FILED
Oct 04 2016, 5:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Michael E. O’Neill James H. Young
Nathan D. Hansen Young & Young
O’Neill McFadden & Willett LLP Indianapolis, Indiana
Schererville, Indiana
ATTORNEY FOR AMICUS CURIAE
ATTORNEYS FOR AMICUS CURIAE Jerry Garau
Donald B. Kite, Sr. Garau Germano, P.C.
Wuertz Law Office, LLC Indianapolis, Indiana
Indianapolis, Indiana
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles McKeen, M.D., October 4, 2016
Appellant-Defendant, Court of Appeals Case No.
53A05-1511-CT-2047
v. Appeal from the Monroe Circuit
Court
Billy Turner, The Honorable Frances G. Hill,
Appellee-Plaintiff Judge
Trial Court Cause No.
53C06-1201-CT-88
Baker, Judge.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 1 of 24
[1] Relying on the Indiana Medical Malpractice Act and precedent from our
Supreme Court, we hold that a medical malpractice plaintiff need only present
the following to a medical review panel: (1) a proposed complaint that
encompasses the theories of malpractice alleged in the subsequent litigation
sufficiently to satisfy our notice pleading requirements; and (2) evidence relating
to the theories of alleged malpractice that the plaintiff seeks to raise during the
subsequent litigation. Additionally, we hold that narrative statements
submitted to the panel do not subsequently bind the parties. Because these
requirements were met in this case, we affirm the trial court’s order and remand
for further proceedings.
Facts 1
[2] In May 1998, Rowena Turner was diagnosed with a type of bone marrow
cancer. Among other things, patients with this type of cancer are at increased
risk for blood clots.
[3] In April 2008, Rowena learned that she had malignant tumors in her colon.
Therefore, on May 23, 2008, Dr. Charles McKeen performed a surgery to
remove a large portion of Rowena’s colon. Rowena remained in the hospital
until May 29 (the “first hospital stay”), when she was discharged following
1
We held oral argument in Indianapolis on September 13, 2016. We thank counsel for both parties and
amici for their truly outstanding appellate advocacy.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 2 of 24
post-operative care. Dr. McKeen instructed her not to restart her blood thinner
medication.
[4] On the evening of May 31, Rowena returned to the emergency room with a
complaint of nausea and vomiting. She was admitted to the hospital that
evening (the “second hospital stay”) under Dr. McKeen’s care. On June 1, Dr.
McKeen observed that Rowena’s abdomen was distended, and concluded that
she had a probable small bowel obstruction. Later that day, Rowena’s blood
pressure dropped and her heart rate increased. She was transferred to the
critical care unit. Eventually, Rowena was diagnosed with deep vein
thrombosis2 and acute renal failure. On the morning of June 13, 2008,
Rowena’s blood pressure dropped and her heart rate increased. Based on the
clinical deterioration, an on-call surgeon performed an exploratory surgery of
her abdomen. The surgery revealed that a portion of Rowena’s small bowel
was dead, and later laboratory tests revealed blood clots in the vessels leading to
the small bowel, which obstructed blood flow to that organ. Further treatment
did not improve her condition, and Rowena died on June 20, 2008.
[5] On January 15, 2010, Rowena’s husband, Billy Turner (Turner), filed a
proposed complaint for medical malpractice with the Indiana Department of
Insurance. The proposed complaint alleged that Dr. McKeen provided
2
Deep vein thrombosis occurs when a blood clot “forms in one or more of the deep veins in your body,
usually in your legs.” Deep Vein Thrombosis (DVT), Mayo Clinic, http://www.mayoclinic.org/diseases-
conditions/deep-vein-thrombosis/basics/definition/con-20031922.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 3 of 24
Rowena with medical and surgical treatment from May 23, 2008, through June
20, 2008; that the medical and surgical treatment was negligent and below the
appropriate standard of care; and that Rowena died as a direct proximate result
of the “negligent substandard medical and surgical care” provided by Dr.
McKeen. Appellee’s App. p. 1-2.
[6] On June 23, 2011, Turner filed his submission to the medical review panel
(MRP). Along with the medical evidence and proposed complaint, Turner’s
attorney submitted a document to the MRP describing the pertinent evidence
and discussing the potential issues presented by Dr. McKeen’s care of Rowena.
