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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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