MEDICAL MALPRACTICE VS. ORDINARY NEGLIGENCE
The Indiana Court of Appeals has recently issued four opinions concerning whether the claims at issue constituted medical malpractice or ordinary negligence. The distinction is important as such relates to the applicability of the Medical Malpractice Act (MMA), which, among other things, caps damages, Ind. Code § 34-18-14-3, requires claims be presented to a medical review panel prior to prosecuting them in court, Ind. Code § 34-18-8-4, shortens the statute of limitations for minors, Ind. Code § 34-18-7-1(b), and, in conjunction with the Comparative Fault Act, retains contributory negligence for those providers who qualify thereunder, Ind. Code § 34-51-2-1(b)(1).
Not all claims against healthcare providers constitute medical malpractice. G.F. v. St. Catherine Hosp., Inc., 124 N.E.3d 76, 85 (Ind. Ct. App. 2019). “The fact that the alleged misconduct occurred in a healthcare facility, or that the injured party was a patient at the facility, has not been dispositive in determining whether the claim sounds in medical malpractice.” Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549, 556 (Ind. Ct. App. 2019). Whether a case is one of medical malpractice covered by the MMA is a question of law determined by the court. G.F., 124 N.E.3d at 85. Courts look to the substance of the claim. Id. The MMA applies to curative or salutary conduct undertaken in the interest of or for the benefit of a patient’s health. Id. The MMA does not apply to conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. Id. Courts ask whether the claim is based on the provider’s behavior or practices while acting in a professional capacity as a provider of medical services. Metz as Next Friend of Metz v. Saint Joseph Reg’l Med. Ctr.-Plymouth Campus, Inc., 115 N.E.3d 489, 495 (Ind. Ct. App. 2018). Courts ask whether the issues are capable of resolution by a jury without application to the standard of care and whether there is a causal connection between the conduct complained of and the patient-healthcare provider relationship. G.F., 124 N.E.3d at 86. Courts also ask whether the misconduct at issue arises naturally or predictably from the relationship between the healthcare provider and the patient or from an opportunity provided by that relationship. Martinez, 128 N.E.3d at 558. These tests often result in hairline distinctions between claims of medical malpractice and ordinary negligence. Id. at 557.
Metz as Next Friend of Metz v. Saint Joseph Reg’l Med. Ctr.-Plymouth Campus, Inc., 115 N.E.3d 489 (Ind. Ct. App. 2018) involved a state-court lawsuit filed in 2017 by a mother on behalf of her twelve-year-old daughter against medical providers arising out of conduct that occurred in 2004. Id. at 491-492, 494. Having not presented the claim to a medical review panel, and given the MMA shortened statute of limitations as to minors, which provides that “a minor less than six (6) years of age has until the minor’s eighth birthday to file,” Ind. Code § 34-18-7-1(b), the mother claimed the MMA did not apply because the medical providers “simply failed to perform an administrative duty to read and report the critical information [concerning laboratory results].” 115 N.E.3d at 492. The Court of Appeals affirmed the trial court’s dismissal of the mother’s complaint, finding that the MMA applied to the claim, as prompt analysis of lab results and proper follow up and interpretation of test results was essential to the promotion of the patient’s health, not within the common knowledge of a lay person, and more than a mere “administrative error.” Id. at 497-498.
Cmty. Hosps. of Indiana, Inc. v. Aspen Ins. UK Ltd., 113 N.E.3d 636 (Ind. Ct. App. 2018) involved a lawsuit brought by insurance companies seeking to recover damages paid to persons injured in a trucking collision from a medical provider who had cleared the at-fault truck driver to drive a commercial motor vehicle. Id. at 637-640. The insurance companies dual filed the case before the Indiana Department of Insurance (IDOI) and in state court, presented the claim to a medical review panel, received a positive opinion from the panel as to standard of care but not as to causation, and thereafter filed a motion for summary judgment in state court arguing the MMA did not apply. Id. at 638-640, 642. The Court of Appeals reversed the trial court’s grant of summary judgment in favor of the insurance companies, holding the insurance companies were estopped from claiming the MMA did not apply because they prosecuted the action in state court and before the IDOI as if the MMA applied and did not timely raise the issue of the MMA’s applicability. Id. at 643-645.
