2017 med mal case law update....1 2017 med mal case law update. supreme court of ind. date of...
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2017 Med Mal Case law update.
Supreme Court of Ind.
Date of
Decision Case:
WL Citation
Status
Facts Holding Ind. Sup.
COA Panel:
Writing Judge
Trial Ct.
Judge
Att.
4/07/2017
10/04/2016
McKeen v. Turner
2017 WL 1291342
Ind. Sup.
transfer granted,
opinion vacated,
2017 WL 1348010
(4/07/2017)
opinion adopted,
71 N.E.3d 833 (Ind.
2017)
McKeen v. Turner
2016 WL 5750508
Ind. Ct. App.
Billy Turner filed a proposed malpractice complaint with
the Ind. Dept. of Insurance, alleging that Dr. Charles
McKeen’s medical and surgical treatment of Turner’s wife,
Rowena, failed to meet the appropriate standard of care. In
addition to the complaint, Turner's submission to the
Medical Review Panel (“MRP”) included Rowena's
medical records and a narrative statement describing the
records and alleging the delay in exploratory surgery
following Rowena's readmission to the hospital resulted in
her death. The MRP issued a unanimous opinion finding
that the evidence did not support a conclusion that Dr.
McKeen had failed to meet the applicable standard of care.
Turner filed a complaint in court. After discovery, Turner
filed a supplemental witness list naming an expert
hematologist who would testify to McKeen’s failure “to
prescribe the appropriate dosage of anticoagulation
medication, leading to Rowena’s death.” Dr. McKeen
filed a motion to strike the hematologist’s opinion, arguing
that Turner’s submission to the review panel did not allege
malpractice related to anticoagulation medication. The
trial court denied McKeen’s motion and the Indiana Court
of Appeals affirmed.
Grants transfer and adopts and incorporates the Indiana
Court of Appeals’ holding that “a plaintiff may raise any
theories of alleged malpractice during litigation following
the (Medical Review Panel) process if (1) the proposed
complaint encompasses the theories, and (2) the evidence
relating to those theories was before the MRP.” Also
expressly disapproves K.D. v. Chambers, 951 N.E.2d 855
(Ind. Ct. App. 2011).
This Court found K.D. v. Chambers to be at odds with Miller
v. Memorial, and thus “expressly disapproved” of its holding
in K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011)
(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 that were not
presented to the panel and addressed in its opinion.”);
Compare with, Miller v. Memorial Hospital of South Bend,
Inc., 679 N.E.2d 1329 (Ind. 1997) (held that “there is no
requirement for … plaintiff to fully explicate and provide the
particulars or legal contentions regarding the claim.”).
Per Curiam (all justices
concur)
On Petition to Transfer
from the Indiana Court
of Appeals, No. 53A05-
1511-CT-02047
Grant transfer; adopt and
incorporate by reference
the Court of Appeals
opinion:
Baker
Vaidick
Najam
Monroe Circuit Court,
No. 53C06-1201-CT-
000088
The Honorable Frances
G. Hill, Judge
Attorneys for
Appellant:
Michael E. O'Neill,
Nathan D. Hansen,
O'Neill McFadden &
Willett LLP,
Schererville, Indiana
Attorneys for Amicus
Curiae Defense Trial
Counsel of Indiana:
Donald B. Kite, Sr.,
Wuertz Law Office,
LLC, Indianapolis,
Indiana,
Crystal G. Rowe,
Kightlinger & Gray,
LLP, New Albany,
Indiana
Attorneys for Amicus
Curiae
Stephen W. Robertson,
Commissioner of the
Indiana Department of
Insurance and
Administrator of the
Indiana, Patient's
Compensation Fund:
Matthew W. Conner,
Bryan H. Babb,
Bose McKinney &
Evans LLP,
Indianapolis, Indiana,
Wade D. Fulford,
Indiana Department of
Insurance, Indianapolis,
Indiana
Attorney for Appellee:
James H. Young,
Young & Young,
Indianapolis, Indiana
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Attorney for Amicus
Curiae
Indiana Trial Lawyers
Association:
Jerry Garau,
Garau Germano, P.C.,
Indianapolis, Indiana
Ind. Court of Appeals
Date of
Decision Case:
WL Citation
Status
Facts Holding COA Panel: Writing Judge
Trial Ct.
Judge
Att.
7/21/2017 Gresk Estate of
VanWinkle v.
Demetris
2017 WL 3096241
No transfer filed
Stacy and Derek VanWinkle have two children, M.V. and
A.V. In 2004, A.V. became a patient of Dr. Susan Maisel,
a pediatric gastroenterologist at Peyton Manning Children’s
Hospital. In May 2013, A.V. was admitted to the Hospital
to observe her GI problems. Dr. Maisel believed A.V.’s
mother, Stacey, a neonatal intensive care unit nurse, was
exaggerating A.V.’s symptoms. Dr. Maisel told her
colleague Dr. Cortney Demetris that she believed A.V. was
a victim of medical child abuse, previously called
Munchausen Syndrome by proxy.
A.V. was admitted to the hospital. Dr. Demetris was A.V.’s
attending physician. A.V. underwent a GI procedure
performed by Dr. Maisel; the results of this procedure were
normal. Covert video surveillance (CVS) was also set up in
A.V.’s hospital room. Based on her review of the CVS, Dr.
Demetris wrote in A.V.’s chart that she and her sibling,
M.V., were likely victims of medical child abuse, with
Stacy as the perpetrator. A hospital social worker then
called the Department of Child Services (DCS), and the
children were removed from their parents’ home.
DCS filed a petition alleging both children were children in
need of services. After A.V. was re-admitted to the
Hospital and weaned off of several medications, the
children were returned to their parents and the CHINS
petition was voluntarily dismissed. DCS then conducted a
child care worker assessment review into Stacy and
substantiated the allegations that she neglected M.V. and
A.V. An administrative law judge also substantiated the
allegations of neglect as to A.V. only. The Marion Superior
Court reversed the finding of neglect as to A.V in
December 2014.
Stacy and her husband filed a proposed complaint for
medical malpractice against Dr. Demetris, alleging the
diagnoses of medical child abuse, with Stacy as the
Doctor’s report not protected by anti-SLAPP statute
The precise characterization of the complaint did not matter
because Demetirs’ report is not protected by the anti-
SLAPP statute (VanWinkles first argued that Demetris
reframed their med mal claim into one based on the act of
reporting med child abuse to DCS).
“While child-abuse detection and prevention, on a macro
level, is of great interest to the general public, the public
interest in the more narrow issues addressed by Dr.
Demetris’s report to DCS…is not significant.” “This is
because this was a private matter.” Accordingly, the court
concluded that Dr. Demetris’s report to DCS was not made
in connection with a public issue or an issue of public
interest.
In addition, Dr. Demetris did not make the statements “in
furtherance of” any free speech or petitioning right. She
reported her suspicions of child abuse to DCS primarily
because of her duty to report imposed by Chapter 31-33-5.
This is inconsistent with any claimed intent to engage in
public debate or to petition the government. Thus, she was
not entitled to anti-SLAPP protection with regard to her
report to DCS.
Reversed the trial court order and remanded for
consideration of the issues that were stayed: whether
Demetirs had immunity and whether there was a physician-
patient relationship between her and M.V.
Vaidick
Bailey (concurs)
Robb (concurs)
Marion Superior Court,
No. 49D05-1510-MI-
35716
The Honorable John
M.T. Chavis, II, Judge
Attorneys for
Appellants:
Donald J. Waicukauski,
Price Waicukauski
Joven & Catlin, LLC,
Indianapolis, Indiana,
William W. Gooden,
Maggie L. Sadler,
Clark Quinn Moses
Scott & Grahn, LLP,
Indianapolis, Indiana.
Attorneys for Appellee:
Bryce H. Bennett, Jr.,
Laura S. Reed,
Laura K. Binford,
Courtney David Mills,
Riley Bennett Egloff
LLP, Indianapolis,
Indiana
3
perpetrator, fell below the reasonable standard of care.
