James E. Whitfield, M.D. and St. Joseph Primary Care, LLC v. Jerry Wren, Individually and As Personal Representative of The Wrongful Death Estate of Leslie Wren

FOR PUBLICATION
Jul 30 2014, 9:47 am

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:

STACY L. HANEFELD GLORIA J. DANIELSON
KATHRYN ELIAS CORDELL Danielson Law Office, LLC
Hall, Render, Killian, Heath & Lyman, P.C. Greenwood, Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

JAMES E. WHITFIELD, M.D. and ST. JOSEPH )
PRIMARY CARE, LLC, )
)
Appellants-Defendants, )
)
vs. )
)
JERRY WREN, Individually, and As Personal )
Representative of The Wrongful Death Estate of )
LESLIE WREN, )
) No. 34A02-1307-CT-660
Appellees-Plaintiffs )
)
vs. )
)
KINDRED NURSING CENTERS LIMITED )
PARTNERSHIP d/b/a KINDRED )
TRANSITIONAL CARE and REHABILITATION- )
KOKOMO, BRUCE ROBB, M.D., and )
UNIVERSITY SURGEONS, INC., )
)
Appellants-Defendants. )

APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable Brant J. Parry, Judge
Cause No. 34D02-1212-CT-1204
 July 30, 2014

OPINION - FOR PUBLICATION

BROWN, Judge

In this interlocutory appeal, James E. Whitfield, M.D. and St. Joseph Primary Care,

LLC (“St. Joseph,” and collectively with Dr. Whitfield, the “Appellants”) appeal the trial

court’s denial of their motion for summary judgment in favor of Jerry Wren, individually, and

as personal representative of the wrongful death estate of his daughter, Leslie Wren

(collectively, “Wren”).1 The Appellants raise three issues which we consolidate and restate

as whether the court erred in denying their motion for summary judgment. We affirm.

FACTS AND PROCEDURAL HISTORY

On December 6, 2007, twenty-four year old Leslie Wren was admitted to the Clarian

North Medical Center with abdominal complications related to her Crohn’s colitis. That

same day, she underwent total abdominal colectomy with proctectomy and ileostomy

performed by colorectal surgeon, Bruce Robb, M.D. After the operation, Leslie received

pain and psychiatric medications. On January 4, 2008, Leslie was discharged from Clarian

North Medical Center with instructions to take medications including a Fentanyl patch and

1
We note that Kindred Nursing Centers Limited Partnership d/b/a Kindred Transitional Care and
Rehabilitation – Kokomo, Bruce Robb, M.D., and University Surgeons, Inc., are also named as defendants
below. However, the summary judgment order which is the subject of this interlocutory appeal applies to only
Wren’s complaint against the Appellants.

We also note that the Indiana Trial Lawyers Association (“ITLA”) has filed an amicus brief in support
of Wren. We thank ITLA for its informative brief.
2
Dilaudid for pain, and she was then admitted to Windsor Estates for rehabilitation.2 Dr.

Whitfield, an employee of St. Joseph, was the medical director at Windsor Estates. During

her time there, Leslie continued to be treated by Dr. Robb, who controlled the pain

medication orders at the facility, and questions by the nursing staff regarding her pain were

directed to him.

On January 11, 2008, Dr. Whitfield saw Leslie and completed a history and physical

for her. In the days thereafter, she was monitored and administered pain medications as

needed. Leslie complained of abdominal pain and nausea with some vomiting. On January

14, 2008, at approximately 5:00 p.m., the nursing staff noted that Leslie’s glucose was

elevated and contacted Dr. Whitfield, who ordered five units of Humalog insulin and to

recheck her blood sugar in two to four hours, as well as fifteen units of insulin to be added to

her next TPN bag. At 6:00 p.m., Jerry Wren reported to the nursing staff that Leslie was

bleeding, two open areas on her coccyx were identified, Dr. Whitfield was notified, and

orders for daily wet-to-dry dressing changes were ordered for that area of Leslie’s body. At

9:00 p.m., Leslie’s blood glucose was checked and noted to be high, and after being notified

Dr. Whitfield ordered twenty-five additional units of Humalog be immediately administered.

Also at around 9:00 p.m., Leslie complained of feeling weak to a nurse who checked her

vital signs revealing a blood pressure of 100/60, heart rate 120, respirations 20, and oxygen

saturation 94% on room air. The nurse noted that Leslie’s arms, hands, and legs were cool to

the touch. At 9:30 p.m., Leslie received 2 mg of Dilaudid after complaining of pain, and an

2
Windsor Estates is owned by the Kindred Nursing Centers Limited Partnership, which as noted in
3
hour later another nurse noted that Leslie “was yelling out and demanding more Dilaudid.”

Appellants’ Appendix at 102. Dr. Whitfield was not notified of this.

At midnight on June 15, 2008, a nurse noted that Leslie was lying in bed with her eyes

open and watching TV. At 1:30 a.m., the nurse entered the room and found Leslie

unresponsive with no blood pressure, pulse, or respirations. CPR was initiated, and 911 was

called. Drs. Whitfield and Robb were both notified of the situation. At 2:05 a.m., the

emergency personnel stated that Code Activities were to be stopped, and Drs. Whitfield and

Robb were notified of Leslie’s death. An autopsy revealed that Leslie’s cause of death was

“acute mixed drug intoxication.” Id. at 103.