G.F. v. St. Catherine Hosp., Inc., 124 N.E.3d 76 (Ind. Ct. App. 2019) involved a lawsuit asserting a claim of negligent dissemination of protected health information that occurred when a physician, in the presence of a patient’s co-worker who was in the patient’s room with the patient, disclosed information to the patient that implicated the patient’s HIV status. Id. at 80. The lawsuit was dual filed before the IDOI and in state court. Id. at 80-81. After the medical review panel issued its opinion, the patient filed an action in court seeking a declaratory judgment, and then filed a motion for summary judgment thereon, in which the Indiana Patient’s Compensation Fund joined, seeking a determination that his claims fell outside of the MMA. Id. at 81. The Court of Appeals distinguished the physician’s disclosure of the health information to the patient with the physician’s simultaneous inadvertent disclosure of the health information to a third party. Id. at 88. The Court held that the latter, which was the focus of the patient’s claim, fell outside the MMA, as it did not constitute healthcare treatment to the patient, had no curative or salutary effect on the patient, and was within the common knowledge of a lay person. Id. Furthermore, the Court declined to extend Cmty. Hosps. of Indiana, Inc. v. Aspen Ins. UK Ltd., 113 N.E.3d 636 (Ind. Ct. App. 2018) to find that the patient was estopped from claiming the MMA did not apply because he had “elected to file [and prosecute] his case as a medical malpractice claim,” as the Court reasoned, consistent with other precedent, that it is the substance of a claim, not the caption, that determines whether it is medical malpractice or ordinary negligence. G.F., 124 N.E.3d at 88-89.
Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549 (Ind. Ct. App. 2019) involved a state-court lawsuit filed by the estate of a psychiatric patient and resident of a voluntary group home who died after he was kicked by a residential assistant employed by the home who was enforcing curfew and who did not thereafter attend to the patient but awaited the police. Id. at 552-553. The Court of Appeals reviewed numerous decisions, some of which supported the plaintiff’s position, some of which supported the defendant’s position, and some of which the Court distinguished on the basis that they involved claims for injuries directly caused by third parties. Id. at 558-562. The Court held this claim fell within the scope of the MMA: the home was a healthcare provider and the residential assistant was acting as its employee (with the Court relying on the broadened scope of employment set forth in Cox v. Evansville Police Dep’t, 107 N.E.3d 453 (Ind. 2018)), the resident was a patient, the employee was attempting to enforce the home’s curfew as part of the home’s provision of healthcare, the employee was naturally responding to the resident’s physically aggressive behavior by defending himself, and the employee thereafter followed protocol by refraining from being in the immediate physical presence of the resident. 128 N.E.3d at 562. On rehearing, the Court clarified its opinion by stating that whether the patient or the residential assistant began the altercation was not material to its conclusion that the claim falls under the MMA. Martinez v. Oaklawn Psychiatric Ctr., Inc., 131 N.E.3d 777, 778 (Ind. Ct. App. 2019).
PREFERRED VENUE – COURT OF APPEALS SPLIT RESOLVED
The Indiana Supreme Court in Morrison v. Vasquez, 124 N.E.3d 1217 (Ind. 2019) resolved a split in the Court of Appeals over what constitutes preferred venue under Indiana Trial Rule 75 in two medical malpractice lawsuits filed in Marion County, Indiana. Morrison, 124 N.E.3d at 1219. Indiana Trial Rule 75 provides for preferred venue in “the county where… the principal office of a defendant organization is located.” Ind. R. Trial P. 75(A)(4). Although newly enacted Indiana procedural law provides that “[t]he address of [an entity’s registered] agent does not determine venue in an action or a proceeding involving the entity,” Ind. Code § 23-0.5-4-12, the Indiana Supreme Court had interpreted the term “principal office” as used in Indiana Trial Rule 75(A)(4) and (10) as “the place in Indiana where one serves the corporate registered agent,” Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 975 (Ind. 2006) (American Family). Under well-established Indiana law, if a conflict exists between a procedural statute and a rule adopted by the Indiana Supreme Court, the rule takes precedence and “all laws in conflict with the supreme court’s rules have no further force or effect.” Ind. Code § 34-8-1-3. Indiana Trial Rule 75(D) further provides that “any special or general statute relating to venue” shall be subject to Rule 75 and “any statute fixing more stringent rules thereon shall be ineffective.” Ind. R. Trial P. 75(D).
The Indiana Court of Appeals in Morrison v. Vasquez, 107 N.E.3d 1103 (Ind. Ct. App. 2018) declined to find that Indiana Code § 23-0.5-4-12 fixed a more stringent rule or was otherwise ineffective under Indiana Trial Rule 75(D) and held that Marion County was not a preferred venue based upon the address of the defendant’s registered agent. 107 N.E.3d at 1110.
The Court of Appeals in Indiana Univ. Health S. Indiana Physicians, Inc. v. Noel, 114 N.E.3d 479 (Ind. Ct. App. 2018), however, held that preferred venue lied in Marion County because Indiana Code § 23-0.5-4-12 conflicts with Indiana Trial Rule 75(A)(4) as interpreted by the Indiana Supreme Court in American Family, thus making the statute a nullity. 114 N.E.3d at 488.