Before the complaint went to a medical review panel,
Demetris filed a motion to dismiss, arguing that her report
to DCS was protected by Indiana’s anti-SLAPP statute and
the immunity provision in Indiana’s child-abuse reporting
statute. She also argued there was no physician-patient
relationship with M.V. Ruling only on the Anti-SLAPP
claim at the parties’ request, the trial court granted
Demetris’ motion to dismiss, finding she had spoken on a
matter of public concern when she reported the medical
child abuse diagnosis. Thus, the court found her speech was
protected by the anti-SLAPP statute. Specifically, Ind.
Code 34-7-7-1 provides that an act or omission “in
furtherance of” the person’s constitutional rights in
connection with a public issue is protected.
6/14/2017 Totton v.
Bukofchan
2017 WL 2569798
No transfer filed
Craig Totton started receiving chiropractic treatments from
Dr. Daniel P. Bukofchan at Franklin County Chiropractic
Clinic for neck and lower back pain in January 2006
(compressed disc in 1980s). In September 2009, Totton
broke multiple ribs and fractured his ankle in a motorcycle
accident. He returned to Dr. Bukofchan in January 2010
for treatments. According to Totton, during a visit in
November 2010, Dr. Bukofchan “snapped” Totton’s neck.
Totton said he experienced sharp pain and a progressive
weakening in his left arm. An MRI showed a herniated
disc in his neck, which required surgery.
Totton filed a proposed medical malpractice complaint
against Bukofchan and the clinic. A medical review panel
consisting of three chiropractors issued an opinion finding
Bukofchan’s treatment did not fail to meet the applicable
standard of care and “was not a factor of the resultant
damages.” Totton then filed his complaint in Franklin
Circuit Court, and Bukofchan moved for summary
judgment. In opposition to that motion, Totton designated
the affidavit of Guy S. DiMartino, a chiropractor who said
Bukofchan failed to meet the applicable standard of care
and caused or substantially contributed to Totton’s injuries.
Bukofchan argued DiMartino was not qualified to provide
expert testimony on the causation of Totton’s injuries, and
the trial court agreed. Summary judgment was entered in
favor of Bukofchan, with the court finding “…chiropractors
are more akin to nurses in that they receive limited medical
licenses and are therefore not qualified to offer expert
testimony as to the medical cause of injuries.” Totton
appealed, arguing DiMartino is qualified to render a
causation opinion under Indiana Evidence Rule 702.
Chiropractors not qualified to render opinions on
“complex” causation issues, including those on MRP
Chiropractors, including those on medical review panels,
are not qualified to render opinions on the cause of injuries
when a case involves a “complex” causation issue.
If a non-physician healthcare provider, such as a
chiropractor, is not qualified under Evid. R. 702 to render
an opinion as to medical causation because the issue is
complex, then chiropractors sitting on the medical review
panels are likewise not qualified to render opinions as to
medical causation when the causation issue is complex.
“Because the requirements of Evidence Rule 702 have not
been met given the complex causation issues present in this
case, the unanimous opinion of the all-chiropractor medical
review panel cannot be used as evidence that Dr.
Bukofchan did not cause Totton’s injuries.” The opinion
can only be used as evidence that Dr. Bukofchan met the
standard of care. Totton, however, “created a genuine issue
of material fact…by designating the affidavit of Dr.
DiMartino, who opined that Dr. Bukofchan failed to meet
the standard of care.” Thus, the entry of summary
judgment for Bukofchan was reversed and the case was
remanded for trial.
Vaidick
Bailey (concurs)
Robb (concurs)
Franklin Circuit Court,
No. 24C02-1512-CT-808
The Honorable Clay M.
Kellerman, Judge,
Attorney for Appellant:
Robert A. Montgomery,
Law Offices of Robert
Montgomery, Munster,
Indiana
Attorneys for
Appellees:
Peter H. Pogue,
Daniel B. Gearhart,
Justin C. Kuhn,
Schultz & Pogue, LLP,
Indianapolis, Indiana
5/24/2017 Aguila on behalf of
Aguila v.
Anonymous
Physicians 1 & 2
2017 WL 2266884
Appellants, who are patients or representatives of patients,
were treated by Anonymous Physicians 1 and 2,
Anonymous Medical P.C., and the Hospital. Patients
claimed that the physicians performed unnecessary
surgeries, and further, that the Hospital negligently
credentialed the physicians and were aware of the
unnecessary surgeries but allowed them to continue. Trial
court determined Anonymous Hospital presented sufficient
Trial court did not abuse its discretion in setting aside
the default judgment
COA held the trial court’s decision to set aside the default
was not clearly against the logic and effect of the facts and
circumstances before the court.
“We cannot agree with the Patients that the Hospital was
Shepard
Vaidick
Mathias
Lake Superior Court,
No. 45D02-1604-CT-65
The Honorable Calvin D.
Hawkins, Judge,
Attorneys for
Appellants:
David J. Cutshaw,
Gabriel A. Hawkins,
Cohen & Malad, LLP,
Indianapolis, Indiana,
Barry D. Rooth,
Holly S.C. Wojcik,
4
No transfer filed
grounds to set aside the entry of default judgment.
Appellants challenge the court’s decision.
Between July 31, 2014 and October 27, 2014, Patients file
proposed med mal complaints w/ Ind. Dept. of Ins. Appx.
300 other patients filed similar complaints against
Anonymous Physicians 1 and 2, Anonymous Medical P.C.,
and the Hospital. G. Anthony Bertig was selected as the
chairperson of each of the six panels for the Patients’ cases
(also named APE in this case). Bertig set deadlines for the
parties to submit evidence to the panels, and the Hospital
failed to comply in all six cases. The physicians and the
Medical P.C. failed to file submission in four of the six
cases.
(note: as mentioned below, the spouse of the Hospital’s
primary attorney died on January 24, 2016)
On April 26, 2016, the Patients filed a Petition for
Preliminary Determination and Default Judgment, asking
the court to enter default judgment against all defendants
for failure to timely submit documents to the panels. On
May 2, 2016, the court granted the default and entered
judgment. The court later set aside the May 2 order to
allow physicians, the Center, and the Hospital to respond to
the Patients’ petition. Patients and the physicians later
stipulated that Physicians 1 & 2 and the Center would be
dismissed from the preliminary determination. Patients and
the Hospital did not reach a similar agreement.
On July 13, 2016, the court entered default against the
Hospital for a second time. Hospital filed a motion to set
aside the default pursuant to Ind. Tr. R. 60(B)(1), and
Patients asked to schedule a hearing on damages. The court
granted the Hospital’s motion, concluding it presented “a
viable basis for relief under Tr. R. 60(B).”
On appeal, Patients raise several claims in support of their
argument that the court should not have set aside the
default. (1) Patients claim the Hospital was erroneously
attempting to litigate the merits of the case rather than
present equitable considerations, and Hospital erroneously
submitted new evidence in support of its motion for relief
and such evidence was inadmissible because it could have
been presented prior to default. (2) Patients contend the
Hospital has failed to show good cause for setting aside the
default judgment, stating the Hospital erroneously chose to
focus on its late discovery responses rather than its late
evidentiary submissions. (3) They also argue that the Jan.
24, 2016 death of the spouse of the Hospital’s primary
attorney does not amount to good cause.
Hospital states the evidence shows excusable neglect
because Bertig’s deadlines were flexible and the death of
the spouse of the Hospital’s primary attorney on these cases
prevented the Hospital from completing the submissions.
Hospital also claims Patients’ counsel gave it the
impression that Patients wanted the Hospital to prioritize
barred from presenting evidence that could have been
presented prior to default. Per the plain language of Tr. R.
60(B), only motions filed under 60(B)(2) are subject to
such a limitation.”
“In addition, we cannot agree that the Hospital should not
have discussed the merits of the parties’ claims while
seeking relief from default.” It is true that a Tr. R.
60(B)(1) motion does not attack the substantive, legal
merits of the judgment…but some discussion of the merits
is unavoidable because a movant must demonstrate a
meritorious claim or defense in relation to the parties’
allegations. “In this case, the Hospital also presented to the
court equitable arguments in favor of setting aside the
default.”
