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2017 Med Mal Case law update.

Supreme Court of Ind.

Date of

Decision Case:

WL Citation

Status

Facts Holding Ind. Sup.

COA Panel:

Writing Judge

Trial Ct.

Judge

Att.

4/07/2017

10/04/2016

McKeen v. Turner

2017 WL 1291342

Ind. Sup.

transfer granted,

opinion vacated,

2017 WL 1348010

(4/07/2017)

opinion adopted,

71 N.E.3d 833 (Ind.

2017)

McKeen v. Turner

2016 WL 5750508

Ind. Ct. App.

Billy Turner filed a proposed malpractice complaint with

the Ind. Dept. of Insurance, alleging that Dr. Charles

McKeen’s medical and surgical treatment of Turner’s wife,

Rowena, failed to meet the appropriate standard of care. In

addition to the complaint, Turner's submission to the

Medical Review Panel (“MRP”) included Rowena's

medical records and a narrative statement describing the

records and alleging the delay in exploratory surgery

following Rowena's readmission to the hospital resulted in

her death. The MRP issued a unanimous opinion finding

that the evidence did not support a conclusion that Dr.

McKeen had failed to meet the applicable standard of care.

Turner filed a complaint in court. After discovery, Turner

filed a supplemental witness list naming an expert

hematologist who would testify to McKeen’s failure “to

prescribe the appropriate dosage of anticoagulation

medication, leading to Rowena’s death.” Dr. McKeen

filed a motion to strike the hematologist’s opinion, arguing

that Turner’s submission to the review panel did not allege

malpractice related to anticoagulation medication. The

trial court denied McKeen’s motion and the Indiana Court

of Appeals affirmed.

Grants transfer and adopts and incorporates the Indiana

Court of Appeals’ holding that “a plaintiff may raise any

theories of alleged malpractice during litigation following

the (Medical Review Panel) process if (1) the proposed

complaint encompasses the theories, and (2) the evidence

relating to those theories was before the MRP.” Also

expressly disapproves K.D. v. Chambers, 951 N.E.2d 855

(Ind. Ct. App. 2011).

This Court found K.D. v. Chambers to be at odds with Miller

v. Memorial, and thus “expressly disapproved” of its holding

in K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011)

(held that “a malpractice plaintiff cannot present one breach

of the standard of care to the panel and, after receiving an

opinion, proceed to trial and raise claims of additional,

separate breaches of the standard of care that were not

presented to the panel and addressed in its opinion.”);

Compare with, Miller v. Memorial Hospital of South Bend,

Inc., 679 N.E.2d 1329 (Ind. 1997) (held that “there is no

requirement for … plaintiff to fully explicate and provide the

particulars or legal contentions regarding the claim.”).

Per Curiam (all justices

concur)

On Petition to Transfer

from the Indiana Court

of Appeals, No. 53A05-

1511-CT-02047

Grant transfer; adopt and

incorporate by reference

the Court of Appeals

opinion:

Baker

Vaidick

Najam

Monroe Circuit Court,

No. 53C06-1201-CT-

000088

The Honorable Frances

G. Hill, Judge

Attorneys for

Appellant:

Michael E. O'Neill,

Nathan D. Hansen,

O'Neill McFadden &

Willett LLP,

Schererville, 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


Curiae

Stephen W. Robertson,

Commissioner of the

Indiana Department of

Insurance and

Administrator of the

Indiana, Patient's

Compensation Fund:

Matthew W. Conner,

Bryan H. Babb,

Bose McKinney &

Evans LLP,

Indianapolis, Indiana,

Wade D. Fulford,

Indiana Department of

Insurance, Indianapolis,

Indiana

Attorney for Appellee:

James H. Young,

Young & Young,

Indianapolis, Indiana

2

Attorney for Amicus

Curiae

Indiana Trial Lawyers

Association:

Jerry Garau,

Garau Germano, P.C.,


Ind. Court of Appeals

Date of

Decision Case:

WL Citation

Status

Facts Holding COA Panel: Writing Judge

Trial Ct.

Judge

Att.

7/21/2017 Gresk Estate of

VanWinkle v.

Demetris

2017 WL 3096241

No transfer filed

Stacy and Derek VanWinkle have two children, M.V. and

A.V. In 2004, A.V. became a patient of Dr. Susan Maisel,

a pediatric gastroenterologist at Peyton Manning Children’s

Hospital. In May 2013, A.V. was admitted to the Hospital

to observe her GI problems. Dr. Maisel believed A.V.’s

mother, Stacey, a neonatal intensive care unit nurse, was

exaggerating A.V.’s symptoms. Dr. Maisel told her

colleague Dr. Cortney Demetris that she believed A.V. was

a victim of medical child abuse, previously called

Munchausen Syndrome by proxy.

A.V. was admitted to the hospital. Dr. Demetris was A.V.’s

attending physician. A.V. underwent a GI procedure

performed by Dr. Maisel; the results of this procedure were

normal. Covert video surveillance (CVS) was also set up in

A.V.’s hospital room. Based on her review of the CVS, Dr.

Demetris wrote in A.V.’s chart that she and her sibling,

M.V., were likely victims of medical child abuse, with

Stacy as the perpetrator. A hospital social worker then

called the Department of Child Services (DCS), and the

children were removed from their parents’ home.

DCS filed a petition alleging both children were children in

need of services. After A.V. was re-admitted to the

Hospital and weaned off of several medications, the

children were returned to their parents and the CHINS

petition was voluntarily dismissed. DCS then conducted a

child care worker assessment review into Stacy and

substantiated the allegations that she neglected M.V. and

A.V. An administrative law judge also substantiated the

allegations of neglect as to A.V. only. The Marion Superior

Court reversed the finding of neglect as to A.V in

December 2014.

Stacy and her husband filed a proposed complaint for

medical malpractice against Dr. Demetris, alleging the

diagnoses of medical child abuse, with Stacy as the

Doctor’s report not protected by anti-SLAPP statute

The precise characterization of the complaint did not matter

because Demetirs’ report is not protected by the anti-

SLAPP statute (VanWinkles first argued that Demetris

reframed their med mal claim into one based on the act of

reporting med child abuse to DCS).

“While child-abuse detection and prevention, on a macro

level, is of great interest to the general public, the public

interest in the more narrow issues addressed by Dr.

Demetris’s report to DCS…is not significant.” “This is

because this was a private matter.” Accordingly, the court

concluded that Dr. Demetris’s report to DCS was not made

in connection with a public issue or an issue of public

interest.

In addition, Dr. Demetris did not make the statements “in

furtherance of” any free speech or petitioning right. She

reported her suspicions of child abuse to DCS primarily

because of her duty to report imposed by Chapter 31-33-5.

This is inconsistent with any claimed intent to engage in

public debate or to petition the government. Thus, she was

not entitled to anti-SLAPP protection with regard to her

report to DCS.

Reversed the trial court order and remanded for

consideration of the issues that were stayed: whether

Demetirs had immunity and whether there was a physician-

patient relationship between her and M.V.

Vaidick

Bailey (concurs)

Robb (concurs)

Marion Superior Court,

No. 49D05-1510-MI-

35716

The Honorable John

M.T. Chavis, II, Judge

Attorneys for

Appellants:

Donald J. Waicukauski,

Price Waicukauski

Joven & Catlin, LLC,


William W. Gooden,

Maggie L. Sadler,

Clark Quinn Moses

Scott & Grahn, LLP,

Indianapolis, Indiana.

Attorneys for Appellee:

Bryce H. Bennett, Jr.,

Laura S. Reed,

Laura K. Binford,

Courtney David Mills,

Riley Bennett Egloff

LLP, Indianapolis,

Indiana

3

perpetrator, fell below the reasonable standard of care.