In resolving the split, the Indiana Supreme Court held that a domestic organization’s actual principal office and not the location of its registered agent is the appropriate preferred venue. Morrison v. Vasquez, 124 N.E.3d 1217, 1222 (Ind. 2019). The Court further held that in light of the new statutes defining “principal office,” Ind. Code § 23-0.5-1.5-29, and providing that a registered agent’s location does not determine preferred venue, Ind. Code § 23-0.5-4-12, the location of a registered agent does not determine preferred venue for either domestic or foreign corporations. 124 N.E.3d at 1222. Lastly, the Court held the new business corporation statutes could be applied retroactively in Morrison because preferred venue was not determined until after the enactment of the statutes, and even though the statutes were enacted after the filing of the complaint, procedural statutes, as opposed to substantive statutes, may be applied retroactively. Id.
STATUTE OF LIMITATIONS
The Indiana Court of Appeals has recently issued seven opinions dealing with the applicability of the MMA statute of limitations. The MMA provides that “[a] claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor’s eighth birthday to file.” Ind. Code § 34-18-7-1(b). However, this statute of limitations has been held unconstitutional as applied to cases that preclude the filing of a claim before the plaintiff either knows of the malpractice and resulting injury or discovers facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and resulting injury. Anonymous Physician v. Kendra, 114 N.E.3d 545, 549 (Ind. Ct. App. 2018). The statute of limitations can also be extended under the doctrine of fraudulent concealment, which estops defendants from asserting the statute of limitations as a defense when the defendants, by deception or violation of a duty, have concealed material facts from the plaintiff and thereby prevented discovery of a wrong. Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1090 (Ind. Ct. App. 2018). Lastly, under the continuing wrong doctrine, the statute of limitations can be extended where an entire course of conduct, which is of a continuous nature, combined to produce an injury. Anonymous Doctor A v. Foreman, 127 N.E.3d 1273, 1278 (Ind. Ct. App. 2019).
In McDaniel v. Erdel, 91 N.E.3d 617 (Ind. Ct. App. 2017), the estate of a deceased patient filed suit in 2014 against a physician for alleged malpractice in 2007 for not referring the patient for a possible liver transplant. Id. at 620, 624. Office visits with the physician ceased in 2011. Id. at 625. The physician was not involved in any medical decisions relating to the patient’s liver cancer after another physician and a team of surgical oncologists assumed treatment of the patient’s liver cancer with radiofrequency ablation treatments occurring between 2007 and 2011. Id. Under a complicated set of facts, the Court of Appeals held that the estate had not met its burden of establishing an issue of fact material to any theory avoiding the statute of limitations. Id.
In Zelman v. Cent. Indiana Orthopedics, P.C., 88 N.E.3d 798 (Ind. Ct. App. 2017), a patient filed a lawsuit against her surgeon in 2015 for malpractice arising from a spinal fusion performed in 2010 without pedicle screws. Id. at 799-801, 804. Postoperatively the surgeon did not answer the patient’s inquiries and told the patient “everything was fine,” the patient pursued an explanation and treatment for her ongoing pain, and the patient was told by another provider that the cause of her pain was unknown. Id. at 800, 803-804. After a second surgery in 2014, the plaintiff was told by her second surgeon that the first surgery was not performed correctly. Id. at 800-801, 804. Recognizing that reliance on a medical professional’s words or actions deflecting inquiry into potential malpractice and assurances by a medical professional that an illness or injury is due to some cause other than malpractice can extend the period for reasonable discovery, the Court of Appeals held there existed a genuine issue of material fact as to when the patient’s pain and diligent pursuit would have led the patient to discover that malpractice was the cause. Id. at 803-804.
In Rumell v. Osolo Emergency Med. Servs., Inc., 88 N.E.3d 1111 (Ind. Ct. App. 2017), the plaintiff filed a lawsuit for substandard emergency care resulting in death. Id. at 1112. The proposed complaint was filed ten days before the expiration of the statute of limitations. Id. at 1112, 1115. Three days after the expiration of the statute of limitations, the IDOI sent a letter to counsel informing the parties that the defendants were not qualified under the MMA. Id. at 1112-1113, 1115. While the filing of a proposed complaint with the IDOI against a healthcare provider tolls the statute of limitations, the statute of limitations begins to run again when the parties are informed a provider is not qualified under the MMA. Id. at 1114-1115. Several months after receiving notice from the IDOI that the defendants were not qualified, the plaintiff filed a state-court lawsuit. Id. at 1113, 1115. The Court of Appeals held that the plaintiff’s complaint was time-barred. Id. at 1120.
In Anonymous Physician v. Kendra, 114 N.E.3d 545 (Ind. Ct. App. 2018), a physician implanted a cardiac pacemaker with defibrillator in 2006 and thereafter performed other related procedures alleged to be unnecessary. Id. at 546-547. The patient died in 2012 and the patient’s estate filed suit in 2015. Id. at 547. The Court of Appeals held the claim was barred by the statute of limitations because, even though the patient and the patient’s estate may not have had a reason to suspect malpractice, reasonable diligence required them to look into the possibility of malpractice given the condition and the treatment that failed to improve it was known. Id. at 550-551.
