Background
Randy Perkins suffered serious complications during wisdom-tooth extractions performed by Dr. Christopher Burns at Geist Oral & Facial Surgery. Heavy bleeding led to emergency transport, intubation, and an intensive-care admission. Perkins later alleged lasting injuries involving his mouth, tongue, jaw, and lips. Under the Indiana Medical Malpractice Act, which requires covered malpractice claims to proceed first through a medical review panel, a unanimous panel concluded that Burns and the practice had not departed from the applicable standard of care.
After Perkins sued, the defendants moved for summary judgment and designated the panel opinion. Perkins responded with two documents from his dental expert, Dr. George Zakhary, but neither was sworn or otherwise verified. The defense had already identified that problem during the panel process and moved to strike the documents in court. Perkins also offered an affidavit from a friend recounting statements Burns allegedly made at the hospital. The Marion Superior Court struck the expert materials and portions of the friend’s affidavit, then entered summary judgment because Perkins had no admissible expert evidence contradicting the panel.
Perkins later submitted properly verified versions of the same expert opinions with a motion to correct error and for relief from judgment. He acknowledged that the expert had been willing to use affidavit form earlier, but counsel and the expert thought the letter format read better. The trial court declined to reopen the judgment.
The Court’s Holding
The Court of Appeals affirmed. Judge May explained that Indiana Trial Rule 56(E) requires affidavits supporting or opposing summary judgment to be based on personal knowledge, contain admissible facts, demonstrate competence, and be sworn or affirmed under penalties of perjury. Dr. Zakhary’s letters may have contained expert opinions, but they lacked the verification that turns a written statement into summary-judgment evidence. The court rejected Perkins’s reliance on the Indiana Supreme Court’s decision in Korakis: that case addressed what an affidavit must substantively say about the standard of care, not whether an unsworn letter qualifies as an affidavit at all.
The panel also upheld the treatment of the friend’s affidavit. Her account of what Burns said about the procedure was not automatically inadmissible hearsay because statements by an opposing party can be admissible. But her lay characterization of Burns’s statements as admissions that he breached the professional standard of care went beyond her demonstrated competence. In any event, the admissible factual portions did not supply the expert testimony needed to rebut the unanimous medical review panel on breach.
Finally, the newly verified affidavits did not justify relief under Trial Rules 59 or 60. They were not newly discovered evidence: the opinions and the expert’s willingness to verify them existed before judgment. The omission was a deliberate presentation choice made despite explicit notice of the defect. Post-judgment rules do not provide a second chance to reverse an unsuccessful strategic decision.
Key Takeaways
- An expert letter is not designated summary-judgment evidence unless it is properly sworn or affirmed; substantive detail cannot cure the absence of verification.
- A unanimous medical review panel opinion shifts the practical burden to the malpractice plaintiff to designate admissible expert evidence creating a factual dispute on the standard of care or breach.
- Correcting a known affidavit defect after judgment is not newly discovered evidence when the evidence and the means to verify it were available before the ruling.
Why It Matters
The decision is a pointed warning for Indiana medical-malpractice litigators. Once a defendant designates a favorable medical review panel opinion, the plaintiff’s response must satisfy both the substantive expert-proof requirement and Trial Rule 56’s formal evidentiary requirements. Counsel should verify expert submissions before designation deadlines rather than assume that a detailed report will be treated as the equivalent of an affidavit.
The opinion also narrows any expansive reading of Korakis. Indiana courts may infer an expert’s articulation of the standard of care from a properly executed affidavit, but they will not infer the oath itself. A curable formatting choice can therefore become case-dispositive if it is left uncorrected until after summary judgment.