr. Knopf
testified that it could be determined whether macular edema from the surgical
complication had aggravated Bunger’s macular degeneration by a fluorescein
angiogram, but Dr. Knopf could not confirm that possibility because he had not
reviewed any of Bunger’s fluorescein angiogram tests. Id. at 158. Dr. Knopf
also confirmed that an OCT test would show whether there was swelling in
Bunger’s retina post-surgery, and he believed that an OCT test in Dr. de
Bustros’s medical records had shown transient swelling of Bunger’s retina. Id.
at 160-61. However, after reviewing Dr. de Bustros’s records, Dr. Knopf
admitted that he did not find the documentation that he thought had existed
demonstrating swelling of Bunger’s retina. Id. at 161.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 14 of 24 [27] Dr. Knopf reviewed the OCT test that was performed by Dr. Rezaei, on August
6, 2009 and the OCT test administered by Dr. de Bustros on September 2, 2009.
He also examined the letter from Dr. Rezaei that summarized the results of the
August 6 OCT test which confirmed that there was no sign of macular edema.
Id. at 162-63. Dr. Knopf agreed that if there were swelling of the macula or the
retina as a result of the vitrectomy, you would expect swelling to be evident
within a month of the surgery on the OCT. Id. at 163. Dr. Knopf then agreed
that macular or retinal swelling was not present one month post-operation. Id.
at 163-64.
Q. You would expect -- if there were swelling of the macula or the retina as a result of the vitrectomy that needed to be performed because of the complication, you would expect that to be evident within a month on the OCT --
A. I would.
Q. -- Is that correct? And that was not present -- ?
A. Correct.
Q. -- One month post-op --
Id. Dr. Knopf was then asked:
Q. . . . But with regard to the two potential causes with the deterioration of the vision that you’ve discussed . . . there’s no
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 15 of 24 documented evidence of either. Is that fair to say? I know that you believe that the loss in vision --
A. Yes.
Q. -- is evidence of that fact, but there’s no objective testing that supports either one of those two potential causes?
A. Correct, there’s no acute hemorrhage that was seen, and . . . there is no sign at this point that there’s anything active going on.
Q. So there’s no sign of -- on testing of progression or that you could find on progression of his . . . macular degeneration, nor is there any testing that supports any retinal swelling?
Id. at 164-65. Dr. Knopf agreed that he did not know what Bunger’s vision
would have been in 2010 if he had not had cataract surgery because the
progression of either his macular degeneration or his cataracts could have
remained the same or could have accelerated. Id. at 166-67.
[28] At the end of Bunger’s case in chief, Dr. Brooks moved for judgment on the
evidence because Dr. Knopf’s opinion was without factual foundation and
therefore speculative. Id. at 176. Dr. Brooks argued that Dr. Knopf’s causation
opinion depended on his unsupportable assumption that Bunger’s loss of vision
was caused by retinal swelling from the cataract surgery, but Dr. Knopf had
already admitted that Bunger had not experienced any post-surgical retinal
swelling, as demonstrated by his medical records and post-surgical testing. Id.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 16 of 24 at 176; Appellee’s App. Vol. 2 at 81-85. The trial court denied the motion for
judgment on the evidence at that time, and Dr. Brooks proceeded to present his
case-in-chief.
[29] During his case-in-chief, Dr. Brooks presented the testimony of two experts, Dr.
Joseph Garber (“Dr. Garber”), an ophthalmologist who performs cataract
surgeries, and Dr. Jack Cohen (“Dr. Cohen”), a retinologist who specializes in
retinal and vitreous diseases of the eye. In his testimony, Dr. Garber confirmed
that cataract surgery does not increase the risk of progression in patients with
dry macular degeneration and opined that Bunger’s decrease in vision was
related to the progression of his macular degeneration which happened
independently of his cataract surgery. Tr. Vol. 2 at 239, 247. Dr. Cohen
testified that dry macular degeneration is not affected by cataract surgery
because the lens, which is what is affected by a cataract, and the macula are not
in the same area of the eye. Tr. Vol. 3 at 8. Dr. Cohen also gave his opinion
that Bunger’s surgical complication had no bearing on his vision loss and did
not cause any retinal detachment, glaucoma, or macular edema; he also opined
that Bunger’s dry macular degeneration did not change to wet macular
degeneration. Id. at 14, 15-16, 21. Dr. Cohen explained that the OCT test
performed after Bunger’s surgery looked at changes in his macula, and this
“objective” testing did not find any macular edema, and it was Dr. Cohen’s
opinion that “there is no direct evidence on any examination or objective
testing that there was a complication from cataract surgery that directly created
vision loss.” Id. at 20, 31.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 17 of 24 [30] At the conclusion of all of the evidence, Dr. Brooks renewed his motion for
judgment on the evidence. The trial court granted the motion, focusing on the
fact that Dr. Knopf’s causation opinion rested on the assumption that swelling
had occurred, but he had acknowledged that Bunger’s OCT test results revealed
no retinal swelling. Id. at 41-59. The trial court concluded there was nothing
for the jury to weigh, because Dr. Knopf had based his opinion on something
that he conceded did not happen. Id. at 59. After granting the motion for
judgment on the evidence, the trial court released the jury and entered judgment
in favor of Dr. Brooks. Bunger now appeals.
