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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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