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Recent medical malpractice opinion causes some lawyers concern

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Attorneys have asked the Indiana Supreme Court to weigh in on a recent ruling that has left some people wondering about the future of medical malpractice law. At issue in K.D. and Michelle Campbell, et al. v. Adrianne Chambers, R.N., et al., No. 49A04-1010-CT-636, is a fundamental question about the purpose of the state medical review panel, and what information must be presented to the panel for review.

The case began in 1995 when Michelle Campbell took her then 2-year-old son to Riley Hospital for Children after he suffered a bump on the head. Campbell witnessed nurse Adrianne Chambers administer 125 milligrams of Benadryl to the boy – 10 times the amount he should have received.

In 1997, Campbell filed a two-count complaint with the Indiana Department of Insurance. She alleged, among other claims, that K.D. suffered from overdoses of Benadryl and other medications while in the hospital’s care. Since then, Campbell claims, her son has suffered from tremors.

In 2010, less than a month before the trial was to begin, plaintiffs for Campbell raised two claims: that Campbell suffered negligent infliction of emotional distress, and that the hospital improperly administered other medications to K.D. Regardless of whether those accusations were included in Campbell’s initial report to the department of insurance, the Marion Superior Court ruled that because those claims had not been submitted to Indiana’s medical review panel, they could not be introduced at trial. On July 13, 2011, the Indiana Court of Appeals affirmed the trial court.

Campbell’s lawyers filed a petition to transfer last month. Some attorneys now say that if the Indiana Supreme Court denies transfer – or if it affirms the appeals court’s decision – plaintiffs in medical malpractice cases will encounter barriers to justice.

The panel’s purview

Nicholas Deets, an attorney with Hovde Dassow & Deets, said he believes the appeals court ruling is counter to the purpose of the medical review panel. The panel, comprised of three doctors and one lawyer, vets potential malpractice cases to ensure a legitimate claim exists. He said attorneys rely on the panel’s analysis to help them determine where malpractice occurred.
 

deets-nicholas-mug Deets

“We’ve had cases we presented to the medical review panel where we thought: This is where the malpractice occurred, but they found it occurred on a different basis,” he said. “I just had a case where that happened – where the panel found for me issues that I hadn’t proffered.”

Scott Kyrouac, of the Terre Haute firm Wilkinson Goeller Modesitt Wilkinson & Drummy, said the purpose of the medical review panel is to review potential malpractice cases and provide an honest opinion about whether malpractice may exist. Kyrouac, who is also president of the Defense Trial Council of Indiana, said that while DTCI has taken no official position in the Campbell case, his personal opinion is that attorneys won’t always be able to present all issues to the medical review panel.


kyrouac Kyrouac

“Typically, both plaintiffs and defendants do an excellent job of identifying issues and presenting the material to the panel,” he said. “Invariably, however, lawyers sometimes miss the critical medical issues because we are doctors of jurisprudence, not doctors of medicine.”

Different interpretations

In the recent appeal in Campbell, the plaintiffs’ attorneys cited in support of their argument Miller v. Mem’l Hosp. of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997). They say that according to the Indiana Supreme Court opinion in Miller, a plaintiff is not limited at trial to presenting only those issues submitted to the medical review panel.

Jerry Garau, of Garau Germano Hanley & Pennington, filed an amicus brief in Campbell on behalf of the Indiana Trial Lawyer Association. In his brief, Garau cites language from the Miller opinion, which states: “We decline to accept Memorial Hospital’s argument that the plaintiffs’ action is restricted by the substance of the submissions presented to the medical review panel … While a medical malpractice plaintiff must, as a prerequisite to filing suit, present the proposed complaint for review and expert opinion by a medical review panel, there is no requirement for such plaintiff to fully explicate and provide the particulars or legal contentions regarding the claim.”

Plaintiffs’ attorneys say that language leaves little room for interpretation. Yet, citing the same case, the appeals court reached a different opinion in Campbell.