Ultimately, the trial court’s decision was well within its
discretion. The trial court balanced the prejudice to the
Patients against the Hospital’s right to present a defense.
The Hospital, which was defending against 300 malpractice
cases, demonstrated that the death of its attorney’s spouse
delayed its responses. When the Hospital’s new attorney
contacted the Patients’ attorney in April 2016, he asked the
Patients to state their priorities for the various cases.
Patients’ attorney mentioned that the evidentiary
submission were overdue but stated that receiving
discovery responses from the Hospital was the highest
priority.
Although the Patients were not required to seek lesser
sanctions before requesting default, it is relevant to the
facts and circumstance that the Patients did not first seek
lesser sanctions, such as asking the panel chairperson to
consider the cases without the late submissions.
COA concluded, considering the facts and circumstances,
there was no abuse of discretion. Affirmed.
William A. Theodoros,
Theodoros & Rooth,
P.C., Merrillville,
Indiana.
Attorneys for
Appellees:
Edward W. Hearn,
Alan M. Kus,
Johnson & Bell P.C.,
Crown Point, Indiana.
5
responding to discovery request in all of the cases instead
of filing evidentiary submission with the review panels.
Finally, Hospital disputes Patients’ claims that Hospital
may not cite evidence and is barred from discussing merits
of litigation, in its motion for relief from judgment.
5/11/2017 Svabek v. Lancet
Indemnity Risk
Retention Group,
Inc. (mem. dec.)
2017 WL 1955048
No transfer filed
Steven J. Svanek, D.O., appeals the trial court’s entry of
summary judgment in favor of Lancet Risk Retention
Group, Inc. (“Lancet”) on Lancet’s complaint seeking
rescission of Svabek’s medical malpractice insurance
policy. Dr. Svabek is an orthopedic surgeon, previously
practiced medicine in the State of Indiana. Lancet is an
insurance company. December 7, 2012, the parties entered
into a policy of physician’s professional liability insurance.
Effective Date of the policy is December 7, 2012, with a
Retroactive Date of December 7, 2010. Policy only covers
an Occurrence on or after Dec. 7, 2010 and before Dec. 7,
2012, which was first made against Dr. Svabek and
reported to Lancet between Dec. 7, 2012 and Dec. 7, 2013.
In the application and contract entered into on Dec. 7, 2012,
and submitted and completed by Dr. Svabek, Dr. Svabek
confirmed, among other things, that he had no known
potential or anticipated losses and that no prior carrier had
declined or refused coverage for a medical incident. Policy
states that Lancet relied upon the statements made by Dr.
Svabek in his application for insurance and that Dr. Svabek
warrants those statements are true.
Subsequent to entering into the Policy, three matters were
brought to the attention of Lancet for which Dr. Svabek
now asserts coverage is owed. All alleged harms occurred
prior to Lancet agreement. On August 28, 2012, notice was
sent to Dr. Svabek by the PCF on one of the matters,
complaint in this matter was filed on August 12, 2012, and
notice on this matter was sent to Dr. Svabek’s attorney on
separate med mal claims. On Dec. 4, 2012 (three days
before entering into Lancet agreement), Evanston Insurance
(through Markel Corp.) sent a denial letter to Dr. Svabek
stating no coverage was available (coverage ended Jan. 12,
2011). On Dec. 7, 2012, Dr. Svabek completed and
submitted the application to Lancet, confirming he had no
known potential or anticipated losses and no prior carrier
had declined or refused coverage for a medical incident.
Trial court concluded that Lancet was entitled to rescind the
policy, as a matter of law, because of two
misrepresentations made by Svabek on his application,
namely, (1) that he had no known claims pending against
him and (2) that he had not previously been denied
coverage for a claim. On appeal, Dr. Svabek does not deny
and dos not challenge either of these two
misrepresentations.
Insurance company was entitled to rescission based on
Doctor’s misrepresentations in his policy application;
Summary judgment affirmed
Affirms the Johnson Superior Court’s entry of summary
judgment in favor of Lancet Indemnity Risk Retention
Group Inc. on Lancet’s complaint seeking rescission of the
medical malpractice insurance policy of Steven J. Svabek,
D.O.
Finds Svabek has failed to “demonstrate the absence of any
genuine issue of act as to a determinative issue,” namely
that Lancet is entitled to rescission based on Svabek’s
misrepresentation on his application for insurance
regarding a prior denial of coverage.
Najam
Riley (concurs)
Bradford (concurs)
Johnson Superior Court,
No. 41D04-1401-PL-8
The Honorable Marla K.
Clark, Judge
Attorneys for
Appellant:
Michael N. Red,
John J. Morse,
Morse & Bickel, P.C.,
Indianapolis, Indiana
Attorneys for Appellee:
Douglas B. Bates, Neal
Bailen, Chelsea
Stanley,
Stites & Harbison
PLLC, Jeffersonville,
Indiana
5/11/2017 Oaks v.
Chamberlain
Post-operative care provided by a general surgeon after the
laparoscopic removal of the plaintiff’s gallbladder. On
post-operative day four, the plaintiff’s colon perforated and
the defendant general surgeon performed an emergency
Admission of expert’s testimony about his or her
personal practice is permissible for purposes of
impeaching expert’s testimony about standard of care
Najam
Riley (concurs)
Bradford (concurs)
Attorneys for
Appellant:
Tina M. Bell,
Katherine A. Brown-
6
2017 WL 1953144
APE’s Petition to transfer
filed, 08/14/2017
surgery to repair the perforation. The plaintiff survived but
experienced additional complications that required
subsequent treatment, surgeries and rehabilitation.
The plaintiff deposed general surgeon Dr. Wayne Moore,
one of the defendant’s expert witnesses. During that
deposition, Dr. Moore testified that, although the standard
of care did not require the defendant to order post-operative
X-rays, he (Dr. Moore) would likely have ordered such X-
rays.
During trial, the plaintiff elicited testimony from two
general surgeons who opined that the standard of care
required the defendant to order X-rays of the plaintiff’s
abdomen after surgery and that, because the defendant did
not order such X-rays, he failed to meet the standard of
care. The defendant called two of his own expert witnesses
who testified that the defendant did not breach the standard
of care. As one of the defendant’s expert witnesses, Dr.
Moore testified that the standard of care did not require
post-operative X-rays.
The plaintiff made an offer of proof to show that, if Dr.
Moore had been questioned on his personal practice, Dr.
Moore would have testified that he would have obtained
post-operative X-rays of the plaintiff’s abdomen. The
plaintiff wanted to use Dr. Moore’s personal practice
testimony to impeach the credibility of his ultimate opinion
that the standard of care did not require X-rays. Per
plaintiff, Dr. Moore’s personal practice testimony would
not be used to establish the applicable standard of care.
The defendant argued that Dr. Moore’s personal practice
testimony could not be offered to either establish the
standard of care or impeach the credibility of his opinion
because Dr. Moore’s personal practice and standard of care
testimony were not in conflict.
The trial court agreed with the defendant and viewed Dr.
Moore’s testimony as indicating that the standard of care
required one thing and that he practiced “above what he
believes the standard of care to be.” For a conflict to exist
under these circumstances, the trial court believed Dr.
Moore needed to testify that the standard of care required
something be done (or not done) and that he practices in a
way contrary to that standard. In other words, the trial
court believed Dr. Moore testified that he practices above
the standard of care, not inapposite of that standard. The
jury later returned a verdict in the defendant’s favor, which
the plaintiff appealed.
Reverses the jury’s verdict and the Whitley Circuit Court’s
decision to exclude David Oaks’ cross-examination of an
adverse expert witness about the expert’s personal medical
practices. Finds Oaks did not waive his claim on appeal by
failing to object to Jury Instruction 15. Also finds Dr.
Moore’s expert testimony was not more prejudicial than
probative, and the trial court abused its discretion in
excluding it. Moreover, because Dr. Moore’s testimony
was the only expert testimony that Dr. Chamberlain had
met the standard of care, the exclusion of impeachment
evidence from cross-examination was not harmless error.
Remands for a new trial.