Before the complaint went to a medical review panel,

Demetris filed a motion to dismiss, arguing that her report

to DCS was protected by Indiana’s anti-SLAPP statute and

the immunity provision in Indiana’s child-abuse reporting

statute. She also argued there was no physician-patient

relationship with M.V. Ruling only on the Anti-SLAPP

claim at the parties’ request, the trial court granted

Demetris’ motion to dismiss, finding she had spoken on a

matter of public concern when she reported the medical

child abuse diagnosis. Thus, the court found her speech was

protected by the anti-SLAPP statute. Specifically, Ind.

Code 34-7-7-1 provides that an act or omission “in

furtherance of” the person’s constitutional rights in

connection with a public issue is protected.

6/14/2017 Totton v.

Bukofchan

2017 WL 2569798

No transfer filed

Craig Totton started receiving chiropractic treatments from

Dr. Daniel P. Bukofchan at Franklin County Chiropractic

Clinic for neck and lower back pain in January 2006

(compressed disc in 1980s). In September 2009, Totton

broke multiple ribs and fractured his ankle in a motorcycle

accident. He returned to Dr. Bukofchan in January 2010

for treatments. According to Totton, during a visit in

November 2010, Dr. Bukofchan “snapped” Totton’s neck.

Totton said he experienced sharp pain and a progressive

weakening in his left arm. An MRI showed a herniated

disc in his neck, which required surgery.

Totton filed a proposed medical malpractice complaint

against Bukofchan and the clinic. A medical review panel

consisting of three chiropractors issued an opinion finding

Bukofchan’s treatment did not fail to meet the applicable

standard of care and “was not a factor of the resultant

damages.” Totton then filed his complaint in Franklin

Circuit Court, and Bukofchan moved for summary

judgment. In opposition to that motion, Totton designated

the affidavit of Guy S. DiMartino, a chiropractor who said

Bukofchan failed to meet the applicable standard of care

and caused or substantially contributed to Totton’s injuries.

Bukofchan argued DiMartino was not qualified to provide

expert testimony on the causation of Totton’s injuries, and

the trial court agreed. Summary judgment was entered in

favor of Bukofchan, with the court finding “…chiropractors

are more akin to nurses in that they receive limited medical

licenses and are therefore not qualified to offer expert

testimony as to the medical cause of injuries.” Totton

appealed, arguing DiMartino is qualified to render a

causation opinion under Indiana Evidence Rule 702.

Chiropractors not qualified to render opinions on

“complex” causation issues, including those on MRP

Chiropractors, including those on medical review panels,

are not qualified to render opinions on the cause of injuries

when a case involves a “complex” causation issue.

If a non-physician healthcare provider, such as a

chiropractor, is not qualified under Evid. R. 702 to render

an opinion as to medical causation because the issue is

complex, then chiropractors sitting on the medical review

panels are likewise not qualified to render opinions as to

medical causation when the causation issue is complex.

“Because the requirements of Evidence Rule 702 have not

been met given the complex causation issues present in this

case, the unanimous opinion of the all-chiropractor medical

review panel cannot be used as evidence that Dr.

Bukofchan did not cause Totton’s injuries.” The opinion

can only be used as evidence that Dr. Bukofchan met the

standard of care. Totton, however, “created a genuine issue

of material fact…by designating the affidavit of Dr.

DiMartino, who opined that Dr. Bukofchan failed to meet

the standard of care.” Thus, the entry of summary

judgment for Bukofchan was reversed and the case was

remanded for trial.

Vaidick

Bailey (concurs)

Robb (concurs)

Franklin Circuit Court,

No. 24C02-1512-CT-808

The Honorable Clay M.

Kellerman, Judge,

Attorney for Appellant:

Robert A. Montgomery,

Law Offices of Robert

Montgomery, Munster,

Indiana

Attorneys for

Appellees:

Peter H. Pogue,

Daniel B. Gearhart,

Justin C. Kuhn,

Schultz & Pogue, LLP,


5/24/2017 Aguila on behalf of

Aguila v.

Anonymous

Physicians 1 & 2

2017 WL 2266884

Appellants, who are patients or representatives of patients,

were treated by Anonymous Physicians 1 and 2,

Anonymous Medical P.C., and the Hospital. Patients

claimed that the physicians performed unnecessary

surgeries, and further, that the Hospital negligently

credentialed the physicians and were aware of the

unnecessary surgeries but allowed them to continue. Trial

court determined Anonymous Hospital presented sufficient

Trial court did not abuse its discretion in setting aside

the default judgment

COA held the trial court’s decision to set aside the default

was not clearly against the logic and effect of the facts and

circumstances before the court.

“We cannot agree with the Patients that the Hospital was

Shepard

Vaidick

Mathias

Lake Superior Court,

No. 45D02-1604-CT-65

The Honorable Calvin D.

Hawkins, Judge,

Attorneys for

Appellants:

David J. Cutshaw,

Gabriel A. Hawkins,

Cohen & Malad, LLP,


Barry D. Rooth,

Holly S.C. Wojcik,

4

No transfer filed

grounds to set aside the entry of default judgment.

Appellants challenge the court’s decision.

Between July 31, 2014 and October 27, 2014, Patients file

proposed med mal complaints w/ Ind. Dept. of Ins. Appx.

300 other patients filed similar complaints against

Anonymous Physicians 1 and 2, Anonymous Medical P.C.,

and the Hospital. G. Anthony Bertig was selected as the

chairperson of each of the six panels for the Patients’ cases

(also named APE in this case). Bertig set deadlines for the

parties to submit evidence to the panels, and the Hospital

failed to comply in all six cases. The physicians and the

Medical P.C. failed to file submission in four of the six

cases.

(note: as mentioned below, the spouse of the Hospital’s

primary attorney died on January 24, 2016)

On April 26, 2016, the Patients filed a Petition for

Preliminary Determination and Default Judgment, asking

the court to enter default judgment against all defendants

for failure to timely submit documents to the panels. On

May 2, 2016, the court granted the default and entered

judgment. The court later set aside the May 2 order to

allow physicians, the Center, and the Hospital to respond to

the Patients’ petition. Patients and the physicians later

stipulated that Physicians 1 & 2 and the Center would be

dismissed from the preliminary determination. Patients and

the Hospital did not reach a similar agreement.

On July 13, 2016, the court entered default against the

Hospital for a second time. Hospital filed a motion to set

aside the default pursuant to Ind. Tr. R. 60(B)(1), and

Patients asked to schedule a hearing on damages. The court

granted the Hospital’s motion, concluding it presented “a

viable basis for relief under Tr. R. 60(B).”

On appeal, Patients raise several claims in support of their

argument that the court should not have set aside the

default. (1) Patients claim the Hospital was erroneously

attempting to litigate the merits of the case rather than

present equitable considerations, and Hospital erroneously

submitted new evidence in support of its motion for relief

and such evidence was inadmissible because it could have

been presented prior to default. (2) Patients contend the

Hospital has failed to show good cause for setting aside the

default judgment, stating the Hospital erroneously chose to

focus on its late discovery responses rather than its late

evidentiary submissions. (3) They also argue that the Jan.

24, 2016 death of the spouse of the Hospital’s primary

attorney does not amount to good cause.

Hospital states the evidence shows excusable neglect

because Bertig’s deadlines were flexible and the death of

the spouse of the Hospital’s primary attorney on these cases

prevented the Hospital from completing the submissions.

Hospital also claims Patients’ counsel gave it the

impression that Patients wanted the Hospital to prioritize

barred from presenting evidence that could have been

presented prior to default. Per the plain language of Tr. R.

60(B), only motions filed under 60(B)(2) are subject to

such a limitation.”

“In addition, we cannot agree that the Hospital should not

have discussed the merits of the parties’ claims while

seeking relief from default.” It is true that a Tr. R.

60(B)(1) motion does not attack the substantive, legal

merits of the judgment…but some discussion of the merits

is unavoidable because a movant must demonstrate a

meritorious claim or defense in relation to the parties’

allegations. “In this case, the Hospital also presented to the

court equitable arguments in favor of setting aside the

default.”