The appeals court said that the Miller opinion does not apply in Campbell, because in Miller the fundamental question was whether the plaintiff’s complaint sufficiently outlined two separate injuries so as to avoid limitations on recovery outlined in the Medical Malpractice Act. The COA held in Campbell, “…we do not interpret the above language so broadly as to allow a plaintiff to argue at trial separate breaches of the standard of care that were not presented in a submission of evidence to the panel.”

The appeals court also wrote that: “It logically follows that a malpractice plaintiff cannot present one breach of the standard of care to the panel, and after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion.”

To lawyers like Deets, that language sends a confusing message. He said that after the medical review panel has found a malpractice claim is warranted, it is not uncommon for further evidence of malpractice to be revealed through deposition or expert testimony.

Deets said he understands that one point of the medical review panel is to ensure plaintiffs don’t “ambush” the defense at trial with surprising new allegations, but that trial rules guard against those types of scenarios. In the COA opinion, the court stated that Campbell’s allegations: “…were not per se insufficient, under notice pleading, to give defendants notice of claimed breaches of the standard of care other than the overdose of Benadryl,” but that those claims had not been submitted to the medical review panel.

In his brief, Garau wrote that if the COA opinion stands, the medical review panel’s function will be akin to a “full-blown trial,” which, he explained, is inconsistent with the intent of the Medical Malpractice Act.

Kyrouac said he thinks the Supreme Court’s decision in Miller is good guidance for medical malpractice cases and that if the ruling in Campbell contradicts that opinion, it may best to let the Supreme Court decide this case.

Experts and defense

Deets said he wonders – if the Supreme Court denies transfer in Campbell – what the implications might be for defense attorneys.

“You would think if it applied to one party, it would have to apply to both parties,” Deets said.

Steven Lammers, of Krieg DeVault’s Schererville office, said that he sees no indication in the COA opinion that defense attorneys would have to present to the medical review panel every possible defense. He said the defense should be able to present at trial all possible defenses, so long as they are related to the plaintiff’s claims.

James Hough, of Spangler Jennings & Dougherty in Merrillville, said defendants are under no burden to prove their innocence, and therefore should not have to provide to the medical review panel specific defenses – with one exception.


hough-james-mug Hough

Hough said that “affirmative defenses” do require the defendant to provide specific proof. In medical malpractice, contributory negligence is one of those claims. If a defendant can prove that that the plaintiff’s negligence was a factor contributing to the injury, then the plaintiff is not entitled to recovery under the Medical Malpractice Act.

“I could envision a scenario where a court could apply (Campbell) to bar any defense on which the defendant bears the burden of proof if it is not presented to a medical review panel,” Hough said. “One problem with this is that the medical review panel is not given the authority to decide whether the plaintiff was negligent or not. There is no opinion that the panel is allowed to issue which takes the plaintiff’s negligence into account. What, then, would be the point of arguing contributory negligence to the medical review panel?”

Lawyers on both sides see a potential time-consuming, expensive complication, based on the Campbell decision. Neither prosecutors nor defenders typically enlist the help of experts unless they are certain the case is proceeding to trial. But if attorneys must present to the medical review panel every conceivable allegation of malpractice, they may be unable to do so without expert analysis.

“It is one thing to require a plaintiff who has brought a lawsuit to have a sound basis before going forward. This is as it should be,” Hough said. “It is quite another thing to require a defendant who, under the law has no burden to disprove the plaintiff’s accusations, to endure the expense of developing every possible avenue of defense before a medical review panel has even decided whether the plaintiff’s case has any basis whatsoever. This kind of burden is exactly what the General Assembly was trying to avoid when it passed the Medical Malpractice Act in an effort to limit meritless litigation while providing a means for the compensation of patients who were really injured due to negligence.” 

The Indiana State Medical Association – in explaining the state’s Medical Malpractice Act – writes about the panel: “After the panel has issued its report, the patient can choose whether to proceed to court. The panel’s report is admissible, but not conclusive, and the panel members can be called as experts.”

Julie Reed, ISMA legal counsel, said the ISMA had no comment on the case.•

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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