In Biedron v. Anonymous Physician 1, 106 N.E.3d 1079 (Ind. Ct. App. 2018), the Court of Appeals considered a consolidated appeal of three related medical malpractice cases. Id. at 1085-1086. Two of the cases were filed over seven years after the patient’s death and one case was filed over nine years after the patient’s death. Id. at 1085. The Court of Appeals held the plaintiffs in all three cases were unable to establish fraudulent concealment by the defendant healthcare providers, or that they filed their lawsuits within the appropriate timeframe after they discovered, or should have discovered, the malpractice and resulting injury. Id. at 1092, 1096, 1099-1100.
In Anonymous Doctor A v. Foreman, 127 N.E.3d 1273 (Ind. Ct. App. 2019), a patient filed a lawsuit in 2018 (more than a month after the two-year statute of limitations) arising out of a femoral rod fracture that occurred and was subsequently repaired in 2016 following its placement during a hip surgery in 2015. Id. at 1276-1277. The Court of Appeals found the patient reasonably should have suspected negligence when the femoral rod fractured, particularly given the patient had previously presented a claim to the manufacturer given its failure, which was denied. Id. at 1276, 1278. The Court further found that the patient failed to establish fraudulent concealment and that the doctrine of continuing wrong was not applicable because any misplacement of the rod during surgery was an isolated event, not conduct of a continuing nature. Id. at 1278-1279.
In Strickholm v. Anonymous Nurse Practitioner, 136 N.E.3d 264 (Ind. Ct. App. 2019), the Court of Appeals reversed a trial court’s grant of summary judgment to a nurse practitioner (NP) based upon the statute of limitations. Id. at 267-268, 270. On December 1, 2015, the NP saw a patient and prescribed a blood pressure medication to manage the patient’s high blood pressure and recommended he return for a blood pressure check the following week. Id. at 266. When the patient returned on December 8, 2015, a blood pressure check was performed by a licensed practical nurse (LPN). Id. On December 11, 2015, the NP electronically reviewed and approved the LPN’s report, but the NP did not recommend any further testing or treatment despite the results. Id. On December 15, 2015, the patient went to the hospital and was diagnosed with low sodium. Id. He then suffered a cardiopulmonary arrest and hypoxic event causing a permanent cognitive impairment. Id. The patient filed the lawsuit on December 4, 2017. Id. Reasoning that the statute of limitations begins to run under the continuing wrong doctrine on the date when the healthcare provider had the last reasonable opportunity to diagnose or treat a condition (as opposed to the last in-person visit between the provider and patient), the Court held there existed a genuine issue of material fact as to whether the NP provided healthcare to the patient on December 11, 2015. Id. at 268-270.
MMA TIMELINES
The MMA provides that “[a] party, attorney, or panelist who fails to act as required by this chapter without good cause shown is subject to mandate or appropriate sanctions.” Ind. Code § 34-18-10-14. Sanctions for failure to comply with the MMA, which can include dismissal of the proposed complaint, are subject to the trial court’s discretion. Quillen v. Anonymous Hosp., 121 N.E.3d 581, 584, 587 (Ind. Ct. App. 2019). Recent amendments to the MMA note the “extreme importance” of timeliness in complying with the MMA. Ind. Code § 34-18-0.5-1. In exercising discretion on what sanctions to impose for failure to comply with the MMA, trial courts look to whether the conduct was intentional or willfully disobedient and whether prejudice resulted. Estate of McGoffney v. Anonymous Skilled Nursing Facility, 93 N.E.3d 1104, 1111 (Ind. Ct. App. 2018).
Estate of McGoffney v. Anonymous Skilled Nursing Facility, 93 N.E.3d 1104 (Ind. Ct. App. 2018) involved a medical malpractice lawsuit filed in 2010. Id. at 1105. Six years later the medical review panel still had not been formed. Id. at 1111. Plaintiff had numerous attorneys throughout the case and handled it pro se. Id. at 1105-1108. After one panel chair recused herself, another panel chair was agreed upon by the parties and then objected to by the plaintiff. Id. at 1106-1108. Because of the unreasonable and inappropriate behavior of the plaintiff, including unnecessarily delaying formation of the panel and threatening counsel, the trial court ordered sanctions against the estate of the patient, which were not complied with by the plaintiff. Id. at 1106-1109. The Court of Appeals upheld the trial court’s dismissal of the plaintiff’s complaint finding that the plaintiff was not only dilatory and disobedient but also intentional and contumacious. Id. at 1111-1112.