Ultimately, the trial court’s decision was well within its

discretion. The trial court balanced the prejudice to the

Patients against the Hospital’s right to present a defense.

The Hospital, which was defending against 300 malpractice

cases, demonstrated that the death of its attorney’s spouse

delayed its responses. When the Hospital’s new attorney

contacted the Patients’ attorney in April 2016, he asked the

Patients to state their priorities for the various cases.

Patients’ attorney mentioned that the evidentiary

submission were overdue but stated that receiving

discovery responses from the Hospital was the highest

priority.

Although the Patients were not required to seek lesser

sanctions before requesting default, it is relevant to the

facts and circumstance that the Patients did not first seek

lesser sanctions, such as asking the panel chairperson to

consider the cases without the late submissions.

COA concluded, considering the facts and circumstances,

there was no abuse of discretion. Affirmed.

William A. Theodoros,

Theodoros & Rooth,

P.C., Merrillville,

Indiana.

Attorneys for

Appellees:

Edward W. Hearn,

Alan M. Kus,

Johnson & Bell P.C.,

Crown Point, Indiana.

5

responding to discovery request in all of the cases instead

of filing evidentiary submission with the review panels.

Finally, Hospital disputes Patients’ claims that Hospital

may not cite evidence and is barred from discussing merits

of litigation, in its motion for relief from judgment.

5/11/2017 Svabek v. Lancet

Indemnity Risk

Retention Group,

Inc. (mem. dec.)

2017 WL 1955048

No transfer filed

Steven J. Svanek, D.O., appeals the trial court’s entry of

summary judgment in favor of Lancet Risk Retention

Group, Inc. (“Lancet”) on Lancet’s complaint seeking

rescission of Svabek’s medical malpractice insurance

policy. Dr. Svabek is an orthopedic surgeon, previously

practiced medicine in the State of Indiana. Lancet is an

insurance company. December 7, 2012, the parties entered

into a policy of physician’s professional liability insurance.

Effective Date of the policy is December 7, 2012, with a

Retroactive Date of December 7, 2010. Policy only covers

an Occurrence on or after Dec. 7, 2010 and before Dec. 7,

2012, which was first made against Dr. Svabek and

reported to Lancet between Dec. 7, 2012 and Dec. 7, 2013.

In the application and contract entered into on Dec. 7, 2012,

and submitted and completed by Dr. Svabek, Dr. Svabek

confirmed, among other things, that he had no known

potential or anticipated losses and that no prior carrier had

declined or refused coverage for a medical incident. Policy

states that Lancet relied upon the statements made by Dr.

Svabek in his application for insurance and that Dr. Svabek

warrants those statements are true.

Subsequent to entering into the Policy, three matters were

brought to the attention of Lancet for which Dr. Svabek

now asserts coverage is owed. All alleged harms occurred

prior to Lancet agreement. On August 28, 2012, notice was

sent to Dr. Svabek by the PCF on one of the matters,

complaint in this matter was filed on August 12, 2012, and

notice on this matter was sent to Dr. Svabek’s attorney on

separate med mal claims. On Dec. 4, 2012 (three days

before entering into Lancet agreement), Evanston Insurance

(through Markel Corp.) sent a denial letter to Dr. Svabek

stating no coverage was available (coverage ended Jan. 12,

2011). On Dec. 7, 2012, Dr. Svabek completed and

submitted the application to Lancet, confirming he had no

known potential or anticipated losses and no prior carrier

had declined or refused coverage for a medical incident.

Trial court concluded that Lancet was entitled to rescind the

policy, as a matter of law, because of two

misrepresentations made by Svabek on his application,

namely, (1) that he had no known claims pending against

him and (2) that he had not previously been denied

coverage for a claim. On appeal, Dr. Svabek does not deny

and dos not challenge either of these two

misrepresentations.

Insurance company was entitled to rescission based on

Doctor’s misrepresentations in his policy application;

Summary judgment affirmed

Affirms the Johnson Superior Court’s entry of summary

judgment in favor of Lancet Indemnity Risk Retention

Group Inc. on Lancet’s complaint seeking rescission of the

medical malpractice insurance policy of Steven J. Svabek,

D.O.

Finds Svabek has failed to “demonstrate the absence of any

genuine issue of act as to a determinative issue,” namely

that Lancet is entitled to rescission based on Svabek’s

misrepresentation on his application for insurance

regarding a prior denial of coverage.

Najam

Riley (concurs)

Bradford (concurs)

Johnson Superior Court,

No. 41D04-1401-PL-8

The Honorable Marla K.

Clark, Judge

Attorneys for

Appellant:

Michael N. Red,

John J. Morse,

Morse & Bickel, P.C.,



Douglas B. Bates, Neal

Bailen, Chelsea

Stanley,

Stites & Harbison

PLLC, Jeffersonville,

Indiana

5/11/2017 Oaks v.

Chamberlain

Post-operative care provided by a general surgeon after the

laparoscopic removal of the plaintiff’s gallbladder. On

post-operative day four, the plaintiff’s colon perforated and

the defendant general surgeon performed an emergency

Admission of expert’s testimony about his or her

personal practice is permissible for purposes of

impeaching expert’s testimony about standard of care

Najam

Riley (concurs)

Bradford (concurs)

Attorneys for

Appellant:

Tina M. Bell,

Katherine A. Brown-

6

2017 WL 1953144

APE’s Petition to transfer

filed, 08/14/2017

surgery to repair the perforation. The plaintiff survived but

experienced additional complications that required

subsequent treatment, surgeries and rehabilitation.

The plaintiff deposed general surgeon Dr. Wayne Moore,

one of the defendant’s expert witnesses. During that

deposition, Dr. Moore testified that, although the standard

of care did not require the defendant to order post-operative

X-rays, he (Dr. Moore) would likely have ordered such X-

rays.

During trial, the plaintiff elicited testimony from two

general surgeons who opined that the standard of care

required the defendant to order X-rays of the plaintiff’s

abdomen after surgery and that, because the defendant did

not order such X-rays, he failed to meet the standard of

care. The defendant called two of his own expert witnesses

who testified that the defendant did not breach the standard

of care. As one of the defendant’s expert witnesses, Dr.

Moore testified that the standard of care did not require

post-operative X-rays.

The plaintiff made an offer of proof to show that, if Dr.

Moore had been questioned on his personal practice, Dr.

Moore would have testified that he would have obtained

post-operative X-rays of the plaintiff’s abdomen. The

plaintiff wanted to use Dr. Moore’s personal practice

testimony to impeach the credibility of his ultimate opinion

that the standard of care did not require X-rays. Per

plaintiff, Dr. Moore’s personal practice testimony would

not be used to establish the applicable standard of care.

The defendant argued that Dr. Moore’s personal practice

testimony could not be offered to either establish the

standard of care or impeach the credibility of his opinion

because Dr. Moore’s personal practice and standard of care

testimony were not in conflict.

The trial court agreed with the defendant and viewed Dr.

Moore’s testimony as indicating that the standard of care

required one thing and that he practiced “above what he

believes the standard of care to be.” For a conflict to exist

under these circumstances, the trial court believed Dr.

Moore needed to testify that the standard of care required

something be done (or not done) and that he practices in a

way contrary to that standard. In other words, the trial

court believed Dr. Moore testified that he practices above

the standard of care, not inapposite of that standard. The

jury later returned a verdict in the defendant’s favor, which

the plaintiff appealed.

Reverses the jury’s verdict and the Whitley Circuit Court’s

decision to exclude David Oaks’ cross-examination of an

adverse expert witness about the expert’s personal medical

practices. Finds Oaks did not waive his claim on appeal by

failing to object to Jury Instruction 15. Also finds Dr.