On January 11, 2010, Wren filed a proposed complaint (the “Proposed Complaint”)

against Dr. Whitfield and St. Joseph, as well as Kindred Nursing Centers Limited Partnership

d/b/a Kindred Transitional Care and Rehabilitation-Kokomo (“Kindred”), Dr. Robb, and

University Surgeons, Inc. (“University Surgeons”), with the Indiana Department of Insurance

alleging that “[t]he medical treatment provided by Defendants fell below the standard of care

within the medical community and proximately caused or proximately contributed to Leslie

Wren’s death.” Id. at 29. Pursuant to Ind. Code § 34-18-10-17, the parties filed their

Submissions with the Medical Review Panel (the “Panel”), and the Panel convened on July

23, 2012 to review the submitted evidence. On August 30, 2012, after reviewing the

evidence submitted the Panel unanimously rendered the following expert opinion (the “Panel

Opinion”) with respect to the care and treatment provided by all of the Defendants: “[t]he

note 1 is also a named defendant below.
4
evidence does not support the conclusion that the Defendants failed to meet the applicable

standard of care as charged in the [Proposed Complaint], and the conduct complained of was

not a factor in the resultant damages.” Id. at 31.

On December 3, 2012, Wren filed a complaint for damages in the Howard County

Superior Court against Dr. Whitfield, St. Joseph, Kindred, Dr. Robb, and University

Surgeons. On December 20, 2012, Dr. Robb and University Surgeons filed a motion for

summary judgment, and subsequently on January 24, 2013, the Appellants filed their motion

for summary judgment, along with a memorandum in support and designation of evidence,

stating that Wren “has not offered any expert testimony to refute the Opinion of the Medical

Review Panel.” Id. at 21. On or about February 19, 2013, Wren filed a response in

opposition to both summary judgment motions (the “Response”), as well as a memorandum

in support and designation of evidence in which Wren designated the affidavit of Robert

Gregori, M.D., in opposition to the Panel Opinion. Dr. Gregori’s affidavit contained the

following statements related to the medical care provided by Dr. Whitfield:

36. That in my expert opinion, based upon my education, training and
clinical experience, the development of pressure ulcers, elevated BUN
and elevated potassium is the direct and proximate result of defendants’
failure to measure and record Leslie’s intake and output, failure to
reweigh Leslie and failure to treat Leslie’s nausea and vomiting and is
more likely than not the proximate cause, or contributing cause, to
Leslie’s death.

72. That[,] with respect to defendant Dr. Whitfield, based upon my
education, training and personal clinical experience it is my
professional opinion to a reasonable degree of medical certainty that
Dr. Whitfield’s failure to check, evaluate, monitor, and treat Leslie’s
physical condition, including the signs and symptoms of significant
dehydration and electrolyte derangement, was not reasonable under the
5
 circumstances, was a breach in the standard of care and more likely
than not caused or contributed to Leslie Wren’s death.

Id. at 56, 59.

On March 7, 2013, Dr. Robb and University Surgeons withdrew their motion for

summary judgment. Then, on March 21, 2013, the Appellants filed their reply (the “Reply”)

to Wren’s Response in which they argued that Wren’s Submission to the Panel contained a

“sole allegation against Dr. Whitfield (and St. Joseph . . . his employer)” which concerned his

“response to Leslie Wren’s blood sugar,” claiming that it “was not reasonable.” Id. at 61.

The Appellants’ Reply stated that “their Submission [] addressed only the allegation

regarding Dr. Whitfield’s role in monitoring Leslie Wren’s blood sugar.” Id. The Reply

suggested that Wren in his Response raised issues through the affidavit of Dr. Gregori which

were not before the Panel and that accordingly such issues were not properly before the court,

citing to K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011), trans. denied, disapproved

on other grounds by Spangler v. Bechtel, 958 N.E.2d 458, 466 n.5 (Ind. 2011). The Reply

was accompanied by a supplemental designation of evidence which designated Wren’s

Submission to the Panel, the Appellants’ Submission, and Wren’s Reply Submission.

On March 25, 2013, Wren filed an Objection to the Appellants’ Reply and a Motion to

Strike the Supplemental Designation of Evidence asserting that the Appellants were not

allowed to file the Supplemental Designation, that the Reply was untimely, that the

Submissions designated in the Supplemental Designation consist of arguments made by

attorneys which are not evidence, and that the Appellants’ reliance on K.D. is misplaced. On

April 18, 2013, Appellants filed their Reply to Wren’s Objection and Motion to Strike stating
6
that Wren’s “attempt to persuade this Court that the Submissions presented to the Medical

Review Panel cannot be considered by this Court in ruling on [the Appellants’] claim . . . is

in direct conflict of Indiana statute, legal precedent and logic.” Id. at 135. On May 30, 2013,

the court heard oral argument on Appellants’ summary judgment motion and Wren’s Motion

to Strike, and took the matters under advisement. On June 12, 2013, the court entered its

order denying the Appellants’ summary judgment motion (the “Order”) stating as follows:

1. The Supplemental Evidence filed by the [Appellants] on March 21,
2013 in reply to [Wren’s] response to Summary Judgment shall be
considered by the court.

2. The [Appellants] argue[] that [Wren] must make specifically [sic]
allegations in his complaint to the Department of Insurance. The
[Appellants go] on to argue that [Wren] cannot present evidence at [sic]
in this cause as to alleged negligence that was not specifically pled to
the Department of Insurance.