Discussion and Decision [31] The standard of review for a challenge to a ruling on a motion for judgment on
the evidence is the same as the standard governing the trial court in making its
decision. Weinberger v. Gill, 983 N.E.2d 1158, 1162 (Ind. Ct. App. 2013).
Judgment on the evidence is proper only where all or some of the issues are not
supported by sufficient evidence. Id. The court looks only to the evidence and
the reasonable inferences drawn most favorable to the nonmoving party, and
the motion should be granted only where there is no substantial evidence
supporting an essential issue in the case. Id.
[32] The determination of whether the evidence is sufficient to support a party’s
contentions requires both a quantitative and a qualitative analysis. Purcell v. Old
Nat’l Bank, 972 N.E.2d 835, 840 (Ind. 2012) (citing Am. Optical Co. v.
Weidenhamer, 457 N.E.2d 181, 184 (Ind. 1983)). “Evidence fails quantitatively
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 18 of 24 only if it is wholly absent; that is, only if there is no evidence to support the
conclusion.” Id. “If some evidence exists, a court must then proceed to the
qualitative analysis to determine whether the evidence is substantial enough to
support a reasonable inference in favor of the non-moving party.” Id. Evidence
fails qualitatively “‘when it cannot be said, with reason, that the intended
inference may logically be drawn therefrom; and this may occur either because
of an absence of a witness or because the intended inference may not be drawn
therefrom without undue speculation.’” Id. (quoting Am. Optical, 457 N.E.2d at
184). In other words, “‘[i]f there is evidence that would allow reasonable
people to differ as to the result, judgment on the evidence is improper.’” Best
Formed Plastics, LLC v. Shoun, 51 N.E.3d 345, 351 (Ind. Ct. App. 2016) (quoting
Smith v. Baxter, 796 N.E.2d 242, 243 (Ind. 2003)), trans. denied.
[33] Bunger argues that the trial court erred when it granted Dr. Brooks’s motion for
judgment on the evidence. Bunger contends that he presented sufficient expert
medical evidence, through the testimony of Dr. Knopf, to make a prima facie
showing of medical malpractice. Bunger asserts that Dr. Knopf’s testimony
was sufficient to establish that the proximate causation of Bunger’s sudden loss
of vision in his left eye was the complication from the cataract surgery
performed by Dr. Brooks, which resulted in retinal swelling and caused his
blindness. Bunger maintains that this was sufficient evidence of proximate
causation, and the trial court erred in granting the motion for judgment on the
evidence because there was sufficient evidence to allow the jury to decide the
issue.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 19 of 24 [34] 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.
Sorrells v. Reid-Renner, 49 N.E.3d 647, 651 (Ind. Ct. App. 2016) (citing 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 expert medical testimony establishing: (1) that
the doctor owed a duty to the plaintiff; (2) that the doctor breached that duty;
and (3) that the doctor’s breach proximately caused the plaintiff’s injuries. Siner
v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016); Sorrells, 49
N.E.3d at 647. Under Indiana law, the evidentiary standard required to
establish the fact of causation is by a preponderance of the evidence. Id.
“Generally, ‘[p]roximate cause involves two inquiries: (1) whether the injury
would not have occurred but for the defendant’s negligence; and (2) whether the
plaintiff’s injury was reasonably foreseeable as the natural and probable
consequence of the act or omission.’” Laycock v. Sliwkowski, 12 N.E.3d 986, 991
(Ind. Ct. App. 2014) (quoting Nasser v. St. Vincent Hosp. & Health Servs., 926
N.E.2d 43, 48 (Ind. Ct. App. 2010), trans. denied), trans. denied. A plaintiff’s
burden of proof may not be carried with evidence based upon mere supposition
or speculation. Roberson v. Hicks, 694 N.E.2d 1161, 1163 (Ind. Ct. App. 1998),
trans. denied. Speculation will not pass for an expert opinion under Indiana
Evidence Rule 702. Chaffins v. Kauffman, 995 N.E.2d 707, 712 (Ind. Ct. App.
2013) (citing Clark v. Sporre, 777 N.E.2d 1166, 1170 (Ind. Ct. App. 2002)), trans.
denied. Although proximate cause is generally a question of fact, it becomes a Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 20 of 24 question of law where only a single conclusion can be drawn from the
designated evidence. Carey v. Ind. Physical Therapy, Inc., 926 N.E.2d 1126, 1129
(Ind. Ct. App. 2010), trans. denied.
[35] In the present case, Bunger alleged that he was not properly informed by Dr.
