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Indiana Medical Malpractice Plaintiffs May Present New Theories of Liability at Trial That Were Not Argued to the Medical Review Panel

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By: Scott Friedman, Esq.

March 20, 2017

In two decisions issued by the Indiana Court of Appeals on February 22, 2017, the Court held that a medical malpractice plaintiff may raise a new theory of liability in state court that was not previously argued to a medical review panel. Specifically, the Court held that a plaintiff is permitted to raise a theory of liability in the state court if (1) it was encompassed by the proposed complaint filed with the Indiana Department of Insurance, and (2) evidence related to the theory of liability was submitted to the medical review panel.

The two opinions, Pastor Llobet, M.D. v. Juan Gutierrez and C.S., a Minor Child, by Her Next Friends and Parents, John Stevens and Laura Stevens v. Aegis Women’s Healthcare, P.C. et al., both rely on last year’s ruling, McKeen v. Turner 61 N.E.3d 1251, 1261 (Ind. Ct. App. 2016), in permitting the new theories at trial. 

Prior to McKeen, medical malpractice plaintiffs were more restricted in the theories of liability they could argue at trial. In the 2011 decision K.D. v. Chambers, 951 N.E.2d 855, 864 (Ind. Ct. App. 2011), the Indiana Court of Appeals held that “a malpractice plaintiff cannot 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 not presented to the panel and addressed in its opinion.” However, in last year’s ruling McKeen v. Turner, the Court held that a plaintiff is permitted to raise a theory of liability in the state court if that theory was encompassed by the proposed complaint and evidence related to the theory was presented to the medical review panel. The Court in McKeen further noted that K.D. v. Chambers “was wrongly decided and/or has been misread.”

In Pastor Llobet, M.D. v. Juan Gutierrez, Case No. 45A04-1605-CT-1133, the plaintiff alleged that he was injured on September 26, 2007 during an angiogram. In the plaintiff’s proposed complaint, he generally alleged that “[t]he health care provided to the Plaintiff, JUAN GUTIERREZ, on September 26, 2007, fell below the applicable standard of care.” The medical review panel concluded that the doctor failed to comply with the appropriate standard of care. Two months later, the plaintiff filed a complaint in state court. Shortly before trial, the defense counsel learned that the plaintiff intended to present a new theory of malpractice: the plaintiff planned to argue that the angiogram was not indicated and thus, not necessary. This theory was based on the tests conducted the day before the angiogram, on September 25, 2007. The doctor moved to strike the “angiogram-not-indicated theory,” which the trial court denied.

On appeal, the doctor argued that even though evidence related to the theory was submitted to the panel, the theory was not encompassed by the proposed complaint, because the proposed complaint only referenced health care that was provided on the day of the angiogram, September 26, 2007. However, the Court of Appeals affirmed the trial court’s ruling because the “angiogram-not-indicated theory” was “plainly encompassed by Gutierrez’s proposed complaint (and evidence related to the theory was submitted to the medical review panel).”

In C.S., a Minor Child, by Her Next Friends and Parents, John Stevens and Laura Stevens v. Aegis Women’s Healthcare, P.C. et al., Case No. 53A01-1607-CT-1657, plaintiffs John and Laura Stevens filed a proposed complaint against a health care provider after their daughter was born, via emergency c-section, with various health problems. After the medical review panel issued an opinion in favor of the health care provider, the plaintiffs filed a complaint in state court and argued that the doctor waited too long to perform the c-section. The parties agreed that the new theory fell within the broad allegations in the proposed complaint, but disputed whether evidence related to the theory was submitted to the medical review panel. Specifically, the health care provider pointed out that results of a non-stress test and fetal-heart-rate motor were not submitted to the medical review panel. The Court held, however, that the medical records submitted to the panel put it on notice that results from a non-stress test and fetal-heart-rate monitor were abnormal. Additionally, the Court noted that “to the extent that the panel was incapable of fully evaluating the timeliness of the c-section… it had a right to request [the test results].” Therefore, “[b]ecause evidence relating to the ‘delayed c-section’ theory was submitted to the medical review panel, and because the proposed complaint encompassed that theory, the Stevenses are entitled to present it in court.”

These decisions provide plaintiffs more latitude in presenting new theories of liability in state court. Previously, under K.D. v. Chambers, a plaintiff could not argue a theory of malpractice at trial, if that theory was not previously presented to the medical review panel. However, three rulings from the Indiana Court of Appeals now permit a new theory of malpractice in state court, as long as the allegations in the proposed complaint “encompass” the new theory, and evidence (typically medical records) related to the theory was provided to the panel.

If you have any questions regarding these decision or any issue of medical malpractice liability in the State of Indiana, please contact one of our Medical Malpractice Liability Practice Group Members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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