The Indiana Legislature passed the Indiana Medical Malpractice Act in 1975, making Indiana one of the first states to implement medical malpractice reform legislation. Over the past 42 years, the Act and related case law have evolved. On July 1 of this year, various legislative changes, including an increase in the statutory cap on damages, took effect. The legislative changes have already been discussed in this forum, so this article summarizes some significant medical malpractice cases from 2017.
Plaintiffs Can Change Theories of Negligence
In McKeen v. Turner, 71 N.E.3d (Ind. 2017), 61 N.E.3d 1251 (Ind. Ct. App. 2016), the Supreme Court held that in certain situations, a medical malpractice plaintiff is permitted to raise a new theory of negligence before the trial court despite having failed to raise that specific allegation before the Medical Review Panel, disapproving K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011). According to McKeen, once a plaintiff has completed the statutory medical review panel process, that plaintiff is free to present any theory of malpractice so long as that claim (1) was “encompassed” by the proposed complaint submitted to the panel and (2) is “related” to evidence that was submitted to the panel. To come to this conclusion, the court analyzed both the Medical Malpractice Act and relevant case law.
The court determined that plaintiffs are not bound by the arguments and allegations made in their narrative statements submitted to the medical review panel. The Act requires that plaintiffs present a proposed complaint to the medical review panel. Both parties also have the opportunity to submit medical evidence to the panel. In practice, parties usually also submit narrative statements to the panel, even though such narrative statements are not required by the Act. The plain language of the statute permits the panel to consider the proposed complaint and the medical evidence, but the statute makes no mention of the narrative statements. The court concluded that the arguments and allegations contained in the narrative statements do not constitute evidence to be considered by the panel and do not bind the parties to the allegations therein.
The court then determined that, under notice pleading principles, a plaintiff need not assert all the elements of the cause of action in the proposed complaint. The court discussed Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997), K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011), and the progeny thereof. In Miller, the plaintiffs filed a claim alleging that their son suffered injuries before, during and after birth. After the panel rendered an opinion, the plaintiffs filed in state court. The plaintiffs then settled with the defendant physician. The remaining defendant, Memorial Hospital, filed a motion for summary judgment because, under the Act, the plaintiffs had already received full compensation for the sole alleged injury. Plaintiffs responded by showing that they were actually seeking compensation for two distinct injuries: prenatal injuries and postnatal injuries. The Supreme Court analyzed the parties’ arguments under Indiana Trial Rule 8(A). The court then found that, under the principles of notice pleading, the plaintiffs’ complaint sufficiently pleaded separate claims, and the plaintiffs were therefore entitled to proceed against the hospital.
The Miller court thus permitted a plaintiff to raise a new theory of two distinct injuries following the rendering of the medical review panel opinion, but the Chambers court did not permit the presentation of a new theory. In Chambers, the plaintiff’s proposed complaint included multiple claims of negligence, including allegations of a Benadryl overdose and “various other overdoses.” The plaintiff’s narrative statement did not elaborate on the “various other overdoses,” but instead focused on the alleged Benadryl overdose. At the trial court stage of proceedings, the plaintiff resurrected the initial claim of the “various other overdoses,” alleging an overdose of additional central nervous system depressants. Defendant objected because this claim had not been presented to the medical review panel. The trial court excluded all evidence that the plaintiff received improper doses of depressants other than Benadryl. The Court of Appeals affirmed that ruling. The Chambers court concluded that it would be illogical to allow a plaintiff to present one breach of the standard of care to the panel and, after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were neither presented to the panel nor addressed in its opinion.
Synthesizing precedent and the Act, the court in McKeen concluded that plaintiffs seeking to raise new breaches of the standard of care after the panel process has rendered an opinion must follow two requirements: (1) under the rules of notice pleading, the proposed complaint must encompass the theories regarding the breach sought to be raised at trial, and (2) all evidence relevant to the new claim must have been submitted to the medical review panel. Because the plaintiff in McKeen complied with both of these prerequisites, the plaintiff was permitted to present expert testimony regarding the new allegation of breach in the standard of care, despite not explicitly stating the theory to the medical review panel.
Despite the apparent logic of K.D. v. Chambers, it is no longer possible to rely on that case to object when a plaintiff raises a new theory. A plaintiff’s ability to change theories after the case has been through the medical review panel may seem unsettling, but plaintiffs still have the burden of properly pleading their case and presenting all the relevant evidence to the medical review panel.
Qualifying to Provide Medical Causation Testimony is Increasingly a Case-by-Case Determination
In Totten v. Bukofchan, D.C., which has not yet been reported in the North Eastern Reporter, the Court of Appeals held that chiropractors were unqualified to render an opinion as to medical causation in a case involving chiropractic care because the issue of causation was too complex. (Case No. 24A01-1612-CT-2849). In Totten, a patient brought a medical malpractice action against a chiropractor arising out of the chiropractor’s performance of cervical manipulation. A panel was formed consisting of three chiropractors. The panel unanimously found in favor of the defendant chiropractor, finding that the standard of care had been met and that the conduct complained of had not been a factor in the alleged damages. After the plaintiff filed in state court, the defendant chiropractor moved for summary judgment based upon the panel opinion. In an effort to defeat summary judgment, the plaintiff provided an expert affidavit from a chiropractor who opined that the standard of care was not met and that such care caused or substantially contributed to the plaintiff’s injuries. In response, the defendant chiropractor, who relied upon the opinion of the three panelist chiropractors, argued that the plaintiff’s chiropractor expert was unqualified to provide expert testimony as to causation. Summary judgment was entered on behalf of the defendant and an appeal ensued.
