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McDaniel v. Erdel

Court of Appeals of Indiana

December 29, 2017

Nancy McDaniel, as Personal Representative of the Estate of Fred C. McDaniel, III, deceased, Appellant-Plaintiff,
William C. Erdel, M.D., and Indiana Gastroenterology, Inc., Appellees-Defendants.

         Appeal from the Marion Superior Court The Honorable James A. Joven, Judge Trial Court Cause No. 49D13-1605-CT-15333

          Attorney for Appellant C. Dennis Wegner C. Dennis Wegner & Associates, Pro. Corp. Indianapolis, Indiana

          Attorney for Appellees David Becsey Zeigler, Cohen & Koch Indianapolis, Indiana

          BROWN, JUDGE.

         [¶1] Nancy McDaniel, as personal representative of the estate of her husband, Fred C. McDaniel, III (the "Estate"), appeals the trial court's entry of summary judgment in a medical malpractice action in favor of Dr. William C. Erdel and Indiana Gastroenterology, Inc. ("Indiana Gastroenterology"). The Estate raises one issue which we restate as whether the court erred in entering summary judgment in favor of Dr. Erdel and Indiana Gastroenterology. We affirm.

         Facts and Procedural History

         [¶2] On February 6, 2002, Mr. and Mrs. McDaniel saw Dr. Azade Yedidag in the Liver Pre-Transplant Clinic of the merged IU/Methodist Liver Transplant Program in consultation for a possible liver transplant evaluation for Mr. McDaniel's end-stage liver disease secondary to alcohol. Dr. Yedidag told Mrs. McDaniel on April 17, 2002, that for Mr. McDaniel to be on the transplant list, he needed to complete a rehabilitation and attend AA. Mr. McDaniels did not return to see Dr. Yedidag, and he was not placed on the transplant list.

         [¶3] Dr. Erdel, a gastroenterologist, began seeing Mr. McDaniel for liver cirrhosis and related complications in December 2002.[1] In August 2006, Mr. McDaniel's primary care provider, Dr. George DeSilvester, ordered an ultrasound to follow-up on his cirrhosis and it showed a problem, potentially cancer, with Mr. McDaniel's liver. Mrs. McDaniel sent the report to Dr. Erdel, called his office on August 18, 2006, and he told her that the ultrasound was abnormal and asked that Mr. McDaniel have an MRI of the liver and a serum alpha-fetoprotein level drawn, or a blood test that can show a tumor marker or activity of a tumor in the liver. Mrs. McDaniel discussed with Mr. McDaniel the need for the tests, but he did not want to do anything or know at that time if there were problems or not. On August 21, 2006, Mrs. McDaniel called Dr. Erdel, was upset, and reported that her husband was being stubborn, would not have an MRI, and that she knew there was nothing she could do. She also reported that Mr. McDaniel said "he didn't want to know at that time. He would just die anyway, and he didn't really want to know if it was or wasn't." Appellee's Appendix Volume 2 at 45. She called back the same day to ask if the nodule on the liver was a tumor and if it was cancer, would it be operable. On August 23, 2006, Dr. Erdel spoke by telephone with Mrs. McDaniel, who told him that Mr. McDaniel still refused an MRI and that he was still drinking a few beers. In December 2006, Dr. DeSilvester ordered a follow-up ultrasound that showed that the tumor was growing, and Mr. McDaniel went to see Dr. Erdel on December 13, 2006.

         [¶4] In the spring of 2007, Dr. Erdel had a conversation with Mr. McDaniel about the risks and benefits of a percutaneous liver biopsy, and Mr. McDaniel decided not to undergo the treatment or procedure. Dr. DeSilvester ordered another ultrasound on April 19, 2007, and Mr. McDaniel returned to see Dr. Erdel on April 23, 2007. The ultrasound report showed an enlarging lesion that was probably hepatocellular carcinoma and would continue to grow. Dr. Erde discussed with Mr. and Mrs. McDaniel treatment options of a cancer diagnosis, told Mr. McDaniel that he was not a transplant candidate, but he might possibly be a hepatectomy candidate or a candidate for local ablation, and Mr. McDaniel told Dr. Erdel that he did not want a liver biopsy and he also refused an MRI or further testing.

         [¶5] On October 22, 2007, Mr. McDaniel reported to Dr. Erdel "ascites and pain" and that he was still drinking alcohol, an ultrasound was scheduled for that week, and Dr. Erdel asked him to return after the ultrasound. Appellant's Appendix Volume 2 at 49. Mr. McDaniel did not return at that time. On November 2, 2007, Mrs. McDaniel called and told Dr. Erdel that Dr. DeSilvester was sending records to Dr. Maurice Arregui to consider ablation therapy. Dr. Erdel told Mrs. McDaniel that they would wait and see what Dr. Arregui said, but that Mr. McDaniel may have waited too long to seek treatment. Dr. Arregui first evaluated Mr. McDaniel in November 2007 and, thereafter, he and his team of surgical oncologists treated Mr. McDaniel's presumed liver cancer with radiofrequency ablation treatments, with the first treatment occurring on December 18, 2007, and then treatments occurring on May 7, 2009, in late summer 2010, and in summer 2011. After Dr. Arregui assumed the surgical oncology treatment of Mr. McDaniel's presumed liver cancer, Dr. Erdel was not consulted or involved in the medical decisions related to the treatment of Mr. McDaniel's liver cancer. On November 17, 2008, Dr. Erdel saw Mr. McDaniel, and the last time he saw or spoke with Mr. McDaniel was on December 8, 2010, for a follow-up on his cirrhosis. After December 8, 2010, Mrs. McDaniel had some telephone contact with Dr. Erdel, including on December 19, 2011.