Moore’s expert testimony was not more prejudicial than

probative, and the trial court abused its discretion in

excluding it. Moreover, because Dr. Moore’s testimony

was the only expert testimony that Dr. Chamberlain had

met the standard of care, the exclusion of impeachment

evidence from cross-examination was not harmless error.

Remands for a new trial.

The court held that “the admission of an expert’s testimony

about his or her personal practices in medical malpractice

cases is permissible for the purpose of impeaching that

expert’s testimony about the standard of care.”

Specifically, there was a conflict between his personal

practice testimony and his standard of care testimony.

Thus, the trial court erred in excluding the personal practice

testimony for impeachment purposes.

Although the court determined that Dr. Moore’s personal

practice testimony was relevant and admissible because his

testimony conflicted, the court further held that, even if

there was no conflict and Dr. Moore testified that he would

go “above the standard of care,” this would also have been

relevant and admissible.

(The COA also rejected the defendant’s argument that Dr.

Moore’s personal practices testimony should be excluded

under Indiana Rule of Evidence 403 because its probative

value was substantially outweighed by its potential to

confuse the jury. The defendant argued that this may lead

to the jury believing the evidence was offered to establish

the standard of care and not just for impeachment. The

COA rejected this in light of the deference afforded to

jurors.)

Whitley Circuit Court,

No. 92C01-1303-CC-

112

The Honorable David J.

Avery, Special Judge

Henry,

Cline Farrell Christie &

Lee, P.C., Indianapolis,

Indiana.

Attorney for Amicus

Curiae Indiana Trial

Lawyers Association:

Jerry Garau,




Karl L. Mulvaney,

Nana Quay-Smith,

Jessica Whelan,

Bingham Greenebaum

Doll LLP, Indianapolis,

Indiana,

Mark W. Baeverstad,

Rothberg Logan &

Warsco LLP, Fort

Wayne, Indiana.

4/05/2017 Ford v. Indiana

Heart Hospital

2017 WL 1244996

Transfer denied,

7/13/2017

Darlene M. Welsh (“Welsh”) died while recovering from

open heart surgery at the Indiana Heart Hospital

(“Hospital”) in Indianapolis. Debra K. Ford (“Ford”),

Welsh’s daughter and personal rep. of her estate, sued the

Hospital for medical negligence. The Trial Court granted

summary judgment in the Hospital’s favor. Ford now

appeals, claiming her designation created a fact issue as to

the applicable standard of care and precluded judgment as a

Summary judgment reversed; Plaintiff’s nurse expert

affidavit as to standard of care created genuine issue of

material fact as to duty and breach

The court held that, “because the Dillow affidavit

sufficiently stated that the Hospital breached the standard

of care in Welsh’s case, it created a genuine issue of

material fact as to duty and breach, and the trial court’s

Mathias

Pyle (concurs)

Baker (dissents w/ sep.

op.)


No. 49D14-1510-CT-

037696


Cynthia S. Rose,

Arthur R. Baxter, Jr.,

Baxter James & Rose

LLP, Indianapolis,

Indiana


7

matter of law.

Welsh was an 82 year old woman. She received open heart

surgery at the Hospital to repair her mitral valve and to

bypass a blocked coronary artery. After repair and bypass

were completed, the surgeon, Dr. John Storey (“Storey”),

placed a single “pacing wire” in Welsh’s chest. Surgery

went well and Welsh was reported as recovering well. On

the 4th day after surgery, Welsh was scheduled to go home.

Lindsay Cool (“Cool”), a surgical nurse practitioner, had

been asked by the new doctor to remove (“pull”) the pacing

wire from Welsh’s chest. The doctor had planned to pull

the wire himself but forgot to do so on his rounds in the

morning. Generally, removal by a surgical nurse

practitioner was done by a few nurses at the Hospital when

doctors were not available, but they did not routinely do it.

The Hospital did not have a written policy or procedure for

nurses to do this removal nor did Cool follow any protocol

from the Hospital on the date of the incident. Cool and the

records report that the removal went well initially. About

ten minutes later, Welsh lost consciousness and “extensive”

emergency resuscitation was attempted. Surgery was

determined to be too dangerous. After about 50 minutes,

further resuscitative efforts were deemed futile and Welsh

was pronounced dead at 9:21a.m.

Ford brought suit, and filed a proposed complaint naming

the Hospital, Storey, and Cool as proposed defendants.

MRP issued its opinion stating the Defendants did not fail

to meet the standard of care. Ford filed her complaint in

Marion County Superior Court, naming only the Hospital

as defendant. Hospital moved for summary judgment,

designating the panel’s opinion. Ford designated excerpts

of the medical records, Storey’s and Cool’s deposition

testimony, and the affidavit of Amanda Dillow (“Dillow”),

a registered nurse and certified nurse legal consultant.

Dillow concluded that the Hospital did not meet the SOC.

On May 11, 2016, the court granted the Defendant’s motion

without entering its findings or conclusions. Ford timely

filed notice of appeal on June 9, 2016.

grant of summary judgment was inappropriate.”

The court concluded that a fair reading of the Dillow

affidavit reveals that Dillow first stated her experience

included “developing and educating nursing staff in the

care of patients with temporary ... pacemakers and pre-

operative and post-operative care according to policies and

procedures,” and that she was “familiar with the standard

of care for this procedure of removing temporary pacing

wires in post-operative open heart patients.” She then

stated the Hospital fell short of the standard of care in

Welsh's case. “Among other issues,” she then identified

two particular ways in which the Hospital did so: by

allowing Cool to pull Welsh's pacing wire unregulated by a

“hospital policy and procedure,” and by failing to establish

such a “policy and procedure” with respect to “removal of

temporary pacing wires” to begin with.

In sum, Dillow affirmed that, given her training and

experience as a registered nurse who educates other nurses

in the care of postoperative open heart surgery patients

according to protocol, and given her familiarity with the

standards for pacing wire removal, the Hospital fell short of

the standard of care when it allowed a nurse practitioner to

remove a pacing wire unregulated by written protocols, and

when the Hospital failed to establish such protocols at all.

“While the affidavit expressly stated only the minor

premise and the conclusion of the argument, the implied

major premise, that the standard of care requires regulation

by written protocols of pacing wire removal by nurse

practitioners, is only one reasonable inferential step away.

We believe this was sufficient to create a genuine fact issue

requiring resolution by the trier of fact.”

The court went on to further state that, “it is irrelevant to

the questions of duty and breach whether a Hospital

policy…would have caused Cool to proceed

differently…and whether that different procedure would

have prevented Welsh’s death.” “Those questions go to

causation, as to which the Hospital designated no evidence

below. It was therefore never Ford’s burden to designate

evidence on causation in rebuttal.” Judge Baker’s dissent

on this point rests on the assumption that, as a matter of

law, there is no factual situation in which Hospital policy

could have prevented Welsh’s death, so long as Cool met

the standard of care. The dissent believes the majority is

wrong to say the Hospital designated no evidence below

regarding causation because the unanimous un-rebutted

panel opinion is evidence that there is no causal link

between the lack of policy, the care provided, and Welsh’s

death. Thus, it was Ford’s burden to designate evidence

that there was a causal link. However, the majority writes

that this inference is reasonable, but an inference drawn in

the movant’s favor, and the movant has not shown this to

be true and did not argue the point in these terms. Thus, the

inference cannot afford the Hospital a basis for relief at the

summary judgment stage.

The Honorable James B.

Osborn, Judge

Robert G. Zeigler,

Marilyn A. Young,

Erin E. Bowles,

Zeigler Cohen & Koch,


8

3/16/2017 Admiral Insurance

Company v.

Banasiak

2017 WL 1024546

No transfer filed

In 2008, Admiral Insurance Co. issued a professional

liability policy to Dr. Habib T. Zadeh with an initial period

from Sept. 21, 2008 to Sept. 21, 2009 and a retroactive date

of Sept. 21, 2005. Zadeh elected to cancel the policy in

July 2009 and that same day purchased an Extended Claim

Reporting Period from July 2009 to July 2010.

