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,
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
ATTORNEY FOR AMICUS CURIAE Jerry Garau Garau Germano, P.C.
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
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
App. p. 25-27. Dr. McKeen now brings this interlocutory
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."
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
Medical Malpractice Act and Narrative Statements
First, we will turn to the Indiana Medical Malpractice
(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.
The Indiana Medical Malpractice Act (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.
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. 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.
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 ...