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Judges remand medical malpractice action

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The Indiana Court of Appeals has ordered a trial court to hold a hearing as to what testimony an expert could give and to revise one of its orders in limine in a medical malpractice suit stemming from an overdose of Benadryl more than 15 years ago.

In 1995, Michelle Campbell took her two-year-old son to Riley Children’s Hospital in Indianapolis after he bumped his head. She saw nurse Adrianne Chambers give K.D. an excessive dose of 125 milligrams of Benadryl through an IV instead of the dose of 12.5 milligrams. K.D. soon had a seizure-like reaction and still has a tremor that the plaintiffs claim was proximately caused by the overdose.

In 1997, Campbell and K.D. filed a proposed complaint with the Indiana Department of Insurance, in which the medical review panel found the evidence showed Chambers didn’t comply with the appropriate standard of care. In 2007, the plaintiffs filed a complaint with allegations similar to that in the proposed complaint filed with the IDI. The case is before the Court of Appeals on interlocutory appeal considering whether the trial court abused its discretion when it granted the defendants’ motion to exclude all expert testimony by toxicologist Daniel J. McCoy, Ph.D., on the grounds that he was not qualified to offer expert medical testimony; granted the defendants’ motion in limine to exclude evidence that Campbell suffered negligent infliction of emotional distress because that claim hadn’t been properly pleaded; and granted the defendants’ motion in limine to exclude evidence of breaches of the standard of care, other than the overdose of Benadryl, that were not presented to the medical review panel.

In K.D., et al. v. Adrianne Chambers, R.N., et al., No. 49A04-1010-CT-636, the COA found the trial court abused its discretion in excluding McCoy’s testimony based only on his curriculum vitae and lack of a medical degree without holding an Evidence Rule 702 hearing. This exclusion was premature and overbroad, wrote Chief Judge Margret Robb, because in light of his training in toxicology, his lack of a medical degree doesn’t preclude him as a matter of law from offering testimony relating to the toxic effects of the overdose and whether these include K.D.’s tremor. The judges ordered the trial court to hold the hearing at which the plaintiffs could present further evidence of McCoy’s qualifications and the scientific basis for his proposed testimony.

The judges upheld the decision to exclude evidence that K.D. received other improper doses besides the Benadryl, to the extent that the plaintiffs sought to offer this claimed fact as an additional breach of the standard of care not presented to the medical review panel, wrote Chief Judge Robb. But, the trial court erred in excluding evidence of the allegedly improper rate at which Chambers administered the Benadryl. The failure to give the proper dosage to a child can encompass both the total amount of the drug given as well as the rate at which it is given, she wrote.

The appellate court ordered on remand that the trial court revise its order in limine consistent with the opinion. They also held that Campbell is precluded from presenting to the jury any evidence of her claim of negligent infliction of emotional distress because she failed to sufficiently plead that claim in the proposed complaint before the medical review panel or in the complaint before the trial court.
 

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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.

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