Pamela Jane Scholl v. Mohammed E. Majd, M.D. ( 2020 )

FILED
Dec 18 2020, 8:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John M. Mayer, Jr. Rodney L. Scott
Clarksville, Indiana John R. Hofmann
Waters, Tyler, Hofmann & Scott,
LLC
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pamela Jane Scholl, December 18, 2020
Appellant-Plaintiff, Court of Appeals Case No.
20A-CT-571
v. Appeal from the Floyd Superior
Court
Mohammed E. Majd, M.D., The Honorable Susan L. Orth,
Appellee-Defendant Judge
Trial Court Cause No.
22D01-1708-CT-1221
May, Judge.
[1] Pamela Jane Scholl appeals following the trial court’s grant of a motion for
judgment on the evidence in favor of Dr. Mohammed E. Majd, M.D. Scholl
argues she presented sufficient evidence regarding the applicable standard of
care to defeat Dr. Majd’s motion. We reverse and remand.
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Facts and Procedural History
[2] Scholl filed suit on August 26, 2017, alleging Dr. Majd, an orthopedic surgeon,
committed medical malpractice when he performed lumbar fusion surgery and
a subsequent revision procedure on her spine. The court began a jury trial on
September 23, 2019. On the first day of trial, the parties selected a jury, the
court read the preliminary instructions, and the parties gave their opening
statements. Scholl testified on the second day of trial. Dr. Majd testified on the
third day of trial, and then Scholl called Dr. Robert F. Sexton, M.D., to testify
as an expert witness.
[3] Dr. Sexton received his Doctor of Medicine and Master of Surgery degrees in
1959 from the University of McGill in Montreal, Quebec. He then completed
his residency at the University of Louisville and a fellowship at the Mayo Clinic
in Rochester, Minnesota. He was drafted into the United States Army, and he
served two years on active duty at Letterman General Hospital in San
Francisco, California. The American Board of Neurological Surgeons deemed
Dr. Sexton “board eligible,” but he never became board-certified in
neurosurgery. 1 (Tr. Vol. II at 12.) As a neurosurgeon, Dr. Sexton performed
over 12,000 spine surgeries in his career, including over 10,000 laminectomies 2
1
Dr. Sexton testified that a “board eligible” designation indicates that he met all the qualifications to be
board certified except for taking a three-hour oral examination.
2
Dr. Sexton testified, “[l]amina is the posterior part of the bony ring that encircles the spinal cord, and a
laminectomy is a removal of, either bilaterally or unilaterally, that lamina from around the vertebrae.” (Tr.
Vol. II at 21.)
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and 150 fusions. 3 Dr. Sexton retired from performing surgery in 2005 or 2006,
but he has maintained an active medical license and fulfilled his continuing
medical education requirements in both neurosurgery and general medicine.
[4] Prior to testifying, Dr. Sexton reviewed Scholl’s submission to the medical
review panel and the depositions of the doctors on the medical review panel.
Dr. Sexton testified:
[Scholl’s Counsel:] Based upon your experience as a
neurosurgeon for 60 years, have you reached a conclusion about
the care and treatment of Pam Scholl by Dr. Mohammed Majd?
[Dr. Sexton:] I have, yes.
[Scholl’s Counsel:] And what is that conclusion, sir?
[Dr. Sexton:] My conclusion is that I disagree with the review
panel and their decision that Dr. Majd did not fall below the
mythical standard of care of doing spine surgery.
3
Dr. Sexton explained:
A fusion is a fixation of at least two adjacent vertebra. In other words, you fasten them
together. It can be done simply by putting in a bone graft from an individual patient or
from a cadaver bone. And then from there, there are all sorts of external things that can
be put in to reinforce the bone graft, screws, rods, bone marrow, either from the patients
themselves or from bank bone marrow, and bone can be basically from any source. And
the problem with the hardware putting in is that it is a foreign body. It’s not a naturally
occurring structure, and therefore the body tends to reject those if it can.
(Tr. Vol. II at 21.)
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[Scholl’s Counsel:] You used an interesting term. You say the
“mythical standard of care” that—
[Dr. Sexton:] Yes.
[Scholl’s Counsel:] You’re saying that you found him below that
standard of care. Is that correct?
[Dr. Sexton:] Yes.
[Scholl’s Counsel:] In the treatment of Pam Scholl.
[Dr. Sexton:] Yes.
*****
[Scholl’s Counsel:] And you used the word “mythical.” Explain
that to the jury, please.
[Dr. Sexton:] There is no standard of care printed anywhere, you
know, listed, but thou shall do so and so or thou shall not do so
and so. As one of the review panelists stated in his deposition
when asked to define standard of care, he said it’s what a
reasonably skilled doctor with reasonably skilled training would
do in a given situation. That’s apparently a low standard of care,
and it really is not any specific thing you can put your finger on.