         [¶6] On February 24, 2012, Mr. McDaniel saw a Dr. Sorg at the Community Spine Center, and Mrs. McDaniel told him that her husband had cancer of the liver. In July 2012, Dr. Arregui could not complete any more radio frequency ablations because the lesions had returned and arranged for Mr. McDaniel to see Dr. Brandon Martinez for the radiation based treatment Y-90, where pellets of radiation are inserted through the femoral groin area up into the liver to destroy new tumors that had grown on the liver at that point.

         [¶7] On August 22, 2012, Mrs. McDaniel called Dr. Erdel, who called her back, and told him that Mr. McDaniel was declining and was developing confusion, and Dr. Erdel recommended he take Kristalose until the confusion either cleared up or diarrhea developed. At midnight on August 22, 2012, Mrs. McDaniel brought her husband into the emergency room at Community Hospital North, where he later died on September 1, 2012.

         [¶8] On February 22, 2013, the Estate filed a proposed complaint before the Indiana Department of Insurance, naming Dr. Arregui as the sole defendant, and alleging in part that the "treatment rendered by Dr. Arregui to [Mr. McDaniel] was inappropriate in that it was only palliative and not curative, " and that "Dr. Arregui failed to assist [Mr. McDaniel] in obtaining a liver transplant which would have cured his end stage liver disease." Id. at 34. On March 7, 2014, Mrs. McDaniel filed an amended proposed complaint and added Dr. Arregui's medical group as a named defendant. On August 4, 2014, Mrs. McDaniel filed a second amended proposed complaint, added Dr. DeSilvester and his group, Dr. Erdel, and Indiana Gastroenterology as named defendants, and alleged in part that "[o]n and after August 16, 2006, Dr. DeSilvester failed to offer [Mr. McDaniel] a referral for evaluation of a liver transplant which would have cured his end stage liver disease, " that "Dr. Arregui failed to offer [Mr. McDaniel] a referral for evaluation of a liver transplant which would have cured his end stage liver disease, " and that "Dr. Erdel failed to refer [Mr. McDaniel] to be evaluated for a liver transplant which would have cured his end stage liver disease." Id. at 41-42. On January 28, 2015, the Estate filed a voluntary dismissal with prejudice as to Dr. Arregui, Dr. DeSilvester, and their respective medical groups.

         [¶9] On April 27, 2016, Dr. Erdel and Indiana Gastroenterology filed a motion for preliminary determination of law and for summary judgment. In support of the motion, they designated as evidence the deposition of Mrs. McDaniel, all three of the Estate's complaints and January 28, 2015 voluntary dismissal, and an affidavit of Dr. Erdel. On August 1, 2017, the Estate filed a memorandum of law in opposition to summary judgment and designated selections of the certified records of Indiana Gastroenterology and IU Health, the depositions of Dr. Erdel, Dr. DeSilvester, and Dr. Arregui, three Northwest Radiology reports, Dr. Arregui's certified records, and the affidavits of Mrs. McDaniels and Drs. E. Allen Griggs and Walid Ayoub.

         [¶10] In her deposition, Mrs. McDaniel answered affirmatively when asked if part of the allegation was that Dr. Erdel should have done something more for Mr. McDaniel to have a liver transplant, and answered the question as to what more Dr. Erdel should have done by stating, "I think he should have said, [Mr. McDaniel], if you stop drinking forever and you go back to the AA and to the rehab and go back to the IU and get back on the transplant list, you might have a chance to live." Appellee's Appendix Volume 2 at 84. When asked when she thought that should have been done, she answered "April 23rd, " and when asked of what year, she answered "2007, on that visit. It's when my husband lost hope and lost all sense of everything at that point." Id. She answered affirmatively when asked if she thought, had Dr. Erdel told Mr. McDaniel that he might qualify for a liver transplant if he were to stop drinking, and added Mr. McDaniel "would have complied to that"; answered negatively when asked if Mr. McDaniel had ever told her that he wished for Dr. Erdel to have approached him to tell him that; and testified that no "health care professional expert" expressed to her "the opinion that if [Mr. McDaniel] would have stopped drinking and he might qualify for a liver that he would get a transplant." Id. at 109-110. She agreed that she never discussed an oncology referral with Dr. Erdel, and stated she could not recall if she ever asked for one. In response to a question about the conversations Mr. McDaniel had about stopping his ...

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