In Indiana, an action for medical malpractice is initiated when the patient, or plaintiff, files a proposed complaint with the Indiana Department of Insurance alleging: (1) the defendant health care provider(s) owed a duty to the plaintiff; (2) there was a breach of that duty; and (3) a breach of that duty proximately caused the plaintiff’s injuries. After a proposed complaint is filed, the case proceeds to a medical review panel, which determines whether the aforementioned elements have been met (i.e., breach and causation). When the medical review panel issues a favorable opinion for the health care provider(s), or defendant(s), the plaintiff, must present evidence in the form of an expert opinion to file, and sustain, a complaint in state court. If the plaintiff is unable to do so, the defense is entitled to summary judgment as a matter of law. Generally, such expert opinion is presented in the form of an affidavit by a medical professional practicing in the same area(s) of medicine as the defendant(s) and who believes the defendant(s) breached the applicable standard of care. Until recently, there has been much confusion about how detailed an expert’s opinion need be on the applicable standard of care to survive a motion for summary judgment.

In Oelling v. Rao, the Indiana Supreme Court, established two requirements for expert affidavits opposing motions for summary judgment in medical malpractice actions. Those requirements were that an affidavit must (1) set forth the applicable standard of care, suggesting the standard of care must be expressly identified, and (2) include a statement that the treatment fell below the applicable standard of care. 593 N.E.2d 189, 190 (Ind. 1992).

One year later, in Jordan v. Deery, the Indiana Supreme Court concluded an affidavit that was not informative as to the nature of the deviation and did not expressly state the applicable standard of care was enough to establish a genuine issue of material fact when the affidavit submitted included, in part, a copy of the expert’s CV, indicated the expert attended medical school in the state, was licensed to practice in the state, currently practiced in the state, and was familiar with the standard of care at hospitals like the defendants. 609 N.E.2d 1104, 1110-11 (Ind. 1993). Therefore, the Court in Jordan set a standard, contrary to the standard set in Oelling, that the bare assertion a qualified expert is familiar with the applicable standard of care is enough to defeat summary judgment. It was not until 2024, however, that Oelling was formally overruled, in part, and the Indiana Supreme Court clarified the proper test for determining whether an expert affidavit is sufficient in these types of scenarios.

On January 25, 2024, the Indiana Supreme Court in Korakis v. Memorial Hospital of South Bend combined the Oelling and Jordan tests, and held the applicable standard of care may be inferred from an affidavit, provided the affidavit contains substantively sufficient information to support such an inference, and the affidavit must also include a statement that the treatment fell below the standard of care to reflect an evidentiary fact for summary judgment. 225 N.E.3d 760, 765-66 (Ind. 2024). Meaning, plaintiffs are no longer required to present an affidavit from a qualified expert that explicitly sets forth the applicable standard of care so long as the content of the affidavit provides sufficient information for the same to be inferred. If the plaintiff(s) can do so, the plaintiff(s) can potentially survive summary judgment and keep their case alive when the medical review panel issues a favorable opinion for the defense.

This article is for information purposes only and is not intended to constitute legal advice.

Posted in Medical Malpractice

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