So standard of care is each doctor decides it for himself or herself,
and that’s why I use that term. There really is not a code
anywhere printed in the AMA literature, the textbooks, or
anywhere that says this is the standard of care for such and such.
So it’s something that you have to figure out by the seat of your
pants and say, is that okay.
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[Scholl’s Counsel:] And you have concluded that the care and
treatment of Pam Scholl by Dr. Majd is below the standard of
care?
[Dr. Sexton:] I did.
(Id. at 19-20.) Scholl asked Dr. Sexton, “is there anything that stuck out in the
records to you that was significant that helped you reach your conclusion that
Dr. Majd’s treatment of Pam Scholl is below the standard care?” (Id. at 28-29.)
In his answer, Dr. Sexton noted the “sparse workup” in Scholl’s medical
records prior to Dr. Majd performing the surgery, and he described performing
fusion surgery to correct Scholl’s condition as “very controversial.” (Id. at 29.)
Dr. Sexton also explained a “prudent spine surgeon” would have performed a
bone density test before the surgery because Scholl was taking Vitamin D2. (Id.
at 30.)
[5] Scholl went on to ask, “was the choice that Dr. Majd used doing the fusion the
way he did that with the screws, was that in your opinion below the standard of
care,” and Dr. Sexton answered, “Based on the outcome, yes, I think it was.
And, in fact, that’s my opinion.” (Id. at 33.) Dr. Sexton explained that when
Dr. Majd performed the fusion surgery, he placed a screw too close to Scholl’s
iliac artery, resulting in nerve damage to Scholl. Dr. Sexton testified that he
believed the standard of care in operating on Scholl required the spine surgeon
to perform “[o]ne of two things, either a decompressive laminectomy or a bone
graft without the hardware.” (Id. at 34.)
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[6] On cross-examination, Dr. Sexton testified:
[Dr. Majd’s Counsel:] Doctor, I’d also like to talk to you before
we talk about the things we’re going to disagree on, like to talk to
you about the things that we do agree on following your
deposition. Specifically, we agreed that no surgery is 100 percent
successful, correct?
[Dr. Sexton:] Yes, we do.
[Dr. Majd’s Counsel:] We also agreed the doctor doesn’t have to
be perfect in performing the surgery, right?
[Dr. Sexton:] No.
[Dr. Majd’s Counsel:] In other words, the doctor can make a
mistake. It’s still not violating the standard of care.
[Dr. Sexton:] There is no such thing as a standard of care except
what the individual doctor thinks it is.
[Dr. Majd’s Counsel:] We’ll come back to that. That’s one of
the things we’re going to disagree on in a minute. Additionally—
[Dr. Sexton:] Good luck with that.
[Dr. Majd’s Counsel:] -negative results, bad outcomes, whatever
you want to call it, happen following surgeries, right?
[Dr. Sexton:] Occasionally, and not in flurries and—
[Dr. Majd’s Counsel:] You said in your deposition that 40 to 50
percent of fusions have a bad outcome.
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[Dr. Sexton:] Yeah.
[Dr. Majd’s Counsel:] Correct? In your opinion, you think it’s
40 to 50 percent?
[Dr. Sexton:] Yes, to some degree.
[Dr. Majd’s Counsel:] And that doesn’t mean in any way that
the doctor happened to violate standard of care, right?
[Dr. Sexton:] Whatever that is, no.
[Dr. Majd’s counsel:] Okay.
[Dr. Sexton:] I agree.
[Dr. Majd’s counsel:] And that – those bad outcomes happen
without malpractice on the part of the doctors.
[Dr. Sexton:] To a degree they can, yes.
[Dr. Majd’s counsel:] And additionally –
[Dr. Sexton:] Just because though, they do happen, and because
they’re recognized as occurring occasionally does not let the
doctor off the hook on 100 percent of cases by any means.
[Dr. Majd’s counsel:] Okay. And I’m not suggesting –
[Dr. Sexton:] Well, I think you are, but go ahead.
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[Dr. Majd’s counsel:] My question to you is, ultimately, a bad
outcome does not mean bad medicine.
[Dr. Sexton:] Not per se.
(Id. at 67-68.)
[7] After Scholl rested her case, Dr. Majd moved for judgment on the evidence on
the basis that Dr. Sexton did not demonstrate a familiarity with the applicable
standard of care, and the court granted Dr. Majd’s motion. Scholl subsequently
filed a motion to correct error on October 28, 2019, arguing the trial court erred
in granting Dr. Majd’s motion for judgment on the evidence. The trial court
held a hearing on Scholl’s motion on February 3, 2020, and then summarily
denied the motion on February 11, 2020.
