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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. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

  5. I have a appeals hearing for the renewal of my LPN licenses and I need an attorney, the ones I have spoke to so far want the money up front and I cant afford that. I was wondering if you could help me find one that takes payments or even a pro bono one. I live in Indiana just north of Indianapolis.

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