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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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