Legal Alert: McKeen and Miller are in! K.D. is out! Plaintiffs May Raise New Theories After the Medical Review Panel
The Seminal Case: Miller v. Memorial Hospital of South Bend, Inc.
In 1997, the Indiana Supreme Court held that a plaintiff’s proposed complaint, which encompassed theories of negligence raised by the plaintiff after the Medical Review Panel, was sufficient to put the defendant on notice in state court actions. The court set the stage for plaintiffs to raise new theories under the principles of notice pleading to essentially bypass the prerequisite of presenting claims of medical malpractice to a Medical Review Panel and obtaining an expert opinion prior to filing suit. The court reasoned “there is no requirement for such plaintiff to fully explicate and provide the particulars of legal contentions regarding their claim.”
The Aftermath: Miller, K.D. v Chambers
In 2011, the Indiana Court of Appeals distinguished Miller and held the earlier decision was not so broad as to “allow a plaintiff to argue at trial separate breaches of the standard of care that were not presented in a submission of evidence to the panel.” In essence, K.D. permitted a plaintiff to bring a claim for breach of the standard of care before the trial court, provided all evidence was presented to the Medical Review Panel. While slightly more rigid than Miller, K.D. still represented a plaintiff-friendly approach to pursuing new theories in state court.
The Final Decision: McKeen v Turner
In 2016, the Indiana Court of Appeals established a two-prong test that comprised components of Miller and K.D.: (1) the proposed complaint must encompass theories of breach to be raised at trial; and (2) evidence must be presented to the Medical Review Panel. Medical malpractice litigants sought guidance on the court’s decision as Miller and K.D. appeared to be in direct controversy. In April 2017, the Indiana Supreme Court set the record straight—Miller is in, K.D. is out—furthering a liberal approach among medical malpractice plaintiffs.
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