Turner stated that “[t]he surgery performed May 23, 2008, was the appropriate
surgery. . . . Although she more likely than not was ill-prepared for discharge to
home, there will be no discussion as to that decision.” Appellant’s App. p. 73.
With no further discussion of the first hospital stay, Turner moves to the second
hospital stay.
[7] In short, Turner argued that exploratory surgery should have been performed
“long before” the June 13, 2008, operation: “The standard of care required
exploration at that time [June 1 or June 2]. Had the patient been explored in a
timely fashion she would have survived.” Id. at 74. The MRP submission
makes no mention of the dosage of anticoagulant medication Dr. McKeen
prescribed for Rowena during or immediately following the first hospital stay,
nor does it mention his decision to instruct her to forego her blood thinner
medication at that time. In Turner’s Reply to the MRP Submission, he
summarized his contentions as follows:
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 4 of 24
What a surgeon should be thinking when a patient has acute
renal failure is that it is a surgical emergency until proven
otherwise. . . . Mrs. Turner was acutely ill from the time that she
returned to the hospital on May 31, 2008 with serious and
persistent bandemia, nausea, vomiting, altered mental state,
hypotension coupled with tachycardia, intra-peritoneal free air,
an unusual amount of abdominal fluid shown on CT and a
paracentesis which essentially showed a great deal of pus. These
things added up to a severe abdominal process that demanded
exploration. The delay in re-exploration of this surgical patient
was the cause of her continued decline and eventual death.
Appellant’s App. p. 85-86. On November 1, 2011, the MRP convened and later
issued its opinion: “The panel is of unanimous opinion that the evidence does
not support the conclusion that the defendant failed to meet the applicable
standard of care, and that his conduct was not a factor of the resultant
damages.” Appellee’s App. p. 4.
[8] On January 13, 2012, Turner filed a complaint against Dr. McKeen in the trial
court. A lengthy discovery process took place over the next two years. On
February 28, 2014, Turner filed a supplemental expert witness designation,
disclosing anticipated opinions from an expert hematologist, Dr. Robert
Manges. Dr. Manges was expected to opine that when Dr. McKeen discharged
Rowena following the first hospital stay, the anticoagulation medication was
inadequate given her high risk for blood clots. Dr. Manges would testify that,
had Rowena received proper anticoagulation medication after the first hospital
stay, she would not have developed the clots leading to her eventual death.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 5 of 24
[9] On March 14, 2014, Dr. McKeen filed a motion to strike Dr. Manges’ opinions
regarding the first hospital stay because this theory of negligence had not been
presented to the MRP. Initially, the trial court granted the motion to strike on
April 17, 2014. Turner sought an interlocutory appeal of that decision, which
this Court ultimately denied on August 1, 2014. On September 29, 2014, the
trial court entered an order notifying the parties that it was open to
reconsideration of its ruling on the motion to strike in light of this Court’s ruling
in Whitfield v. Wren, 14 N.E.3d 792 (Ind. Ct. App. 2014). Following argument
and briefing, the trial court upheld its original ruling granting the motion to
strike. On August 12, 2015, as the parties were in the process of argument
related to motions in limine, Turner filed a motion that the trial court again
reconsider its ruling on the motion to strike. Following argument, on
September 15, 2015, the trial court issued an order denying the motion to strike.
In pertinent part, the trial court ruled as follows:
16. . . . Based on the excellent oral argument of both
counsel . . . , it is now clear to the Court that the
anticoagulation medicine is relevant to blood clotting and
Mrs. Turner’s overall condition, and the existence and
timing of the clots is relevant and inseparably intertwined
with the medical malpractice claim.
17. The Court concludes that evidence of the anticoagulation
medicine was presented to the medical review panel, and
that the prescription of the anticoagulation medicine is so
intertwined with the claim that [Dr. McKeen] was
negligent in his care of Mrs. Turner post-surgery, that the
finder of fact needs to be informed about the prescribing of
the anticoagulants historically and throughout [Dr.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 6 of 24
McKeen’s] treatment of Mrs. Turner. . . . It therefore
follows that because the prescription of anticoagulation
medicine is so intertwined in the ultimate question of
negligence, the experts should not be barred from assessing
whether the prescription of the anticoagulants, itself,
constituted a breach of the standard of care, and even
whether it caused or contributed to the cause of death.
