Thursday, July 20, 2023

Case Within A Case

The Indiana Court of Appeals affirmed the denial of summary judgment to the defendant a legal malpractice case

Nancy Lemen (Lemen) and her husband Mark (Mark) (collectively the Lemens) entered into a retainer agreement with Kevin L. Moyer and Moyer Law Firm, P.C. (collectively Moyer), to represent them against vascular surgeon Dr. Robert McCready, who provided medical care to Mark. Moyer did not file suit against the doctor before the statutory limitation period for medical malpractice expired, and Mark subsequently died. Lemen filed a complaint against Moyer alleging that he was negligent in not filing a medical malpractice action within the statutory limitation period and that he breached his contract with the Lemens. Moyer filed a motion for summary judgment, and Lemen filed a cross-motion for summary judgment. The trial court denied both motions. Moyer now appeals, arguing that the trial court erred in denying his motion. We disagree and therefore affirm.

Defendant had not established that the medical malpractice case could not be proven

Moyer’s summary judgment motion, which relied primarily on pre-Jarboe cases, merely pointed to Lemen’s lack of expert testimony to support her medical malpractice claim, and thus Moyer failed to meet his onerous burden of affirmatively negating that claim. In support of her opposition to Moyer’s summary judgment motion, Lemen designated Dr. Cameron’s report, which, at minimum, establishes genuine issues of material fact that are not conclusively negated by Dr. Skudder’s report. Based on the foregoing, we affirm the trial court’s denial of Moyer’s summary judgment motion.

(Mike Frisch)

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