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Judges find no misconduct by hospital

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The Indiana Court of Appeals affirmed the denial of a woman’s motion to correct error and relief from judgment following a verdict in favor of Clarian Health Partners on her medical malpractice complaint. The court found that Clarian’s counsel did not commit misconduct by not supplementing the deposition testimony of one of its doctors – a nonparty to the case – prior to trial.

Deborah Cleveland filed a proposed medical malpractice complaint with the Indiana Department of Insurance against Clarian – now known as Indiana University Health – and the doctors who treated her husband, Robin, after he came to the hospital in 2002 suffering traumatic injuries from a fall. One of the physicians was second-year resident Dr. Jennifer Choi. Robin Cleveland arrived at the hospital at 9:53 a.m., but did not go into surgery until around 10:45 a.m. He bled to death while in surgery.

The 2004 deposition and 2011 trial testimony of Choi are at issue in this appeal. In her deposition, Choi sometimes gave specific times for when the decision was made to move Robin Cleveland to surgery; at other times, she gave vague answers or said she was unsure. The medical review panel found no malpractice occurred. Deborah Cleveland then filed a lawsuit in Marion Superior Court. All the defendants were eventually dismissed except Clarian.

At the trial, Choi’s testimony didn’t always match up to her deposition, and some of her answers changed. She said this was in part due to a review of the operative log and records. She even admitted her recollection of the events may have been incorrect at the time of the deposition.

Deborah Cleveland lost her suit; the trial court denied her motion to correct error and for relief from judgment. She argued that Ind. Trial Rule 26(E)(2) imposes a duty on a party to amend a nonparty witness’s deposition testimony when that party learns of a change in the testimony before trial; and that Clarian’s counsel committed misconduct under Trial Rule 60(B)(3) when counsel did not supplement Choi’s deposition testimony prior to trial. Robin Cleveland cited the dram shop case Outback Steakhouse of Florida v. Markley, 856 N.E.2d 65, 72 (Ind. 2006), to support her argument.

But the Court of Appeals found Outback distinguishable. In the instant case, Choi’s trial testimony was not directly contradictory, as was the testimony at question in Outback.

“When Dr. Choi’s deposition testimony is considered in its entirety, there is an insufficient factual basis in the record to conclude that there was a clear, substantial, and material change in her testimony that, if Trial Rule 26(E)(2) applied, would have triggered any duty on Clarian’s attorneys to amend that testimony prior to trial,” Judge Edward Najam wrote in Deborah A. Cleveland, as Personal Representative of the Estate of Robin W. Cleveland v. Clarian Health Partners, Inc., 49A02-1110-CT-948.
 
There is also no factual basis to show that Clarian knew or should have known that Choi’s trial testimony would render her prior responses incorrect, so the hospital did not have a duty to supplement the deposition testimony and did not commit misconduct by failing to amend that testimony, he continued.
 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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