Quillen v. Anonymous Hosp., 121 N.E.3d 581 (Ind. Ct. App. 2019) involved a medical malpractice lawsuit filed on January 15, 2016. Id. at 583. A medical review panel was certified on May 18, 2017, thus making the 180-day deadline for the panel opinion November 14, 2017. Id. at 583-584. According to the submission schedule set forth by the panel chairman, the plaintiff’s submission was due August 1, 2017. Id. at 583. After the plaintiff’s submission was not tendered, on September 11, 2017, defense counsel for one of the providers sent an email to the panel chair and all other attorneys advising them that plaintiff’s submission had not yet been tendered and no extension had been granted. Id. Defense counsel then agreed to allow the plaintiff until September 25, 2017 to file her submission. Id. The plaintiff did not respond to either of these communications and did not tender her submission by September 25, 2017. Id. at 583-584. On October 3, 2017, defense counsel filed a motion for preliminary determination and motion to dismiss. Id. at 584. Plaintiff tendered her submission on October 11, 2017. Id. Almost a year later, on October 5, 2018, the trial court entered an order summarily granting the motion to dismiss. Id. The Court of Appeals upheld the dismissal, noting the plaintiff did not comply with, object to, or request an extension of her submission deadline, communicate with the panel chair or defense counsel, or take any action until the parties moved to dismiss. Id. at 586-587. Although the trial court’s order contained no findings, the Court of Appeals concluded that the trial court “must have found that [the plaintiff] failed to show good cause for her untimely submission.” Id. at 587.
EXPERTS
Expert testimony is required in medical malpractice cases to establish the applicable standard of care, breach of that standard, and proximate cause. Glon v. Mem’l Hosp. of S. Bend, Inc., 111 N.E.3d 232, 239 (Ind. Ct. App. 2018). Expert opinion is not necessary, however, when the case fits within the res ipsa loquitur exception or the common knowledge exception. Id. at 237; Speaks v. Vishnuvardhan Rao, 117 N.E.3d 661, 670 (Ind. Ct. App. 2018). In an informed consent claim, which is a theory of liability distinct from a medical malpractice claim, expert testimony is also not required to determine whether a reasonable person would have chosen a different course of medical treatment if he or she had been adequately informed. Glock v. Kennedy, 133 N.E.3d 768, 780 (Ind. Ct. App. 2019). “[A] unanimous opinion of the medical review panel that a physician did not breach the applicable standard of care is ordinarily sufficient to establish prima facie evidence negating the existence of a genuine issue of material fact entitling the physician to summary judgment.” Speaks, 117 N.E.3d at 667. Experts must set forth their familiarity with the standard of care, what the standard of care is, and that the defendant’s treatment fell below the standard of care. Overshiner v. Hendricks Reg’l Health, 119 N.E.3d 1124, 1130-1133 (Ind. Ct. App. 2019); St. Mary’s Ohio Valley Heart Care, LLC v. Smith, 112 N.E.3d 1144, 1152 (Ind. Ct. App. 2018). Experts and their opinions must be timely disclosed and offers of proof should be made if their testimony is excluded at trial. Shaw v. Sundaram, 108 N.E.3d 923, 930-933 (Ind. Ct. App. 2018). Non-physician healthcare providers are generally not qualified to render opinions as to medical causation. Riley v. St. Mary’s Med. Ctr. of Evansville, Inc., 135 N.E.3d 946, 952 (Ind. Ct. App. 2019). However, there is no blanket rule, and non-physician healthcare providers may qualify to give expert opinions as to causation if the causation issue is not complex. Id.
In Henderson v. Kleinman, 103 N.E.3d 683 (Ind. Ct. App. 2018), a patient filed suit against a podiatrist for failing to comply with the applicable standard of care in his record keeping and in performing foot surgery. Id. at 685. The medical review panel found the podiatrist failed to comply with the standard of care in his record keeping and that such made it impossible for the panel to determine whether his treatment complied with the appropriate standard of care. Id. The podiatrist moved for summary judgment with an expert affidavit indicating the podiatrist complied with the standard of care in his treatment. Id. at 686. Plaintiff designated the opinion of the medical review panel and the panel member depositions. Id. The Court of Appeals upheld the trial court’s entry of summary judgment for the podiatrist because the plaintiff had not designated any evidence that the podiatrist’s treatment fell below the standard of care. Id. at 686, 688-689.
In Shaw v. Sundaram, 108 N.E.3d 923 (Ind. Ct. App. 2018), a father brought suit for the death of his son during a cystoscopy and stent placement. Id. at 926. Plaintiff appealed from a jury verdict in favor of the surgeon arguing the trial court erred in barring one of the plaintiff’s experts from testifying and barring evidence concerning lack of informed consent. Id. at 928, 930. The Court of Appeals affirmed, as the plaintiff had failed to timely disclose the excluded expert in accordance with the trial court’s pretrial order or in discovery, could not use the expert as a rebuttal witness, and had failed to disclose any expert opinion on lack of informed consent. Id. at 930-933. The plaintiff also failed to make an offer of proof concerning the excluded evidence. Id. at 931-933.