Discussion and Decision
[8] Scholl argues the trial court erred in granting Dr. Majd’s motion for judgment
on the evidence because Dr. Sexton’s testimony adequately conveyed to the
jury the applicable standard of care and Dr. Sexton’s opinion why Dr. Majd did
not perform up to the standard of care. Indiana Trial Rule 50(A) states:
Where all or some of the issues in a case tried before a jury or an
advisory jury are not supported by sufficient evidence or a verdict
thereon is clearly erroneous as contrary to the evidence because
the evidence is insufficient to support it, the court shall withdraw
such issues from the jury and enter judgment thereon or shall
enter judgment thereon notwithstanding a verdict.
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“A motion for a directed verdict, also known as a motion for judgment on the
evidence, challenges the legal sufficiency of the evidence.” Walgreen Co. v.
Hinchy, 21 N.E.3d 99, 106 (Ind. Ct. App. 2014), aff’d on reh’g, 25 N.E.3d 748
(Ind. Ct. App. 2015), trans. denied. We apply the same standard as the trial
court when reviewing the grant or denial of a motion for judgment on the
evidence. Collins v. McKinney, 871 N.E.2d 363, 370 (Ind. Ct. App. 2007).
[9] In our review of a trial court’s decision on a motion for judgment on the
evidence, we review all evidence in the light most favorable to the non-movant
and draw all reasonable inferences in the non-movant’s favor. Id. “[T]he
motion should be granted only where there is no substantial evidence to support
an essential issue in the case. If there is evidence that would allow reasonable
people to differ as to the result, judgment on the evidence is improper.” Id.
(internal citation omitted); see also Dahlin v. Amoco Oil Corp., 567 N.E.2d 806,
810 (Ind. Ct. App. 1991) (judgment on the evidence is appropriate when there is
a “complete failure of proof . . . supporting an essential element of the claim”),
trans. denied.
[10] To prevail on a medical malpractice claim, the plaintiff must prove: “(1) the
physician owed a duty to the plaintiff; (2) the physician breached that duty; and
(3) the breach proximately caused the plaintiff’s injuries.” Green v. Robertson, 56
N.E.3d 682, 692 (Ind. Ct. App. 2016), reh’g denied, trans. denied. Generally,
before a medical malpractice claim may proceed in trial court, the proposed
complaint must be presented to a medical review panel and the panel must give
its opinion. Ind. Code § 34-18-8-4. When the medical review panel renders an
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opinion adverse to the plaintiff, the plaintiff must present expert testimony at
trial to establish: “1) the applicable standard of care required by Indiana law; 2)
how the defendant doctor breached that standard of care; and 3) that the
defendant doctor’s negligence in doing so was the proximate cause of the
injuries complained of.” Allen v. Hinchman, 20 N.E.3d 863, 870 (Ind. Ct. App.
2014), reh’g denied, trans. denied. To meet the standard of care, “‘a physician
must exercise that degree of care, skill, and proficiency exercised by reasonably
careful, skillful, and prudent practitioners in the same class to which he belongs,
acting under the same or similar circumstances.’” Id. (quoting Vergara by
Vergara v. Doan, 593 N.E.2d 185, 187 (Ind. 1992)).
[11] In granting Dr. Majd’s motion for judgment on the evidence, the trial court
analogized Dr. Sexton to the expert in Overshiner v. Hendricks Regional Health,
119 N.E.3d 1124 (Ind. Ct. App. 2019), reh’g denied, trans. denied, and explained:
In our case, Dr. Sexton did not articulate at any time [that] he’s
familiar with the standard of care for the treatment and care of a
board-certified orthopedic surgeon, never told us that he’s
familiar with the standard of care, that further there is a standard
of care that requires him to come into court and demonstrate that
he has an accurate understanding of what that standard of care is.
He did not do that.
(Tr. Vol. II at 96.) Scholl argues the case of Aldrich v. Coda, 732 N.E.2d 243
(Ind. Ct. App. 2000), is a more appropriate comparison to the case at bar than
Overshiner.
