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COA: Medical expert failed to establish knowledge of standard of care

February 21, 2019

A directed verdict in favor of Hendricks County health care providers accused of failing to adequately care for a baby born with Rh disease has been upheld after the Indiana Court of Appeals found the plaintiffs’ expert failed to establish that he knew the applicable standard of care.

Marigold and Earl Overshiner filed a complaint for damages against Hendricks Regional Health and Dr. Ian Johnston for failing to properly treat their daughter’s Rh disease at birth, causing her to suffer hyperbilirubinemia and other medical conditions and physical injuries, including blindness. At trial in Putnam Circuit Court, the plaintiffs relied on testimony from their expert, Robert Shuman, a retired neuropathologist.

After the Overshiners rested their case, attorneys representing Hendricks Regional and Johnston moved for a directed verdict, arguing, in part, that Shuman did not articulate that he was familiar with the standard of care. The trial court granted the providers’ motion, finding Shuman never described the standard of care in Indiana.

The Overshiners appealed to correct error in Marigold Overshiner and Earl Overshiner, Individually and as Parents and Guardians of their Minor Daughter, Kaitlyn Overshiner, and Kaitlyn Overshiner, v. Hendricks Regional Health and Ian Johnston, M.D., 18A-CT-582.

Before the Court of Appeals, the plaintiffs argued medical experts are not required to testify that they are familiar with the standard of care. Moreover, the Overshiners continued, Shuman testified multiple times as to what the standard of care was, that it was violated and that their daughter was damaged as a result.

Hendricks Regional countered that in four days of testimony, Shuman testified to his personal preferences and what he thought the treatment should have been. However, that “does not equate to evidence that he was familiar with the standard of care, as to what the standard of care was, or that the standard of care was breached.”  Johnston further argued Shuman’s training and experience in pediatric neurology and neuropathology did not qualify him to offer opinions in the specialty of obstetrics.

The Court of Appeals turned to Lusk v. Swanson, 753 N.E. 2d 748, 754 (Ind. Ct. App. 2001), trans. denied, which found it is not reasonable to conclude that a specialist in one medical area would be familiar with the standard of care in another.  

“Here, we find on the fact presented to the trial court that the Overshiners did not provide testimony that allowed the trier of fact to apply the appropriate standard of care,” Judge Elaine Brown wrote for the court. “…Our review of the record and Dr. Shuman’s testimony makes clear that any inference intended to be proven by the evidence, as pointed to by the Overshiners, cannot logically be drawn without undue speculation as to the applicable standard of care.”

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