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Judge concerned about doctor’s contradictory affidavit

May 27, 2015

An Indiana Court of Appeals judge found it troubling that a member of a medical review panel that unanimously found defendants breached their duty of care to a patient could later issue an affidavit in which he changed his mind relating to a doctor accused of medical malpractice.

Siblings Kathy and John Siner sued Kindred Hospital of Indianapolis, Dr. Majid Mohammed and several others for medical malpractice after their mother, Geraldine Siner, died. Geradline Siner, who suffered from Alzheimer’s disease and could no longer care for herself, had been admitted to Kindred Hospital. John Siner told the hospital repeatedly that his mother was to be a full code patient, but Kindred’s Ethics Committee decided to make her a No Code/Do Not Resuscitate patient. The siblings then moved their mother to Methodist Hospital, where she was immediately treated for a collapsed lung, infection and septic shock. Geraldine Siner died while at Methodist.

A medical review panel, which included Dr. James Krueger, unanimously determined that the defendants failed to comply with an appropriate standard of care and that their conduct may have been a factor of some damages, but not the death, of Geraldine Siner.

In the Siners’ medical malpractice complaint, Krueger submitted an affidavit in which he said he was able to further review the mother’s medical records after the panel issued its opinion and believed that the hospital and Mohammed met the standard of care because they defaulted to the judgment of IU Pulmonary and Critical Care, which directed Geraldine Siner’s care during her hospitalization at Kindred.

The defendants filed for summary judgment, which the trial court granted.

In Kathy L. Siner, Personal Representative of the Estate of Geraldine A. Siner, Deceased, and John T. Siner, prior Enduring Power of Attorney and Medical Representative of the Deceased v. Kindred Hospital Limited Partnership, et al., 49A05-1404-CT-165, the Court of Appeals reversed regarding the hospital, finding an affidavit from the Siners’ expert, Dr. Timothy Pohlman, that the negligent DNR order “more likely than not resulted in damages and suffering” creates a material issue of fact. The majority noted it found Krueger’s affidavit suspect but irrelevant to its decision.

The majority affirmed summary judgment for Majid because the only evidence designated by the Siners was the medical review panel’s opinion, which said the defendants’ conduct “may” have been a factor in damages to Geraldine Siner.

Judge James Kirsch dissented on this issue.

“I find it troubling that a single member of a Medical Review Panel can undermine the work of the panel of which he was a part by an ex parte and conclusory affidavit executed months after the fact without procedural safeguards,” Kirsch wrote.

Disregarding Krueger’s affidavit, the medical review panel issued its opinion that Majid failed to comply with the appropriate standard of care, Kirsch wrote, and that process should not be “impeached or undermined months after it is concluded by an affidavit from a member of the panel” issued without the procedural safeguards mandated by statute.

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