In Glon v. Mem’l Hosp. of S. Bend, Inc., 111 N.E.3d 232 (Ind. Ct. App. 2018), a patient filed suit against a hospital after undergoing a right total hip replacement. Id. at 234-235. While being moved postoperatively by hospital staff, the patient was turned and heard several pops. Id. at 234. A subsequent x-ray showed a three-part displaced fracture of her right femur, which was not present on the initial postoperative x-rays. Id. at 235. The hospital moved for summary judgment based upon a negative opinion from the medical review panel and with a panelist’s affidavit stating that it was not possible the hospital staff caused the injury. Id. at 235-236. The patient argued res ipsa loquitur applied and submitted her own affidavit and an affidavit from her surgeon stating that the injury did not occur during surgery. Id. at 235-237. The Court of Appeals held res ipsa loquitur was inapplicable because the injury was a recognized complication that can occur even in the absence of negligence. Id. at 239. The Court further held that while there was conflicting evidence as to when the injury occurred, the plaintiff had not presented expert testimony that the hospital breached the applicable standard of care, proximately causing the injury. Id. at 240.
In St. Mary’s Ohio Valley Heart Care, LLC v. Smith, 112 N.E.3d 1144 (Ind. Ct. App. 2018), a patient filed suit against a surgeon and pathologist arising out of a lung lobectomy that was performed for suspected, but not confirmed, lung cancer. Id. at 1146-1147. The pathologist interpreted intraoperative pathology slides as cancerous or suggestive of cancer, which was communicated to the surgeon, who then performed the lobectomy. Id. The permanent section slides, however, were later interpreted as benign. Id. at 1146, 1148. To rebut the negative opinion of the medical review panel and survive summary judgment, the plaintiff argued res ipsa loquitur applied as to the surgeon and presented expert testimony as to the pathologist. Id. at 1148-1149, 1151-1152. The Court of Appeals held res ipsa loquitur did not apply as to the surgeon because the applicable standard of care was not within the common knowledge of a lay person and no expert testimony was provided showing what occurred would not have occurred with proper care. Id. at 1150-1151. As to the pathologist, the Court held the plaintiff’s expert did not sufficiently demonstrate what the standard of care was and that it was breached, and further, failed to show a genuine issue of material fact as to causation as the surgeon testified he would have performed the procedure unless the intraoperative diagnosis was “clearly not cancerous.” Id. at 1151-1153.
In Speaks v. Vishnuvardhan Rao, 117 N.E.3d 661 (Ind. Ct. App. 2018), a patient filed a lawsuit against several healthcare providers claiming they committed malpractice by administering the wrong medication, failing to correctly complete a DVT risk form, and failing to properly monitor and flush her IV. Id. at 668, 670-671. Finding the plaintiff had failed to establish a genuine issue of material fact as to the defendants administering the wrong medication, and as to her other two claims, had failed to present expert testimony to rebut the opinion of the medical review panel, or establish the applicability of the common knowledge exception, the Court of Appeals held the defendants were entitled to summary judgment. Id. at 668-673. In so doing, the Court noted that Indiana law does not recognize a distinction between medical malpractice and medical negligence, and the plaintiff’s claims sounded in malpractice, not ordinary negligence. Id. at 672-673.
In Overshiner v. Hendricks Reg’l Health, 119 N.E.3d 1124 (Ind. Ct. App. 2019), the parents of a minor daughter filed suit against several medical providers arising out of alleged negligence in treating their daughter who suffered from hyperbilirubinemia when born. Id. at 1126, 1128-1129. The plaintiff’s expert was a retired neuropathologist, while the care at issue involved obstetrics, pediatrics, and nursing care in a hospital setting. Id. at 1126, 1133. The trial court granted the defendants’ motion for a directed verdict. Id. at 1129-1130. The Court of Appeals affirmed, as the plaintiff’s expert did not testify to the standard of care required of the defendants. Id. at 1133.
In Snyder v. Prompt Med. Transportation, Inc., 131 N.E.3d 640 (Ind. Ct. App. 2019), the estate of a patient who allegedly died as a result of a delayed and lengthy ambulance transport sued the originating hospital, the ambulance provider, and the patient’s Medicare Advantage provider, Humana Insurance Company (Humana), for denying coverage for air transportation. Id. at 643-644. While transferring the patient, who had cystic fibrosis and needed a lung transplant, from the originating hospital in Indiana to Pittsburgh, the ambulance provider got lost and ended up at the wrong hospital, during which time the patient’s condition worsened. Id. While the plaintiff was able to initially rebut the negative opinion of the medical review panel on causation, the plaintiff’s expert’s opinions were found inadmissible after his deposition, and the plaintiff had not previously disclosed additional experts within the expert disclosure deadline. Id. at 643-647. The Court of Appeals found the trial court did not err in deciding to strike the affidavits of the plaintiff’s additional experts in the plaintiff’s response to the medical defendants’ motion for summary judgment as a sanction due to the untimely disclosure and upheld the grant of summary judgment as to the hospital and ambulance provider. Id. at 643, 648-651. The Court of Appeals also upheld the trial court’s dismissal of Humana, as the plaintiff attempted to apply state common law negligence to a coverage determination governed and preempted by federal law. Id. at 651-653.
