Recent medical malpractice opinion causes some lawyers concern

Attorneys have asked the Indiana Supreme Court to weigh in on a recent ruling that has left some people wondering about the future of medical malpractice law. At issue in K.D. and Michelle Campbell, et al. v. Adrianne Chambers, R.N., et al., No. 49A04-1010-CT-636, is a fundamental question about the purpose of the state medical review panel, and what information must be presented to the panel for review.

The case began in 1995 when Michelle Campbell took her then 2-year-old son to Riley Hospital for Children after he suffered a bump on the head. Campbell witnessed nurse Adrianne Chambers administer 125 milligrams of Benadryl to the boy – 10 times the amount he should have received.

In 1997, Campbell filed a two-count complaint with the Indiana Department of Insurance. She alleged, among other claims, that K.D. suffered from overdoses of Benadryl and other medications while in the hospital’s care. Since then, Campbell claims, her son has suffered from tremors.

In 2010, less than a month before the trial was to begin, plaintiffs for Campbell raised two claims: that Campbell suffered negligent infliction of emotional distress, and that the hospital improperly administered other medications to K.D. Regardless of whether those accusations were included in Campbell’s initial report to the department of insurance, the Marion Superior Court ruled that because those claims had not been submitted to Indiana’s medical review panel, they could not be introduced at trial. On July 13, 2011, the Indiana Court of Appeals affirmed the trial court.

Campbell’s lawyers filed a petition to transfer last month. Some attorneys now say that if the Indiana Supreme Court denies transfer – or if it affirms the appeals court’s decision – plaintiffs in medical malpractice cases will encounter barriers to justice.

The panel’s purview

Nicholas Deets, an attorney with Hovde Dassow & Deets, said he believes the appeals court ruling is counter to the purpose of the medical review panel. The panel, comprised of three doctors and one lawyer, vets potential malpractice cases to ensure a legitimate claim exists. He said attorneys rely on the panel’s analysis to help them determine where malpractice occurred.
 

Deets

“We’ve had cases we presented to the medical review panel where we thought: This is where the malpractice occurred, but they found it occurred on a different basis,” he said. “I just had a case where that happened – where the panel found for me issues that I hadn’t proffered.”

Scott Kyrouac, of the Terre Haute firm Wilkinson Goeller Modesitt Wilkinson & Drummy, said the purpose of the medical review panel is to review potential malpractice cases and provide an honest opinion about whether malpractice may exist. Kyrouac, who is also president of the Defense Trial Council of Indiana, said that while DTCI has taken no official position in the Campbell case, his personal opinion is that attorneys won’t always be able to present all issues to the medical review panel.

Kyrouac

“Typically, both plaintiffs and defendants do an excellent job of identifying issues and presenting the material to the panel,” he said. “Invariably, however, lawyers sometimes miss the critical medical issues because we are doctors of jurisprudence, not doctors of medicine.”

Different interpretations

In the recent appeal in Campbell, the plaintiffs’ attorneys cited in support of their argument Miller v. Mem’l Hosp. of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997). They say that according to the Indiana Supreme Court opinion in Miller, a plaintiff is not limited at trial to presenting only those issues submitted to the medical review panel.

Jerry Garau, of Garau Germano Hanley & Pennington, filed an amicus brief in Campbell on behalf of the Indiana Trial Lawyer Association. In his brief, Garau cites language from the Miller opinion, which states: “We decline to accept Memorial Hospital’s argument that the plaintiffs’ action is restricted by the substance of the submissions presented to the medical review panel … While a medical malpractice plaintiff must, as a prerequisite to filing suit, present the proposed complaint for review and expert opinion by a medical review panel, there is no requirement for such plaintiff to fully explicate and provide the particulars or legal contentions regarding the claim.”

Plaintiffs’ attorneys say that language leaves little room for interpretation. Yet, citing the same case, the appeals court reached a different opinion in Campbell.