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[12] In Overshiner, the plaintiffs’ newborn daughter developed an illness that resulted
in blindness, and the plaintiffs filed malpractice claims against the obstetrician,
the pediatrician, and the hospital. 119 N.E.3d at 1126. At trial, the plaintiffs
called, as a medical expert, Dr. Robert Shuman, a retired neuropathologist who
studied autopsied brains of children. Id. Dr. Shuman testified the newborn’s
disease was preventable and he faulted the obstetrician and the hospital for not
properly taking care of the newborn. Id. at 1128-29. However, Dr. Shuman
also testified that he was neither an obstetrician nor a pediatrician and that he
would “[a]bsolutely not” be the right doctor to care for a pregnant patient. Id.
at 1129. After the plaintiffs rested their case, the defendants moved for
judgment on the evidence, and the trial court granted the defendants’ motion on
the basis that the plaintiffs’ medical expert, Dr. Shuman, did not articulate
familiarity with the applicable standard of care, which would leave the jurors to
speculate regarding the appropriate standard of care. Id. We affirmed and held
the [plaintiffs] did not provide testimony that allowed the trier of
fact to apply the appropriate standard of care. Dr. Shuman, a
neuropathologist who had never been involved in the handover
between the obstetrician and the pediatrician after a child is born
and who at the time of trial was retired and provided mostly
medical-legal consultations, did not testify to the standard of care
required of Providers - i.e., the standard of care applicable to
obstetricians, pediatricians, and the nursing staff of a community
hospital treating a child like [the newborn] under the same or
similar circumstances—but rather to his “terribly proactive . . .
practice of pediatric neurology.”
*****
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Our review of the record and Dr. Shuman’s testimony makes
clear that any inference intended to be proven by the evidence, as
pointed to by the [plaintiffs], cannot logically be drawn without
undue speculation as to the applicable standard of care.
Id. at 1133.
[13] Conversely, in Aldrich, the plaintiff brought a medical malpractice action
against her podiatrist. 732 N.E.2d at 244. The trial court granted summary
judgment in favor of the podiatrist on the basis that the affidavit from the
plaintiff’s designated medical expert did not state the medical expert was
familiar with the standard of care for podiatrists. Id. We reversed the trial
court’s entry of summary judgment. Id. at 246. Even though the medical
expert’s affidavit did not specifically state that he was familiar with the
applicable standard of care for podiatrists, we held that “it is evident from the
content of the opinion letter that [the medical expert], as an orthopedic surgeon,
was indeed familiar with the standard of care required of [the defendant], as a
podiatrist.” Id.
[14] Dr. Majd argues that Dr. Sexton, like the expert in Overshiner, misstated the
standard of care and left the jury to speculate as to the applicable standard of
care. We disagree. Dr. Sexton quoted a doctor from the medical review
panel’s deposition testimony that the standard of care is “what a reasonably
skilled doctor with reasonably skilled training would do in a given situation.”
(Tr. Vol. II at 20.) While this was not a word-for-word recitation of the legal
definition for standard of care, it demonstrates Dr. Sexton was at least
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somewhat familiar with the legal bar for what constitutes medical malpractice.
Moreover, unlike the expert in Overshiner but like the expert in Aldrich, Dr.
Sexton was familiar with treating patients suffering from the same condition as
the plaintiff, and Dr. Sexton had performed the same type of surgery Dr. Majd
performed on Scholl and other similar spine surgeries. Thus, he could speak to
what a reasonably skilled, careful, and prudent doctor would do and not do in
treating a patient like Scholl. For example, he testified that a “prudent spine
surgeon” would have performed a bone density test before the surgery. (Id. at
30.)
[15] Dr. Sexton also opined that the applicable standard of care required Dr. Majd
to treat Scholl’s condition by performing a laminectomy rather than a fusion
with hardware and that Scholl suffered nerve damage because Dr. Majd placed
a screw too close to her iliac artery. While Dr. Sexton did describe the standard
of care as “mythical” and something “each doctor decides . . . for himself or
herself,” he clarified in his testimony that he was referring to the fact that the
standard of care is not clearly defined in an authoritative source. (Id. at 20.)
The standard of care is not “mythical,” but it leaves room for interpretation as
we expect experts in a medical malpractice action to disagree about what the
applicable standard of care requires in any given situation. Dr. Sexton’s
comments were imprecise, but they do not show a lack of familiarity with the
applicable standard of care. Therefore, we hold the trial court erred in granting
Dr. Majd’s motion for a directed verdict, and we remand the case for further
proceedings consistent with this opinion. See Killebrew v. Johnson, 404 N.E.2d
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1194, 1197 (Ind. Ct. App. 1980) (holding plaintiff’s medical expert adequately
stated the applicable standard of care and reversing the trial court’s directed
verdict for defendant).
Conclusion
[16] Scholl presented sufficient evidence regarding the applicable standard of care to
defeat Dr. Majd’s motion for judgment on the evidence. Dr. Sexton
demonstrated familiarity with the procedures Dr. Majd performed on Scholl
and identified several aspects of Dr. Majd’s treatment of Scholl that Dr. Sexton
believed fell below the standard of care. Therefore, we reverse the trial court’s
entry of judgment on the evidence in favor of Dr. Majd, and we remand the
case for further proceedings not inconsistent with this opinion.
[17] Reversed and remanded.
Riley, J., and Altice, J., concur.
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