18. Although this Court initially believed that it could and
must separate out the claims of breach of standard of care
related to prescribing anticoagulation medicine from the
breach of standard of care in failing to conduct post-
operative surgery or other exploratory measures, the Court
now concludes that was error. These alleged breaches are
intertwined, and the finder of fact is entitled to hear the
expert opinion whether the prescription of anticoagulation
medicine met the standard of care as well and whether and
how it may affect the reasonableness (standard of care) of
the Defendant’s post-operative decision-making and
medical action or inaction. The evidence of coagulation
was before the medical review panel, was within the scope
of the panel’s deliberations, and the panel had the
opportunity to consider it as a factor in its determination,
even if [Turner] had not specifically designated to the
medical review panel the prescription of the
anticoagulation medicine as a separate breach of the
standard of care.
Appellant’s App. p. 25-27. Dr. McKeen now brings this interlocutory appeal.
Discussion and Decision
[10] The decision to admit or exclude evidence lies within the sound discretion of
the trial court. E.g., Morse v. Davis, 965 N.E.2d 148, 155 (Ind. Ct. App. 2012).
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 7 of 24
This standard also applies to a trial court’s decision to admit or exclude expert
testimony. Id. We will reverse only if the trial court’s decision “is clearly
against the logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom.” Id.
[11] Dr. McKeen argues that the trial court should have granted his motion to strike
the testimony of Dr. Manges insofar as that testimony relates to the prescription
(or lack thereof) of anticoagulation medicine to Rowena during and
immediately following the first hospital stay. Dr. McKeen contends that
because this theory of liability was not presented to the MRP, Turner is
prohibited from raising it at this point. Dr. McKeen relies primarily on caselaw
in making his argument, although an exploration of relevant statutes is also
required.
I. The Medical Malpractice Act and Narrative
Statements
[12] First, we will turn to the Indiana Medical Malpractice Act 3 (the Act) to
determine what, precisely, the MRP may consider in reaching its conclusion.
Specifically, we must decide whether a narrative statement drafted by the
plaintiff’s attorney constitutes evidence to be considered by the MRP.
3
Ind. Code art. 34-18.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 8 of 24
[13] The Indiana Medical Malpractice Act 4 (the Act) is in derogation of the common
law. Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 726-27 (Ind. Ct. App. 2014),
trans. denied. As such, it must be strictly construed against limitations on a
claimant’s right to bring suit. Id.
[14] Before a medical malpractice lawsuit may be filed against a healthcare provider,
two prerequisites must be met: (1) the claimant must present a proposed
complaint to an MRP; and (2) the MRP must give its opinion. 5 Ind. Code § 34-
18-8-4. An MRP consists of three healthcare providers and an
attorney/chairperson, who acts in an advisory capacity but does not vote. Ind.
Code § 34-18-10-3. Within twenty days of the filing of the proposed complaint,
either party may request the formation of an MRP. I.C. § 34-18-10-2.
[15] Upon formation, the MRP chairperson may establish a schedule for
“submission of evidence” to the MRP and must allow sufficient time “for the
parties to make full and adequate presentation of related facts and authorities.”
I.C. § 34-18-10-3. Indiana Code section 34-18-10-17(b) elaborates on what may
be included in the category: “The evidence may consist of medical charts, x-
rays, lab tests, excerpts of treatises, depositions of witnesses including parties,
and any other form of evidence allowable by the medical review panel.” The
MRP’s access to information is detailed as follows:
4
Ind. Code art. 34-18.
5
There are certain limited exceptions to this general rule that are not applicable to the case at hand.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 9 of 24
(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.
I.C. § 34-18-10-21.
[16] It is common practice for the parties’ attorneys to draft and submit narrative
statements to accompany the medical evidence. ITLA Am. Br. p. 3. These
statements generally summarize the medical evidence and often point out
potential breaches of the standard of care by the defendant(s). Id. Nothing in
the Act requires the inclusion of such narrative statements.
