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.
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
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.
and Procedural History
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
Dr. Erdel, a gastroenterologist, began seeing Mr. McDaniel
for liver cirrhosis and related complications in December
2002. 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.
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
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,
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.
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,
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.
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
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 ...