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Court clarifies ruling on medical review panel process

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The Indiana Court of Appeals has clarified one of its earlier rulings about when nurses can participate in medical malpractice actions and what evidentiary rules allow in the review panel process if the chairperson reneges on an agreement that a particular individual wouldn’t participate.

In Doe Corp., an Anonymous Health Care Provider, v. Lolita C. Honore , No. 49A05-1007-MI-408, the appellate court revisited and clarified its ruling issued April 27.

The case involves a woman residing at an unnamed Hamilton County health care facility from December 2002 until her death in April 2004. Her estate filed a complaint with the Indiana Department of Insurance alleging a breach in the reasonable standard of medical and nursing care while the woman was there, and in 2007 that case went before a Medical Review Panel as outlined in the Medical Malpractice Act.

One member of that review panel was a nurse, and the panel chair agreed that the nurse wouldn’t be able to offer any medical causation opinions reserved by law for physicians. But the chairman went against that agreement in 2009 and included the nurse in a written opinion about causation. That opinion found Doe Corp. failed to meet the reasonable standard of care.

Doe asked the trial court to make a preliminary determination of law regarding the validity of the review panel’s decision, which included the nurse member despite the chair’s previous agreement based on statute. The trial court dismissed Doe’s motion on the grounds it lacked subject matter jurisdiction, because a similar action was pending in another state court. Doe appealed.

The Court of Appeals in April determined the trial court did have subject matter jurisdiction on the issue of enforcing the requirement that the review panel chair carry out his statutory duties, and the appellate panel determined the trial judge had erred by dismissing the motion for PDL on Trial Rule 12(B)(8) grounds.

In this rehearing ruling, the appellate court allowed the Indiana Trial Lawyers Association to participate and revisited the case for the limited purpose of clarifying its holding about the role of the Rules of Evidence in the Medical Review Panel process.

Registered nurses or licensed practical nurses are included within the statutory definition of health care providers under the MMA able to be chosen as members of any medical review panel, the appellate court said.

“To be clear, no case has limited a nurse’s right to opine on the issue of causation as an MRP member,” Judge Ezra Friedlander wrote. “Rather, the limitation has been placed upon the nurse’s ability to testify at the summary judgment stage or trial. That limitation on the nurse’s testimony regarding causation comes from Evidentiary Rule 702 because of the ‘significant difference in the education, training, and authority to diagnose and treat diseases between physicians and nurses.’”

The appeals court noted, “the portion of our statement for ‘allowing the nurse to opine on causation’ should have been further qualified by the phrase ‘in contravention of the parties’ agreement and the MRP Chair’s representations to them in that regard.’”

The parties and the chair had agreed not to include the nurse member in the written opinion regarding causation, the appeals court wrote. But to Doe’s surprise, that didn’t happen.

“Absent statutory authority for judicial enforcement of such agreements, there are nonetheless due process concerns that may warrant a sanction under I.C. 34-18-10-23 for the MRP Chair’s failure to abide by the agreement,” the appeals court wrote. “We believe that the trial court should be afforded the opportunity to consider the issue of whether a sanction is warranted here for the MRP Chair’s failure to abide by the parties’ agreement and remand for a determination of that issue.”

 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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