In Indiana a medical malpractice plaintiff doesn’t proceed directly to court. First, a proposed complaint goes to the Indiana Department of Insurance, and the case is heard by a Medical Review Panel consisting of physicians. The complaint isn’t filed in court until the panel has issued its opinion.
The Indiana Court of Appeals recently rendered opinions in two cases presenting a question made inevitable by this two-step process: may the plaintiff rely on a theory in court that wasn’t presented to the panel?
For some years the answer was unclear. One case, K.D. v. Chambers, 951 N.E. 2d 855 (Ind. Ct. App. 2011), had been read as answering the question with a flat no. But in late 2016 the same court ruled that with respect to that issue, K.D. v. Chambers “was wrongly decided and/or has been misread.” The court allowed a new theory if (1) the proposed complaint before the panel encompassed the new theory, and (2) evidence on the new theory was before the panel. McKeen v. Turner, 61 N.E.3d 1251.
Llobet v. Gutierrez, No. 45A04-1605-CT-1133 (Ind. App. 2017)
Juan Gutierrez’s proposed complaint alleged that Dr. Llobet was negligent in the technical performance of an angiogram. The panel found in Juan’s favor. Before trial Juan decided to add a new theory: the test was unnecessary. The doctor moved to strike the new theory because it wasn’t presented to the panel. He also produced records to show that the test was necessary.
Juan countered with a motion to strike the doctor’s new evidence because the discovery deadline had passed. The trial court denied the doctor’s motion and granted Juan’s. That meant that Juan could pursue his new theory, but the doctor couldn’t present new evidence on the theory.
On February 22 the Court of Appeals affirmed the denial of the doctor’s motion to strike the new theory, on the grounds that the “claim was plainly encompassed” by the proposed complaint and evidence related to the theory had been before the panel.
But the court reversed the granting of Juan’s motion to strike the doctor’s new evidence. The fact that tipped the scales in favor of the doctor was that he and his counsel had been defending the case in the K.D. v. Chambers era, before that decision was repudiated by McKeen in late 2016.
C.S. v. Aegis Women’s Healthcare, No. 53A01-1607-CT-1657 (Ind. App. 2017)
After the Stevens baby was born with several health problems, the parents filed a proposed complaint generally alleging failure to provide appropriate care, but they didn’t allege that the defendant waited too long to perform the C-section. The panel found in favor of the defendant.
When the parents filed in court, the defendant moved for summary judgment based on the panel’s opinion. The parents’ opposition to the motion included a physician’s affidavit charging that the defendant had waited too long to perform the C-section. The defendant countered that although the new theory fell within the broad allegations of the proposed complaint, important evidence relating to the theory, such as fetal heart rate records, wasn’t presented to the panel. The trial court granted the defendant’s summary judgment motion.
The Court of Appeals reiterated that a plaintiff can present a new theory if (1) “the theory was encompassed, under the liberal rules of notice pleading, by the proposed complaint that was before the panel,” and (2) evidence relating to the theory was submitted to the panel. The parents met that standard. True, the heart-rate evidence was relevant to the new theory, but the panel still had plenty of other evidence relevant to the theory. The rule doesn’t require that the panel have all relevant evidence—only evidence sufficient to put it on notice of an issue. The court reversed the grant of summary judgment for the defendant.