The court held that “the admission of an expert’s testimony
about his or her personal practices in medical malpractice
cases is permissible for the purpose of impeaching that
expert’s testimony about the standard of care.”
Specifically, there was a conflict between his personal
practice testimony and his standard of care testimony.
Thus, the trial court erred in excluding the personal practice
testimony for impeachment purposes.
Although the court determined that Dr. Moore’s personal
practice testimony was relevant and admissible because his
testimony conflicted, the court further held that, even if
there was no conflict and Dr. Moore testified that he would
go “above the standard of care,” this would also have been
relevant and admissible.
(The COA also rejected the defendant’s argument that Dr.
Moore’s personal practices testimony should be excluded
under Indiana Rule of Evidence 403 because its probative
value was substantially outweighed by its potential to
confuse the jury. The defendant argued that this may lead
to the jury believing the evidence was offered to establish
the standard of care and not just for impeachment. The
COA rejected this in light of the deference afforded to
jurors.)
Whitley Circuit Court,
No. 92C01-1303-CC-
112
The Honorable David J.
Avery, Special Judge
Henry,
Cline Farrell Christie &
Lee, P.C., Indianapolis,
Indiana.
Attorney for Amicus
Curiae Indiana Trial
Lawyers Association:
Jerry Garau,
Garau Germano, P.C.,
Indianapolis, Indiana
Attorneys for Appellee:
Karl L. Mulvaney,
Nana Quay-Smith,
Jessica Whelan,
Bingham Greenebaum
Doll LLP, Indianapolis,
Indiana,
Mark W. Baeverstad,
Rothberg Logan &
Warsco LLP, Fort
Wayne, Indiana.
4/05/2017 Ford v. Indiana
Heart Hospital
2017 WL 1244996
Transfer denied,
7/13/2017
Darlene M. Welsh (“Welsh”) died while recovering from
open heart surgery at the Indiana Heart Hospital
(“Hospital”) in Indianapolis. Debra K. Ford (“Ford”),
Welsh’s daughter and personal rep. of her estate, sued the
Hospital for medical negligence. The Trial Court granted
summary judgment in the Hospital’s favor. Ford now
appeals, claiming her designation created a fact issue as to
the applicable standard of care and precluded judgment as a
Summary judgment reversed; Plaintiff’s nurse expert
affidavit as to standard of care created genuine issue of
material fact as to duty and breach
The court held that, “because the Dillow affidavit
sufficiently stated that the Hospital breached the standard
of care in Welsh’s case, it created a genuine issue of
material fact as to duty and breach, and the trial court’s
Mathias
Pyle (concurs)
Baker (dissents w/ sep.
op.)
Marion Superior Court,
No. 49D14-1510-CT-
037696
Attorney for Appellant:
Cynthia S. Rose,
Arthur R. Baxter, Jr.,
Baxter James & Rose
LLP, Indianapolis,
Indiana
Attorneys for Appellee:
7
matter of law.
Welsh was an 82 year old woman. She received open heart
surgery at the Hospital to repair her mitral valve and to
bypass a blocked coronary artery. After repair and bypass
were completed, the surgeon, Dr. John Storey (“Storey”),
placed a single “pacing wire” in Welsh’s chest. Surgery
went well and Welsh was reported as recovering well. On
the 4th day after surgery, Welsh was scheduled to go home.
Lindsay Cool (“Cool”), a surgical nurse practitioner, had
been asked by the new doctor to remove (“pull”) the pacing
wire from Welsh’s chest. The doctor had planned to pull
the wire himself but forgot to do so on his rounds in the
morning. Generally, removal by a surgical nurse
practitioner was done by a few nurses at the Hospital when
doctors were not available, but they did not routinely do it.
The Hospital did not have a written policy or procedure for
nurses to do this removal nor did Cool follow any protocol
from the Hospital on the date of the incident. Cool and the
records report that the removal went well initially. About
ten minutes later, Welsh lost consciousness and “extensive”
emergency resuscitation was attempted. Surgery was
determined to be too dangerous. After about 50 minutes,
further resuscitative efforts were deemed futile and Welsh
was pronounced dead at 9:21a.m.
Ford brought suit, and filed a proposed complaint naming
the Hospital, Storey, and Cool as proposed defendants.
MRP issued its opinion stating the Defendants did not fail
to meet the standard of care. Ford filed her complaint in
Marion County Superior Court, naming only the Hospital
as defendant. Hospital moved for summary judgment,
designating the panel’s opinion. Ford designated excerpts
of the medical records, Storey’s and Cool’s deposition
testimony, and the affidavit of Amanda Dillow (“Dillow”),
a registered nurse and certified nurse legal consultant.
Dillow concluded that the Hospital did not meet the SOC.
On May 11, 2016, the court granted the Defendant’s motion
without entering its findings or conclusions. Ford timely
filed notice of appeal on June 9, 2016.
grant of summary judgment was inappropriate.”
The court concluded that a fair reading of the Dillow
affidavit reveals that Dillow first stated her experience
included “developing and educating nursing staff in the
care of patients with temporary ... pacemakers and pre-
operative and post-operative care according to policies and
procedures,” and that she was “familiar with the standard
of care for this procedure of removing temporary pacing
wires in post-operative open heart patients.” She then
stated the Hospital fell short of the standard of care in
Welsh's case. “Among other issues,” she then identified
two particular ways in which the Hospital did so: by
allowing Cool to pull Welsh's pacing wire unregulated by a
“hospital policy and procedure,” and by failing to establish
such a “policy and procedure” with respect to “removal of
temporary pacing wires” to begin with.
In sum, Dillow affirmed that, given her training and
experience as a registered nurse who educates other nurses
in the care of postoperative open heart surgery patients
according to protocol, and given her familiarity with the
standards for pacing wire removal, the Hospital fell short of
the standard of care when it allowed a nurse practitioner to
remove a pacing wire unregulated by written protocols, and
when the Hospital failed to establish such protocols at all.
“While the affidavit expressly stated only the minor
premise and the conclusion of the argument, the implied
major premise, that the standard of care requires regulation
by written protocols of pacing wire removal by nurse
practitioners, is only one reasonable inferential step away.
We believe this was sufficient to create a genuine fact issue
requiring resolution by the trier of fact.”
The court went on to further state that, “it is irrelevant to
the questions of duty and breach whether a Hospital
policy…would have caused Cool to proceed
differently…and whether that different procedure would
have prevented Welsh’s death.” “Those questions go to
causation, as to which the Hospital designated no evidence
below. It was therefore never Ford’s burden to designate
evidence on causation in rebuttal.” Judge Baker’s dissent
on this point rests on the assumption that, as a matter of
law, there is no factual situation in which Hospital policy
could have prevented Welsh’s death, so long as Cool met
the standard of care. The dissent believes the majority is
wrong to say the Hospital designated no evidence below
regarding causation because the unanimous un-rebutted
panel opinion is evidence that there is no causal link
between the lack of policy, the care provided, and Welsh’s
death. Thus, it was Ford’s burden to designate evidence
that there was a causal link. However, the majority writes
that this inference is reasonable, but an inference drawn in
the movant’s favor, and the movant has not shown this to
be true and did not argue the point in these terms. Thus, the
inference cannot afford the Hospital a basis for relief at the
summary judgment stage.
The Honorable James B.
Osborn, Judge
Robert G. Zeigler,
Marilyn A. Young,
Erin E. Bowles,
Zeigler Cohen & Koch,
Indianapolis, Indiana
8
3/16/2017 Admiral Insurance
Company v.
Banasiak
2017 WL 1024546
No transfer filed
In 2008, Admiral Insurance Co. issued a professional
liability policy to Dr. Habib T. Zadeh with an initial period
from Sept. 21, 2008 to Sept. 21, 2009 and a retroactive date
of Sept. 21, 2005. Zadeh elected to cancel the policy in
July 2009 and that same day purchased an Extended Claim
Reporting Period from July 2009 to July 2010.
Jennifer Muehlman filed a complaint against John Doe,
M.D., in October 2008, alleging that she sustained severe
and permanent injuries as a result of the defendant’s
negligence while she was treated for a fracture in her leg.