3. [Wren] argues the complaint to the Department of Insurance is not
required to be specifically pled. [Wren] argues [he] alleged that the
medical providers[’] care fell below the standard of care.

4. The Court notes that the form complaint located on the State
Department of Insurance [website] (in.gov) simply includes a generic
statement that the medical provider’s care fell below the requisite
standard of care. It is not specifically pled.

5. The issue concerning the care provided by the medical providers in this
case, in all aspects, shall be determined by the jury.

6. [The Appellants’] Motion for Summary Judgment is DENIED.

Id. at 11.

On July 9, 2013, the Appellants timely filed their Motion for Certification of

Interlocutory Order for Appeal pursuant to Ind. Appellate Rule 14(B)(1), which the court

7
granted on July 17, 2013. On July 18, 2013, Wren filed an Objection to the Appellants’

motion, and the court noted in the chronological case summary (“CCS”) that the motion was

moot as the Appellants’ motion had been ruled upon. On July 22, 2013, Wren filed a motion

to reconsider granting the Appellants’ motion and stay of trial court proceedings, and the

court denied Wren’s motion.

ISSUE / STANDARD OF REVIEW

The issue is whether the court erred in denying the Appellants’ motion for summary

judgment. When a trial court’s ruling granting or denying summary judgment is challenged

on appeal, our standard of review is the same as it is for the trial court. Kroger Co. v.

Plonski, 930 N.E.2d 1, 4 (Ind. 2010). The moving party “bears the initial burden of making a

prima facie showing that there are no genuine issues of material fact and that it is entitled to

judgment as a matter of law.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633,

637 (Ind. 2012). Summary judgment is improper if the moving party fails to carry its burden,

but if it succeeds, then the non-moving party must come forward with evidence establishing

the existence of a genuine issue of material fact. Id. We construe all factual inferences in

favor of the non-moving party and resolve all doubts as to the existence of a material issue

against the moving party. Plonski, 930 N.E.2d at 5. An appellate court reviewing a

challenged trial court summary judgment ruling is limited to the designated evidence before

the trial court, see Ind. Trial Rule 56(H), but is constrained to neither the claims and

arguments presented at trial nor the rationale of the trial court ruling. See Woodruff v. Ind.

Family & Soc. Servs. Admin., 964 N.E.2d 784, 790 (Ind. 2012) (“We will reverse if the law

8
has been incorrectly applied to the facts. Otherwise, we will affirm a grant of summary

judgment upon any theory supported by evidence in the record.”), cert. denied, 133 S. Ct. 233

(2012); Wagner v. Yates, 912 N.E.2d 805, 811 (Ind. 2009) (“[W]e are not limited to

reviewing the trial court’s reasons for granting or denying summary judgment but rather we

may affirm a grant of summary judgment upon any theory supported by the evidence.”).

The entry of specific findings and conclusions does not alter the nature of a summary

judgment which is a judgment entered when there are no genuine issues of material fact to be

resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the summary judgment

context, we are not bound by the trial court’s specific findings of fact and conclusions of law.

Id. They merely aid our review by providing us with a statement of reasons for the trial

court’s actions. Id.

To the extent that the parties’ arguments require us to interpret sections of the Medical

Malpractice Act (the “Act”), we note that the first step in statutory interpretation is to

determine whether the legislature has spoken clearly and unambiguously on the point in

question. McCarty v. Sanders, 805 N.E.2d 894, 898 (Ind. Ct. App. 2004), trans. denied.

When a statute is clear and unambiguous, courts need not, and indeed shall not, apply any

rules of construction other than to require that words and phrases be taken in their plain,

ordinary, and usual sense. Id. Questions of statutory interpretation are particularly amenable

to resolution by summary judgment. Id.

DISCUSSION

9
 In general, “[t]o prevail in a medical malpractice action, the plaintiff must prove three

elements: ‘(1) a duty on the part of the defendant in relation to the plaintiff; (2) failure to

conform his conduct to the requisite standard of care required by the relationship; and (3) an

injury to the plaintiff resulting from that failure.’” Blaker v. Young, 911 N.E.2d 648, 651

(Ind. Ct. App. 2009) (quoting Oelling v. Rao, 593 N.E.2d 189, 190 (Ind. 1992)), reh’g

denied, trans. denied. When the defendant doctor moves for summary judgment and can

show there is no genuine issue of material fact that the designated evidence establishes that

any one of these elements is not met, the defendant is entitled to summary judgment as a

matter of law unless the plaintiff can establish, by expert testimony, a genuine issue of

material fact for trial. Id.

Here, rather than challenging the evidence regarding an element of medical

malpractice, the crux of the Appellants’ position is that Wren is attempting to impermissibly

raise an allegation of malpractice in the trial court which was not raised at the Panel stage.

The Appellants direct our attention to Wren’s Submission, specifically to the conclusion of

the Submission, which states the following:

The evidence in the medical records shows the following:

1. Medication prescribed by Dr. Robb was not reasonable under the
circumstances;

2. Administration of medications by Windsor Estates was not reasonable
under the circumstances;

3. Management of Leslie’s fluid and electrolytes was not reasonable under
the circumstances; and

10
 4. Windsor Estates’ and/or Dr. Whitfield’s management of Leslie’s blood
sugar was not reasonable under the circumstances.

