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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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