Jennifer Muehlman filed a complaint against John Doe,

M.D., in October 2008, alleging that she sustained severe

and permanent injuries as a result of the defendant’s

negligence while she was treated for a fracture in her leg.

Zadeh was served with a summons and complaint in

Muehlman’s case, and he received a letter from the Indiana

Patients’ Compensation Fund informing him that his

insurance had lapsed.

The court entered default judgment against Zadeh in

October 2010, and one year later, Admiral was informed

that Muehlman was making a medical malpractice claim

against Zadeh. Scott Mansfield, Admiral’s claims

superintendent, informed Zadeh’s counsel in November

2011 that the insurer was denying the claim, noting

although Muehlman’s complaint was first made in October

2008, Admiral was not informed of it until the policy was

cancelled in July 2009. In response, another attorney

representing Zadeh, Joseph Stalmack, wrote to Mansfield

that under Indiana Code 34-18-13-4, the policy was still in

effect because no notice of cancellation had been received

by the insurance commissioner. Stalmack cited the

affidavit of Nancy Wilkins with the Department of

Insurance, who said it was the department’s policy to

forward copies of all letters to health care providers’

insurance company. Thus, Stalmack said it could be

presumed that the letter Zadeh received about Muehlman’s

claim was also sent to Admiral in October 2008.

In April 2014, Zadeh’s attorney, now acting as personal

representative of the Zadeh’s estate, filed for declaratory

judgment, listing Muehlman as a defendant and requesting

a declaration that Admiral was required to defend and

indemnify Zadeh against Muehlman’s claims. Admiral

moved for summary judgment, but the trial court denied

that motion and instead granted declaratory judgment,

finding “Admiral did not notify the DOI, and thus the

public, that a termination had been effectuated.”

Insurance company wasn’t required to cover late claim

Reverses trial court’s denial of Insurance company’s

(Admiral) motion for summary judgment and reverses trial

court’s entry of declaratory judgment in favor of the Estate.

Admiral was not required to defend Dr. Zadeh in the

medical malpractice case because the applicable insurance

policy had expired before the insurer received notice of the

claim. The first notification to Admiral of Muehlman’s

claim was in October 2011 by a letter sent by Dr. Zadeh’s

counsel, which was more than 2 years after the policy

expired on Sept. 21, 2009, and more than 1 year and 3

months after the expiration of the Extended Claim

Reporting Period on July 15, 2010. Thus, the notification

was late under the claims made Policy.

I.C. 34-18-13-4 did not apply to Dr. Zadeh’s situation

“given that the Policy was still in effect at the time of the

filing of Muehlman’s complaint and the Policy had not yet

been terminated by cancellation.” Specifically, the policy

period was from Sept. 21, 2008, to Sept. 21, 2009, with a

retroactive date of Sept. 21, 2005. “Thus, at the point at

which Muehlman filed her complaint against Dr. Zadeh on

October 6, 2008, the Policy was in effect.” “We also note

that the Policy terminated/expired by its own terms prior to

Admiral receiving notice of Muehlman’s claims.” “Under

these circumstances, we cannot say the I.C. 34-18-13-4

requires coverage of Muehlman’s claim.”

Brown

Vaidick (concurs)

Bradford (concurs)

Lake County Superior

Court, No. 45D04-1404-

PL-50

The Honorable Bruce D.

Parent, Judge


Scott B. Cockrum,

Hinshaw & Culbertson

LLP, Schereville,

Indiana.


Lloyd P. Mullen,

Mullen & Associates

PC, Crown Point,

Joseph Stalmack,

Joseph Stalmack &

Associates, P.C.,

Munster, Indiana.

2/22/2017 Llobet v. Gutierrez

2017 WL 695301

Transfer denied,

6/01/2017

Medical review panel found that Dr. Llobet did breach the

standard of care when he broke a stent in Juan Gutierrez’s

body during an angiogram, necessitating further operations.

During the panel process, Gutierrez alleged that Dr. Llobet

was negligent in his technical performance of the

angiogram.

Before the case went to the Lake Superior Court, Gutierrez

developed a second malpractice theory, this time alleging

that the angiogram was unnecessary, i.e. not “indicated.”

In response, Dr. Llobet turned over records from testing

that was performed the day before the angiogram, records

that he claimed would prove that the angiogram was

Theory presented to trial court in med-mal case was

presented to review panel, and trial court allowed

healthcare provider to present evidence related to a

subsequent malpractice theory against him.

COA held that, (1) patient’s allegation that angiogram was

unnecessary would not be stricken in malpractice action

since that claim was encompassed by patient’s proposed

complain, and (2) Ankle-brachial index (ABI) records

would not be barred in patient’s malpractice action because

doctor had reason for his delay in disclosing them during

discovery.

Vaidick

Bradford (concurs)

Brown (concurs)

Lake Superior Court,

No. 45D02-1307-CT-45.

The Honorable Calvin

Hawkins, Judge

Attorneys for

Appellant:

Michael E. O'Neill,

Nathan D. Hansen,

O'Neill McFadden &

Willett LLP,

Schererville, Indiana.


Barry D. Rooth,

Holly S.C. Wojcik,

Theodoros & Rooth PC,

Merrillville,

9

indicated. He also moved to strike Gutierrez’s “angiogram-

not-indicated” theory altogether, on the basis that Gutierrez

did not argue it to the MRP. Gutierrez countered with a

motion to bar Dr. Llobet from using the testing records,

noting that discovery had passed and the records had been

requested on multiple occasions. The trial court allowed

Gutierrez to proceed with the “non-indication theory,” but

prevented Dr. Llobet from entering his proposed records as

evidence.

Because Gutierrez’s “aniogram-not-indicated” theory was

encompassed by the proposed complaint he filed with the

Dept. of Insurance and is related to evidence that was

submitted to the medical review panel, the court affirmed

the denial of Dr. LLobet’s motion to strike. However, the

court also decided that, “because we conclude that Dr.

Llobet should be allowed to use the pre-angiogram testing

records to respond to the allegation that the angiogram was

not indicated, we reverse the trial court’s order barring that

evidence.”

(1) COA relied on the findings of McKeen v. Turner, 61

N.E.3d 1251, 1261 (Ind. Ct. App. 2016), which held that

the proposition in K.D. “was wrongly decided.” Thus,

because Llobet had premised his appellate argument on

K.D., the court rejected that argument under the new

premise of McKeen. Specifically, McKeen held that under

the case of Miller v. Memorial Hospital of South Bend,

Inc., 679 N.E.2d 1329, 1332 (Ind. 1997), a plaintiff can

raise a theory in court if it was encompassed by the

proposed complaint before the panel and if evidence related

to it was submitted to the panel.)

Dr. Llobet argued, in the alternative, that the “angiogram-

not-indicated” theory should be stricken even under

McKeen. While he acknowledged that the second prong of

McKeen was met, he argued that the theory was not

“encompassed” by Gutierrez’s proposed complaint. Dr.

Llobet focused on the fact that the pre-angiogram testing

took place on Sept. 24, while the proposed complaint only

addressed events on Sept. 26. Thus, he asserted that the

proposed complaint “did not provide notice that treatment

that occurred on Sept. 25, 2007 was at issue.” The court

responded by stating, “But the events of September 25 are

‘at issue’ only insofar as they related to Gutierrez’s

ultimate claim that Dr. Llobet performed an unnecessary

angiogram on September 26. Because that claim was

plainly encompassed by Gutierrez’s proposed complaint,

we affirm the trial court’s denial of Dr. Llobet’s motion to

strike.”

