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Parties urge justices to take med-mal case to provide clarity

March 24, 2017

A medical malpractice case on petition to transfer before the Indiana Supreme Court had both the appellants and appellees urging the justices Thursday to take their case.

Since the case of case of K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011) was handed down — with the Court of Appeals holding that theories of a breach of a standard of care not presented to the medical review panel cannot be presented to the court in a medical malpractice case — there has been confusion as to what evidence and claims must be presented at the panel stage, the attorneys said. Both parties want the court to accept the case of Charles McKeen, M.D. v. Billy Turner, 53A05-1511-CT-02047, to provide clarity, though that is where their agreement ended.

In McKeen, Billy Turner brought a medical malpractice suit against Dr. Charles McKeen after McKeen performed surgery on Turner’s wife to remove part of her colon. Turner’s wife later died, but the medical review panel found that McKeen had not breached the standard of care.

When Turner brought the case to the trial court, McKeen moved to strike the testimony of a hematologist because the issues the hematologist would address were not raised to the panel. But the trial and appellate courts rejected the motion to strike, with Judge John Baker specifically finding in the October opinion that K.D. was wrongly decided or has been misread. Instead, Baker wrote that plaintiffs’ complaints must encompass the theories raised at trial and evidence related to those theories must have been presented to the panel.

Jim Young, counsel for Turner, praised Baker’s analysis to the Supreme Court justices and noted the review panel is meant to be an informal process. Young further said that while presenting a narrative of the case to the review panel is helpful, it is not statutorily required. Thus, litigants can’t waive their claims at trial on the basis of failing to enumerate them in the narrative submitted to the panel if the narrative is not even necessary, he said.

But Justice Steve David expressed concern about viewing the review panel process as merely a “checkoff” on the way to trial, rather than giving the panel’s decision its due consideration. Young said he did not view the panel process in that light, but also cautioned against using the panel as a means of limiting the issues that can be brought before a jury.

However, Michael O’Neill, counsel for McKeen, repeatedly noted that discovery rules apply under the Medical Malpractice Act, so the parties must use discovery tools to shape their case.

When a “bare bones” complaint against a health care provider is filed, O’Neill said attorneys must use discovery to obtain medical and other relevant records to determine the specific issues of the case. Thus, when Chief Justice Loretta Rush asked whether every single document must be submitted to the review panel, O’Neill said enough information must be provided to enable the panel to render a reliable opinion that can be considered in court.

But if Baker’s rationale in McKeen is rejected, then Young said there would be an imbalance of prejudice and harm against the patient, who would be required to present every possible claim against their doctor to the review panel. The panel process was never intended to cause such harm, Young said, but instead to be an informal process.  

Jerry Garau, who argued before the justices as amicus counsel for Turner on behalf of the Indiana Trial Lawyers Association, said the decision in K.D. had thrown a banana peel into the process of litigating medical malpractice claims and urged the court to affirm or adopt the decision in McKeen. Garau said it is rare to do full discovery at the panel stage, and noted that existing trial rules already allow parties to amend their complaints as they learn new facts through discovery.

The Defense Trial Counsel of Indiana served as amicus to McKeen’s case, though its representative, Crystal Rowe, did not argue before the court. The full oral arguments can be viewed here.

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