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.
FILED
Feb 22 2017, 9:51 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Christopher S. Roberge Stacy F. Thompson
Elizabeth A. Roberge Adam R. Doerr
Alexandra N. Gortchilova Clendening Johnson & Bohrer, P.C.
RobergeLaw Bloomington, Indiana
Carmel, Indiana
ATTORNEY FOR AMICUS CURIAE ATTORNEYS FOR AMICUS
INDIANA TRIAL LAWYERS CURIAE
ASSOCIATION DEFENSE TRIAL COUNSEL OF
Jerry Garau INDIANA
Garau Germano, P.C. Donald B. Kite, Sr.
Indianapolis, Indiana Wuertz Law Office, LLC
Indianapolis, Indiana
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
C.S., a Minor Child, by Her February 22, 2017
Next Friends and Parents, John Court of Appeals Case No.
Stevens and Laura Stevens, 53A01-1607-CT-1657
Appellants-Plaintiffs, Appeal from the Monroe Circuit
Court
v. The Honorable E. Michael Hoff,
Judge
Aegis Women’s Healthcare, Trial Court Cause No.
P.C., Brian W. Cook, M.D., 53C01-1506-CT-1134
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Rhonda S. Trippel, M.D., and
Lillette (Alice B.) Wood, M.D.,
Appellees-Defendants
Vaidik, Chief Judge.
Case Summary
[1] With limited exceptions, a medical-malpractice plaintiff cannot take her case to
court until she has submitted a proposed complaint to the Indiana Department
of Insurance and received an opinion from a panel of doctors (a “medical
review panel”). Once she has made it through the panel process and into court,
however, the plaintiff can present any theory of malpractice that (1) was
encompassed by the proposed complaint that was before the panel and (2) is
related to evidence that was submitted to the panel. McKeen v. Turner, 61
N.E.3d 1251 (Ind. Ct. App. 2016), trans. pending.
[2] In the case before us, John and Laura Stevens filed a proposed complaint
against Aegis Women’s Healthcare, P.C. and several of its doctors (collectively,
“Aegis”) after their daughter was born, via emergency c-section, with various
health problems. The medical review panel issued an opinion in favor of Aegis,
and the Stevenses have now taken their case to court, where their specific
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theory of malpractice is that Aegis waited too long to perform the c-section.
The parties agree that this theory fell within the broad allegations in the
Stevenses’ proposed complaint but dispute whether there was evidence relating
to the theory submitted to the panel. Finding that there was, we reverse the
trial court’s grant of summary judgment to Aegis.
Facts and Procedural History
[3] Laura Stevens became a patient of Aegis Women’s Healthcare, P.C. in the
1990s and was still being seen there when she became pregnant with a
daughter, C.S., in the summer of 2010. There were several risk factors
associated with the pregnancy, including Laura’s age (forty), her Rh-negative
status,1 her history of miscarriages, and, eventually, marginal insertion of the
placental cord. At some point before 10:00 a.m. on April 13, 2011, two days
before her due date, Laura called Aegis to report that she had not felt the baby
moving overnight and had felt only “diminished” movement that morning.
Aegis directed her to come to its office for a non-stress test (“NST”). Aegis
made a Triage Note about this call. Appellants’ App. Vol. II p. 132. The NST
generated “tracing” strips, and the results were reported on Aegis’ Prenatal
Flowsheet as follows: “non reactive, no response to vibroacoustic stim[ulation]
1
A mother’s Rh-negative status presents a risk of antibodies from the mother passing through the placenta
and destroying the baby’s red blood cells, or “hemolytic disease of the newborn.” See “Hemolytic disease of
the newborn,” available at https://medlineplus.gov/ency/article/001298.htm (last visited February 16,
2017).
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and decel[eration] with contraction.” Id. at 127. The NST prompted Aegis to
send Laura to IU Health Bloomington Hospital for continued monitoring.
Laura was admitted to the hospital at 11:57 a.m.
