Marigold Overshiner and Earl Overshiner, Individually and as Parents and Guardians of their Minor Daughter, Kaitlyn Overshiner, and Kaitlyn Overshiner, Appellants-Plaintiffs,
Hendricks Regional Health and Ian Johnston, M.D., Appellees-Defendants.
from the Putnam Circuit Court Trial Court Cause No.
67C01-0610-CT-321 The Honorable Matthew L. Headley, Judge
Attorneys for Appellants John Morris Stan Brown Morris Law
Firm Lafayette, Indiana
Attorneys for Appellee Hendricks Regional Health Ronald A.
Mingus Nicholas G. Brunette Katherine M. Haire Reminger Co.,
LPA Indianapolis, Indiana
Attorney for Appellee Ian Johnston, M.D. James W. Brauer Katz
Korin Cunningham PC Indianapolis, Indiana
Marigold Overshiner and Earl Overshiner, Individually and as
Parents and Guardians of their Minor Daughter, Kaitlyn
Overshiner, and Kaitlyn Overshiner (collectively, the
"Overshiners") appeal the trial court's
directed verdict in favor of Hendricks Regional Health
("Hendricks Regional") and Ian Johnston, M.D.
("Dr. Johnston" and together with Hendricks
Regional, "Providers"). We affirm.
and Procedural History
On September 27, 2006, the Overshiners filed a complaint for
damages against Providers and other defendants in the Putnam
Circuit Court, after having filed a proposed complaint with
the Indiana Department of Insurance pursuant to the Indiana
Medical Malpractice Act. The medical review panel, consisting
of a board-certified pediatrician, a board-certified
obstetrician-gynecologist, and a neonatologist, unanimously
decided that Providers and other defendants did not breach
the standard of care or cause the claimed injuries. The
complaint alleged that Marigold presented in active labor on
October 26, 2004, at Hendricks Regional Hospital in Danville,
Indiana, that "Marigold was admitted to the hospital
under the care, treatment and supervision of [Dr.
Johnston]," and that Dr. Johnston "was
Marigold's obstetrician during this pregnancy, beginning
on or about March 11, 2004" and "[k]new that
Marigold was blood type O negative and anti-D positive"
early on in her pregnancy and prior to October 26, 2004.
Appellee Hendricks Regional's Appendix Volume II at 5. It
stated that, within the first twenty-four hours following her
birth the night of October 26, 2004, Kaitlyn's cord blood
indicated that she was RH positive, which was indicative of
hemolytic disease of the newborn; that on the morning of
October 27, 2004, Kaitlyn's newborn Total Serum Bilirubin
("TSB") was 9.2; and that she developed jaundice
and was treated with phototherapy on the same day. The
complaint further alleged that Kaitlyn's risk factors for
severe neonatal hyperbilirubinemia were present prior to,
during, and after her birth, and that she suffered
hyperbilirubinemia and other medical conditions and physical
injuries, including, but not limited to, blindness.
On November 27, 2017, an eight-day jury trial commenced. On
November 30, 2017, the Overshiners began four days of
testimony by Dr. Robert Shuman, a retired neuropathologist
who currently provides "mostly medical-legal
consultations." Transcript Volume II at 39. He testified
that he decided to be a pediatric neuropathologist and
"wanted to be a person who looked at the brains of
children we lost and reason, or figure out, or explore, or
determine why we lost those children" in medical school.
Id. at 10. He indicated that, when he started his
pediatric neuropathology training, he "changed from the
bedside to the autopsy room" and from 1971 to 1975
autopsied "4, 300 brains, of which 1, 500 were infants
and children." Id. at 13-14. He testified he
did not engage in direct patient practice from the period of
1970 through 1975 "when we still had Rh disease."
Id. at 15.
Dr. Shuman stated that he has a board certification in
neuropathology and that he was "board-certified in
neurology with special competence in neurology."
Id. at 30. He later indicated he was not, nor
eligible to be, a member of the American Academy of
Pediatrics and that he was "not an active member but . .
. retired" from the American Academy of Neurology.
Supplemental Transcript Volume II at 103. He testified that
he had been licensed to practice medicine "[s]ince 1990,
or 1991" and, from 1991 until 2014, was in South Bend,
Indiana, where he "practiced child neurology, founding a
. . . clinical practice of child neurology . . . which [he]
then maintained until [his] retirement in 2006,
" and he later testified that upon retiring
he moved to California. Transcript Volume II at 4, 26.
At a later point during cross-examination, Dr. Shuman
answered affirmatively when he was asked "we've
already gone over that you're not a pediatrician and not
an obstetrician, correct[?]" Supplemental Transcript
Volume II at 130. He answered affirmatively when he was asked
whether the guidelines of the American Academy of Neurology
provided "[i]f a medical expert is not in active
clinical practice when offering an expert opinion," the
expert "should be prepared to demonstrate competence to
provide such an opinion," and that evidence of
competence may include "active clinical practice,"
"relevant publications in medical or scientific
journals," and "active teaching or supervision of
medical students, residents, or fellows in an area relevant
to the expertise opinion . . . ." Id. at 104.
Dr. Shuman agreed that he did not meet the American Academy
of Neurology's guidelines for testifying because he was
not in active clinical practice, did not teach, and had no
publications "since you returned." Id. at
104-105. He also indicated that he had never been involved in
the handover between the obstetrician and the pediatrician
after a child is born, "[e]xcept in [his] training as a
pediatrician," which he subsequently admitted he did not
complete. Id. at 130.
When counsel for the Overshiners moved to submit Dr. Shuman
"as qualified to be an expert," the following
THE COURT: Any statement from the defense? I thought we -
[Counsel for Hendricks Regional]: Your Honor, I'm sorry.
Don't we have a motion in limine already -
THE COURT: Right.
[Counsel for Hendricks Regional]: - that the Court has
THE COURT: Right. Ladies and gentlemen, we'll show that
the doctor - it [sic] obviously is a doctor. You'll hear
from a lot of doctors here the next few days, okay? And
we've already heard what his areas of his practice were
Transcript Volume II at 40.
Dr. Shuman indicated that he "really [thought] that
there's a tremendous amount of variability" to
dealing with Rh disease with respect to the standards of
practice. Id. at 114. In comparing himself to a
typical practitioner, he testified:
I am less aggressive than neonatologists. I am as aggressive
as those whom I consider to be very good pediatricians. I am
much more aggressive than many pediatricians. And then, I
qualify that by telling you that I've only known good
I'm terribly proactive. Aggressive has a bad connotation.
I'm terribly proactive in my practice of pediatric
neurology. I would rather ...