[17] After receiving and reviewing the evidence, the MRP is then charged with “the
sole duty to express the panel’s 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.”6 I.C. § 34-
18-10-22(a) (emphases added). Therefore, having reviewed the evidence and
6
The plaintiff would only have filed a proposed, rather than a final, complaint at this point. I.C. § 34-18-8-4.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 10 of 24
the proposed complaint, the MRP must form and provide its expert opinion on
the matter at hand:
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:
(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.
I.C. § 34-18-10-22(b). The Act does not call for, or permit, the disclosure of the
specific reasons underlying the MRP’s opinions. Id.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 11 of 24
[18] Our Supreme Court, in finding the Act to be constitutional, emphasized that
the MRP process is intended to be “informal” and “limited[.]” Johnson v. St.
Vincent Hosp., 404 N.E.2d 585, 596 (Ind. 1980), overruled on other grounds by In re
Stephens, 867 N.E.2d 148 (Ind. 2007). Indeed, the Johnson Court noted with
approval that “[t]here is little likelihood that 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.” Id. at 596.
[19] We agree with Turner and his amicus, the Indiana Trial Lawyers Association
(ITLA), that the plain language of the Act does not require that the submission
to the MRP contain specifications of the breaches of standards of care.
Furthermore, the narrative statements provided to the MRP by the attorneys do
not constitute “evidence.” The MRP is only to consider “evidence” and the
proposed complaint. To hold, therefore, that a medical malpractice claimant is
bound by narrative and argumentative statements made by his attorneys—
which the MRP need not consider in rendering its opinion, and which need not
be included in the submission at all—is contrary to the plain language of the
Act. Nothing in the Act prohibits these narrative statements—indeed, they are
likely helpful to the MRP and opposing counsel—but nothing in the Act
countenances an approach that treats these statements as evidence or as binding
legal documents. See Sherrow v. Gyn, Ltd., 745 N.E.2d 880, 885 (Ind. Ct. App.
2001) (finding that legal argument in MRP submissions is inappropriate
because, if that were the practice, “parties’ evidentiary submissions would
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 12 of 24
become lengthy legal memoranda in which the parties debate and argue points
of law” and that result “would not further the legislature’s intent that [MRPs]
should operate in an informal manner”).
[20] We have concluded, based upon the language and intent of the Act, that the
narrative statements commonly included among MRP submissions do not
constitute evidence to be considered by the MRP. As noted above, the MRP
considers “evidence” and the plaintiff’s proposed complaint in reaching an
ultimate conclusion. I.C. § 34-18-10-22(a). Therefore, we must next determine
what, precisely, must be included in the proposed complaint.
II. Caselaw and the Proposed Complaint
A. Miller
[21] In Miller v. Memorial Hospital of South Bend, Inc., our Supreme Court considered
the effect that the materials provided to an MRP could have on the litigation of
a medical malpractice claim. 679 N.E.2d 1329 (Ind. 1997). In Miller, the
plaintiffs filed medical malpractice claims against a physician and a hospital for
injuries that their son suffered before, during, and after the time of his birth. Id.
at 1330. The proposed complaint filed with the Department of Insurance and
final complaint filed with the trial court had “[v]irtually identical language”
containing four counts—two against the hospital and two against the doctor—
for negligence and breach of contract “on and after June 7, 1982,” when their
son was born. Id. After submitting the claim to an MRP, the plaintiffs filed a
lawsuit in the trial court.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 13 of 24
[22] Before the trial occurred, the plaintiffs settled their claims against the doctor
and received the maximum recovery authorized by the Act. The hospital then
sought summary judgment, alleging that the Act prohibits any recovery beyond
the statutory maximum for any one injury and that the injuries sustained by the
infant as a result of the actions of the doctor and/or hospital are identical. Id. at
1331. In response, the plaintiffs asserted that they were seeking recovery for
two different sets of injuries: the claims against the hospital were based on the
infant’s postnatal injuries, whereas the claims against the doctor were based on
the infant’s prenatal injuries. The hospital argued that because the plaintiffs
had never raised the distinction between prenatal and postnatal injuries in their
proposed complaint or their submission to the MRP, they were prohibited from
making the argument to the trial court. Id. The trial court granted the
hospital’s summary judgment motion, finding that the plaintiffs were barred
from alleging separate injuries to the trial court.