Brooks about all of the potential risks of the cataract surgery, including
blindness to his left eye, prior to agreeing to have the surgery. He contended
that, had he been properly advised of all of the potential risks, he would not
have gone forward with the surgery, and therefore would not have lost his
vision in his left eye. To submit this claim to the jury, Bunger was obligated to
introduce testimony by a medical expert to establish that Dr. Brooks’s alleged
breach of the standard of care -- the failure to obtain Bunger’s informed consent
to surgery – proximately caused Bunger’s post-operative loss of vision.
[36] We conclude that Bunger failed to meet his burden of establishing proof of
causation. At trial, Bunger only presented the testimony of Dr. Knopf to
support his claim of medical malpractice against Dr. Brooks. Dr. Knopf’s
testimony on cross-examination showed that, although he claimed that the
cataract surgery performed by Dr. Brooks caused Bunger’s loss of vision, his
theory of causation was based on facts that were contradicted by the undisputed
medical test results. On cross-examination, Dr. Knopf admitted that, although
they were inherent risks of cataract surgery, Bunger did not suffer any
hemorrhage or eye infection as a result of the surgery and that Bunger’s
macular degeneration had not been active (wet) for several years so there was
no contraindication for cataract surgery. Tr. Vol. 2 at 125-26, 152-153. Dr.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 21 of 24 Knopf also acknowledged that patients with macular degeneration benefit from
cataract surgery and that they have no greater risk of vision loss from routine
cataract surgery. Id. at 154.
[37] Dr. Knopf’s causation theories relied on the presumption that Bunger’s loss of
vitreous and the need for the vitrectomy had caused macular edema which had
inflamed his retina or aggravated his macular degeneration. Id. at 156-57.
When asked what studies or tests would allow him to determine if there had
been an aggravation of the macular degeneration, Dr. Knopf replied that a
fluorescein angiogram was the best way because it would show leakage if any
was present. Id. at 158. Dr. Knopf initially admitted that he could not confirm
if the vitrectomy had aggravated Bunger’s macular degeneration because he had
not reviewed the tests, and after reviewing Bunger’s medical records, Dr. Knopf
acknowledged that the fluorescein angiogram showed no aggravation of
Bunger’s macular degeneration had occurred. Id. at 160-61.
[38] As to the theory that the surgery resulted in swelling of Bunger’s retina or
macular, Dr. Knopf testified that an OCT test would show whether any
swelling occurred. He initially stated his belief that test results in Bunger’s
medical records showed transient swelling of the retina, but after reviewing the
medical records, Dr. Knopf admitted that there was no evidence of swelling of
Bunger’s retina. Id. at 161. After reviewing the OCT test performed by Dr.
Rezaei on August 6, 2009, his letter summarizing the results, and the OCT
done by Dr. de Bustros on September 2, Dr. Knopf admitted that this objective
testing showed no sign of macular edema. Id. at 163. Furthermore, Dr. Knopf
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 22 of 24 agreed that if there had been swelling of the macular or the retina as a result of
the vitrectomy, that swelling would be evident in the OCT results within a
month of the surgery. Id. at 163-64. Based on this, Dr. Knopf then agreed that
Bunger had not experienced retinal or macular swelling, and he admitted that
there was no documented medical evidence supporting either of his two
causation theories. Id. at 163-65. Dr. Knopf ultimately agreed that he did not
know what Bunger’s vision would have been in 2010 had he not had cataract
surgery, because his macular degeneration or his cataracts could have
accelerated, resulting in vision loss. Id. at 166-67.
[39] Dr. Knopf’s opinion on the causation of Bunger’s loss of vision was
unsupported by, and contrary to, Bunger’s post-surgical test results. Dr. Knopf
admitted that there was no evidence Bunger experienced any aggravation of his
macular degeneration, and Bunger’s OCT tests showed he had no swelling or
inflammation of his retina. It was also shown that Dr. Knopf gave his
causation opinion on direct examination without any knowledge of Bunger’s
actual medical history, so Dr. Knopf did not have a basis upon which to render
his opinion. Chaffins, 995 N.E.2d at 712. Therefore, Dr. Knopf’s opinion was
based on facts that were not proven and shown not to exist, and consequently,
there was no substantial evidence supporting the essential issue of causation in
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-CT-2165 | April 17, 2018 Page 23 of 24 the present case. Weinberger, 983 N.E.2d at 1162. We conclude that the trial
court properly granted Dr. Brooks’s motion for judgment on the evidence.4
[40] Affirmed.
[41] Bailey, J., and Pyle, J., concur.
4 In arguing that the trial court erred, Bunger relies on O’Banion v. Ford Motor Co., 43 N.E.3d 635 (Ind. Ct. App. 2015), trans. denied, where this court found an engineer’s scientific opinion to be admissible because he had “examined the evidence in great detail” and did not “make bald assertions based on no evidence.” Id. at 644. Bunger’s reliance is misplaced because in the present case Dr. Knopf’s opinion on causation was shown to not be based on any proven facts and to be contrary to the undisputed medical evidence.
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