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Malpractice Suit Denied because Expert Fails to Provide What the Standard of Care Is

By Jack H. FarnbauchMarch 23, 2019

Marigold and her husband Earl Overshiner were actively cared for by Dr. Ian Johnston, an obststrician, at Hendricks Regional Hospital in March 2004 through the delivery of their baby on October 26, 2004. Within 24 hours of the baby’s (Kaitlyn) birth, blood tests revealed that Kaitlyn was RH positive, which was indicative of a hemolytic disease (Rh). Neither Dr. Johnson nor any staff at Hendricks Regional Hospital recognized any of the typical warning signs, either before the birth or during. 

In Septmeber 2006, the Overshiners filed a complaint for damages against Hendricks Regional Hospital and Dr.Johnston for failing to properly treat their daughter’s Rh disease at birth, causing her to suffer hyperbilirubinemia and other medical conditions and physical injuries, including blindness. The case made it to trial in Putnam Circuit Court, and the plaintiffs relied on testimony from their expert, Robert Shuman, a retired neuropathologist.

After the Overshiners rested their case, attorneys representing Hendricks Regional and Johnston moved for a directed verdict, arguing, in part, that Shuman did not articulate that he was familiar with the standard of care. The trial court granted the providers’ motion, finding the Overshiner’s expert, Shuman, never described the standard of care in Indiana. The Overshiners appealed to the Indiana Court of Appeals.

Before the Court of Appeals, the plaintiffs argued medical experts are not required to testify that they are familiar with the standard of care. Moreover, the Overshiners continued, Shuman testified multiple times as to what the standard of care was, that it was violated and that their daughter was damaged as a result.

Hendricks Regional countered that in four days of testimony, Shuman testified to his personal preferences and what he thought the treatment should have been. However, that “does not equate to evidence that he was familiar with the standard of care, as to what the standard of care was, or that the standard of care was breached.”  Johnston further argued Shuman’s training and experience in pediatric neurology and neuropathology did not qualify him to offer opinions in the specialty of obstetrics.

The Court of Appeals turned to Lusk v. Swanson, 753 N.E. 2d 748, 754 (Ind. Ct. App. 2001), which found it is not reasonable to conclude that a specialist in one medical area would be familiar with the standard of care in another.  

“Here, we find on the fact presented to the trial court that the Overshiners did not provide testimony that allowed the trier of fact to apply the appropriate standard of care,” Judge Elaine Brown wrote for the court. “…Our review of the record and Dr. Shuman’s testimony makes clear that any inference intended to be proven by the evidence, as pointed to by the Overshiners, cannot logically be drawn without undue speculation as to the applicable standard of care.”

You can read more here.