Court clarifies ruling on medical review panel process

The Indiana Court of Appeals has clarified one of its earlier rulings about when nurses can participate in medical malpractice actions and what evidentiary rules allow in the review panel process if the chairperson reneges on an agreement that a particular individual wouldn’t participate.

In Doe Corp., an Anonymous Health Care Provider, v. Lolita C. Honore , No. 49A05-1007-MI-408, the appellate court revisited and clarified its ruling issued April 27.

The case involves a woman residing at an unnamed Hamilton County health care facility from December 2002 until her death in April 2004. Her estate filed a complaint with the Indiana Department of Insurance alleging a breach in the reasonable standard of medical and nursing care while the woman was there, and in 2007 that case went before a Medical Review Panel as outlined in the Medical Malpractice Act.

One member of that review panel was a nurse, and the panel chair agreed that the nurse wouldn’t be able to offer any medical causation opinions reserved by law for physicians. But the chairman went against that agreement in 2009 and included the nurse in a written opinion about causation. That opinion found Doe Corp. failed to meet the reasonable standard of care.

Doe asked the trial court to make a preliminary determination of law regarding the validity of the review panel’s decision, which included the nurse member despite the chair’s previous agreement based on statute. The trial court dismissed Doe’s motion on the grounds it lacked subject matter jurisdiction, because a similar action was pending in another state court. Doe appealed.

The Court of Appeals in April determined the trial court did have subject matter jurisdiction on the issue of enforcing the requirement that the review panel chair carry out his statutory duties, and the appellate panel determined the trial judge had erred by dismissing the motion for PDL on Trial Rule 12(B)(8) grounds.

In this rehearing ruling, the appellate court allowed the Indiana Trial Lawyers Association to participate and revisited the case for the limited purpose of clarifying its holding about the role of the Rules of Evidence in the Medical Review Panel process.

Registered nurses or licensed practical nurses are included within the statutory definition of health care providers under the MMA able to be chosen as members of any medical review panel, the appellate court said.

“To be clear, no case has limited a nurse’s right to opine on the issue of causation as an MRP member,” Judge Ezra Friedlander wrote. “Rather, the limitation has been placed upon the nurse’s ability to testify at the summary judgment stage or trial. That limitation on the nurse’s testimony regarding causation comes from Evidentiary Rule 702 because of the ‘significant difference in the education, training, and authority to diagnose and treat diseases between physicians and nurses.’”

The appeals court noted, “the portion of our statement for ‘allowing the nurse to opine on causation’ should have been further qualified by the phrase ‘in contravention of the parties’ agreement and the MRP Chair’s representations to them in that regard.’”

The parties and the chair had agreed not to include the nurse member in the written opinion regarding causation, the appeals court wrote. But to Doe’s surprise, that didn’t happen.

“Absent statutory authority for judicial enforcement of such agreements, there are nonetheless due process concerns that may warrant a sanction under I.C. 34-18-10-23 for the MRP Chair’s failure to abide by the agreement,” the appeals court wrote. “We believe that the trial court should be afforded the opportunity to consider the issue of whether a sanction is warranted here for the MRP Chair’s failure to abide by the parties’ agreement and remand for a determination of that issue.”