The Indiana Court of Appeals affirmed the denial of a woman’s motion to correct error and relief from judgment following a verdict in favor of Clarian Health Partners on her medical malpractice complaint. The court found that Clarian’s counsel did not commit misconduct by not supplementing the deposition testimony of one of its doctors – a nonparty to the case – prior to trial.
Deborah Cleveland filed a proposed medical malpractice complaint with the Indiana Department of Insurance against Clarian – now known as Indiana University Health – and the doctors who treated her husband, Robin, after he came to the hospital in 2002 suffering traumatic injuries from a fall. One of the physicians was second-year resident Dr. Jennifer Choi. Robin Cleveland arrived at the hospital at 9:53 a.m., but did not go into surgery until around 10:45 a.m. He bled to death while in surgery.
The 2004 deposition and 2011 trial testimony of Choi are at issue in this appeal. In her deposition, Choi sometimes gave specific times for when the decision was made to move Robin Cleveland to surgery; at other times, she gave vague answers or said she was unsure. The medical review panel found no malpractice occurred. Deborah Cleveland then filed a lawsuit in Marion Superior Court. All the defendants were eventually dismissed except Clarian.
At the trial, Choi’s testimony didn’t always match up to her deposition, and some of her answers changed. She said this was in part due to a review of the operative log and records. She even admitted her recollection of the events may have been incorrect at the time of the deposition.
Deborah Cleveland lost her suit; the trial court denied her motion to correct error and for relief from judgment. She argued that Ind. Trial Rule 26(E)(2) imposes a duty on a party to amend a nonparty witness’s deposition testimony when that party learns of a change in the testimony before trial; and that Clarian’s counsel committed misconduct under Trial Rule 60(B)(3) when counsel did not supplement Choi’s deposition testimony prior to trial. Robin Cleveland cited the dram shop case Outback Steakhouse of Florida v. Markley, 856 N.E.2d 65, 72 (Ind. 2006), to support her argument.
But the Court of Appeals found Outback distinguishable. In the instant case, Choi’s trial testimony was not directly contradictory, as was the testimony at question in Outback.
“When Dr. Choi’s deposition testimony is considered in its entirety, there is an insufficient factual basis in the record to conclude that there was a clear, substantial, and material change in her testimony that, if Trial Rule 26(E)(2) applied, would have triggered any duty on Clarian’s attorneys to amend that testimony prior to trial,” Judge Edward Najam wrote in Deborah A. Cleveland, as Personal Representative of the Estate of Robin W. Cleveland v. Clarian Health Partners, Inc., 49A02-1110-CT-948.
There is also no factual basis to show that Clarian knew or should have known that Choi’s trial testimony would render her prior responses incorrect, so the hospital did not have a duty to supplement the deposition testimony and did not commit misconduct by failing to amend that testimony, he continued.