[23] In considering the parties’ arguments, our Supreme Court focused on the
principles of notice pleading. Indiana Trial Rule 8(A) requires only “(1) a short
and plain statement of the claim showing that the pleader is entitled to relief,
and (2) a demand for relief to which the pleader deems entitled. . . .” More
specifically, “[o]ur notice pleading rules do not require that the complaint state
all the elements of a cause of action.” Miller, 679 N.E.2d at 1332. Instead, a
plaintiff need only plead the operative facts involved in the litigation. Id.
[24] Our Supreme Court then held, in accordance with the principles of notice
pleading, that the plaintiffs’ complaint was sufficient to present claims for
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 14 of 24
separate acts of malpractice by the doctor and by the hospital. With respect to
the material submitted to the MRP, our Supreme Court disagreed with the
hospital’s position:
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
[the infant]. 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 (emphasis added) (internal citation omitted). Ultimately, our
Supreme Court reversed the summary judgment order and remanded the cause
for further proceedings. Id.
B. K.D. and Progeny
[25] In K.D. v. Chambers, a panel of this Court considered a similar issue to that
presented in Miller. 951 N.E.2d 855 (Ind. Ct. App. 2011), trans. denied,
disapproved of on other grounds by Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011).
In K.D., the plaintiff filed a medical malpractice claim after a nurse
administered an intravenous dose of Benadryl to the plaintiff’s son that was ten
times the dose he should have received.
[26] The proposed complaint filed with the Department of Insurance alleged two
counts. Count I alleged that two treating physicians “were careless and
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 15 of 24
negligent” in their care of the child, as the child “suffered a Benadryl overdose”
and “various other overdoses” while in their care. Id. at 858. Count II alleged
that the hospital and its employees, including the nurse, “were careless and
negligent” in their care and treatment of the child, as he “suffered from multiple
overdoses” administered by the defendants. Id.
[27] The submission tendered to the MRP, which set forth “issues, facts, and
evidence,” explained that the issues presented were whether the defendants
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 submission referred to
the proposed complaint, “but did not specify any overdoses or breaches of the
standard of care other than the overdose of Benadryl.” Id.
[28] After receiving the opinion from the MRP, the plaintiff filed a complaint in the
trial court that was virtually identical to the proposed complaint. In preparation
for trial, the plaintiffs filed a proposed jury instruction outlining three claims of
breaches of the standard of care: (1) that the child was given ten times more
than the recommended dose of Benadryl; (2) that “the rate at which the
Benadryl was pushed was a deviation in the standard of care;” and (3) that “the
giving of additional central nervous system depressants in the face of [a] specific
order to the contrary was a deviation in the standard of care.” Id. The
defendants objected to the instruction and filed a motion in limine seeking to
exclude all references to the latter two claimed breaches of the standard of care,
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 16 of 24
arguing that these alleged breaches had not been presented to the MRP. The
trial court granted the motion in limine and the plaintiffs brought an
interlocutory appeal of the order.7
[29] This Court explained the relevant statutory provisions, largely outlined above in
this opinion, and then concluded that,
[a]s the above statutory provisions show, the question of whether
defendants breached the standard of care must be presented to
the [MRP] and answered based on the evidence submitted to it.
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. at 864 (emphasis added). The Court acknowledged that the pleaded
allegations contained in the proposed complaint were not “per se insufficient,”
given notice pleading rules, but the “submission to the Review Panel contained
no statement or argument and . . . no evidence of any breaches besides the
overdose of Benadryl.” Id.
[30] This Court then turned to Miller, finding it distinguishable:
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
7
The plaintiffs also appealed other orders not relevant to the case at hand.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 17 of 24
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 MMA has been
treated as a question of law, the factual question of whether the
standard of care was breached must be initially addressed and
answered by the panel.
Id. at 865 (internal citations omitted). In the end, the K.D. Court found 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, and in this respect we affirm the trial court’s ruling to exclude
such evidence.” Id. The Court reached a different result with respect to the
claim that the rate at which the Benadryl was administered was a breach,
finding 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.” Id. Therefore, this Court reversed the trial court’s order
to the extent that it excluded evidence regarding the rate at which the Benadryl
was administered.