[4] The OB Flowsheet from the hospital indicates that Laura was “admitted from
ob office for [complaints of] decreased fetal movement and [fetal-heart-rate]
deceleration on tracing in office” and that Aegis doctors continued to monitor
C.S.’s heart rate, which generated additional “tracing” strips. Id. at 167. Notes
on the OB Flowsheet show that C.S.’s heart rate was “undulating” and that an
“urgent” c-section was called at 1:33 p.m. Id. at 165-170. C.S. was delivered
forty minutes later, at 2:13 p.m. C.S. was born alive but with significant health
issues; among other things, she had suffered a fetomaternal hemorrhage (some
of her blood had passed to her mother before or during delivery).
[5] In April 2013, Laura and her husband John filed a proposed complaint for
medical malpractice against Aegis with the Indiana Department of Insurance.
The Stevenses detailed the risks associated with the pregnancy, the care Aegis
provided to Laura in the days and weeks leading up to the day of the c-section,
including Aegis’ management of Laura’s Rh-negative status, and the health
problems suffered by C.S. Id. at 54-59. Regarding the hours that immediately
preceded the c-section, the Stevenses noted that Laura “was seen at Aegis,” that
Aegis sent Laura to the hospital for further monitoring, and that, at the hospital,
“several worrisome signs were immediately observed and an emergency
caesarian section was performed.” Id. at 57. They also alleged more generally
that Aegis “failed to adequately monitor Laura’s pregnancy and [C.S.’s]
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condition” and “failed to provide appropriate medical care and treatment to
Laura and [C.S.]” Id. at 58.
[6] A medical review panel was formed, and the parties submitted numerous
medical records, including the Aegis Triage Note, the Aegis Prenatal
Flowsheet, and the OB Flowsheet from the hospital. However, the NST and
fetal-heart-rate tracings themselves were not submitted, and the panel did not
ask the parties to submit them. In addition to medical records, the Stevenses
submitted a narrative statement that focused, as their proposed complaint had,
on Laura’s Rh-negative status and the other risks inherent in her pregnancy.
They did not argue that Aegis waited too long to perform the c-section. In
March 2015, the panel issued a unanimous opinion 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.” Id. at 60-63.
[7] Three months later, the Stevenses sued Aegis in Monroe Circuit Court. Their
complaint is substantially similar to their proposed complaint, including the
allegation that Aegis “failed to adequately monitor Laura’s pregnancy and
C.S.’s condition” in light of risks associated with the pregnancy. Id. at 37.
Aegis promptly moved for summary judgment based on the medical review
panel’s opinion.
[8] In support of their opposition to Aegis’ motion, the Stevenses filed an affidavit
from Dr. James Jarrett. Dr. Jarrett noted that he had reviewed the medical
records from the day of C.S.’s birth, including the NST and fetal-heart-rate
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tracings. He concluded that the medical records, particularly the tracings,
revealed that C.S. had been in “significant distress”; that Aegis should have
recognized this distress and performed the c-section sooner; and that Aegis
breached the standard of care by failing to do so. Id. at 191-96. In reply, Aegis
argued that summary judgment was still appropriate because the Stevenses were
raising a theory of malpractice that was not specifically articulated to the
medical review panel, based on evidence—the tracings—that was not submitted
to the panel.
[9] After holding a hearing, the trial court issued an order granting Aegis’ motion
for summary judgment. The court concluded that the Stevenses’ submission to
the medical review panel “did not claim that the Defendants breached the duty
of care in their timing of the caesarian section performed on Ms. Stevens, nor
did they provide any information to the panel that could have supported such a
claim.” Id. at 15.
[10] The Stevenses now appeal.
Discussion and Decision
[11] The Stevenses ask us to reverse the trial court’s ruling that they did not present
their “delayed-c-section” theory to the medical review panel and that they are
therefore barred from presenting it in court. On appeal from a grant of
summary judgment, we address the issues de novo, giving no deference to the
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trial court’s decision. Rogers Group, Inc. v. Tippecanoe Cty., 52 N.E.3d 848, 850
(Ind. Ct. App. 2016), trans. denied.
