Fort Wayne Indiana Personal Injury Lawyer and Attorney Blog

Court Considers Whether They Can Admit Claims Not Brought Before Medical Review Panel

By Jack H. FarnbauchFebruary 27, 2017

Before getting in front of a judge or jury in a medical malpractice claim in Indiana a plaintiff must submit all of their materials to a medical review panel comprised of 3 doctors. When a medical review panel issues an opinion on a medical malpractice claim, established case law has dictated that the parties in the case cannot present new legal theories or evidence to a trial court that were not considered by the panel. But after 2 recent Indiana cases give conflicting views on this established law, the Indiana Court of Appeals must answer some questions dealing with new information.

These questions range from what to do if the panel fails to ask for medical records that are later deemed vital to the case to what if the deposition of an expert witness introduces an entirely new malpractice claim? In C.S. v. Aegis Women’s Health, et al., 53A01-1607-CT-01657, a medical review panel found a woman’s prenatal health care providers did not breach the standard of care when treating C.S., who was born with several disabilities. At court though, an expert medical witness hired by the plaintiffs said if he had been on the panel, he would have requested to see fetal monitoring strips from the Bloomington hospital where the baby was born. The expert stated that if the panel had seen those strips, they would have known that the baby had a troubling heart rate that required emergency medical intervention. The trial court entered summary judgment against C.S., however, holding that the family could not raise a new breach of the standard of care after the panel issued its opinion.

In another case, Pastor Llobet, MD v. Juan Guitierrez, 45A04-1605-CT-1133, the panel found that Dr. Pastor Llobet failed to comply with the appropriate standard of care when he broke a stent in Juan Guitierrez’s body during an angiogram, forcing Guitierrez to undergo additional surgeries. At trial, the court allowed Guitierrez to raise what Llobet considered a new claim — that the angiogram was not indicated at the panel level — but barred the doctor from presenting additional evidence related to that claim.

The Indiana Court of Appeals heard oral arguments dealing with these issues on January 23, 2017. Plaintiffs’ advocates argue that plaintiffs are being in essence required to put on their case before a medical review panel without rules of evidence, burdens of proof and undertaking a full discovery process. The Court’s decision is forthcoming soon.

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