COA vacates judgment for hospital, dismisses sepsis theory in widow’s med-mal complaint

A sepsis theory included in a widow’s medical malpractice claim has been ordered dismissed by the Indiana Court of Appeals after it found a Steuben County court lacked jurisdiction to enter partial summary judgment on that portion of the claim.

In 2015, Paul Holsten died just one day after being treated at an urgent care center and hospital emergency room operated by Cameron Memorial Community Hospital Inc. in northeast Indiana.

Paul, who presented with complaints of shortness of breath, wheezing and a productive cough, was initially sent home with a diagnosis of COPD exacerbation. However, no routine chest X-ray was ordered or taken prior to making the diagnosis, and he had no history of COPD, pneumonia or asthma.

Paul actually had community acquired pneumonia that aggressively progressed into necrotizing staphylococcus aureus pneumonia after taking prescribed oral steroids and antibiotics. Upon his return to the hospital 11 hours later, Paul went into respiratory failure and died.

His wife, Linda Holsten, sued the health care providers, alleging they were negligent in the standard of care because a chest X-ray should have been ordered as an essential first order to determine the nature and cause of Paul’s shortness of breath. She also alleged that upon the finding of a right lung infiltrate and suspicion of community acquired pneumonia, steroids were contraindicated and would not have been given to Paul.

A medical review panel found the evidence supported the conclusion that the health care providers failed to comply with the appropriate standard of care, with one panelist later stating in a meeting with Linda’s attorney that the physicians who treated Paul at the emergency room failed to follow the hospital’s sepsis protocol, which “may have played a role in Paul’s death.”

Holsten then filed a complaint with the Steuben Circuit Court and replaced the steroid theory of negligence with the sepsis theory. Cameron Hospital moved for partial summary judgment, arguing the sepsis theory of negligence had not been presented to the medical review panel as required by Indiana’s Medical Malpractice Act.

The trial court granted the motion, but the Indiana Court of Appeals vacated that decision in an interlocutory appeal in Linda G. Holsten, individually and as surviving spouse of Paul A. Holsten, Deceased v. Lynn Faur, M.D., and Cameron Memorial Community Hospital, Inc. a/k/a Urgent Care of Cameron Hospital, 20A-CT-2072.

The appellate panel concluded the trial court lacked subject matter jurisdiction to enter summary judgment on the sepsis theory portion of Linda’s medical malpractice claim because she did not present the sepsis theory to the medical review panel.

The panel began by noting that Holsten’s proposed complaint narrowly focused on two specific theories of negligence: the X-ray theory and the steroid theory. Nowhere in the proposed complaint did Holsten mention the sepsis theory of negligence or any other specific theory related to her husband’s care at the hospital emergency room, according to the COA.

The appellate court also disagreed with Holsten’s assertion that the last portion of her complaint contained “broad general allegations” of negligence that encompassed the sepsis theory.

“A reasonable person would interpret the ‘negligence’ in paragraph 8 as referring to the X-ray theory and steroid theory specifically alleged in the preceding paragraphs. … The content of Linda’s proposed complaint does not encompass — specifically or generally — the sepsis theory of negligence,” Judge Leanna Weissmann wrote for the appellate court.

The COA likewise found no indication that Holsten’s interrogatory objection — in which she said her “investigation of this case is continuing” — was submitted to the medical review panel. Even if it was, the appellate court said, “the objection does nothing to expand upon or generalize the specific theories of negligence alleged in Linda’s proposed complaint.”

“The trial court lacked subject matter jurisdiction over the sepsis theory portion of Linda’s medical malpractice claim,” Weissmann concluded. “We therefore vacate the court’s entry of partial summary judgment and remand, instructing the trial court to dismiss, without prejudice, the sepsis theory portion of Linda’s claim.”

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