[31] Since K.D., which muddied the post-Miller waters, this Court has considered
similar issues on at least two occasions. In Whitfield v. Wren, 14 N.E.3d 792
(Ind. Ct. App. 2014), this Court noted that K.D.’s holding “focused on the fact
that the only evidence which was submitted to the [MRP] for their consideration
concerned the Benadryl overdose.” Id. at 805 (emphasis added). In Whitfield,
in contrast, all evidence related to breaches being alleged at trial was submitted
to the MRP. Because it can be presumed that the MRP considered the evidence
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 18 of 24
and possible breaches, this Court concluded that evidence related to new
breaches first presented on summary judgment was properly considered by the
trial court.
[32] Finally, in Ball Memorial Hospital, Inc. v. Fair, 26 N.E.3d 674 (Ind. Ct. App.
2015), this Court acknowledged the plaintiff’s argument that K.D. directly
conflicts with Miller. The Court, however, noted that it did not need to rely on
K.D. to reach its results and it left “the question of K.D.’s validity for another
day.” Id. at 680. The Ball Memorial Court ignored K.D. and focused on Miller,
emphasizing Miller’s reliance on notice pleading and finding that the language
of the complaint at issue was broad enough to put the hospital on notice that
the possible negligence of any of its staff was at issue. Id. at 682.
C. Synthesizing the Precedent and the Act
[33] It is challenging, to say the least, to synthesize K.D. with these other cases. To
find our answer, we believe the best approach is to return to our Supreme
Court’s last guidance on the issue, found in Miller. And Miller could not be
clearer. That case instructs us to focus on the content of the proposed
complaint and analyze whether, under principles of notice pleading, that
complaint encompasses theories of negligence raised by the plaintiff after the
MRP process has concluded. Our Supreme Court clearly and explicitly held
that the plaintiff’s action is not “restricted by the substance of the submissions
presented to the [MRP].” Miller, 679 N.E.2d at 1332. Indeed, there is no
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 19 of 24
requirement whatsoever that a plaintiff “fully explicate and provide the
particulars or legal contentions regarding the claim” to the MRP. Id.
[34] We believe that Miller and the Act require two things of a medical malpractice
plaintiff seeking to raise new breaches of the standard of care after the MRP
process has concluded. First, under the rules of notice pleading, the proposed
complaint must encompass the theories regarding breach sought to be raised at
trial. Second, “evidence,” as defined by the Act, related to the theories must
have been submitted to the MRP. If the plaintiff has complied with both of
these requirements, then evidence related to the new theories of negligence may
be admitted during litigation following the MRP process.8 To the extent that
K.D. has been read to require a narrative statement be submitted to the MRP, to
bind parties to the content of those narrative statements, or to depart from Miller
or the plain language of the Act, we believe that it was wrongly decided and/or
has been misread.
[35] To depart from these basic guidelines would be to defeat the purposes of the
MRP process. It is intended to be informal and limited; it is also intended to
8
At oral argument, a member of this panel raised a concern to the attorneys about the possibility of plaintiffs’
attorneys “gaming the system” by intentionally hiding the proverbial football during the MRP process and
then ambushing the defendant with new theories at trial. Counsel for the appellees explained that there
would be no such incentive because plaintiffs have every incentive to succeed during the MRP process and
receive an MRP opinion that would aid them during litigation; therefore, there would be no reason to “hide
the ball.” We would like to laud counsel for the appellants, who had the opportunity to speak negatively
about plaintiffs’ lawyers but declined to do so. Instead, he stated that in his twenty-five years of being a
medical malpractice attorney, he has never known of a plaintiffs’ lawyer who would intentionally game the
system in that way. We thank Mr. O’Neill for this moment of professionalism and candor, and hope that
attorneys throughout this State will follow his excellent example.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 20 of 24
place little to no risk on the participants. If plaintiffs were required to present
each and every possible theory of negligence to the MRP, and were bound by
those allegations, then plaintiffs would be required to conduct full and complete
discovery long before the litigation even began. This would create barriers of
expense and time that would be insurmountable for most, if not all, potential
plaintiffs, and the cost of the process would also be borne by the defendants.