Appellants’ Appendix at 89-90.

The Appellants argue that Wren’s Submission “only discussed Dr. Whitfield’s

treatment of [Leslie] when addressing the issue of response to [her] January 14, 2008 blood

glucose results,” noting that “in discussing the allegation of management of fluids and

electrolytes, Wren specifically argued ‘Windsor Estates’ monitoring of Leslie for signs of

symptoms of fluid and/or electrolyte imbalance was not reasonable under the

circumstances.’” Appellants’ Brief at 10. The Appellants also note that Wren did not “raise

any additional issues as to Dr. Whitfield” in their Reply Submission, making it “clear that the

sole allegation to the . . . Panel as to [Appellants] was that [Dr. Whitfield] failed to recognize

that [Leslie] was having an adverse emergent reaction as evidenced by her reported high

blood sugar.” Id. at 11. The Appellants argue, consistent with their position taken below,

that other allegations against them run afoul of this court’s holding in K.D. v. Chambers, and

the trial court’s Order failed to comply with K.D. when it held that Wren was “not required to

specifically plead all claims of medical negligence in its Submission . . . .” Id. at 17. The

Appellants argue that Dr. Gregori did not opine “on the sole claim that Wren had presented”

to the Panel and accordingly the court’s “ruling that the designated facts and opinion of Dr.

Gregori were sufficient to create a material issue of fact was in error.” Id. at 13.

Wren argues that the court’s ruling denying summary judgment is appropriate because

he is not required to plead or argue specific breaches to the Panel, and genuine issues of

material fact exist regarding breach and causation. He contends that the Act, specifically Ind.
11
Code § 34-18-8-4, requires that the proposed complaint be presented to the medical review

panel but that “there is no requirement for a plaintiff to fully explicate and provide the

particulars or legal contentions regarding a claim.” Appellee’s Brief at 12 (citing Miller v.

Mem’l Hosp. of S. Bend, 679 N.E.2d 1329, 1332 (Ind. 1997)). Wren argues that Indiana

utilizes principles of notice pleading and that “[t]here is nothing in the Act requiring [Wren]

to plead specific breaches of the standard of care in his proposed complaint.” Id. He notes

that in this case, the Panel Opinion merely stated that “[t]he evidence does not support the

conclusion that the Defendants failed to meet the applicable standard of care as charged in

the complaint [aka, the Proposed Complaint], and the conduct complained of was not a factor

in the resultant damages,” and that the Proposed Complaint stated regarding a malpractice

claim that “[t]he medical treatment provided by Defendants fell below the standard of care

within the medical community and proximately caused or proximately contributed to Leslie

Wren’s death.” Appellants’ Appendix at 29, 31. He also notes that the medical review panel

“cannot write its own opinion” and instead chooses “an opinion contained within the Act”

pursuant to Ind. Code § 34-18-10-22(b). Appellee’s Brief at 12.

Wren maintains that he is not required by the Act to make any argument to the Panel

but that he nevertheless made several in his Submission, including arguments regarding Dr.

Whitfield’s conduct. He argues that K.D. “does not supplant the Supreme Court opinion in

Miller” and “does not re-write the Act by adding a requirement that plaintiffs must argue

each alleged breach . . . .” Id. at 13-14. He also notes that K.D. is distinguishable from this

case in that the Appellants argue Wren “did not include the breach of the standard of care in

12
his arguments to the [Panel]” and should accordingly “be precluded from presenting his

arguments to the jury,” whereas the court in K.D. “found that the plaintiffs could not present

breaches of the standard of care that were not presented to the medical review panel when the

plaintiffs failed to present the evidence that supported those breaches.” Id. at 14. Wren

asserts that “it is undisputed that the [P]anel was given evidence of Dr. Whitfield’s conduct

in the form of the medical records,” on which the Panel was “required to base their opinions .

. . .” Id. He suggests that the rule advocated for by the Appellants would usurp the function

and authority of the medical review panel and would create a technical trap for plaintiffs.

Wren also argues that the Appellants’ interpretation of the Act’s requirements that specific

breaches in the standard of care be identified in the proposed complaint or submission

violates certain constitutional rights, including the right to trial by jury, the right to due

process, and the Privileges and Immunities Clause.

Further, as noted above in Footnote 1, ITLA filed an amicus brief in support of Wren

in which it argues that this court’s holding in K.D. “conflicts with the Indiana Supreme

Court’s holding in Miller” where the Court “unambiguously held that a plaintiff’s medical

malpractice action was not limited by the arguments presented by the plaintiff to the medical

review panel” when it stated:

We decline to accept Memorial Hospital’s argument that the plaintiffs’ action
is restricted by the substance of the submissions presented to the medical
review panel. Pursuant to the statute, the panel was authorized to review the
medical records and other submitted material pertaining to each defendant’s
treatment of Nicholas. See IND. CODE § 16-9.5-9-4 (repealed and replaced in
1993 by IND. CODE § 27-12-10-17). While a medical malpractice plaintiff
must, as a prerequisite to filing suit, present the proposed complaint for review
and expert opinion by a medical review panel, there is no requirement for such
13
 plaintiff to fully explicate and provide the particulars or legal contentions
regarding the claim.