In Glock v. Kennedy, 133 N.E.3d 768 (Ind. Ct. App. 2019), the Indiana Court of Appeals affirmed a trial court’s denial of a defendant’s motion for judgment on the evidence and motion to correct error after a jury found for the plaintiff in an informed consent claim arising out of a nerve injury during surgery. Id. at 771-772, 775-777, 781-782. In order to prevail in an informed consent claim, a patient must prove (1) nondisclosure of required information; (2) actual damage… (3) resulting from the risks of which the patient was not informed; (4) cause in fact, which is to say that the plaintiff would have rejected the medical treatment if he had known the risk; and (5) that reasonable persons, if properly informed, would have rejected the proposed treatment. Id. at 776-777. The Defendant argued that the plaintiff failed to present expert medical evidence on the fifth element of an informed consent claim, i.e., that a reasonable person who was properly informed of the risks and complications of the procedure would have refused the treatment. Id. at 777. The Court reviewed Indiana precedent on informed consent claims, including the distinction between what a “reasonably prudent physician” would believe necessary to disclose, as proven by expert testimony, and what a “reasonably prudent patient” would want to know. Id. at 778-780. While recognizing that expert testimony is required to determine what a reasonably prudent physician should tell a patient, unless such falls within a layperson’s understanding, and whether actual damage resulted from the inadequate disclosure, the Court found no expert testimony is required as to whether a particular disclosure did or did not occur, whether the plaintiff would have chosen a different treatment if advised of the risk, and whether a reasonable person would have chosen a different course of medical treatment if he or she had been adequately informed. Id. at 779-780.
In Riley v. St. Mary’s Med. Ctr. of Evansville, Inc., 135 N.E.3d 946 (Ind. Ct. App. 2019), a patient filed a lawsuit against a hospital arising out of an IV contrast extravasation suffered during a CT scan to rule out a pulmonary embolism. Id. at 948-950. The patient alleged the hospital’s radiologic technologist (RT) was negligent in injecting contrast dye into her right arm in preparation for the CT scan, and as a result, suffered compartment syndrome necessitating surgery and causing permanent injuries. Id. In response to the hospital’s post-panel motion for summary judgment, the patient designated an affidavit from another radiologic technologist, Barry Southers, RT (Southers), who opined that the hospital RT did not comply with the applicable standard of care and that the hospital RT’s conduct was a factor in the resultant injury to the patient. Id. at 950. The hospital argued (and the trial court agreed in granting the hospital’s motion) that Southers could not give an expert opinion as to causation. Id. With the exception of non-complex causation issues, non-physician healthcare providers are generally not qualified to render opinions as to medical causation. Id. at 952. As a result of the extravasation in this case, the patient had experienced a visible collection of caustic fluid under her skin that was the same size as the fluid introduced by the hospital RT within seconds of the injection. Id. at 954. The Court noted it was not Southers’s task to pinpoint the precise amount of contrast medium it would have taken to cause any injury, but rather whether the hospital RT’s breach in the standard of care proximately caused the patient’s injuries. Id. The Court found that the issue of causation was not complex in this case, and therefore, the patient’s expert, Southers, was qualified to render an expert opinion on causation. Id.
JURY STRIKES
Wallick v. Inman, 130 N.E.3d 643 (Ind. Ct. App. 2019) involved an appeal of a jury verdict in favor of an anesthesiologist based upon the trial court’s denial of six for-cause challenges made by the plaintiff. Id. at 644. Plaintiff challenged five of the six jurors because they indicated during voir dire they would prefer or want to see a higher burden of proof than the required greater weight of the evidence, and two of the five indicated they were leaning in favor of the defendant before hearing the evidence. Id. at 650-651. Plaintiff challenged one of the six jurors because he indicated he hated court, was not fond of doctors or lawyers, suspected lawsuits in general were frivolous, did not want to be there, and would find it hard to pay attention to all the evidence. Id. at 649, 651. Upon questioning by the trial court, the five jurors indicated they would be able to put aside their personal beliefs and follow the trial court’s instructions, and the one juror denied that he suffered from any physical or mental disability that would prevent him from rendering satisfactory jury service. Id. at 651-652. The Court of Appeals held the trial court acted within its discretion and its denials of these for-cause challenges was not illogical or arbitrary. Id. at 652-653.
Clark v. Mattar, 133 N.E.3d 220 (Ind. Ct. App. 2019) involved an appeal of a jury verdict in favor of a doctor based upon the trial court’s denial of a for-cause strike made against a juror who indicated he would not be able to determine non-economic damages. Id. at 221-223. In reversing the trial court’s judgement, the Court of Appeals found that “a stated refusal to participate in a determination of non-economic damages amounts to bias or prejudice against a plaintiff seeking such damages.” Id. at 224. The Court further found that since the plaintiff was, as a result of the trial court’s denial of her for-cause challenge, forced to use one of her preemptory challenges and accept another objectionable juror, such denial was prejudicial and reversible error. Id. at 225.