The Court of Appeals analyzed whether the plaintiff’s expert was qualified by looking first at Evidence Rule 702. Under 702, the general rule is that non-physician health care providers (e.g., chiropractors) are not qualified to render opinions as to medical causation. However, the court noted that this is not a blanket rule and that in some instances, where the causation issue is not complex, a non-physician health care provider may qualify. The defendant chiropractor argued that the medical issue was too complex for a chiropractor to render an opinion. The Court of Appeals agreed: “That being said, if a non-physician healthcare provider, such as a chiropractor, is not qualified under Evidence Rule 702 to render an opinion as to medical causation because the causation issue is complex, then chiropractors sitting on medical review panels are likely not qualified to render opinions as to medical causation when the causation issue is complex.” Therefore, the panel opinion from the three chiropractors could not be used as causation evidence for the defendant chiropractor. The opinion could only be used as evidence of the standard of care. And plaintiff’s expert affidavit regarding standard of care was sufficient to create a genuine issue of material fact with the panel opinion. The Court of Appeals reversed the entry of summary judgment and remanded the case to the trial court.
However, in Aillones v. Minton, the court allowed a nurse practitioner (i.e., a non-physician health care provider) to testify as an expert in a non-medical malpractice case. 77 N.E.3d 196 (Ct. App. Ind. 2017). In Aillones, the plaintiff was rear-ended by the defendant in a car accident. After the car accident, the plaintiff was treated by a nurse practitioner for neck pain and back pain. The treating nurse practitioner testified in a court deposition that the plaintiff’s injuries were caused by the car accident. Defense counsel objected to the nurse practitioner’s opinions based on lack of foundation. The issue was then argued before the trial court, which ruled that the nurse practitioner would not qualify as an expert witness. The court based its opinion on a medical malpractice case, Nasser v. St. Vincent Hosp. and Health Services, 926 N.E.2d 43 (Ind. Ct. App. 2010). The plaintiff appealed. The Court of Appeals analyzed the facts under Indiana Evidence Rule 702 and Indiana case law, including medical malpractice cases. The court distinguished medical malpractice cases from the “simple tort claim” at bar. The court said the issue was not whether a medical provider caused a patient’s injuries, but whether a plaintiff’s injuries were caused by an automobile accident. Medical malpractice cases were therefore not directly on point. The court then focused on cases involving simple negligence and concluded that no blanket rule prevents a nurse from acting as an expert witness. The court stated the more pertinent inquiry was whether the expert had sufficient knowledge, skill, experience, training or education that would help the trier of fact understand the issues.
The Aillones court then determined that the nurse practitioner could provide expert testimony, although not about causation per se. The nurse practitioner had sufficient knowledge, skill, experience, training or education to testify as an expert witness as to whether the plaintiff’s injuries were “consistent with” [emphasis in original] injuries from an automobile accident but could not opine that the injuries were caused by the accident because he did not witness the accident. This essentially allows the nurse practitioner to opine as to causation, although not “but for” causation. In addition, in a footnote, the court noted that because the question was not directly before them, they were expressing no opinion on whether a nurse practitioner might be able to testify in a medical malpractice case as to medical causation.
Essentially, the former bright-line rule determining which experts may qualify to testify as to medical causation appears to be changing into one based on the specifics of each case. The opinions in Totten and Aillones leave the door open for non-physician health care providers to opine as to medical causation in medical malpractice cases. Still, it would be risky to use a non-physician health care provider as an expert for medical causation in a medical malpractice case, even in cases of relatively uncomplicated causation issues. The safest route would be to use a medical doctor to testify as to medical causation. And while the Indiana Medical Malpractice Act does not require that a medical doctor sit on every panel, it may be in the litigants’ best interest to include a medical doctor on every medical review panel to ensure that the panel’s opinion regarding causation will hold up in court.
Expert Testimony Regarding Standard of Care Is Impeachable
In Oaks v. Chamberlain, the Court of Appeals addressed whether an expert’s testimony regarding personal practices should be admitted or excluded as evidence. 76 N.E.3d 941 (Ind. Ct. App. 2017). There, the defendant’s expert, a medical doctor, testified that the standard of care did not require X-rays for the post-operative patient in the case. However, upon cross-examination by the plaintiff’s attorney, the expert testified that he would have ordered X-rays in the same situation, creating a possible conflict with his testimony regarding standard of care. The plaintiff wished to use the expert’s testimony as to his personal practices on cross-examination to impeach his testimony regarding standard of care.
This was a matter of first impression in Indiana, so the court examined this issue in comparison with cases from other jurisdictions. For instance, Arizona courts have found that personal practices of a medical expert are relevant to the standard of care and the expert’s credibility. In addition, Illinois courts have held that the standard of care cannot be established solely through testimony regarding the expert’s personal practices but have declared that such testimony is relevant to the expert’s credibility and the weight of his opinion.
The Chamberlain court found that the expert’s testimony regarding his personal practices was relevant and admissible because his personal practices were in conflict with his testimony regarding the applicable standard of care. Moreover, Indiana Rule of Evidence 403 did not apply to exclude the testimony because the probative value of such testimony was not substantially outweighed by its potential to cause unfair prejudice and confuse the jury. The court stated that a jury is capable of understanding the difference between the standard of care and a witness’s credibility about the standard of care.•
Ms. Meyers is an associate attorney with Zeigler Cohen & Koch in Indianapolis. The opinions expressed in this article are those of the author.