Indiana Supreme Court Reverses Trial Court Decision Ordering Redaction of Patient Submissions in Indiana Medical Malpractice Case

The Indiana Supreme Court recently reaffirmed the limited scope of authority trial courts have during medical review panel proceedings in Indiana medical malpractice cases in Bojko v. Anonymous Physician. We previously wrote a blog about the Indiana Court of Appeals decision in the case. In Bojko, six patients filed medical malpractice claims against the estate of a deceased physician and his practice (the “physician”) alleging, among other things, the physician recommended, performed, and billed for unnecessary and unindicated sinus and nose surgeries. In their submissions to the medical review panel, the six patients alleged the physician was mentally ill, abusing drugs and/or alcohol, or was motivated by naked greed and they included a wrongful death complaint filed by the physician’s wife, in which the wife alleged the physician suffered from chronic alcohol and drug abuse and was killed after being discharged from a hospital ER.

The physician filed a petition in court under Indiana Code § 34-18-10-14, which provides “[a] party, attorney, or panelist who fails to act as required by [Chapter 10 of the Indiana Medical Malpractice Act] without good cause shown is subject to mandate or appropriate sanctions upon application to the court designated in the proposed complaint as having jurisdiction.” The physician requested the trial court order the patients redact from their submissions all references to alleged mental illness or drug or alcohol abuse, arguing such was not “evidence.” The trial court granted the petition and ordered the patients to redact all such references and any references to the physician’s wife’s complaint. The Indiana Court of Appeals affirmed, likening Bojko to its prior decision in Sherrow v. GYN, Ltd., 745 N.E.2d 880, 884-885 (Ind. Ct. App. 2001), in which the Court of Appeals ruled trial courts have authority under Indiana Code § 34-18-10-14 to order redaction of legal argument in evidentiary submissions because legal argument is not “evidence.”

On transfer to the Indiana Supreme Court, the Court first reviewed the scope of authority trial courts have under Indiana Code § 34-18-10-14. In looking at the statute, the Court recognized that a condition precedent to relief under the statute is the failure of a party, attorney, or panelist to comply with Chapter 10 of the Indiana Medical Malpractice Act, which imposes various requirements on parties, attorneys, and panelists during medical review panel proceedings (e.g., parties cannot communicate with panelists prior to the issuance of opinions and must timely tender evidence and panels must timely issue their opinions). The Court recognized trial courts have authority to direct panel proceedings to the extent necessary to ensure the various statutory duties are met. The Court referenced Sherrow, the case relied upon by the Court of Appeals, as instructive, in that the Medical Malpractice Act requires panel chairs to advise the panel as to legal questions and the issue in that case was the panel chair’s failure to carry out that duty given the legal argument by the defendants. In Bojko, the Indiana Supreme Court ruled trial courts have authority to grant relief under Indiana Code § 34-18-10-14, but only if there is a failure to act as required by the statute.

Having clarified the scope of trial court authority under Indiana Code § 34-18-10-14, the Court next reviewed Indiana Code § 34-18-10-17, which describes the evidence panels may review and requirements relating thereto. Under the statute, parties must promptly submit evidence, panels must take an oath in reviewing the evidence and rendering their opinions on the evidence, and panel chairs must ensure panels have the opportunity to review the evidence, which “may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable by the medical review panel.” The Court found the statute’s plain, unambiguous language does not confer authority upon trial courts to order redaction, or otherwise exclude evidence, submitted by parties, as there is no restriction on the type of evidence that may be submitted, other than that it be “allowable” by the panel. According to the Court, the panel alone has the authority to determine what evidence it will consider.

The Court next reviewed what constitutes “evidence” under the Indiana Medical Malpractice Act and whether the physician’s wife’s complaint constituted “evidence” under the Act. While the Act does not define “evidence,” it provides that undefined legal terms of art have a meaning consistent with the common law. Ind. Code § 34-18-2-2. In reviewing Indiana’s common law and Black’s Law Dictionary, the Court found “evidence” under the Act to mean “any material submitted to a medical review panel that tends to produce conviction in the mind as to the existence of an alleged fact.” Using this definition in Bojko, the Court held the physician’s wife’s complaint—while not necessarily reliable or relevant, which is a determination left to the panel—was evidence a panel may consider. Ultimately, the Court reversed the trial court, finding trial courts have no authority to act as gatekeeper of evidence submitted to medical review panels, and the wife’s complaint was evidence, thus the trial court lacked authority to order the patients to redact their submissions.

You can read the full opinion here.