We do not believe that our Legislature intended such a result in creating the
MRP process.
III. Applying the Act and Caselaw
[36] Having outlined the requirements under these circumstances, we must
determine whether, in this case, those requirements were met. Turning first to
Turner’s proposed complaint, we note that it contains the following allegations:
1. The Plaintiff, Bill Turner, is the surviving spouse of
Rowena Turner who died on June 20, 2008.
2. Bill Turner and Rowena Turner were married on July 17,
1966 and remained husband and wife until Rowena
Turner’s death on June 20, 2008.
3. The Defendant, Charles McKeen, M.D., provided the
Plaintiff’s Decedent, Rowena Turner, with medical and
surgical treatment from May 23, 2008 through her death
on June 20, 2008.
4. Said medical and surgical treatment was negligent and
below the appropriate standard of care.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 21 of 24
5. As a direct proximate result of the negligent substandard
medical and surgical care rendered to the Plaintiff’s
Decedent, Rowena Turner, by the Defendant, Charles
McKeen, M.D., Rowena Turner died on June 20, 2008.
6. As a direct and proximate result of the Defendant’s
negligence as described above the Plaintiff, Bill Turner,
has lost the care, love, affection and companionship of his
wife, Rowena Turner, and has suffered great emotional
distress, pain and suffering.
7. Medical, funeral and burial expenses were incurred for
Rowena Turner as a direct and proximate result of the
Defendant’s negligence.
Appellee’s App. p. 1-2. Therefore, the proposed complaint encompasses the
dates of both the first hospital stay, which began on May 23, 2008, and the
second hospital stay, which ended with Rowena’s death on June 20, 2008. The
proposed complaint also alleges that both the “medical and surgical treatment”
provided by Dr. McKeen was negligent and below the standard of care. Id. In
other words, under our broad principles of notice pleading, the allegations in
the proposed complaint readily encompass Turner’s theory regarding the
anticoagulation medication prescribed to Rowena during and after the first
hospital stay.
[37] Next, we must consider the evidence presented to the MRP. It is undisputed
that Turner provided the MRP with Rowena’s full medical records related to
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 22 of 24
both the first and second hospital stays.9 Therefore, evidence relating to the
anticoagulation medication was before the MRP.
[38] In this case, Turner’s proposed complaint encompassed the allegations related
to the anticoagulation medication prescribed during and after the first hospital
stay. And evidence related to those allegations was before the MRP.
Consequently, the trial court properly denied Dr. McKeen’s motion to strike
evidence related to those allegations.
Conclusion
[39] The Act requires that the MRP consider two things in reaching its conclusion
on a claim of medical malpractice: (1) the proposed complaint; and (2) the
evidence submitted by the plaintiff. Our Supreme Court has held that so long
as, under principles of notice pleading, the proposed complaint encompasses
specific allegations regarding the defendant’s alleged malpractice that were not
explicitly raised to the MRP, those allegations may be raised for the first time
during subsequent litigation. In other words, the plaintiff’s narrative at trial
need not be identical to his MRP narrative so long as evidence relating to his
theories of malpractice was before the panel.
9
Dr. McKeen notes that, when deposing the members of the MRP, Turner did not question the physicians
regarding the first hospital stay or the anticoagulation medication, arguing that the failure to do so should
prohibit Turner from raising the issues at a later date. We agree with the ITLA, however, that we are
“unaware of any authority for the proposition that a plaintiff’s allegations at trial can be limited by what
plaintiff’s counsel chooses to ask—or not ask—witnesses at a discovery deposition, and Dr. McKeen has
cited no such authority.” ITLA Am. Br. p. 9 n.5. We do not find this to be a relevant consideration.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 23 of 24
[40] To synthesize these two sources of authority, we hold that a plaintiff may raise
any theories of alleged malpractice during litigation following the MRP process
if (1) the proposed complaint encompasses the theories, and (2) the evidence
related to those theories was before the MRP. In this case, those requirements
were met, and Turner may therefore raise his theory related to the
anticoagulant at this time.
[41] The judgment of the trial court is affirmed and remanded for further
proceedings.
Vaidik, C.J., and Najam, J., concur.
Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016 Page 24 of 24