St. Mary's Ohio Valley Heart Care, LLC, et al., Appellants-Defendants,
Derek F. Smith, Appellee-Plaintiff
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
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.
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.
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
We reverse and remand.
& Procedural History
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.
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.
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.
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.
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 ...