(2) As to the trial court’s decision to bar the Doctor’s ABI

records, the court stated, “the fact that tips the scale in

favor of Dr. Llobet” is that when K.D. was handed down in

July 2011, Llobet was operating under the assumption that

medical malpractice plaintiffs were limited to the theories

of malpractice that were specifically presented to the

medical review panel. Thus, the records likely never even

crossed his mind. “And even if they did, we would not

fault him for concluding that they were completely

irrelevant to this litigation. If he had any inkling that the

records were relevant, surely he would have produced

them, since they are favorable to him.” Thus, the COA

reversed the trial court’s decision to bar the ABI records.

David W. Westland,

Westland & Bennett

PC, Schererville,

Indiana.


Curiae, Defense Trial

Counsel of Indiana:


Wuertz Law Office,

LLC, Indianapolis,

Crystal G. Rowe,

Kightlinger & Gray,

LLP, New Albany,

Indiana.

Attorney for Amicus

Curiae, Indiana Trial


Jerry Garau,



10

2/22/2017 C.S. by Stevens v.

Aegis Women's

Healthcare, P.C.

2017 WL 695352

Transfer denied,

6/01/2017

Laura Stevens was a 40-year-old mother in her ninth month

of pregnancy when she reported that she could no longer

feel her baby moving. After visiting Aegis Women’s Health

and eventually being transferred to the IU Health

Bloomington Hospital, Stevens’ daughter, C.S., was

delivered via an emergency C-section with significant

health issues.

During the medical review panel process, the Stevens

alleged that Aegis “failed to adequately monitor Laura’s

pregnancy and C.S.’s condition” and “failed to provide

appropriate medical care.” Their narrative focused on

Stevens’ status as Rh-negative, and their submissions did

not include fetal heart rate monitoring strips created at the

hospital. The panel ultimately found that Aegis did not

breach the standard of care, and as they were preparing to

take their case to the Monroe Circuit Court, the Stevens

alleged that Aegis “failed to adequately monitor Laura’s

pregnancy and C.S.’s condition.” Aegis argued that such a

claim could not be presented to the trial court because the

medical review panel theory focused on Stevens’ Rh-

negative status, and the trial court judge agreed. Summary

judgment was ultimately entered in favor of Aegis.

Theory presented to trial court in med-mal case was

presented to review panel

“Because evidence relating to the ‘delayed-c-section’

theory was submitted to the medical review panel, and

because the proposed complaint encompassed that theory,

the Stevens’ are entitled to present it in court.” Therefore,

the COA reversed the trial court’s grant of summary

judgment in favor of Aegis.

Stevens’ specific theory of malpractice was that Aegis

waited too long to perform the c-section. The parties

agreed that this theory fell within the broad allegations in

the Stevens’ proposed complaint but disputed whether

there was evidence relating to the theory submitted to the

panel. Stated otherwise, the parties agreed element one of

McKeen was satisfied, but were in dispute as to element

two (“plaintiff can present any theory of malpractice that…

(2) is related to evidence that was submitted to the panel.”

McKeen, 61 N.E.3d 1251 (Ind. Ct. App. 2016), trans.

pending).

Specifically, Aegis asserted that “the Stevens family did

not provide evidence (tracings - from NST and fetal-heart-

rate monitoring) supporting their claim that C.S.’s delivery

was unduly delayed” to the MPR. However, the COA

stated that, “the panel had before it other significant

evidence that supports the [delayed-c-section] theory,

including records specifically addressing the NST and the

fetal-heart-rate monitoring.”

The court concluded that, although the fetal monitoring

strips and results from a related non-stress test were not

submitted to the panel, “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.” Thus, the court

overturned summary judgment in Aegis’ favor.

Vaidick

Bradford (concurs)

Brown (concurs)

Monroe Circuit Court,

No. 53C01-1506-CT-

1134.

The Honorable E.

Michael Hoff, Judge

Attorneys for

Appellants:

Christopher S. Roberge,

Elizabeth A. Roberge,

Alexandra N.

Gortchilova,

Roberge Law, Carmel,

Indiana.

Attorneys for

Appellees:

Stacy F. Thompson,

Adam R. Doerr,

Clendening Johnson &

Bohrer, P.C.,

Bloomington, Indiana.

Attorney for Amicus

Curiae, Indiana Trial


Jerry Garau,




Curiae, Defense Trial

Counsel of Indiana:


Wuertz Law Office,

LLC, Indianapolis,

Crystal G. Rowe,

Kightlinger & Gray,

LLP, New Albany,

Indiana.

2/07/2017 ABC Radiology v.

Gearhart

2017 WL 491763

Transfer denied,

5/18/2017

Kent Gearhart was diagnosed with renal cell cancer in

2009. Dr. Doe, the urologist associated with Anonymous

Medical Associates Inc., became his treating physician.

When a 2013 CT scan revealed a mass on Gearhart’s left

kidney, Dr. Doe and AMA failed to follow up or make

Gearhart aware of the results. One year later, after a visit to

another AMA nurse, a follow-up CT scan revealed that the

mass had grown and the cancer had spread. Gearhart’s

diagnosis was changed to terminal renal cell cancer, and he

died in January 2015.

Gearhart’s widow, Cathy Gearhart, filed a complaint for

damages with the Indiana Department of Insurance,

alleging malpractice on the part of Dr. Doe, an AMA nurse

practitioner, AMA and ABC Radiology, P.C. During his

Declaratory judgment, tort actions can arise from same

occurrence

The court held that declaratory judgment action arose out

of same transaction or occurrence as negligence claims,

allowing permissive joinder of defendant’s claims.

A declaratory judgment action can arise from the same

occurrence as an underlying tort action for purposes of

permissive joinder under Trial Rule 20. The COA pointed

to the case of Preferred Profs Ins. Co. v. West, 23 N.E.3d

716 (Ind. Ct. App. 2014), in which the court held that “it

would not be expeditious or efficient, judicially or

otherwise, for the Wests to wait for the conclusion of the

medical review panel process to determine if the Act

Altice

Riley (concurs)

Crone (concurs)


No. 49D07-1509-CT-

30343

The Honorable Michael

D. Keele, Judge

Attorneys for

Appellants:

Danny E. Glass,

Andrew E. Skinner,

Evansville, Indiana,

Clay A. Edwards,

Chad J. Bradford,

Louisville, Kentucky,

Lonnie D. Johnson,

Michelle R. Adams,

Stacy F. Thompson,

Bloomington, Indiana,

Rick L. Weil,


11

deposition, Dr. Doe testified that he did not follow-up on

the September 2013 radiology report because Sherry

Patrick, an administrative staff member, made a data entry

error when she received the report. So, the report was not

forwarded to him or put on his list of follow-up items as a

result of Patrick’s clerical error.

Cathy Gearhart filed a complaint for damages and

declaratory judgment in Marion Superior Court in 2015

alleging three counts. Counts I and II sought damages

resulting from the medical malpractice and common law

negligence of the defendants, while Count III sought

declaratory judgment against the Indiana Patients

Compensation Fund/Indiana Department of Insurance to

determine whether the data entry error was subject to the

Medical Malpractice Act. Defendants moved to either

dismiss the first two counts or sever them from Count III

and transfer them to Vanderburgh County, where the

alleged negligence took place. The Marion Superior Court

denied that motion, prompting the instant appeal.

applies.” The COA went on to note and conclude that,

“West highlights the importance of a preliminary

determination of the Act’s application to the underlying

claims of negligence.” “Accordingly, we hold that a

declaratory judgment action addressing the application of

the Act arises out the same transaction or occurrence (i.e.

the alleged negligent act(s)) as the tort claims.” “In other

words, the two are logically related and allowing

permissive joinder in this context effectuates T.R. 20’s

intended purpose of promoting trial convenience,

expediting claims, and avoiding multiple lawsuits.”

“Defendants have not established that the trial court abused

its discretion by finding that Counts I, II, and II were

properly joined. Thus, as the Fund is a necessary party to

Count III, Marion County is a county of preferred venue

for the entire action.”

Attorney for Appellee:

Nicholas C. Deets,


2/06/2017 Szamocki v.