Zadeh was served with a summons and complaint in
Muehlman’s case, and he received a letter from the Indiana
Patients’ Compensation Fund informing him that his
insurance had lapsed.
The court entered default judgment against Zadeh in
October 2010, and one year later, Admiral was informed
that Muehlman was making a medical malpractice claim
against Zadeh. Scott Mansfield, Admiral’s claims
superintendent, informed Zadeh’s counsel in November
2011 that the insurer was denying the claim, noting
although Muehlman’s complaint was first made in October
2008, Admiral was not informed of it until the policy was
cancelled in July 2009. In response, another attorney
representing Zadeh, Joseph Stalmack, wrote to Mansfield
that under Indiana Code 34-18-13-4, the policy was still in
effect because no notice of cancellation had been received
by the insurance commissioner. Stalmack cited the
affidavit of Nancy Wilkins with the Department of
Insurance, who said it was the department’s policy to
forward copies of all letters to health care providers’
insurance company. Thus, Stalmack said it could be
presumed that the letter Zadeh received about Muehlman’s
claim was also sent to Admiral in October 2008.
In April 2014, Zadeh’s attorney, now acting as personal
representative of the Zadeh’s estate, filed for declaratory
judgment, listing Muehlman as a defendant and requesting
a declaration that Admiral was required to defend and
indemnify Zadeh against Muehlman’s claims. Admiral
moved for summary judgment, but the trial court denied
that motion and instead granted declaratory judgment,
finding “Admiral did not notify the DOI, and thus the
public, that a termination had been effectuated.”
Insurance company wasn’t required to cover late claim
Reverses trial court’s denial of Insurance company’s
(Admiral) motion for summary judgment and reverses trial
court’s entry of declaratory judgment in favor of the Estate.
Admiral was not required to defend Dr. Zadeh in the
medical malpractice case because the applicable insurance
policy had expired before the insurer received notice of the
claim. The first notification to Admiral of Muehlman’s
claim was in October 2011 by a letter sent by Dr. Zadeh’s
counsel, which was more than 2 years after the policy
expired on Sept. 21, 2009, and more than 1 year and 3
months after the expiration of the Extended Claim
Reporting Period on July 15, 2010. Thus, the notification
was late under the claims made Policy.
I.C. 34-18-13-4 did not apply to Dr. Zadeh’s situation
“given that the Policy was still in effect at the time of the
filing of Muehlman’s complaint and the Policy had not yet
been terminated by cancellation.” Specifically, the policy
period was from Sept. 21, 2008, to Sept. 21, 2009, with a
retroactive date of Sept. 21, 2005. “Thus, at the point at
which Muehlman filed her complaint against Dr. Zadeh on
October 6, 2008, the Policy was in effect.” “We also note
that the Policy terminated/expired by its own terms prior to
Admiral receiving notice of Muehlman’s claims.” “Under
these circumstances, we cannot say the I.C. 34-18-13-4
requires coverage of Muehlman’s claim.”
Brown
Vaidick (concurs)
Bradford (concurs)
Lake County Superior
Court, No. 45D04-1404-
PL-50
The Honorable Bruce D.
Parent, Judge
Attorney for Appellant:
Scott B. Cockrum,
Hinshaw & Culbertson
LLP, Schereville,
Indiana.
Attorneys for Appellee:
Lloyd P. Mullen,
Mullen & Associates
PC, Crown Point,
Joseph Stalmack,
Joseph Stalmack &
Associates, P.C.,
Munster, Indiana.
2/22/2017 Llobet v. Gutierrez
2017 WL 695301
Transfer denied,
6/01/2017
Medical review panel found that Dr. Llobet did breach the
standard of care when he broke a stent in Juan Gutierrez’s
body during an angiogram, necessitating further operations.
During the panel process, Gutierrez alleged that Dr. Llobet
was negligent in his technical performance of the
angiogram.
Before the case went to the Lake Superior Court, Gutierrez
developed a second malpractice theory, this time alleging
that the angiogram was unnecessary, i.e. not “indicated.”
In response, Dr. Llobet turned over records from testing
that was performed the day before the angiogram, records
that he claimed would prove that the angiogram was
Theory presented to trial court in med-mal case was
presented to review panel, and trial court allowed
healthcare provider to present evidence related to a
subsequent malpractice theory against him.
COA held that, (1) patient’s allegation that angiogram was
unnecessary would not be stricken in malpractice action
since that claim was encompassed by patient’s proposed
complain, and (2) Ankle-brachial index (ABI) records
would not be barred in patient’s malpractice action because
doctor had reason for his delay in disclosing them during
discovery.
Vaidick
Bradford (concurs)
Brown (concurs)
Lake Superior Court,
No. 45D02-1307-CT-45.
The Honorable Calvin
Hawkins, Judge
Attorneys for
Appellant:
Michael E. O'Neill,
Nathan D. Hansen,
O'Neill McFadden &
Willett LLP,
Schererville, Indiana.
Attorneys for Appellee:
Barry D. Rooth,
Holly S.C. Wojcik,
Theodoros & Rooth PC,
Merrillville,
9
indicated. He also moved to strike Gutierrez’s “angiogram-
not-indicated” theory altogether, on the basis that Gutierrez
did not argue it to the MRP. Gutierrez countered with a
motion to bar Dr. Llobet from using the testing records,
noting that discovery had passed and the records had been
requested on multiple occasions. The trial court allowed
Gutierrez to proceed with the “non-indication theory,” but
prevented Dr. Llobet from entering his proposed records as
evidence.
Because Gutierrez’s “aniogram-not-indicated” theory was
encompassed by the proposed complaint he filed with the
Dept. of Insurance and is related to evidence that was
submitted to the medical review panel, the court affirmed
the denial of Dr. LLobet’s motion to strike. However, the
court also decided that, “because we conclude that Dr.
Llobet should be allowed to use the pre-angiogram testing
records to respond to the allegation that the angiogram was
not indicated, we reverse the trial court’s order barring that
evidence.”
(1) COA relied on the findings of McKeen v. Turner, 61
N.E.3d 1251, 1261 (Ind. Ct. App. 2016), which held that
the proposition in K.D. “was wrongly decided.” Thus,
because Llobet had premised his appellate argument on
K.D., the court rejected that argument under the new
premise of McKeen. Specifically, McKeen held that under
the case of Miller v. Memorial Hospital of South Bend,
Inc., 679 N.E.2d 1329, 1332 (Ind. 1997), a plaintiff can
raise a theory in court if it was encompassed by the
proposed complaint before the panel and if evidence related
to it was submitted to the panel.)
Dr. Llobet argued, in the alternative, that the “angiogram-
not-indicated” theory should be stricken even under
McKeen. While he acknowledged that the second prong of
McKeen was met, he argued that the theory was not
“encompassed” by Gutierrez’s proposed complaint. Dr.
Llobet focused on the fact that the pre-angiogram testing
took place on Sept. 24, while the proposed complaint only
addressed events on Sept. 26. Thus, he asserted that the
proposed complaint “did not provide notice that treatment
that occurred on Sept. 25, 2007 was at issue.” The court
responded by stating, “But the events of September 25 are
‘at issue’ only insofar as they related to Gutierrez’s
ultimate claim that Dr. Llobet performed an unnecessary
angiogram on September 26. Because that claim was
plainly encompassed by Gutierrez’s proposed complaint,
we affirm the trial court’s denial of Dr. Llobet’s motion to
strike.”
(2) As to the trial court’s decision to bar the Doctor’s ABI
records, the court stated, “the fact that tips the scale in
favor of Dr. Llobet” is that when K.D. was handed down in
July 2011, Llobet was operating under the assumption that
medical malpractice plaintiffs were limited to the theories
of malpractice that were specifically presented to the
medical review panel. Thus, the records likely never even
crossed his mind. “And even if they did, we would not
fault him for concluding that they were completely
irrelevant to this litigation. If he had any inkling that the
records were relevant, surely he would have produced
them, since they are favorable to him.” Thus, the COA
reversed the trial court’s decision to bar the ABI records.
