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LLC v. Smith

Court of Appeals of Indiana

October 9, 2018

St. Mary's Ohio Valley Heart Care, LLC, et al., Appellants-Defendants,
v.
Derek F. Smith, Appellee-Plaintiff

          Appeal from the Vanderburgh Circuit Court The Honorable David D. Kiely, Judge Trial Court Cause No. 82C01-1405-PL-317

          ATTORNEYS FOR APPELLANTS Steven K. Hahn Allyson R. Breeden Molly E. Briles ZIEMER STAYMAN WEITZEL & SHOULDERS, LLP Evansville, Indiana Karl L. Mulvaney Margaret M. Christensen BINGHAM GREENEBAUM DOLL LLP Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Robert R. Faulkner Evansville, Indiana H. Wayne Turpin Evansville, Indiana Richard L. Schultheis Indianapolis, Indiana

          ALTICE, JUDGE

         Case Summary

         [¶1] In 2012, Elizabeth G. Butler, M.D. (Dr. Butler) removed a portion of Derek F. Smith's lower left lung during a surgery that began with a wedge resection and biopsy. Pathologist Hongyu Yang, M.D. (Dr. Yang) provided intraoperative analysis of frozen section pathology slides (frozen slides) of the specimen. Dr. Yang interpreted the frozen slides as cancerous or suggestive of cancer and communicated his findings to Dr. Butler, who then proceeded with a lobectomy. The permanent section slides (permanent slides), which could not be read until the following day, however, revealed that the biopsy specimen was benign.

         [¶2] Smith filed a medical malpractice action against Dr. Butler, St. Mary's Ohio Valley Heart Care, LLC, St. Mary's Medical Center, and Ohio Valley Heart Care, Inc. (collectively, the Surgical Defendants), as well as Dr. Yang and Tri-State Pathology Associates (collectively, the Pathology Defendants). The Medical Review Panel (the Panel) unanimously found in favor of the Surgical Defendants and the Pathology Defendants. To rebut the Panel's findings, Smith submitted the affidavit of E. Allen Griggs, M.D., J.D. (Dr. Griggs), an expert in pathology, who opined that Dr. Yang violated the pathological standard of care in his diagnosis of the frozen slides in this case.

         [¶3] The Surgical Defendants and the Pathology Defendants both filed motions for summary judgment, which were denied by the trial court. They now bring an interlocutory appeal, pursuant to Indiana Appellate Rule 14(B), of the denials of summary judgment.

         [¶4] We reverse and remand.

         Facts & Procedural History

         [¶5] On February 14, 2012, Smith sought emergency medical treatment due to shortness of breath and wheezing. An x-ray of his chest was abnormal, and a subsequent CT scan revealed a 1.3 cm noncalcified lesion on his left lower lung. Smith's treating physician at the time noted that the lung mass did not "look terribly suspicious in a nonsmoker" and that Smith was to follow up with a pulmonologist for further evaluation. Appellants' Appendix Vol. 2 at 117.

         [¶6] Pulmonologist Victor Chavez, M.D. (Dr. Chavez) evaluated Smith on March 9, 2012, and obtained a history from him, which included that Smith had "worked in a coal mine, strip mine for the last 30 years." Id. at 137. Dr. Chavez opined that the lung mass had a benign appearance but ordered a repeat chest CT in May to assess the lesion's stability. The chest CT, performed on May 21, 2012, revealed that the mass had increased in size from about 15 mm in length to 20 mm in length. As a result, Dr. Chavez referred Smith to Dr. Butler, a cardiothoracic surgeon, for a biopsy and possible lobectomy.

         [¶7] On May 30, 2012, Smith had a preoperative appointment with Dr. Butler, who evaluated Smith, assessed his treatment history, and reviewed the CT scans and a more-recent PET scan. Dr. Butler noted that Smith, although a nonsmoker, lived with two smokers and that he had worked in the coal mines for the last thirty years. Dr. Butler obtained informed consent from Smith to perform a biopsy of the left pulmonary nodule and a possible lobectomy if cancer was present. The surgery was scheduled for the following day at St. Mary's Medical Center in Evansville.

         [¶8] While in the operating room on May 31, 2012, Dr. Butler performed a wedge resection of the left lower lobe of Smith's lung, and the specimen was sent to the pathology lab for intraoperative consultation and analysis of frozen slides. Dr. Yang had difficulty interpreting the slides and consulted with his partner. Ultimately, Dr. Yang determined that the frozen slides were highly suspicious of cancer.

         [¶9] Dr. Yang communicated his diagnosis via intercom into the surgery suite. According to Dr. Butler's operative notes, the frozen slides "came back bronchoalveolar carcinoma." Id. at 169. Dr. Yang, however, avers that he informed Dr. Butler at the time that the frozen slides were "very difficult to interpret and not straightforward" but that they were "suggestive of a well-differentiated adenocarcinoma with bronchioalveolar features." Id. at 193. Dr. Butler does not recall Dr. Yang qualifying his diagnosis, but she testified during her deposition that pathologists often relay diagnoses in terms of "suspicious or suggestive" of cancer. Id. at 198. Regardless of whether Dr. Yang ...


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