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C.S. v. Aegis Women's Healthcare, P.C.

Court of Appeals of Indiana

February 22, 2017

C.S., a Minor Child, by Her Next Friends and Parents, John Stevens and Laura Stevens, Appellants-Plaintiffs,
Aegis Women's Healthcare, P.C., Brian W. Cook, M.D.,

         Appeal from the Monroe Circuit Court The Honorable E. Michael Hoff, Judge Trial Court Cause No. 53C01-1506-CT-1134

          ATTORNEYS FOR APPELLANTS Christopher S. Roberge Elizabeth A. Roberge Alexandra N. Gortchilova RobergeLaw Carmel, Indiana

          ATTORNEYS FOR APPELLEES Stacy F. Thompson Adam R. Doerr Clendening Johnson & Bohrer, P.C. Bloomington, Indiana

          ATTORNEY FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION Jerry Garau Garau Germano, P.C. Indianapolis, Indiana

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

          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 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] 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] 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 ...

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