The appeals court said that the Miller opinion does not apply in Campbell, because in Miller the fundamental question was whether the plaintiff’s complaint sufficiently outlined two separate injuries so as to avoid limitations on recovery outlined in the Medical Malpractice Act. The COA held in Campbell, “…we do not interpret the above language so broadly 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.”

The appeals court also wrote that: “It logically follows 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.”

To lawyers like Deets, that language sends a confusing message. He said that after the medical review panel has found a malpractice claim is warranted, it is not uncommon for further evidence of malpractice to be revealed through deposition or expert testimony.

Deets said he understands that one point of the medical review panel is to ensure plaintiffs don’t “ambush” the defense at trial with surprising new allegations, but that trial rules guard against those types of scenarios. In the COA opinion, the court stated that Campbell’s allegations: “…were not per se insufficient, under notice pleading, to give defendants notice of claimed breaches of the standard of care other than the overdose of Benadryl,” but that those claims had not been submitted to the medical review panel.

In his brief, Garau wrote that if the COA opinion stands, the medical review panel’s function will be akin to a “full-blown trial,” which, he explained, is inconsistent with the intent of the Medical Malpractice Act.

Kyrouac said he thinks the Supreme Court’s decision in Miller is good guidance for medical malpractice cases and that if the ruling in Campbell contradicts that opinion, it may best to let the Supreme Court decide this case.

Experts and defense

Deets said he wonders – if the Supreme Court denies transfer in Campbell – what the implications might be for defense attorneys.

“You would think if it applied to one party, it would have to apply to both parties,” Deets said.

Steven Lammers, of Krieg DeVault’s Schererville office, said that he sees no indication in the COA opinion that defense attorneys would have to present to the medical review panel every possible defense. He said the defense should be able to present at trial all possible defenses, so long as they are related to the plaintiff’s claims.

James Hough, of Spangler Jennings & Dougherty in Merrillville, said defendants are under no burden to prove their innocence, and therefore should not have to provide to the medical review panel specific defenses – with one exception.

Hough

Hough said that “affirmative defenses” do require the defendant to provide specific proof. In medical malpractice, contributory negligence is one of those claims. If a defendant can prove that that the plaintiff’s negligence was a factor contributing to the injury, then the plaintiff is not entitled to recovery under the Medical Malpractice Act.

“I could envision a scenario where a court could apply (Campbell) to bar any defense on which the defendant bears the burden of proof if it is not presented to a medical review panel,” Hough said. “One problem with this is that the medical review panel is not given the authority to decide whether the plaintiff was negligent or not. There is no opinion that the panel is allowed to issue which takes the plaintiff’s negligence into account. What, then, would be the point of arguing contributory negligence to the medical review panel?”

Lawyers on both sides see a potential time-consuming, expensive complication, based on the Campbell decision. Neither prosecutors nor defenders typically enlist the help of experts unless they are certain the case is proceeding to trial. But if attorneys must present to the medical review panel every conceivable allegation of malpractice, they may be unable to do so without expert analysis.

“It is one thing to require a plaintiff who has brought a lawsuit to have a sound basis before going forward. This is as it should be,” Hough said. “It is quite another thing to require a defendant who, under the law has no burden to disprove the plaintiff’s accusations, to endure the expense of developing every possible avenue of defense before a medical review panel has even decided whether the plaintiff’s case has any basis whatsoever. This kind of burden is exactly what the General Assembly was trying to avoid when it passed the Medical Malpractice Act in an effort to limit meritless litigation while providing a means for the compensation of patients who were really injured due to negligence.” 

The Indiana State Medical Association – in explaining the state’s Medical Malpractice Act – writes about the panel: “After the panel has issued its report, the patient can choose whether to proceed to court. The panel’s report is admissible, but not conclusive, and the panel members can be called as experts.”

Julie Reed, ISMA legal counsel, said the ISMA had no comment on the case.•