Monday, December 10, 2018

The Indiana Court of Appeals affirmed a trial court’s decision to deny a motion to strike expert witness testimony in a case where a man wanted to present evidence to prove medical malpractice against his deceased wife’s former doctor.

In 1998, the man’s wife was diagnosed with a bone marrow cancer.  The woman became at risk for blood clots.  In early 2008, malignant tumors were found in her colon, after which a surgery was performed to remove part of the woman’s colon in May that year.

After a drop in blood pressure and a heart rate increase in 2008, lab tests and a surgery of her abdomen showed that part of her bowel was dead.  Blood clots had been obstructing blood flow to the bowel. The woman died a week later in spite of further treatment from the doctor.

The man filed a medical malpractice complaint against the doctor in January 2010, alleging that the medical treatment the doctor provided to the wife was negligent.  Negligence requires proving duty, breach, causation, damages.  The man claimed the doctor’s conduct was below the professional standard of care, and that his wife’s death was a proximate result of the doctor’s breach.  Proximate cause means the injury being foreseeable from the breach, and there not being any superseding causes to cut off the defendant’s liability.

In February 2014, the man filed a supplemental expert witness designation, which disclosed anticipated testimony from an expert hematologist.  The expert witness was expected to testify that the blood thinners the doctor gave the wife were inadequate.  The doctor moved to strike the expert witness’ opinions.  The trial court denied the motion to strike in September 2015.

The doctor appealed, arguing that since the man did not present evidence regarding the blood thinners to a medical review board, the man could not raise the issue in court.

The Indiana Court of Appeals wrote that there are two requirements plaintiffs must meet to raise new breaches of the standard of care after a panel review has concluded:  1. the complaint must include the theories raised at the trial, and 2.  “evidence” related to the theories must be presented to the panel.

The man had given the panel his wife’s full medical records.  The man’s court complaint met both the two requirements.  The Indiana Court of Appeals explained that the Indiana Medical Malpractice Act does not require that submissions to the medical review board panel to contain specifications of the breaches of standards of care, and does not designate the narrative statements provided to the panel as “evidence.”  The Court of Appeals remanded the case.

 

Read the article here