Amicus Brief at 4 (quoting Miller, 679 N.E.2d at 1332). ITLA asserts that the court in K.D.

attempted to distinguish Miller by observing that while Miller concerned “whether the

plaintiff had adequately raised the distinction between two different injuries in his

submission . . . the issue in [K.D.] was whether the plaintiffs failed to present all of their

claims of malpractice in their submission,” and it argues that K.D.’s “reading of Miller is too

narrow” because “[t]he argument in Miller was not merely that the plaintiff failed to raise the

distinction between two different injuries at the panel stage, but that the failure to raise that

distinction constituted a failure to present the claim to the panel.” Id. at 5. ITLA also

argues that the K.D. court’s attempt to distinguish Miller by suggesting that while the

question in Miller concerned “waiver of a legal issue,” the issue in K.D. was “waiver of a

factual question,” was erroneous because both issues are “decided by the panel per the terms

of the Act.” Id. at 6. For these and other reasons, ITLA invites this court to reconsider the

K.D. decision.

Ind. Code § 34-18-8-4 provides in relevant part that “an action against a health care

provider may not be commenced in a court in Indiana before: (1) the claimant’s proposed

complaint has been presented to a medical review panel established under IC 34-18-10 . . . ;

and (2) an opinion is given by the panel.”3 The medical review panel’s expert opinion

addresses “whether or not the evidence supports the conclusion that the defendant or

3
Ind. Code § 34-18-8-4 contains limited exceptions which are not relevant in this matter.

14
defendants acted or failed to act within the appropriate standards of care as charged in the

complaint.” Ind. Code § 34-18-10-22(a). The Act, in Ind. Code § 34-18-10-17, discusses

what evidence the medical review panel shall consider, providing in subsection (a) that “[t]he

evidence in written form to be considered by the medical review panel shall be promptly

submitted by the respective parties,” and in subsection (b) it specifically defines what

constitutes “evidence” as “medical charts, x-rays, lab tests, excerpts of treatises, depositions

of witnesses including parties, and any other form of evidence allowable by the medical

review panel.” Ind. Code § 34-18-10-21, titled “[d]uties of panel in conduct of inquiry;

access to information,” provides:

(a) The panel has the right and duty to request all necessary information.

(b) The panel may consult with medical authorities.

(c) The panel may examine reports of other health care providers necessary
to fully inform the panel regarding the issue to be decided.

(d) Both parties shall have full access to any material submitted to the
panel.

Thus, a medical review panel has the power, even the duty, to request and review all

necessary information in deciding whether a breach in the standard of care occurred, even if

such information is not submitted to the panel by a party.

The Act also specifies what a medical review panel expert opinion may contain as

follows:

After reviewing all evidence and after any examination of the panel by counsel
representing either party, the panel shall, within thirty (30) days, give one (1)
or more of the following expert opinions, which must be in writing and signed
by the panelists:
15
 (1) The evidence supports the conclusion that the defendant
or defendants failed to comply with the appropriate
standard of care as charged in the complaint.

(2) The evidence does not support the conclusion that the
defendant or defendants failed to meet the applicable
standard of care as charged in the complaint.

(3) There is a material issue of fact, not requiring expert
opinion, bearing on liability for consideration by the
court or jury.

(4) The conduct complained of was or was not a factor of the
resultant damages. If so, whether the plaintiff suffered:

(A) any disability and the extent and duration
of the disability; and

(B) any permanent impairment and the
percentage of the impairment.

Ind. Code § 34-18-10-22(b). The Panel Opinion was consistent with subparagraph (2).

A panel of this court, in K.D., examined the issue of whether the trial court abused its

discretion when it granted a motion in limine filed by an R.N. and Riley Children’s Hospital

(the “Defendants”) “to exclude evidence of breaches of the standard of care, other than the

overdose of Benadryl, that were not presented to the medical review panel.” 951 N.E.2d at

857. The proposed complaint filed by K.D. and his mother Michelle Campbell (the

“Plaintiffs”) in that case contained two counts alleging that: (1) “[the two physicians] were

careless and negligent in [the] care and treatment of [K.D.], as [K.D.] suffered a Benadryl

overdose while under their care. [K.D.] received various other overdoses while under the care

of defendant [sic];” and (2) “[a]s a direct and proximate result of the carelessness and

16
negligence of [the Hospital], its employee nurse Adrianne Chambers and it’s [sic] medical

staff, [K.D.] suffered from multiple overdoses administered by defendants.” Id. at 858. The

Plaintiffs tendered a submission to the medical review panel “setting forth issues, facts, and

evidence” and

stated the “issues presented in this case” as:

Whether the Defendant, [Nurse] Chambers . . . was negligent
and breached the standard of care in one or more of the
following ways:

1) Failed to give the proper dosage of Benadryl as
it was ordered.

2) Failed to question or ensure whether the dosage
of Benadryl that she gave was an appropriate
dosage for a child who weighed 15 kg.

Id. at 859. The court observed that “Plaintiffs’ submission referred to the Proposed

Complaint, attached as an exhibit along with medical records, but did not specify any

overdoses or breaches of the standard of care other than the overdose of Benadryl.” Id.

