Indiana court: New claims can't be added to lawsuits after review

Judges rule that the state's medical review panel must receive all possible claims before cases go to court, protecting doctors from endless litigation.

By — Posted Aug. 15, 2011

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A patient cannot add new claims against an Indiana hospital and its staff after a medical review panel has issued an opinion in the case, the Court of Appeals of Indiana has ruled.

The ruling protects health professionals in the state from endless claims once a case goes to court, said Robert Weddle, an attorney for Indianapolis-based Riley Children's Hospital, one of the defendants.

"The whole purpose of the panel is that they're supposed to screen all medical malpractice claims," he said. "Here, we had a very different claim that was never mentioned until two weeks before trial."

The ruling stems from a complaint by Michelle Campbell against hospital staff members, including two physicians and a nurse. Campbell claimed that her son, then 2, was given an intravenous overdose of Benadryl during an emergency department visit. The mother brought the toddler to the hospital in 1995 after a minor head injury, according to court documents.

The complaint went before a medical review panel in 2004. As part of the state's Medical Malpractice Act, plaintiffs must submit facts and evidence of alleged negligence to a panel of independent experts before filing a lawsuit.

The panel's opinion does not bar the plaintiff from filing a lawsuit. However, a favorable opinion for a defendant frequently dissuades plaintiffs from filing lawsuits, Weddle said. The panel's decision can be used as expert testimony by both sides in court.

In the Campbell case, the panel concluded that the hospital and nurse failed to comply with the appropriate standard of care, court records show. The two physicians and other hematology staff did not breach the standard of care, the panel found.

Campbell sued the hospital in 2007 in Marion County Superior Court. Before the trial, she outlined three more claims of alleged breaches in the standard of care, including allegations of additional medication errors.

Attorneys for the hospital said the claims should be thrown out because they never went before the review panel. Campbell said the subsequent claims were within the scope of the panel's initial review.

Indiana law does not require plaintiffs to "fully explicate and provide the particulars or legal contentions" of each claim, Campbell argued in court documents. A trial court agreed with the hospital, excluding the claims. Campbell appealed.

But in its July 13 opinion, the appeals court said Campbell did not follow the malpractice act's requirements.

"The question of whether defendants breached the standard of care must be presented to the medical review panel and answered based on the evidence submitted to it. 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," the court said.

The court denied two of Campbell's additional claims. A third claim was allowed because the issue was within the scope of the panel's previous review, the court said.

Heading to high court?

Attorneys for Campbell are asking the Indiana Supreme Court to review the decision, said Tina Bell, an attorney for Campbell. She declined to comment on the ruling.

Weddle was pleased with the decision, saying a ruling for the plaintiff would have been "disastrous" to doctors and other health professionals. The decision could have sparked a flurry of claims once cases reach the courts after a medical panel review, he said.

Some plaintiff attorneys, however, are unhappy with the ruling, saying it changes the way lawyers must present their cases. In a July 29 posting on the "Indiana Lawyer Medical Malpractice Blog," Indiana law firm Garau Germano Hanley & Pennington wrote: The Campbell decision "places the burden on lay attorneys and their clients to tell the panel what breaches of the standard of care arise from the facts of the case, rather than rely on the panel to tell them where the breaches are ... In order to avoid the risk of waiving a claim of negligence, lawyers for the patients will now be forced to conduct full discovery at the panel process stage."

The Indiana State Medical Assn. is not involved with the case and had no comment on the ruling.

ISMA General Counsel Julie Reed said the Medical Malpractice Act, which has been in place since 1975, is one of the oldest tort reform packages in the country. The act helped relieve a significant medical liability crisis in the state, she said.

"We know it's created great stability in Indiana and made Indiana a more desirable place to practice," she said. Having cases go before a medical review panel is beneficial for plaintiffs and defendants, she added.

The panel has "demonstrated over the years, it serves a strong purpose," she said. "It's really intended to create a free review process for the plaintiff [and] help parties determine whether they have a strong case."

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