David W. Westland,
Westland & Bennett
PC, Schererville,
Indiana.
Attorneys for Amicus
Curiae, Defense Trial
Counsel of Indiana:
Donald B. Kite, Sr.,
Wuertz Law Office,
LLC, Indianapolis,
Crystal G. Rowe,
Kightlinger & Gray,
LLP, New Albany,
Indiana.
Attorney for Amicus
Curiae, Indiana Trial
Lawyers Association:
Jerry Garau,
Garau Germano, P.C.,
Indianapolis, Indiana.
10
2/22/2017 C.S. by Stevens v.
Aegis Women's
Healthcare, P.C.
2017 WL 695352
Transfer denied,
6/01/2017
Laura Stevens was a 40-year-old mother in her ninth month
of pregnancy when she reported that she could no longer
feel her baby moving. After visiting Aegis Women’s Health
and eventually being transferred to the IU Health
Bloomington Hospital, Stevens’ daughter, C.S., was
delivered via an emergency C-section with significant
health issues.
During the medical review panel process, the Stevens
alleged that Aegis “failed to adequately monitor Laura’s
pregnancy and C.S.’s condition” and “failed to provide
appropriate medical care.” Their narrative focused on
Stevens’ status as Rh-negative, and their submissions did
not include fetal heart rate monitoring strips created at the
hospital. The panel ultimately found that Aegis did not
breach the standard of care, and as they were preparing to
take their case to the Monroe Circuit Court, the Stevens
alleged that Aegis “failed to adequately monitor Laura’s
pregnancy and C.S.’s condition.” Aegis argued that such a
claim could not be presented to the trial court because the
medical review panel theory focused on Stevens’ Rh-
negative status, and the trial court judge agreed. Summary
judgment was ultimately entered in favor of Aegis.
Theory presented to trial court in med-mal case was
presented to review panel
“Because evidence relating to the ‘delayed-c-section’
theory was submitted to the medical review panel, and
because the proposed complaint encompassed that theory,
the Stevens’ are entitled to present it in court.” Therefore,
the COA reversed the trial court’s grant of summary
judgment in favor of Aegis.
Stevens’ specific theory of malpractice was that Aegis
waited too long to perform the c-section. The parties
agreed that this theory fell within the broad allegations in
the Stevens’ proposed complaint but disputed whether
there was evidence relating to the theory submitted to the
panel. Stated otherwise, the parties agreed element one of
McKeen was satisfied, but were in dispute as to element
two (“plaintiff can present any theory of malpractice that…
(2) is related to evidence that was submitted to the panel.”
McKeen, 61 N.E.3d 1251 (Ind. Ct. App. 2016), trans.
pending).
Specifically, Aegis asserted that “the Stevens family did
not provide evidence (tracings - from NST and fetal-heart-
rate monitoring) supporting their claim that C.S.’s delivery
was unduly delayed” to the MPR. However, the COA
stated that, “the panel had before it other significant
evidence that supports the [delayed-c-section] theory,
including records specifically addressing the NST and the
fetal-heart-rate monitoring.”
The court concluded that, although the fetal monitoring
strips and results from a related non-stress test were not
submitted to the panel, “the evidence that the panel did
have put it on notice not only that the NST and the fetal-
heart-rate monitoring had been conducted, but also that the
results of both were abnormal and that there were ‘tracings’
associated with each.” “And to the extent that the panel
was incapable of fully evaluating the timeliness of the C-
section without the tracings themselves…we simply note
that it had a right to request them.” Thus, the court
overturned summary judgment in Aegis’ favor.
Vaidick
Bradford (concurs)
Brown (concurs)
Monroe Circuit Court,
No. 53C01-1506-CT-
1134.
The Honorable E.
Michael Hoff, Judge
Attorneys for
Appellants:
Christopher S. Roberge,
Elizabeth A. Roberge,
Alexandra N.
Gortchilova,
Roberge Law, Carmel,
Indiana.
Attorneys for
Appellees:
Stacy F. Thompson,
Adam R. Doerr,
Clendening Johnson &
Bohrer, P.C.,
Bloomington, Indiana.
Attorney for Amicus
Curiae, Indiana Trial
Lawyers Association:
Jerry Garau,
Garau Germano, P.C.,
Indianapolis, Indiana.
Attorneys for Amicus
Curiae, Defense Trial
Counsel of Indiana:
Donald B. Kite, Sr.,
Wuertz Law Office,
LLC, Indianapolis,
Crystal G. Rowe,
Kightlinger & Gray,
LLP, New Albany,
Indiana.
2/07/2017 ABC Radiology v.
Gearhart
2017 WL 491763
Transfer denied,
5/18/2017
Kent Gearhart was diagnosed with renal cell cancer in
2009. Dr. Doe, the urologist associated with Anonymous
Medical Associates Inc., became his treating physician.
When a 2013 CT scan revealed a mass on Gearhart’s left
kidney, Dr. Doe and AMA failed to follow up or make
Gearhart aware of the results. One year later, after a visit to
another AMA nurse, a follow-up CT scan revealed that the
mass had grown and the cancer had spread. Gearhart’s
diagnosis was changed to terminal renal cell cancer, and he
died in January 2015.
Gearhart’s widow, Cathy Gearhart, filed a complaint for
damages with the Indiana Department of Insurance,
alleging malpractice on the part of Dr. Doe, an AMA nurse
practitioner, AMA and ABC Radiology, P.C. During his
Declaratory judgment, tort actions can arise from same
occurrence
The court held that declaratory judgment action arose out
of same transaction or occurrence as negligence claims,
allowing permissive joinder of defendant’s claims.
A declaratory judgment action can arise from the same
occurrence as an underlying tort action for purposes of
permissive joinder under Trial Rule 20. The COA pointed
to the case of Preferred Profs Ins. Co. v. West, 23 N.E.3d
716 (Ind. Ct. App. 2014), in which the court held that “it
would not be expeditious or efficient, judicially or
otherwise, for the Wests to wait for the conclusion of the
medical review panel process to determine if the Act
Altice
Riley (concurs)
Crone (concurs)
Marion Superior Court,
No. 49D07-1509-CT-
30343
The Honorable Michael
D. Keele, Judge
Attorneys for
Appellants:
Danny E. Glass,
Andrew E. Skinner,
Evansville, Indiana,
Clay A. Edwards,
Chad J. Bradford,
Louisville, Kentucky,
Lonnie D. Johnson,
Michelle R. Adams,
Stacy F. Thompson,
Bloomington, Indiana,
Rick L. Weil,
Indianapolis, Indiana
11
deposition, Dr. Doe testified that he did not follow-up on
the September 2013 radiology report because Sherry
Patrick, an administrative staff member, made a data entry
error when she received the report. So, the report was not
forwarded to him or put on his list of follow-up items as a
result of Patrick’s clerical error.
Cathy Gearhart filed a complaint for damages and
declaratory judgment in Marion Superior Court in 2015
alleging three counts. Counts I and II sought damages
resulting from the medical malpractice and common law
negligence of the defendants, while Count III sought
declaratory judgment against the Indiana Patients
Compensation Fund/Indiana Department of Insurance to
determine whether the data entry error was subject to the
Medical Malpractice Act. Defendants moved to either
dismiss the first two counts or sever them from Count III
and transfer them to Vanderburgh County, where the
alleged negligence took place. The Marion Superior Court
denied that motion, prompting the instant appeal.
applies.” The COA went on to note and conclude that,
“West highlights the importance of a preliminary
determination of the Act’s application to the underlying
claims of negligence.” “Accordingly, we hold that a
declaratory judgment action addressing the application of
the Act arises out the same transaction or occurrence (i.e.
the alleged negligent act(s)) as the tort claims.” “In other
words, the two are logically related and allowing
permissive joinder in this context effectuates T.R. 20’s
intended purpose of promoting trial convenience,
expediting claims, and avoiding multiple lawsuits.”
“Defendants have not established that the trial court abused
its discretion by finding that Counts I, II, and II were
properly joined. Thus, as the Fund is a necessary party to
Count III, Marion County is a county of preferred venue
for the entire action.”
