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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. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

  2. Can anyone please help this mother and child? We can all discuss the mother's rights, child's rights when this court only considered the father's rights. It is actually scarey to think a man like this even being a father period with custody of this child. I don't believe any of his other children would have anything good to say about him being their father! How many people are afraid to say anything or try to help because they are afraid of Carl. He's a bully and that his how he gets his way. Please someone help this mother and child. There has to be someone that has the heart and the means to help this family.

  3. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  4. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  5. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

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