OTHER CASES
Gresk for Estate of VanWinkle v. Demetris, 96 N.E.3d 564 (Ind. 2018) involved a claim against a pediatrician alleging the pediatrician’s diagnosis of child abuse fell below the standard of care. Id. at 567. The pediatrician moved for a preliminary determination of law and dismissal, which the trial court granted, claiming the reporting of abuse was protected speech, shielded by Indiana’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, which provides a defense where the act or omission complained of is in furtherance of a person’s right of petition or free speech in connection with a public issue and taken in good faith and with a reasonable basis in law and fact. Ind. Code § 34-7-7-5; VanWinkle, 96 N.E.3d at 566-567. The Indiana Supreme Court reversed finding the pediatrician’s report was not made in furtherance of her right of petition or free speech and was not made in connection with a public issue. 96 N.E.3d at 566, 571.
Horejs v. Milford, 117 N.E.3d 559 (Ind. 2019) involved the availability of “survivor damages” for wrongful death, including loss of love, care, and companionship, when the surviving widower, the statutory beneficiary under the wrongful death statute, died during the pendency of the case without an heir. Id. at 560-561. While the Indiana Supreme Court had previously held that “the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages,” Bemenderfer v. Williams, 745 N.E.2d 212, 214 (Ind. 2001), unlike in Horejs, there was an heir to recover those damages. Horejs, 117 N.E.3d at 565; Bemenderfer, 745 N.E.2d at 215, 219. Here, the Court reviewed the wrongful death statute and survival statute, as well as Bemenderfer, and held the claim for “survivor damages” did not abate upon the death of the surviving husband and was not dependent upon the existence of an heir. Horejs, 117 N.E.3d at 565. Unlike the plaintiff in Bemenderfer, however, the plaintiffs in Horejs had not been appointed as personal representatives of both the patient’s estate and the surviving husband’s estate, which due to the lack of an heir, escheated to the State of Indiana. Horejs, 117 N.E.3d at 561, 565. Therefore, while reversing the trial court’s grant of partial summary judgment in favor of the defendants, the Court remanded the matter to the trial court for additional proceedings to determine if a proper party existed to continue the claim. Id. at 565.
Webster v. CDI Indiana, LLC, 917 F.3d 574 (7th Cir. 2019) involved an appeal of a jury verdict in favor of a plaintiff against an unqualified diagnostic imaging facility for the negligence of a qualified independent contractor radiologist under the doctrine of apparent agency. Id. at 575-577. The 7th Circuit affirmed the district court’s judgment, rejecting the defendant’s argument that it could not be held liable because it did not directly hire the radiologist as an independent contractor. Id. at 577-578. The Court noted that “[n]othing in [the Indiana Supreme Court’s holding in Sword v. NKC Hosps., Inc., 714 N.E.2d 142 (Ind. 1999)] indicates that a health care facility must have a direct employment relationship with an independent contractor physician to be held liable for the acts of its apparent agent.” Webster, 917 F.3d at 577. “[A] medical center cannot hold itself out to the public as offering health care services—and profit from providing those health care services—yet escape liability by creating a complex corporate arrangement of interrelated companies.” Id.
Wallen v. Hossler, 130 N.E.3d 138 (Ind. Ct. App. 2019) involved a wrongful death claim in which the plaintiff rejected the defendant radiologist’s offer to settle for his policy limits of $250,000.00 for one act of malpractice in lieu of a jury trial. Id. at 141-142. As a matter of first impression, the Court of Appeals held that the plaintiff was not required to settle with the defendant under the statutory cap and could, in lieu of settlement, proceed to a jury trial. Id. at 145-147. However, the Court of Appeals found that the trial court did not err by concluding that the plaintiff’s claims that the radiologist both misdiagnosed and failed to diagnose the patient’s internal bleeding involved a single act of malpractice entitling the plaintiff to only one statutory cap. Id. at 147-148.
Garau Germano, P.C. v. Robertson, 133 N.E.3d 161 (Ind. Ct. App. 2019) involved a complaint for declaratory judgment and mandate filed on behalf of a law firm and one of its clients against the Indiana Patient’s Compensation Fund (PCF) and related parties seeking to prevent the defendants from requiring a medical malpractice claimant’s periodic payments agreement with a qualified health care provider to pay out the provider’s maximum liability under the MMA before the claimant could access the PCF. Id. at 163, 165-166. The Court of Appeals upheld the trial court’s dismissal of the action finding the plaintiffs’ claim for declaratory judgment was not ripe for review, as the claimant had not yet been offered a settlement by the underlying providers, and the plaintiffs lacked standing to seek a judicial mandate, as they were not requesting the defendants to perform a ministerial act that the defendants had a duty to perform, and because, as to the law firm, it had not shown that it had been directly damaged by the defendants. Id. at 167-173.
Republished with permission of ITLA. Related authorities have been omitted. Not all issues discussed. Only published decisions.