Attorney for Appellee:
Nicholas C. Deets,
Indianapolis, Indiana.
2/06/2017 Szamocki v.
Anonymous Doctor
and Anonymous
Group
2017 WL 475837
Transfer denied,
5/15/2017
Jessica Szamocki went to see A.D. (unnamed doctor) for an
initial appointment regarding “stomach issues.” In
November 2012, A.D. performed a colon exam and biopsy,
and prescribed Lialda (mesalamine) to Szamocki and
instructed her to take one tablet per day. A.D. failed to
warn her of the risks of taking that medication, including
the fact that the drug’s manufacturer recommended that a
patient’s renal function be evaluated prior to and while
taking the medication to avoid renal impairment. On
December 12, 2012, Szamocki had a follow-up
appointment with A.D., and instructed her to continue
taking Lialda.
In March 2013, Szamocki developed a rash on her arms and
began to notice symptoms of arthritis. She went to her
primary care physician, and the nurse noted concerns about
her “drastically reduced” renal function. She was referred
to Dr. Richard Hellman, a nephrologist, who informed
Szamocki that she was suffering from acute renal failure
possibly caused by Lialda. Other specialists also theorized
that the drug may have been causing her renal failure, so
Szamocki decided on her own to quit taking the drug in
May 2013. Szamocki began seeking clear evidence that the
drug was the cause of her renal failure because her family
was considering legal action. In February 2015, Dr.
Evamaria Anvari, a nephrologist at the Cleveland Clinic,
gave Szamocki a diagnosis that she believed confirmed that
“more likely than not,” there was a link between Lialda and
her renal failure.
Szamocki filed her medical malpractice complaint against
A.D. in February 2015, alleging that he negligently
prescribed the drug and failed to monitor her renal function
while she was taking the drug. A.D. moved for summary
judgment, asserting that the statute of limitations prevented
Szamocki from bringing the complaint. The trial court
granted summary judgment to A.D. and the doctor’s motion
Malpractice claim barred by statute of limitations
COA rejected malpractice claim after holding that the
claim was barred by a two-year statute of limitations. COA
held that: (1) assuming gastroenterologist had duty to
monitor renal function, patient could not demonstrate that
such failure was of continuous nature, and thus doctrine of
continuing wrong was inapplicable to toll two-year statute
of limitations, and (2) patient possessed enough
information that should have led to discovery of alleged
malpractice, on dates when she was expressly told that
there was reasonable possibility that mesalamine may have
been cause of her renal failure, and, because such dates
were within two years of the alleged malpractice, she was
required to initiate her lawsuit within two years of the
alleged malpractice in order to avoid two-year statute of
limitations.
Specifically, the court stated:
(1) The doctrine of continuing wrong was inapplicable to
toll the statute of limitations beyond the date of the last
physician-patient encounter. COA rejected both of
plaintiff’s arguments because Szamocki’s last encounter
with A.D. was in December 2012, that was “the last
opportunity he would have had to monitor (or fail to
monitor) Szamocki’s renal function while she was taking
Lialda (mesalamine).” Thus, any alleged omission of
nonfeasance on A.D.’s part could not have extended past
December 2012.
(2) Patient discovered the alleged malpractice and resulting
injury well within the two-year statute of limitations, and
there was no evidence that it was not reasonably possible
for her to timely file her claim. Other doctors informed
Szamocki in 2013 and 2014 that the prescription drug was
the possible cause of her renal failure. “On those dates,
Szamocki possessed enough information that, in the
exercise of reasonable diligence, should have led to the
Crone
Kirsch (concurs)
May (concurs)
Marion Superior Court,
No. 49D12-1505-PL-
17261
The Honorable Patrick J.
Dietrick, Judge
Attorneys for
Appellant:
David J. Cutshaw,
Kelley J. Johnson,
Gabriel A. Hawkins,
Cohen & Malad, LLP,
Indianapolis, Indiana.
Attorneys for Appellee:
Brett T. Clayton,
Kelly H. Eddy,
Eichhorn & Eichhorn,
LLP, Indianapolis,
Indiana.
12
to strike, prompting Szamocki to appeal. Specifically,
Szamocki argued that the statute was tolled until May 2,
2013 under the doctrine of continuing wrong and that her
complaint was filed within a reasonable time after she
exercised “reasonable diligence” to discover the
malpractice.
discovery of the alleged malpractice.” “The record simply
does not support Szamocki’s contrary assertions.”
1/19/2017 Dermatology
Associates, P.C. v.
White
2017 WL 218146
No transfer filed
On Sept. 7, 2012, Elizabeth White visited Dr. Sonya
Campbell Johnson at Dermatology Associates P.C. for a
laser hair removal procedure on her face. Due to a reaction
between makeup White was wearing and the treatment, part
of White’s face was burned and became discolored. The
discoloration eventually improved but did not completely
go away. White filed a complaint for medical negligence
and sought no more than $15,000 in damages.
In October 2014, Johnson and Dermatology Associates
moved for summary judgment while White moved to
dismiss her complaint without prejudice because she had
“learned during the pendency of her action that her bodily
injury is more serious than previously believed…and
therefore believed that ($15,000) will be insufficient
compensation for her bodily injury.” The trial court
granted White’s motion and she subsequently filed a
complaint with the Indiana Department of Insurance in
November 2014 that was identical to her previous
complaint minus the limited damages declaration. The
providers then filed for preliminary determination and
again moved for summary judgment, alleging that White’s
complaint before the Department of Insurance was
untimely. The trial court denied that motion, so
Dermatology Associates appealed.
Statute of limitations bars medical negligence claim
COA held as a matter of first impression, in order to take
advantage of 180-day extension of the statute of
limitations, patient was required to assert that she had
learned that her bodily injury was more serious than
previously believed. The court concluded that, the
Providers were entitled to judgment as a matter of law on
their motion for summary judgment alleging White's
proposed complaint was filed with the Department of
Insurance outside the applicable statute of limitations.
Thus, the trial court's denial of the motion was reversed.
Normally a patient must file a medical negligence claim
with a medical review panel through the Indiana
Department of Insurance within two years of the incident.
An exception to that rule can be made when a case is begun
in court for damages not exceeding $15,000, then
dismissed without prejudice and filed with the review panel
without a damages limit if the bodily injury is worse than
previously thought. If that situation occurs and the moving
party then begins a second action following the medical
review panel proceedings, an additional 180 days may be
added to the two-year statute of limitations. Under those
circumstances, White’s complaint with the Department of
Insurance, which fell outside of the two-year window,
could continue through the 180-day extension.
White argued that because Indiana Code allows her to
dismiss her complaint and file it with the Department of
Insurance without imposing a specific cut-off period, she
does not need the 180-day extension. But the majority of
the panel found that if a complaint is voluntarily dismissed,
it is treated as if it never existed and, thus, cannot toll the
two-year statute of limitations. Her current action is
considered filed on Nov. 18, 2014 (when she filed her
proposed complaint with Dept. of Insurance). “In absence
of some mechanism for extending the statute of limitations
past Sept. 7, 2014, White’s action is time-barred, as it was
filed more than two years after the alleged malpractice.”
COA stated that the legislature provided such a
mechanism, which allows a patient to file a new action “if
she learns … that her bodily injury is more serious than
previously believed.” However, White failed to prove that
she “later learned” that her bodily injury was worse than
she thought because “she has not alleged she learned
anything new or different about her injury after filing her
original complaint.” Thus, she cannot trigger the 180-day
extension using that argument.
Robb
Brown (concurs)
Mathias (dissents)
Marion Superior Court,
No. 49D10-1506-PL-
18385
The Honorable David J.
Dreyer, Judge
Attorneys for
Appellants:
Chad J. Bradford,
O'Bryan, Brown and
Toner, PLLC,
Indianapolis, Indiana,
Karl L. Mulvaney,
Jessica Whelan,
Bingham Greenebaum
Doll LLP, Indianapolis,
Indiana
Attorney for Appellee
Gerald B. Coleman,
Coleman Stevenson,
LLP, Indianapolis,
Indiana
13
Judge Mathias, writing in a separate dissenting opinion,
argued that, White did establish that she later learned that
her injury was more serious through her own personal
experience and, thus, was entitled to the 180-day extension.