Anonymous Doctor

and Anonymous

Group

2017 WL 475837

Transfer denied,

5/15/2017

Jessica Szamocki went to see A.D. (unnamed doctor) for an

initial appointment regarding “stomach issues.” In

November 2012, A.D. performed a colon exam and biopsy,

and prescribed Lialda (mesalamine) to Szamocki and

instructed her to take one tablet per day. A.D. failed to

warn her of the risks of taking that medication, including

the fact that the drug’s manufacturer recommended that a

patient’s renal function be evaluated prior to and while

taking the medication to avoid renal impairment. On

December 12, 2012, Szamocki had a follow-up

appointment with A.D., and instructed her to continue

taking Lialda.

In March 2013, Szamocki developed a rash on her arms and

began to notice symptoms of arthritis. She went to her

primary care physician, and the nurse noted concerns about

her “drastically reduced” renal function. She was referred

to Dr. Richard Hellman, a nephrologist, who informed

Szamocki that she was suffering from acute renal failure

possibly caused by Lialda. Other specialists also theorized

that the drug may have been causing her renal failure, so

Szamocki decided on her own to quit taking the drug in

May 2013. Szamocki began seeking clear evidence that the

drug was the cause of her renal failure because her family

was considering legal action. In February 2015, Dr.

Evamaria Anvari, a nephrologist at the Cleveland Clinic,

gave Szamocki a diagnosis that she believed confirmed that

“more likely than not,” there was a link between Lialda and

her renal failure.

Szamocki filed her medical malpractice complaint against

A.D. in February 2015, alleging that he negligently

prescribed the drug and failed to monitor her renal function

while she was taking the drug. A.D. moved for summary

judgment, asserting that the statute of limitations prevented

Szamocki from bringing the complaint. The trial court

granted summary judgment to A.D. and the doctor’s motion

Malpractice claim barred by statute of limitations

COA rejected malpractice claim after holding that the

claim was barred by a two-year statute of limitations. COA

held that: (1) assuming gastroenterologist had duty to

monitor renal function, patient could not demonstrate that

such failure was of continuous nature, and thus doctrine of

continuing wrong was inapplicable to toll two-year statute

of limitations, and (2) patient possessed enough

information that should have led to discovery of alleged

malpractice, on dates when she was expressly told that

there was reasonable possibility that mesalamine may have

been cause of her renal failure, and, because such dates

were within two years of the alleged malpractice, she was

required to initiate her lawsuit within two years of the

alleged malpractice in order to avoid two-year statute of

limitations.

Specifically, the court stated:

(1) The doctrine of continuing wrong was inapplicable to

toll the statute of limitations beyond the date of the last

physician-patient encounter. COA rejected both of

plaintiff’s arguments because Szamocki’s last encounter

with A.D. was in December 2012, that was “the last

opportunity he would have had to monitor (or fail to

monitor) Szamocki’s renal function while she was taking

Lialda (mesalamine).” Thus, any alleged omission of

nonfeasance on A.D.’s part could not have extended past

December 2012.

(2) Patient discovered the alleged malpractice and resulting

injury well within the two-year statute of limitations, and

there was no evidence that it was not reasonably possible

for her to timely file her claim. Other doctors informed

Szamocki in 2013 and 2014 that the prescription drug was

the possible cause of her renal failure. “On those dates,

Szamocki possessed enough information that, in the

exercise of reasonable diligence, should have led to the

Crone

Kirsch (concurs)

May (concurs)


No. 49D12-1505-PL-

17261

The Honorable Patrick J.

Dietrick, Judge

Attorneys for

Appellant:

David J. Cutshaw,

Kelley J. Johnson,

Gabriel A. Hawkins,

Cohen & Malad, LLP,



Brett T. Clayton,

Kelly H. Eddy,

Eichhorn & Eichhorn,

LLP, Indianapolis,

Indiana.

12

to strike, prompting Szamocki to appeal. Specifically,

Szamocki argued that the statute was tolled until May 2,

2013 under the doctrine of continuing wrong and that her

complaint was filed within a reasonable time after she

exercised “reasonable diligence” to discover the

malpractice.

discovery of the alleged malpractice.” “The record simply

does not support Szamocki’s contrary assertions.”

1/19/2017 Dermatology

Associates, P.C. v.

White

2017 WL 218146

No transfer filed

On Sept. 7, 2012, Elizabeth White visited Dr. Sonya

Campbell Johnson at Dermatology Associates P.C. for a

laser hair removal procedure on her face. Due to a reaction

between makeup White was wearing and the treatment, part

of White’s face was burned and became discolored. The

discoloration eventually improved but did not completely

go away. White filed a complaint for medical negligence

and sought no more than $15,000 in damages.

In October 2014, Johnson and Dermatology Associates

moved for summary judgment while White moved to

dismiss her complaint without prejudice because she had

“learned during the pendency of her action that her bodily

injury is more serious than previously believed…and

therefore believed that ($15,000) will be insufficient

compensation for her bodily injury.” The trial court

granted White’s motion and she subsequently filed a

complaint with the Indiana Department of Insurance in

November 2014 that was identical to her previous

complaint minus the limited damages declaration. The

providers then filed for preliminary determination and

again moved for summary judgment, alleging that White’s

complaint before the Department of Insurance was

untimely. The trial court denied that motion, so

Dermatology Associates appealed.

Statute of limitations bars medical negligence claim

COA held as a matter of first impression, in order to take

advantage of 180-day extension of the statute of

limitations, patient was required to assert that she had

learned that her bodily injury was more serious than

previously believed. The court concluded that, the

Providers were entitled to judgment as a matter of law on

their motion for summary judgment alleging White's

proposed complaint was filed with the Department of

Insurance outside the applicable statute of limitations.

Thus, the trial court's denial of the motion was reversed.

Normally a patient must file a medical negligence claim

with a medical review panel through the Indiana

Department of Insurance within two years of the incident.

An exception to that rule can be made when a case is begun

in court for damages not exceeding $15,000, then

dismissed without prejudice and filed with the review panel

without a damages limit if the bodily injury is worse than

previously thought. If that situation occurs and the moving

party then begins a second action following the medical

review panel proceedings, an additional 180 days may be

added to the two-year statute of limitations. Under those

circumstances, White’s complaint with the Department of

Insurance, which fell outside of the two-year window,

could continue through the 180-day extension.

White argued that because Indiana Code allows her to

dismiss her complaint and file it with the Department of

Insurance without imposing a specific cut-off period, she

does not need the 180-day extension. But the majority of

the panel found that if a complaint is voluntarily dismissed,

it is treated as if it never existed and, thus, cannot toll the

two-year statute of limitations. Her current action is

considered filed on Nov. 18, 2014 (when she filed her

proposed complaint with Dept. of Insurance). “In absence

of some mechanism for extending the statute of limitations

past Sept. 7, 2014, White’s action is time-barred, as it was

filed more than two years after the alleged malpractice.”

COA stated that the legislature provided such a

mechanism, which allows a patient to file a new action “if

she learns … that her bodily injury is more serious than

previously believed.” However, White failed to prove that

she “later learned” that her bodily injury was worse than

she thought because “she has not alleged she learned

anything new or different about her injury after filing her

original complaint.” Thus, she cannot trigger the 180-day

extension using that argument.

Robb

Brown (concurs)

Mathias (dissents)


No. 49D10-1506-PL-

18385

The Honorable David J.

Dreyer, Judge

Attorneys for

Appellants:

Chad J. Bradford,

O'Bryan, Brown and

Toner, PLLC,


Karl L. Mulvaney,

Jessica Whelan,

Bingham Greenebaum

Doll LLP, Indianapolis,

Indiana

Attorney for Appellee

Gerald B. Coleman,

Coleman Stevenson,

LLP, Indianapolis,

Indiana

13

Judge Mathias, writing in a separate dissenting opinion,

argued that, White did establish that she later learned that

her injury was more serious through her own personal

experience and, thus, was entitled to the 180-day extension.