[12] The Stevenses rely on Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d
1329 (Ind. 1997), and our recent decision in McKeen v. Turner, 61 N.E.3d 1251.
In Miller, our Supreme Court rejected the argument that a medical-malpractice
plaintiff’s action “is restricted by the substance of the submissions presented to
the medical review panel,” explaining:
Pursuant to the [Indiana Medical Malpractice Act], the panel
was authorized to review the medical records and other
submitted material pertaining to each defendant’s treatment of
Nicholas. 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.
679 N.E.2d at 1332. In McKeen, we relied on Miller, as well as the language of
the Medical Malpractice Act, in holding that a medical-malpractice plaintiff
who has made it through the medical-review-panel process and into court can
pursue a theory of malpractice if (1) the theory was encompassed, under the
liberal rules of notice pleading, by the proposed complaint that was before the
panel and (2) evidence relating to the theory was submitted to the panel. 61
N.E.3d at 1261.
[13] The Stevenses argue that their “delayed-c-section” theory satisfies the
requirements of McKeen. Aegis does not dispute the applicability of McKeen,
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nor does it dispute that the first of the two McKeen requirements was satisfied in
this case, i.e., that Stevenses’ “delayed-c-section” theory was encompassed by
the general allegations contained in their proposed complaint.2 However,
focusing on the fact that the tracings from the NST at Aegis and from the fetal-
heart-rate monitoring at the hospital were not submitted to the medical review
panel, Aegis asserts that “the Stevens family did not provide evidence
supporting their claim that C.S.’s delivery was unduly delayed to the medical
review panel[.]” Appellees’ Br. p. 16. We disagree.
[14] There is no question that the NST and fetal-heart-rate tracings are highly
relevant to the Stevenses’ “delayed-c-section” theory. However, it is equally
clear that the panel had before it other significant evidence that supports the
theory, including records specifically addressing the NST and the fetal-heart-
rate monitoring. The panel had: (1) the Aegis Triage Note indicating that
Laura called Aegis at some point before 10:00 a.m. to report that she had not
felt any fetal movement overnight and had felt only “diminished” movement
that morning; (2) the Aegis Prenatal Flowsheet indicating that an NST was
conducted because of the decreased fetal movement, that the test was “non
reactive,” and that there was “no response to vibroacoustic stim[ulation] and
decel[eration] with contraction”; (3) the OB Flowsheet from the hospital
2
A petition to transfer is pending in McKeen, but Aegis does not argue that it was wrongly decided. In
another case we decide today, the defendant did make that argument, which we reject. See Llobet v. Gutierrez,
No. 45A04-1605-CT-01133 (Ind. Ct. App. Feb. 22, 2017). We also note that we did not hand down McKeen
until six months after the trial court made its decision in this case.
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indicating that Laura was admitted at 11:57 a.m. “from ob office for
[complaints of] decreased fetal movement and [fetal-heart-rate] deceleration on
tracing in office,” that continued monitoring showed that C.S.’s heart rate was
“undulating,” that Aegis doctors were reviewing the fetal-heart-rate “tracing,”
and that an “urgent” c-section was called at 1:33 p.m.; and (4) evidence that
C.S. was not delivered until forty minutes later, at 2:13 p.m.
[15] While Aegis’ emphasis on the NST and fetal-heart-rate tracings is
understandable, we simply cannot agree with its assertion that, without them,
the medical review panel “did not have the opportunity to evaluate the
timeliness of C.S.’s delivery.” Appellees’ Br. p. 20. 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. See
Ind. Code § 34-18-10-21(a) (“The panel has the right and duty to request all
necessary information.”).
[16] 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 Stevenses are entitled to present it in court. See McKeen, 61
N.E.3d at 1261. Therefore, we reverse the trial court’s grant of summary
judgment in favor of Aegis.
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[17] Reversed.
Bradford, J., and Brown, J., concur.
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