APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable John M. Sedia, Judge. Cause No. 45D01-1201-CT-15.
ATTORNEY FOR APPELLANTS: WILLIAM H. TOBIN, South Holland, Illinois.
ATTORNEYS FOR APPELLEE: ALYSSA STAMATAKOS, BRIAN R. DEHEM, Eichhorn & Eichhorn, LLP, Hammond, Indiana.
RILEY, J., and MAY, J.,
STATEMENT OF THE CASE
Donald and Flora Bunger appeal the trial court's entry of summary judgment in favor of Jason A. Brooks, M.D., on the Bungers' complaint alleging medical malpractice that resulted in the rapid loss of vision in Donald's left eye. The Bungers raise the following issues for our review:
1. Whether the trial court abused its discretion when it struck their expert witness' affidavit.
2. Whether the trial court erred when it concluded that the Bungers had not established a genuine issue of material fact precluding summary judgment.
We reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
In 2009, Donald was eighty-eight years old and suffered from age-related macular degeneration (" AMD" ) and cataracts in both eyes. The AMD in his right eye was severe, to the point that he was functionally blind in that eye. His visual acuity in the left eye was 20/60-2 (corrected) in July 2009, and the AMD was less severe and had been fairly stable in that eye for approximately five years.
On July 16, 2009, Dr. Brooks performed cataract surgery on Donald's left eye. During that surgery, Donald sustained a capsular tear in that eye. A capsular tear is a known complication of any cataract surgery, and it can occur in the absence of negligence. Dr. Brooks performed a procedure called a vitrectomy to repair the capsular tear. After Donald recovered from the surgery, the vision in his left eye " degenerated dramatically," and his visual acuity in that eye diminished to 20/400, leaving him functionally blind in both eyes. Appellant's App. at 92.
On June 8, 2010, the Bungers filed a proposed complaint for damages with the Indiana Department of Insurance alleging that Dr. Brooks had " failed to assess Donald's optical/medical condition properly or to properly assess the risks involved in undergoing a cataract/IOL insertion procedure" ; " failed to perform a cataract/IOL insertion procedure properly" ; and " failed adequately to discharge his duty to inform Donald in advance of the material risks of the cataract/IOL insertion procedure, including the risk of total or functional permanent blindness."  Id. at 28. In addition to Donald's injuries, the Bungers asserted a loss of consortium claim on Flora's behalf. The Bungers' claims were submitted to a medical review panel (" the Panel" ), which issued a unanimous opinion and concluded as follows:
The evidence does not support the conclusion that the defendant Jason A. Brooks, M.D., failed to meet the applicable standard of care as charged in the complaint regarding the surgery or treatment. However, there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury, regarding the issue of informed consent.
Id. at 42.
On January 27, 2012, the Bungers filed their complaint with the trial court alleging Dr. Brooks' negligence in his treatment of Donald, including a claim based on lack of informed consent. On August 14, 2013, Dr. Brooks filed a motion for summary judgment alleging that the Bungers could not show that the alleged malpractice proximately caused Donald's blindness. The Bungers filed a memorandum in opposition to summary judgment and designated evidence, including portions of the deposition of their expert witness, Harry Knopf, M.D., and Dr. Knopf's affidavit. Dr. Knopf's deposition testimony included statements that he would not have performed the surgery given the risks involved and that the surgery likely caused the rapid degeneration of Donald's eyesight. And in his affidavit, Dr. Knopf stated that the surgery caused the " sudden and severe loss of visual acuity" in Donald's
left eye. Id. at 92. Dr. Brooks moved to strike Dr. Knopf's affidavit, and the trial court granted that motion. The trial court then granted summary judgment in favor of Dr. Brooks, without a hearing, and found and concluded as follows:
1. The plaintiff, Donald Bunger, alleges that the vision in his left eye degenerated as a result of cataract surgery performed by the defendant, Jason A. Brooks, M.D. Bunger further claims that Brooks should never have performed the surgery.
2. Brooks has filed a Motion for Summary Judgment which asserts that his expert, William I. Bond, M.D., F.A.C.S., opines that: " . . . Mr. Bunger's decreased visual acuity occurring after the surgery performed by Dr. Brooks was not in any way a result of the surgery or any care or lack of care rendered by Dr. Brooks . . . ," Bond Affidavit, page two, and that Bunger's own expert, Harry Knopf, M.D., testified in his deposition that the degeneration in Bunger's vision could have been caused by either or both the macular degeneration that was already present in Bunger's eye and the complications that took place in the surgery done by Brooks, but that he could not state that it was more likely than not the cataract surgery [that] caused the loss of vision. Based upon this testimony, Brooks asserts that there is no genuine issue of fact and that he is entitled to summary judgment as a matter of law.
3. Subsequent to the filing of the Motion for Summary Judgment, Bunger obtained and filed an affidavit of Knopf, in which he stated that: " In my opinion to a reasonable degree of medical certainty, the posterior capsular tear during the cataract surgery and the vitrectomy employed to correct the tear resulted in a sudden progression in the AMD and a sudden and severe loss of visual acuity in the left eye. . . ." Knopf Affidavit, page two. This sworn statement is, at best, inconsistent with and, at worst, directly contradicts, Knopf's own sworn deposition testimony.
4. Brooks requests that the Court strike Knopf's affidavit and grant summary judgment, or, in the alternative, continue the trial which is set to begin Monday next to give Brooks an opportunity to depose Knopf regarding his sworn statement in his affidavit.
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6. Here, Brooks has established a prima facie showing that there is no genuine issue of material fact: even when construing all facts and all factual inferences in Bunger's favor, Knopf's sworn deposition testimony that he could not state that it was more likely than not the cataract surgery caused the loss of vision, coupled with Bond's sworn statement that Bunger's decreased visual acuity occurring after the surgery performed by Brooks was not in any way a result of the surgery or any care or lack of care rendered by Brooks, is enough to meet this burden. Absent Knopf's subsequent affidavit, it is clear that Brooks is entitled to summary judgment as a matter of law. Bunger has not been denied his day in Court. In his claim for medical negligence, Bunger must prove by expert testimony not only that Brooks was negligent, but also that Brooks's negligence proximately caused Bunger's injury[.] [Citations omitted]. Any jury hearing ...