“Under the facts and circumstances before us, I think a
woman’s ultimate decision that a lifetime of facial
disfiguration was worth more than $15,000 is something
she could, and here did, ‘learn’ from looking into the
mirror every day, trying without success to use make-up to
make the scarring less noticeable.”
Other Cases:
4/07/2017
(COA op.
issued on
12/30/2016)
Ricardo S. Trevino
v. Comprehensive
Care, Inc. (mem.
dec.)
2017 WL 1333550
Transfer denied,
4/07/2017
Ind. Supreme Court deny transfer
Affirms the Lake Superior Court’s grant of a motion to
dismiss filed by Comprehensive Care Inc. in a
negligence action filed by Ricardo S. Trevino. Finds the
acts alleged in Trevino’s complaint fall within the scope
of the Indiana Medical Malpractice Act.
COA held that there was a causal connection between the
conduct of which Trevino complained and the nature of the
patient healthcare provider relationship. Therefore, Trevino's
complaint falls within the scope of the Medical Malpractice
Act. Because Trevino did not submit his claim to a medical
review panel, the trial court was without jurisdiction to hear
Trevino's claim. We accordingly affirm the order of the trial
court granting CCI's motion to dismiss for lack of subject
matter jurisdiction. Affirmed.
2/16/2017
(COA op.
issued on
11/07/2016)
Roberston v.
Anonymous Clinic
2017 WL 678521
Transfer denied,
2/16/2017
Ind. Supreme Court deny transfer in suit stemming
from meningitis outbreak
Ind. Supreme Court declined to take case on transfer.
COA’s ruling will stand.
COA’s decision held that health care providers, who injected
the injured parties with a contaminated steroid that contributed
to a widespread fungal meningitis outbreak, killing 12, could
be found negligent under the Indiana Medical Malpractice Act.
5/30/2017 Charles Aillones v.
Glen D. Minton
2017 WL 2333706
No transfer filed
NOTE: This case is NOT a medical malpractice claim,
but is a simple tort claim; “at issue here is not whether a
medical provider caused a patient’s injuries, but whether
a plaintiff’s injuries were caused by an automobile
accident.” However, COA opinion relies on and
includes an extensive discussion on med mal case law
regarding non-physician expert testimony on causation
(Curtis v. Miller’s, Bennett v. Richmond, Nasser v. St.
Vincent, Long v. Methodist, and Clarian v. Wagler). See
above, Totton v. Bukofchan.
Charles Aillones filed a negligence claim against Glen
Minton, alleging that Aillones was injured during an
automobile accident that was Minton’s fault. Aillones
was treated by a nurse practitioner, and during
deposition, Minton’s counsel objected to testimony by
the nurse regarding whether Aillones’s injuries were
caused by the accident. The trial court denied the
motion to qualify, but certified the order for
interlocutory appeal.
Trial court here based its decision on the opinion in
COA allows nurse practitioner to testify as expert
“We therefore conclude that Swartz has sufficient knowledge,
skill, experience, training, or education to testify as an expert
witness.” “However, Swartz may not testify that Aillones's
injuries were caused by the accident, as Swartz was not a
witness to the accident. Importantly, this is not a medical
malpractice case regarding a medical provider's conduct.
Instead, it is a simple tort claim. Accordingly, we hold that
although Swartz may not testify that Aillones's injuries were
proximately caused by the accident, he may testify whether, in
his expert opinion, Aillones's injuries were consistent with
injuries from an automobile accident. Although this may seem
a fine line to draw, it is up to Aillones's counsel to persuade the
jury that the injuries that Swartz testified are consistent with an
accident were actually caused by the accident.”
14
Nasser v. St. Vincent Hosp. & Health Services, 926
N.E.2d 43 (Ind. Ct. App. 2010).
Full citations:
Charles McKeen, M.D. v. Billy Turner
McKeen v. Turner, 71 N.E.3d 833 (Ind. 2017)
McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016), transfer granted, opinion vacated, 2017 WL 1348010 (Ind. Apr. 7, 2017), and opinion
adopted, 71 N.E.3d 833 (Ind. 2017)
Paul Gresk, Trustee for the Bankruptcy Estate of Derek VanWinkle and Stacey VanWinkle on behalf of M.V. and A.V. their minor children v.
Cortney Demetris, M.D., et al.
Gresk Estate of VanWinkle v. Demetris, No. 49A02-1610-MI-2287, 2017 WL 3096241 (Ind. Ct. App. July 21, 2017)
Craig Totton v. Daniel P. Bukofchan, D.C., and Franklin County Chiropractic Clinic
Totton v. Bukofchan, No. 24A01-1612-CT-2849, 2017 WL 2569798 (Ind. Ct. App. June 14, 2017)
Josephina Augila on behalf of Pedro Aguila, et al. v. Anonymous Physicians 1 & 2, et al.
Aguila on behalf of Aguila v. Anonymous Physicians 1 & 2, No. 45A03-1609-CT-2069, 2017 WL 2266884 (Ind. Ct. App. May 24, 2017)
Steven J. Svabek, D.O., et al. v. Lancet Indemnity Risk Retention Group, Inc.
Svabek v. Lancet Indemnity Risk Retention Group, Inc., No. 41A05-1610-PL-2271, 2017 WL 1955048 (Ind. Ct. App. May 11, 2017) (mem. dec.)
David Oaks v. Timothy R. Chamberlain, M.D.
Oaks v. Chamberlain, 76 N.E.3d 941 (Ind. Ct. App. 2017)
Debra K. Ford, Personal Representative of the Estate of Darlene M. Welsh v. Indiana Heart Hospital
Ford v. Indiana Heart Hospital, No. 49A04-1606-CT-1334, 2017 WL 1244996 (Ind. Ct. App. Apr. 5, 2017), transfer denied, 2017 WL 3034656
(Ind. July 13, 2017)
Admiral Insurance Company v. Joseph Banasiak, et al.
Admiral Insurance Company v. Banasiak, 72 N.E.3d 491 (Ind. Ct. App. 2017)
Pastor Llobet, M.D. v. Juan Gutierrez
Llobet v. Gutierrez, 71 N.E.3d 54 (Ind. Ct. App. 2017), transfer denied, 2017 WL 2455711 (Ind. June 1, 2017)
15
C.S., a Minor Child, by Her Next Friends and Parents, John Stevens and Laura Stevens v. Aegis Women's Healthcare, P.C., Brian W. Cook, M.D.,
Rhonda S. Trippel, M.D., and Lillette (Alice B.) Wood, M.D.
C.S. by Stevens v. Aegis Women’s Healthcare, P.C., 70 N.E.3d 459 (Ind. Ct. App. 2017), transfer denied sub nom. C.S. v. Aegis Women's
Healthcare, P.C., 2017 WL 2455742 (Ind. June 1, 2017)
ABC Radiology, P.C., Jane Doe, John Doe, Anonymous Medical Associates, Inc., Sherry Patrick v. Cathy Gearhart
ABC Radiology, P.C. v. Gearhart, 69 N.E.3d 545 (Ind. Ct. App. 2017), transfer denied, 2017 WL 2257559 (Ind. May 18, 2017)
Jessica Szamocki v. Anonymous Doctor and Anonymous Group, and Stephen Robertson, Commissioner, Indiana Department of Insurance
Szamocki v. Anonymous Doctor & Anonymous Grp.
Szamocki v. Anonymous Doctor and Anonymous Group, 70 N.E.3d 419 (Ind. Ct. App. 2017), transfer denied sub nom. Szamocki v. Anonymous
Doctor, 2017 WL 2257448 (Ind. May 15, 2017)
Dermatology Associates, P.C. and Sonya Campbell Johnson, M.D. v. Elizabeth C. White v. Commissioner of Indiana Department of Insurance, and
Douglas J. Hill, Esq., Medical Review Panel Chair
Dermatology Assocs., P.C. v. White, 67 N.E.3d 1173 (Ind. Ct. App. 2017)