When a medical review panel issues an opinion on a medical malpractice claim, traditional jurisprudence holds that the parties in the case cannot present new legal theories or evidence to a trial court that were not considered by the panel.
But what if the panel fails to ask for medical records that are later deemed vital to the case? Or what if the deposition of an expert witness introduces an entirely new malpractice claim? The Indiana Court of Appeals is wrestling with those issues after judges recently heard arguments in two medical malpractice cases.
In C.S. v. Aegis Women’s Health, et al., 53A01-1607-CT-01657, a medical review panel found a woman’s prenatal health care providers did not breach the standard of care when treating C.S., who was born with several disabilities. In Pastor Llobet, MD v. Juan Guitierrez, 45A04-1605-CT-1133, the panel found that Dr. Pastor Llobet failed to comply with the appropriate standard of care when he broke a stent in Juan Guitierrez’s body during an angiogram, forcing Guitierrez to undergo additional surgeries.
But when the cases went to trial, both plaintiffs raised legal issues that the defendant health care providers deemed were brand new and, thus, could not be considered by the court.
In C.S., an expert medical witness hired by the plaintiffs said if he had been on the panel, he would have requested to see fetal monitoring strips from the Bloomington hospital where the baby was born. If the panel had seen those strips, they would have known that the baby had a troubling heart rate that required emergency medical intervention, which the expert said was not provided. The trial court entered summary judgment against C.S., however, holding that the family could not raise a new breach of the standard of care after the panel issued its opinion.
Conversely, in Llobet, the trial court allowed Guitierrez to raise what Llobet considered a new claim — that the angiogram was not indicated — but barred the doctor from presenting additional evidence related to that claim.
At oral arguments Jan. 23, Chief Judge Nancy Vaidik frequently asked one question: Should the ruling in K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011), be considered the applicable law in these cases? From the defendants’ perspective, the answer was “Yes.”
In K.D., the COA held a malpractice plaintiff cannot present one breach of the standard of care to the panel, then raise a new claim at trial after receiving an adverse panel opinion.
But Elizabeth Roberge, plaintiff’s counsel in C.S., argued that the ruling in K.D. turned the informal medical review panel process into an adjudication that becomes a preclusive issue at trial. Further, Barry Rooth, Guitierrez’s counsel in Llobet, told the judges that under previous cases such as Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997), the panel process was not meant to impose any sort of burden of proof or production on the plaintiffs.
Rooth and Roberge’s arguments were echoed by Jerry Garau, who argued on behalf of the plaintiffs as amicus through the Indiana Trial Lawyers Association.
Steve Langer, a longtime medical malpractice attorney in Valparaiso and former president of the Indiana Trial Lawyers Association, agreed and said K.D. flies in the face of Miller and other Indiana Supreme Court decisions.
“If K.D. stands as law, then the plaintiffs are being in essence required to put on their case before a medical review panel without judicial safeguards, burdens of proof and undertaking full discovery, and I think that’s wrong,” Langer, who is not involved in the cases, said.
But from the perspective of the Defense Trial Counsel of Indiana, which joined both defendants’ cases as amicus, K.D. conforms with prior Supreme Court opinions.
Lucy Dollens, DTCI amicus chair, said in an email that although Miller held that “the distinction between injuries resulting from the alleged malpractice did not have to be raised in the panel submission … because the Medical Malpractice Act does not require plaintiffs to explain fully the particulars of their medical malpractice claim,” the court only reached this conclusion because “the claimed malpractice itself had been presented to the panel. So both cases require the claimed malpractice to be presented to the medical review panel.”
Further, Michael O’Neill, counsel for Llobet, told the judges that although the medical review panel process does not require the parties to conduct extensive discovery, there is an obligation to “frame up” the issues that will be considered by the panel. The issues that are “framed up” prior to the panel process are the ones that the parties must carry through the entire litigation, he said.
But if discovery is allowed after the panel opinion is issued but before trial begins, then Vaidik noted that there was always the risk of new witnesses and experts leading to potential new claims, as happened in both C.S. and Llobet.
Stacy Thompson, counsel for the health care providers in C.S., said there was a difference between “newly discovered” information and information that was known but not presented to the panel. Where information is already known, Thompson said allowing new breaches of care to arise from that known information defeats the purpose of having a review panel.
Judge Cale Bradford then wanted to know what kind of statutory duty was imposed on the panel to ensure they have all of the necessary information to consider the claims raised during panel proceedings.
Thompson said such a duty exists, but only if the panel members are aware that they are considering a certain claim. Thus, if an entirely new claim is raised at trial, the fact that the panel didn’t seek medical records related to that claim should not be held against panel members, she said.
“The duty to seek additional information cannot and should not be triggered where a plaintiff’s proposed complaint may (be) broad enough to encompass later-raised malpractice claims, but plaintiff has narrowed the claims of malpractice in her submissions to the review panel, such that the review panel no longer believes a given claim is before it,” Dollens said.
But in a case like C.S., Langer said panel members who are obstetricians should know they need to request to see fetal monitoring strips when dealing with a labor and delivery malpractice claim. Further, the plaintiffs, who are lay people, should not be expected to know that such records are relevant, he said.
Additionally, Roberge told the court that attorneys are JDs, not MDs, so lawyers who are not familiar with malpractice claims may not know that a certain set of records is relevant. Thus, it is up to the review panel to determine what evidence they need to make an accurate decision.•