“Under the facts and circumstances before us, I think a

woman’s ultimate decision that a lifetime of facial

disfiguration was worth more than $15,000 is something

she could, and here did, ‘learn’ from looking into the

mirror every day, trying without success to use make-up to

make the scarring less noticeable.”

Other Cases:

4/07/2017

(COA op.

issued on

12/30/2016)

Ricardo S. Trevino

v. Comprehensive

Care, Inc. (mem.

dec.)

2017 WL 1333550

Transfer denied,

4/07/2017

Ind. Supreme Court deny transfer

Affirms the Lake Superior Court’s grant of a motion to

dismiss filed by Comprehensive Care Inc. in a

negligence action filed by Ricardo S. Trevino. Finds the

acts alleged in Trevino’s complaint fall within the scope

of the Indiana Medical Malpractice Act.

COA held that there was a causal connection between the

conduct of which Trevino complained and the nature of the

patient healthcare provider relationship. Therefore, Trevino's

complaint falls within the scope of the Medical Malpractice

Act. Because Trevino did not submit his claim to a medical

review panel, the trial court was without jurisdiction to hear

Trevino's claim. We accordingly affirm the order of the trial

court granting CCI's motion to dismiss for lack of subject

matter jurisdiction. Affirmed.

2/16/2017

(COA op.

issued on

11/07/2016)

Roberston v.

Anonymous Clinic

2017 WL 678521

Transfer denied,

2/16/2017

Ind. Supreme Court deny transfer in suit stemming

from meningitis outbreak

Ind. Supreme Court declined to take case on transfer.

COA’s ruling will stand.

COA’s decision held that health care providers, who injected

the injured parties with a contaminated steroid that contributed

to a widespread fungal meningitis outbreak, killing 12, could

be found negligent under the Indiana Medical Malpractice Act.

5/30/2017 Charles Aillones v.

Glen D. Minton

2017 WL 2333706

No transfer filed

NOTE: This case is NOT a medical malpractice claim,

but is a simple tort claim; “at issue here is not whether a

medical provider caused a patient’s injuries, but whether

a plaintiff’s injuries were caused by an automobile

accident.” However, COA opinion relies on and

includes an extensive discussion on med mal case law

regarding non-physician expert testimony on causation

(Curtis v. Miller’s, Bennett v. Richmond, Nasser v. St.

Vincent, Long v. Methodist, and Clarian v. Wagler). See

above, Totton v. Bukofchan.

Charles Aillones filed a negligence claim against Glen

Minton, alleging that Aillones was injured during an

automobile accident that was Minton’s fault. Aillones

was treated by a nurse practitioner, and during

deposition, Minton’s counsel objected to testimony by

the nurse regarding whether Aillones’s injuries were

caused by the accident. The trial court denied the

motion to qualify, but certified the order for

interlocutory appeal.

Trial court here based its decision on the opinion in

COA allows nurse practitioner to testify as expert

“We therefore conclude that Swartz has sufficient knowledge,

skill, experience, training, or education to testify as an expert

witness.” “However, Swartz may not testify that Aillones's

injuries were caused by the accident, as Swartz was not a

witness to the accident. Importantly, this is not a medical

malpractice case regarding a medical provider's conduct.

Instead, it is a simple tort claim. Accordingly, we hold that

although Swartz may not testify that Aillones's injuries were

proximately caused by the accident, he may testify whether, in

his expert opinion, Aillones's injuries were consistent with

injuries from an automobile accident. Although this may seem

a fine line to draw, it is up to Aillones's counsel to persuade the

jury that the injuries that Swartz testified are consistent with an

accident were actually caused by the accident.”

14

Nasser v. St. Vincent Hosp. & Health Services, 926

N.E.2d 43 (Ind. Ct. App. 2010).

Full citations:

Charles McKeen, M.D. v. Billy Turner

McKeen v. Turner, 71 N.E.3d 833 (Ind. 2017)

McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016), transfer granted, opinion vacated, 2017 WL 1348010 (Ind. Apr. 7, 2017), and opinion

adopted, 71 N.E.3d 833 (Ind. 2017)

Paul Gresk, Trustee for the Bankruptcy Estate of Derek VanWinkle and Stacey VanWinkle on behalf of M.V. and A.V. their minor children v.

Cortney Demetris, M.D., et al.

Gresk Estate of VanWinkle v. Demetris, No. 49A02-1610-MI-2287, 2017 WL 3096241 (Ind. Ct. App. July 21, 2017)

Craig Totton v. Daniel P. Bukofchan, D.C., and Franklin County Chiropractic Clinic

Totton v. Bukofchan, No. 24A01-1612-CT-2849, 2017 WL 2569798 (Ind. Ct. App. June 14, 2017)

Josephina Augila on behalf of Pedro Aguila, et al. v. Anonymous Physicians 1 & 2, et al.

Aguila on behalf of Aguila v. Anonymous Physicians 1 & 2, No. 45A03-1609-CT-2069, 2017 WL 2266884 (Ind. Ct. App. May 24, 2017)

Steven J. Svabek, D.O., et al. v. Lancet Indemnity Risk Retention Group, Inc.

Svabek v. Lancet Indemnity Risk Retention Group, Inc., No. 41A05-1610-PL-2271, 2017 WL 1955048 (Ind. Ct. App. May 11, 2017) (mem. dec.)

David Oaks v. Timothy R. Chamberlain, M.D.

Oaks v. Chamberlain, 76 N.E.3d 941 (Ind. Ct. App. 2017)

Debra K. Ford, Personal Representative of the Estate of Darlene M. Welsh v. Indiana Heart Hospital

Ford v. Indiana Heart Hospital, No. 49A04-1606-CT-1334, 2017 WL 1244996 (Ind. Ct. App. Apr. 5, 2017), transfer denied, 2017 WL 3034656

(Ind. July 13, 2017)

Admiral Insurance Company v. Joseph Banasiak, et al.

Admiral Insurance Company v. Banasiak, 72 N.E.3d 491 (Ind. Ct. App. 2017)

Pastor Llobet, M.D. v. Juan Gutierrez

Llobet v. Gutierrez, 71 N.E.3d 54 (Ind. Ct. App. 2017), transfer denied, 2017 WL 2455711 (Ind. June 1, 2017)

15

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

Rhonda S. Trippel, M.D., and Lillette (Alice B.) Wood, M.D.

C.S. by Stevens v. Aegis Women’s Healthcare, P.C., 70 N.E.3d 459 (Ind. Ct. App. 2017), transfer denied sub nom. C.S. v. Aegis Women's

Healthcare, P.C., 2017 WL 2455742 (Ind. June 1, 2017)

ABC Radiology, P.C., Jane Doe, John Doe, Anonymous Medical Associates, Inc., Sherry Patrick v. Cathy Gearhart

ABC Radiology, P.C. v. Gearhart, 69 N.E.3d 545 (Ind. Ct. App. 2017), transfer denied, 2017 WL 2257559 (Ind. May 18, 2017)

Jessica Szamocki v. Anonymous Doctor and Anonymous Group, and Stephen Robertson, Commissioner, Indiana Department of Insurance

Szamocki v. Anonymous Doctor & Anonymous Grp.

Szamocki v. Anonymous Doctor and Anonymous Group, 70 N.E.3d 419 (Ind. Ct. App. 2017), transfer denied sub nom. Szamocki v. Anonymous

Doctor, 2017 WL 2257448 (Ind. May 15, 2017)

Dermatology Associates, P.C. and Sonya Campbell Johnson, M.D. v. Elizabeth C. White v. Commissioner of Indiana Department of Insurance, and

Douglas J. Hill, Esq., Medical Review Panel Chair

Dermatology Assocs., P.C. v. White, 67 N.E.3d 1173 (Ind. Ct. App. 2017)

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