The medical review panel issued its expert opinion that both the R.N. and the hospital

failed to comply with the appropriate standard of care, and the Plaintiffs filed a complaint in

the trial court “with allegations materially identical to their proposed complaint.” Id. The

Defendants filed a motion in limine “to exclude ‘all references to any claim of negligent

infliction of emotional distress on behalf of [Campbell] because Plaintiffs failed to properly

plead this cause of action.’” Id. The Plaintiffs filed a response to the Defendants’ motion as

well as

17
 a proposed issue instruction outlining three claims of breaches of the standard
of care: 1) that K.D. was given ten times more than the recommended dose of
Benadryl; 2) that “the rate at which the Benadryl was pushed was deviation in
the standard of care”; and 3) that “the giving of additional central nervous
system depressants in the face of specific order to the contrary was a deviation
in the standard of care.”

Id. (citation omitted). The Defendants responded to this proposed issue instruction with “a

Second Motion in Limine to exclude all references to the latter two claimed breaches of the

standard of care, arguing these breaches had not been presented to the Review Panel and

were not properly before the trial court.” Id. The court held a hearing on the Defendants’

motions and granted each motion, ruling that “Plaintiffs shall not mention or convey to the

jury any claim of negligent infliction of emotional distress on behalf of Campbell” and that

“Plaintiffs shall not mention, offer evidence of, or convey to the jury ‘any alleged breaches in

the standard of care that were not presented to the Medical Review Panel.’”4 Id. at 860.

On interlocutory appeal, the court first examined the trial court’s ruling regarding the

negligent infliction of emotional distress claim and affirmed the trial court, holding that the

claim was not sufficiently pled.5 Id. at 862-863. The court proceeded to address the trial

court’s ruling “to exclude any evidence of breaches of the standard of care that were not

presented to the Review Panel,” specifically the Plaintiffs’ argument that the court erred in

excluding evidence regarding “the rate at which the Benadryl was administered and all

evidence regarding the improper administration of additional central nervous system

4
The court also granted by separate order a motion to exclude the expert testimony of Plaintiffs’
expert, on grounds that he was not properly qualified to offer expert medical testimony. 951 N.E.2d at 859-
860.
5 We note that in K.D. the court made the observation that “[n]egligent infliction of emotional distress

is an independent tort and not merely an element of damages.” 951 N.E.2d at 862. The Indiana Supreme
18
depressants to [K.D.] while he was hospitalized on the grounds that these claimed breaches

were not specified in Plaintiffs’ proposed complaint or their submission to the Review

Panel.” Id. at 863 (internal quotations omitted). This court began its analysis of the question

by observing certain statutory provisions of the Act and stating that as such provisions

“show, the question of whether defendants breached the standard of care must be presented

to the medical review panel and answered based on the evidence submitted to it.” Id. at 864.

The court then noted:

It logically follows 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.

Id.

The court observed that the proposed complaint alleged, in addition to the overdose of

Benadryl, that K.D. was given “‘multiple overdoses’ and ‘various other overdoses’” and

noted that such “pleading allegations were not per se insufficient, under notice pleading, to

give Defendants notice of claimed breaches of the standard of care other than the overdose of

Benadryl.” Id. The court then stated that “[h]owever, Plaintiffs’ submission to the Review

Panel contained no statement or argument and, so far as can be discerned from the appellate

record, no evidence of any breaches besides the overdose of Benadryl,” noting that the

Plaintiffs’ submission stated only the issue of the dosage of Benadryl for the medical review

panel’s consideration. Id. The court stated that accordingly the panel’s conclusion that the

Court, in Spangler v. Bechtel, 958 N.E.2d 458, 466 n.5 (Ind. 2011), expressly disapproved of this statement.
19
Defendants failed to comply with the standard of care impliedly regarded “only the Benadryl

overdose . . . .” Id.

As does Wren in his brief, the Plaintiffs in K.D. pointed to the Indiana Supreme

Court’s holding in Miller in support of their position that the issues of the rate at which the

Benadryl was administered and the giving of additional central nervous system depressants in

the face of specific order could be brought in the complaint to the court. Id. The K.D. court

analyzed Miller as follows:

Miller involved the issue of whether a plaintiff’s proposed complaint
sufficiently articulated two separate injuries so as to avoid certain limitations
on recovery imposed by the [Act]. [679 N.E.2d] at 1330. After concluding the
complaint was sufficient in that respect, our supreme court rejected the
hospital’s argument that the plaintiffs were required and failed to raise the
distinction between the two injuries in their submission to the medical review
panel. See id. at 1331 (noting the hospital’s argument “that the plaintiffs never
raised the distinction between prenatal and postnatal injuries in their . . .
submission to the medical review panel . . . .”). It was in response to that
specific argument that our supreme court wrote the following language, upon
which Plaintiffs now rely:

We decline to accept Memorial Hospital’s argument that the
plaintiffs’ action is restricted by the substance of the
submissions presented to the medical review panel . . . . While a
medical malpractice plaintiff must, as a prerequisite to filing
suit, present the proposed complaint for review and expert
opinion by a medical review panel, there is no requirement for
such plaintiff to fully explicate and provide the particulars or
legal contentions regarding the claim.

Id. at 1332. As we are addressing a different issue, namely, Plaintiffs’ failure
to present all claimed breaches of the standard of care to the Review Panel, we
do not interpret the above language so broadly as to allow a plaintiff to argue
at trial separate breaches of the standard of care that were not presented in a
submission of evidence to the panel. Whereas the number of occurrences of
malpractice and allowable recoveries under the [Act] has been treated as a
question of law, see Patel v. Barker, 742 N.E.2d 28, 31-33 (Ind. Ct. App.
20
 2001) (addressing statutory interpretation), [reh’g denied,] trans. denied, the
factual question of whether the standard of care was breached must be initially
addressed and answered by the panel. See Ind. Code § 34-18-10-22.

