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Testimony based on medical journals allowed

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A physician testifying at a medical malpractice case should have been allowed to offer testimony based on her reading of medical journals, and a Marion County judge erred when he excluded part of her statements, the Indiana Court of Appeals decided.

The error, however, was harmless and didn't affect the overall outcome in a medical negligence case against a Wishard Memorial Hospital doctor stemming from a relative's death following post-operative treatment.

The court issued its unanimous ruling today in Linda Spaulding, et al. v. Erinn R. Harris, M.D. and Health and Hospital Corp. of Marion County d/b/a Wishard Memorial Hospital, No. 49A02-0810-CV-954. The case involves the medical treatment and subsequent death of Mattie Spaulding, a morbidly obese 58-year-old woman who underwent emergency aortic valve replacement surgery for congestive heart failure. A couple months after the procedure in March 2002, she consulted with Harris at Wishard's Blackburn Community Health Center for post-operative blood monitoring for possible clots. She had blood tests to monitor her coagulation factor because of being on a blood thinner. On June 20, 2002, an ambulance was called to her house; however, she refused three times to be transported. Three days later, she was taken to Community Hospital and diagnosed with a subdural hematoma for which she underwent a craniotomy. She was later transferred to a rehabilitation facility, where she suffered acute respiratory failure and died. The cause of death was a blood clot traveling to the lungs and preventing oxygenation.

After her death, the Spaulding family filed a complaint with the Indiana Department of Insurance against Dr. Erinn Harris and Wishard Memorial Hospital, alleging the doctor failed to adequately monitor Mattie's coagulation and that she developed her injuries because of negligence. Two members of a medical review panel found in May 2006 that a material issue of fact existed and should be heard by a jury, while a third panelist determined the defendants had failed to provide the appropriate standard of care. The Spauldings then filed suit in Marion Superior Court.

An issue arose when one of the medical review panelists, a primary care doctor, testified based on her experience in administering blood thinners and monitoring coagulation like Mattie's. She testified in a video deposition that a medical article she'd consulted showed higher blood levels could present a greater danger for spontaneous bleeds, and that her belief was that Harris should have tested Mattie more often; she had no tests between June 4 and 23. Judge Gerald Zore redacted portions of the expert's causation testimony that was based on medical literature, but the Spauldings argued that testimony was improperly excluded.

The Court of Appeals agreed, citing caselaw from the 1980s to show expert witnesses can draw upon all sources of information and consult authoritative sources to reach a conclusion. Finding that Indiana Code Section 34-18-10-23 does not give review panel members a "free pass to testify on any matters they so choose," the court acknowledged that she could consult medical periodicals during the deposition under Rule 702. However, the exclusion was harmless because at least three others statements from that doctor were admitted and other testimony showed a similar connection about the medical issue.

The court also determined that the trial court didn't abuse its discretion by excluding the words "Department of Insurance" on the medical review panel opinion and that admitting a redacted copy of that certified opinion was allowed.

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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