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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. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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