Id. at 864-865.

The court held that the medical review panel “was not presented the question of

whether ‘the giving of additional central nervous system depressants in the face of specific

order to the contrary was a deviation in the standard of care’” and that “[b]ecause the giving

of additional improper doses was not within the scope of Plaintiffs’ submission to the Review

Panel, they cannot now raise the same as a separate breach” in the trial court, and affirmed

the trial court’s ruling to exclude such evidence. Id. at 865. The K.D. court reversed,

however, the trial court’s ruling that the Plaintiffs could not present evidence regarding the

rate at which the Benadryl was administered, ruling that “[t]he failure to give the proper

dosage to a child can encompass both the total amount of the drug administered as well as the

rate at which the drug is administered” and that “Defendants make too fine a distinction in

arguing that only the total amount, not the rate, was before the Review Panel when both

allegations stem from the same operative fact of the Benadryl overdose.” Id.

DECISION

In accordance with Ind. Code § 34-18-8-4, Wren filed his Proposed Complaint on

January 11, 2010, which contained the general allegation against the Appellants, as well as

Kindred and University Surgeons, that “[t]he medical treatment provided by Defendants fell

below the standard of care within the medical community and proximately caused or

proximately contributed to Leslie Wren’s death.” Appellants’ Appendix at 29. Following

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the filing of the Proposed Complaint, Wren filed his Submission, which included a narrative

prepared by counsel and cited to certain attached exhibits.6 Wren’s Submission contained the

following relevant statements: (1) “Dr. Whitfield’s job was to manage Leslie’s nutritional

status, including parenteral nutrition. It was Dr. Whitfield’s job to intervene if something

were to go wrong with Leslie’s fluid and electrolyte balance, blood sugars, and general

medical condition;” (2) Though cause of Leslie’s death “was ruled acute mixed drug

intoxication[, i]n addition, she had other life-threatening conditions develop in the 24 hours

before she died that went untreated;” and (3) “[m]anagement of Leslie’s fluid and electrolytes

was not reasonable under the circumstances . . . Windsor Estates’ and/or Dr. Whitfield’s

management of Leslie’s blood sugar was not reasonable under the circumstances.” Id. at 75-

76, 90. In addition, following the filing of the Appellants’ Submission, Wren filed a Reply

Submission which stated that Leslie’s “potassium levels continuously rose throughout her

stay at Windsor and as such should have been more closely monitored and tested, prior to her

death” and “should have been discovered if the doctors followed the appropriate standard of

care.” Id. at 114.

Further, we observe that in his Submission, under the heading “INTRODUCTION,”

Wren stated specifically:

Throughout this submission Jerry will draw attention to specific
records. However, Jerry does not intend to limit his claim of negligence to
only the specific records he has highlighted. As a lay person, Jerry relies upon
the expertise of this panel to identify all breaches in the standard of care that
may have been a factor in his daughter’s death. Thus, Jerry’s submission is

6 We
note that the record contains only the narrative portion and does not contain the medical
records upon which the statements are based.
22
 not intended to be construed as argument for specific breaches in the standard
of care. Nor should his submission be construed as limiting his allegations of
malpractice to specific identified acts and/or omissions. In addition, Jerry
Wren discloses that he expects to hold Windsor Estates accountable for the
acts and/or omissions of not only its employees, but also of its agents and/or
representatives, including Dr. Whitfield.

Id. at 77.

As noted, although the Proposed Complaint contained only the general allegation that

the treatment provided by each defendant fell below the standard of care and caused or

contributed to Leslie’s death, in the conclusion portion of his Submission Wren stated as

follows:

All defendants warranted they possessed the requisite skill and
knowledge to competently treat Leslie. Leslie and her parents had the right to
believe that all of Leslie’s health care providers would provide medical and/or
nursing care based upon generally accepted scientific principles, methods,
treatments, and current professional theory and practice.

Leslie was only 24 years old. She was admitted to Windsor Estates for
the sole purpose of getting stronger so that she could go home to her parents.
Instead, she died with bedsores, hyperglycemic, hyperkalemic, in acute renal
failure likely from severe dehydration and/or diabetic ketoacidosis, and
severely overmedicated.

The evidence in the medical records shows the following:

1. Medication prescribed by Dr. Robb was not reasonable under the
circumstances;

2. Administration of medications by Windsor Estates was not reasonable
under the circumstances;

3. Management of Leslie’s fluid and electrolytes was not reasonable under
the circumstances; and

4. Windsor Estates’ and/or Dr. Whitfield’s management of Leslie’s blood
sugar was not reasonable under the circumstances.
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Id. at 89-90.

Following the Panel Opinion, Wren filed a complaint in the trial court alleging one

count of medical malpractice containing fifty-eight numbered statements including the

statement that “[i]t was Dr. Whitfield’s job to intervene if something went wrong with

Leslie’s fluid and electrolyte balance, blood sugar and general medical condition.” Id. at 16.

