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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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