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McKeen v. Turner

Court of Appeals of Indiana

October 4, 2016

Charles McKeen, M.D., Appellant-Defendant,
Billy Turner, Appellee-Plaintiff

         Appeal from the Monroe Circuit Court The Honorable Frances G. Hill, Judge Trial Court Cause No. 53C06-1201-CT-88.

          ATTORNEYS FOR APPELLANT Michael E. O'Neill Nathan D. Hansen O'Neill McFadden & Willett LLP Schererville, Indiana

          ATTORNEYS FOR AMICUS CURIAE Donald B. Kite, Sr. Wuertz Law Office, LLC Indianapolis, Indiana Crystal G. Rowe Kightlinger & Gray, LLP New Albany, Indiana

          ATTORNEY FOR APPELLEE James H. Young Young & Young Indianapolis, Indiana

          ATTORNEY FOR AMICUS CURIAE Jerry Garau Garau Germano, P.C. Indianapolis, Indiana

          BAKER, JUDGE.

         [¶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.


         [¶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 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 thrombosis[2] 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 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:

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.

         [¶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. 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 postoperative 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). 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.

         [¶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. ยง 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 ...

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