The Appellants filed a motion for summary judgment stating that Wren “has not offered any

expert testimony to refute the Opinion of the Medical Review Panel,” id. at 21, to which

Wren responded by designating Dr. Gregori’s affidavit which contained the following:

36. That in my expert opinion, based upon my education, training and
clinical experience, the development of pressure ulcers, elevated BUN
and elevated potassium is the direct and proximate result of defendants’
failure to measure and record Leslie’s intake and output, failure to
reweigh Leslie and failure to treat Leslie’s nausea and vomiting and is
more likely than not the proximate cause, or contributing cause, to
Leslie’s death.

72. That[,] with respect to defendant Dr. Whitfield, based upon my
education, training and personal clinical experience it is my
professional opinion to a reasonable degree of medical certainty that
Dr. Whitfield’s failure to check, evaluate, monitor, and treat Leslie’s
physical condition, including the signs and symptoms of significant
dehydration and electrolyte derangement, was not reasonable under the
circumstances, was a breach in the standard of care and more likely
than not caused or contributed to Leslie Wren’s death.

Id. at 56, 59. The Appellants in their Reply challenged these statements as running afoul of

K.D. by arguing that Wren’s sole allegation of malpractice as presented in his Submission

against the Appellants regarded his “response to Leslie Wren’s blood sugar” and that Wren

was raising issues which were not before the Panel. Id. at 61. The trial court denied the

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Appellants’ summary judgment motion, finding that the form proposed complaint “simply

includes a generic statement that the medical provider’s care fell below the requisite standard

of care” and “is not specifically pled.” Id. at 11.

Although the panel in K.D. examined the statements and arguments made by counsel

in the Plaintiffs’ submission, its holding, which allowed the Plaintiffs to present evidence

related to the rate at which the Benadryl was administered while foreclosing their attempt to

present evidence regarding whether the giving of additional central nervous system

depressants was a deviation in the standard of care, focused on the fact that the only evidence

which was submitted to the medical review panel for their consideration concerned the

Benadryl overdose. 951 N.E.2d at 864. Here, the Appellants do not argue that evidence such

as medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including

parties, and any other form of evidence allowable by the medical review panel related to

Leslie’s “physical condition, including the signs and symptoms of significant dehydration

and electrolyte derangement,” was not before the Panel. Appellants’ Appendix at 59.

Wren’s Submission specifically identified that the “[m]anagement of Leslie’s fluid and

electrolytes was not reasonable under the circumstances,” which is precisely the issue Wren

is attempting to present at the trial court level. Id. at 90. Although this statement did not

specifically identify the Appellants as the subject of the alleged breach in the standard of

care, it did not identify any specific party. Indeed, Wren’s Submission specifically stated that

it was Dr. Whitfield’s responsibility “to intervene if something were to go wrong with

Leslie’s fluid and electrolyte balance, blood sugars, and general medical condition,” and

25
accordingly it appears that among the defendant parties, the statement was directed to Dr.

Whitfield. In any event, it is clear that evidence relevant to this breach was presented to the

Panel as required by the Act.

The purpose of the medical review panel is to “review proposed malpractice

complaints . . . .” Ind. Code § 34-18-10-1. The panel’s “sole duty” is to “express [an] expert

opinion as to whether or not the evidence supports the conclusion that the defendant or

defendants acted or failed to act within the appropriate standards of care as charged in the

complaint.” Ind. Code § 34-18-10-22(a) (emphases added). Wren’s Proposed Complaint

charged that “[t]he medical treatment provided by Defendants fell below the standard of care

within the medical community and proximately caused or proximately contributed to Leslie

Wren’s death.” Appellants’ Appendix at 29. Wren timely filed his Submission which

contained evidence related to an alleged breach in the standard of care regarding Leslie’s

fluid and electrolyte balance, and it can therefore be presumed that the Panel considered such

a breach and addressed it in the Panel Opinion. See Miller, 679 N.E.2d at 1332 (holding that

the medical review panel is “authorized to review the medical records and other submitted

material pertaining to each defendant’s treatment of” a patient and that “[w]hile a medical

malpractice plaintiff must, as a prerequisite to filing suit, present the proposed complaint for

review and expert opinion by a medical review panel, there is no requirement for such

plaintiff to fully explicate and provide the particulars or legal contentions regarding the

claim”); see also Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 390-391, 404 N.E.2d 585,

596 (1980) (discussing the medical review panel process of the Act and holding that “[t]he

26
statute contemplates that the panel will function in an informal and reasonable manner,” that

“[t]he scope of the panel’s function is limited,” in which “[i]t does not conduct a hearing or

trial and does not render a decision or judgment,” that “[t]here is, therefore, no reason to

mandate that the statute relegate burdens of proof or production and to otherwise specify

procedures applicable in hearings and trials,” and that “[t]here is little likelihood that [an]

appellant will incorrectly estimate the steps that should be taken in procuring and presenting

evidence and authorities to the panel, and should he do so there is little or no risk that he will

be harmed thereby”), abrogated on other grounds by Collins v. Day, 644 N.E.2d 72, 75 (Ind.

1994), overruled on other grounds by In re Stephens, 867 N.E.2d 148, 156 (Ind. 2007). The

argument by the Appellants that this alleged breach did not apply against them, at a

minimum, makes “too fine a distinction” to pass muster. K.D., 951 N.E.2d at 865. We

therefore conclude that the court did not err in denying the Appellants’ motion for summary

judgment.

CONCLUSION

For the foregoing reasons, we affirm the court’s denial of the Appellants’ summary

judgment motion, and we remand for further proceedings consistent with this opinion.

Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.

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