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Wednesday, December 24, 2014

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Lloyd G. Perry v. Anonymous Physican 1, Alias Medical Group 1, Inc., Anonymous Physican 2, et al, a 7-page opinion in a case with a pro se appellant, Judge May writes:

In June 2010, Lloyd Perry filed with the Department of Insurance a proposed complaint alleging malpractice by a number of physicians and other healthcare providers (collectively, “the Providers”). As Perry did not provide expert testimony to rebut the medical review panel’s opinion there was no malpractice that caused his injury, we affirm. * * *

We do not believe Hughley can be read to eliminate the requirement in medical malpractice cases that a plaintiff, to defeat summary judgment for a health care provider when the medical review panel has determined there was no breach of the duty of care or that any breach was not the cause if a plaintiff’s injury, must provide expert opinion evidence. * * *

[I]n an action for medical malpractice, whether the defendant used suitable professional skill must generally be proven by expert testimony, usually that of other physicians. Stackhouse v. Scanlon, 576 N.E.2d 635, 639 (Ind. Ct. App. 1991), trans. denied. We therefore do not believe a medical malpractice plaintiff may defeat summary judgment with nothing more than a “perfunctory and self-serving” affidavit that specifically controverts the moving party’s prima facie case.

In Courtney West v. State of Indiana , an 8-page opinion, Sr. Judge Sullivan writes:
Courtney West appeals her conviction of operating a vehicle while intoxicated with a prior conviction within the past five years, a Class D felony. IC 9-30-5- 2 (2001), 9-30-5-3 (2008). We affirm and remand with instructions. * * *

Applying the plain language of Indiana Code section 9-13-2-117.5 to this case, a
reasonable finder of fact could conclude from this evidence that West was in “actual physical control” of the running car when Line approached her, and she thus operated the vehicle as defined by statute. * * *

A finder of fact could reasonably infer from this evidence that West was about to drive away in an intoxicated condition when Line blocked her car. See Traxler v. State, 538 N.E.2d 268, 270 (Ind. Ct. App 1989) (sufficient evidence that defendant operated a car while intoxicated where the defendant was found stopped on a county road with the engine running and the headlights off). West’s challenge to the sufficiency of the evidence must fail.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Reginald Greenwell v. State of Indiana (NFP)

Harold R. Ferrin v. State of Indiana (NFP)

Devontae S. Brodnax v. State of Indiana (NFP)

Tony R. Evans v. State of Indiana (NFP)

Posted by Marcia Oddi on December 24, 2014 09:56 AM
Posted to Ind. App.Ct. Decisions