Oelling v. Rao

DICKSON, Justice,

dissenting.

The party moving for summary judgment must shoulder the burden of establishing the lack of a material factual issue. Cowe v. Forum Group Inc. (1991), Ind., 575 N.E.2d 630; Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723; Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138. The opposing party’s obligation to disgorge evidence demonstrating the existence of a genuine triable issue does not arise until after the movant has shown himself entitled to summary judgment. Cowe; Marathon Petroleum v. Colonial Motel (1990), Ind.App., 550 N.E.2d 778.

As proponent of summary judgment here, the defendant physicians asserted the determinative issue of material fact to be whether they violated the applicable standard of care. Record at 36. To support their motion for summary judgment, the defendants submitted the following opinion of the medical review panel:

That the evidence does not support the conclusion that the defendants failed to comply with the standard of care as charged in the complaint.1

Record at 43-45 (emphasis in original). Submitted with the motion for summary judgment were separate copies of the written opinion, each purporting to be signed by a physician member of the panel.2 No information was provided regarding the panel member’s area of medical specialty *192or locale of practice.3 The medical review panel opinion does not provide any information regarding what other reasonable doctors similarly situated would have done under the circumstances.

In opposing the motion for summary judgment, the plaintiffs submitted the affidavit of Steven G. Meister, M.D., licensed to practice medicine in Pennsylvania and Massachusetts and certified by the American Board of Internal Medicine in the spe-ciality of Cardiology. Dr. Meister’s affidavit states, in pertinent part:

It is my opinion that the cardiac catheter-ization performed on HOWARD A. OELLING by DR. SATYA RAO on 12/16/86 at St. Catherine’s Hospital was not indicated and unnecessary.... [Wjhen the stress thallium study revealed ischemia only in the distribution of the previously occluded right coronary artery with none in the distribution of the left coronary system, there was no need to perform cardiac catheritzation in my opinion. Had the cardiac catheterization not been performed, the complications that actually occurred would not have done so and MR. OELLING would not have had to have cardiac surgery to correct the complications.

Record at 75. Contrary to the characterization given by the majority, Dr. Meister’s affidavit does more than merely state that he would have treated Mr. Oelling differently.

The majority opinion here affirms the summary judgment because it finds that the affidavit of the plaintiffs’ expert witness failed to describe what other reasonable doctors similarly situated would have done under similar circumstances, or to otherwise set out the standard of care in the same or similar localities. I disagree. The differences between the opposing expert opinions are not sufficient to warrant finding one adequate and the other insufficient. While the opinion of a medical review panel is admissible, “such expert opinion shall not be conclusive.” Ind.Code § 16-9.5-9-9.

In the review of summary judgment, the appellate tribunal must apply the same standard as the trial court, and any doubt about the existence of a fact or the reasonable inference to be drawn from it must be resolved in favor of the non-moving party. Allied Resin Corporation v. Waltz (1991), Ind., 574 N.E.2d 913. I cannot agree with the majority’s view that the defendants’ expert opinion is adequate to establish the non-existence of a genuine issue of material fact, but that the plaintiffs’ expert opinion is insufficient to establish the contrary. If the majority faults the plaintiffs because Dr. Meister’s “affidavit fails to set out any standard at all,” the panel opinion presented by the defendants to support their motion for summary judgment must be found equally deficient.

When confronted with a related question, this Court recently declared:

The trial court was in error in finding that there was no genuine issue of fact to be submitted for trial. The inference of breach of duty confronts medical opinion of no breach of duty. Justice thus requires a trial.

Burke v. Capello (1988), Ind., 520 N.E.2d 439, 442. The same result is appropriate in resolving the issue presented by the conflicting expertise in the present case.

DeBRULER, J., concurs.

. In alleging professional negligence, the plaintiffs’ complaint asserted that the defendant physicians "failed to exercise that' degree of care or skill and further failed to demonstrate possession of the degree of knowledge ordinarily exercised or possessed by others of their profession and specialty and responsibility.” Record at 14.

. The medical review panel opinion copies submitted by the defendant physicians were not affidavits or otherwise authenticated. However, the separate motion for summary judgment filed by defendant St. Catherine Hospital placed before the Court the same medical review panel opinions authenticated by a separate affidavit of the chairman of the review panel. The hospital was voluntarily dismissed by the plaintiffs before the trial court ruled on the motion to correct errors.

. Under Indiana law, actions against health care providers are generally prohibited until after the proposed complaint has been presented to a medical review panel and an opinion rendered by the panel. Ind.Code § 16-9.5-9-2. The opinion is provided by panel members who are themselves health care providers, as defined in Ind.Code § 16-9.5-1-1, and hold a license to practice in their profession, Ind.Code § 16-9.5-9 — 3(b)(1).