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COA upholds denial of motion to strike expert medical testimony in malpractice suit

October 4, 2016

The Indiana Court of Appeals affirmed Tuesday a trial court’s decision to deny a motion to strike expert witness testimony after finding that a man could present certain evidence to prove medical malpractice against his now-deceased wife’s former physician.

In 1998, Rowena Turner was diagnosed with a bone marrow cancer that put her at a greater risk for blood clots, and in 2008 she learned that there were malignant tumors in her colon. Dr. Charles McKeen performed surgery to remove part of Turner’s colon in May of that year.

After Turner’s blood pressure dropped and her heart rate increased on June 13, lab tests and a last-minute exploratory surgery of her abdomen revealed that part of her small bowel was dead and that blood clots were obstructing blood flow to the small bowel. Despite further treatment from McKeen, Turner died a week later.

Turner’s husband, Billy Turner, filed a medical malpractice complaint against McKeen in January 2010, alleging that the medical treatment McKeen had provided to Turner’s deceased wife was negligent,  was below the appropriate standard of care and that her death was a direct proximate result of McKeen’s “negligent substandard medical and surgical care.”

Billy Turner filed his submission to the medical review panel in June 2011, arguing that the exploratory surgery should have been offered “long before” the June 13 surgery. However, the submission did not mention the blood thinners McKeen prescribed to Rowena Turner during or after her first hospital stay. The review board decided in November 2011 that the evidence did not support Billy Turner’s allegations of negligence against McKeen.

Billy Turner then filed a complaint against McKeen in Monroe Circuit Court in January 2012. In February 2014, he filed a supplemental expert witness designation, which disclosed anticipated testimony from Dr. Robert Manges, an expert hematologist, who was expected to testify that the blood thinners Rowena Turner was given upon her discharge from the hospital in May 2008 were inadequate. McKeen moved to strike Manges’ opinions, but the trial court denied his motion in September 2015.

McKeen then appealed in Charles McKeen, M.D. v. Billy Turner, 53A05-1511-CT-2047, arguing that because Billy Turner did not present evidence regarding the blood thinners to the medical review board, he could not bring that issue up in court.

But in its Tuesday opinion, the Indiana Court of Appeals wrote that the Indiana Medical Malpractice Act does not require that submissions to the panel contain specifications of the breaches of standards of care and, further, does not designate the narrative statements that are provided to the panel as “evidence.”

Based on existing caselaw, the appellate court wrote that there are two requirements plaintiffs must meet to raise new breaches of the standard of care after a panel review has concluded: the complaint must encompass the theories raised at the trial, and “evidence” related to those theories must have been presented to the panel. Because Billy Turner provided the panel with his wife’s full medical records, his court complaint met both of those requirements, the appellate court wrote.

The Court of Appeals remanded the case for further proceedings.

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