Court addresses use of epidemiological evidence in med mal cases

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The Indiana Court of Appeals held that the trial court ruled correctly when it did not allow certain epidemiological evidence by a plaintiff’s expert witness in a medical malpractice lawsuit, but the court stopped short of saying this type of evidence could never be admitted in a medical malpractice case.

Ashley Tucker filed a medical malpractice complaint against Dr. Michelle Harrison, alleging the doctor’s negligence in performing a surgical procedure damaged her ovaries and left her infertile. The jury ruled in favor of Harrison, and Tucker appealed on three grounds. She claimed the trial court abused its discretion in excluding testimony from her expert witness, epidemiologist Dr. Michael Freeman, Ph.D.; in denying Tucker the opportunity to question witnesses about possible financial bias; and in refusing to give the jury a res ipsa loquitur instruction.

Freeman described his profession as dealing with populations of people and the kind of injuries or diseases they get and what causes them, and doing statistical analysis of what you find in populations to draw conclusions that are reliable. The court allowed into evidence Freeman’s testimony that one in 700 procedures ever year done in Tucker’s age group resulted in iatrogenic ovarian failure, but excluded his testimony that the procedure is 99 percent likely to be the cause of ovarian failure when it occurs in someone who has had the same procedure as Tucker.

No Indiana case has directly addressed the admissibility of epidemiological evidence in a medical malpractice case, or otherwise. Other jurisdictions have allowed this type of evidence, but the appellate court pointed out those cases cited by Tucker did not involve medical malpractice.

“Testimony establishing that the fact of a surgery makes ovarian failure more likely could mean that Dr. Harrison did everything right and ovarian failure is simply a risk of having any sort of ovarian surgery. It does not establish a causal relationship between Dr. Harrison’s acts or omissions and Tucker’s injury,” Chief Judge Margret Robb wrote in Ashley T. Tucker v. Michelle R. Harrison, M.D., 79A05-1108-CT-404.

Epidemiological testimony is not relevant to the issue of causation in this case, so the trial court did not abuse its discretion in excluding part of Freeman’s testimony, she wrote, noting this testimony may be admitted in the appropriate medical malpractice case.

The trial court excluded evidence from a physician witness called by Tucker that she says alleges bias on the part of every Indiana doctor because they are all participants in the Indiana Patient’s Compensation Fund, and therefore have a financial interest in whether payouts are made from the fund. The COA affirmed, finding Tucker’s proffered evidence merely speculates through the physician’s testimony that every doctor in Indiana has an interest in limiting financial exposure by limiting payouts from the Patient’s Compensation Fund.

The judges also upheld that Tucker was not entitled to a res ipsa loquitur instruction.



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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.