Legal Alert: Applying McKeen v Turner; Raising New Theories After the Medical Review Panel
The Underlying Case: McKeen v Turner
In October 2016, the Indiana Court of Appeals in McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016), trans. pending held that a medical malpractice claimant is not bound by narrative and argumentative statements made by his attorneys. The Court further held that a plaintiff can raise in court a theory of malpractice that was not specifically articulated to the medical review panel if the theory meets the following two prong test: (1) it was encompassed, under the liberal rules of notice pleading, by the proposed complaint that was before the medical review panel and (2) evidence related to it was submitted to the panel. Id. at 1261.
Recent Cases Applying McKeen v Turner
On February 22, 2017, the Indiana Court of Appeals issued two opinions applying McKeen v. Turner which trial courts will likely look to in determining when new theories can be raised after a medical review panel.
Llobet, M.D. v. Gutierrez (45A04-1605-CT-1133): In this case, Dr. Llobet broke a stent in Gutierrez’s body during an angiogram, which necessitated further operations. During the panel process, Gutierrez alleged that Dr. Llobet was negligent in his technical performance of the angiogram. The medical review panel found a breach of the standard of care. In state court, Gutierrez presented a second theory, that the angiogram was not indicated. In response, Dr. Llobet presented records that the angiogram was indicated based on test results from the day before the angiogram. Dr. Llobet argued that the theory was not “encompassed” by Gutierrez’s proposed complaint because the pre-angiogram testing (or alleged lack thereof) took place on September 25, 2007, while the proposed complaint only addressed “[t]he health care provided to the Plaintiff on September 26, 2007.” He argued that the proposed complaint “did not provide notice that treatment that occurred on September 25, 2007 was at issue. However, the Court found that the events of September 25 were “at issue” insofar as they related to Gutierrez’s ultimate claim that Dr. Llobet performed an unnecessary angiogram on September 26. The Court held that “claim was plainly encompassed by Gutierrez’s proposed complaint” and allowed the Plaintiff to assert his new theory.
C.S., a Minor Child v. Aegis Women’s Healthcare, P.C., et al. (53A01-1607-CT-1657): In this case, Laura Stevens was nine months pregnant when she reported that she could no longer feel her baby moving. Her daughter, C.S., was delivered via an emergency C-section with significant health issues. During the medical review panel process, Plaintiffs alleged that Aegis “failed to adequately monitor Laura’s pregnancy and [C.S.’s] condition” and “failed to provide appropriate medical care.” Their submissions did not include the NST and fetal heart tracings from the day of delivery. The panel did not request this evidence and found unanimously in favor of the Defendants. In response to a Motion for Summary Judgment, Plaintiffs identified an expert who had reviewed the NST and fetal-heart-rate tracings. He concluded that the medical records, particularly the tracings, revealed that C.S. had been in “significant distress” and that Aegis should have performed the c-section sooner. Defendants pointed out that the tracings from the NST and from the fetal heart-rate monitoring were not submitted to the medical review panel and asserted that evidence supporting the claim that C.S.’s delivery was unduly delayed was not submitted to the medical review panel as required by prong 2 under McKeen. The Court disagreed, holding that the panel had before it other significant evidence supporting the theory. Said the Court: “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.” Therefore, the Court allowed Plaintiffs to advance their new theory under McKeen.
These cases suggest that the Court will likely take a liberal approach in allowing Plaintiffs to assert new theories of liability under McKeen v. Turner.
A copy of the Court’s opinion in C.S., a Minor Child can be found here.
A copy of the Court’s opinion in Llobet, M.D. v. Gutierrez can be found here.
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