The Nightmare of K.D. vs. Chambers May Be Over
In an opinion handed down late on April 7, 2017, in the case of Charles McKeen, M.D. v. Billy Turner, 53S05-1704-CT-202, the Indiana Supreme Court “expressly disapproved” of the Indiana Court of Appeals holding in K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011). In that case, the Court of Appeals found 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.”
After the decision in K.D. was handed down, controversy among medical malpractice attorneys arose as they tried to reconcile K.D. with the established precedent in Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997), in which the Indiana Supreme Court held that “there is no requirement for … plaintiff to fully explicate and provide the particulars or legal contentions regarding the claim.”
In the McKeen case, the plaintiff (Turner) lost at the medical review panel and then proceeded to the trial court level. At the trial court level, the plaintiff added a new expert witness that would essentially bring a new theory of medical malpractice to the case. McKeen, however, filed a motion to strike the opinion of the new expert. The trial court denied McKeen’s motion and the Indiana Court of Appeals affirmed, holding that “a plaintiff may raise any theories of alleged malpractice during litigation following the MRP process if (1) the proposed complaint encompasses the theories, and (2) the evidence relating to those theories was before the MRP.”
Both Turner and McKeen appealed to the Indiana Supreme Court. Turner’s counsel urged the court to reject K.D. altogether, and the justices did just that in their Friday opinion, granting transfer and adopting and incorporating the Court of Appeals’ McKeen opinion. Additionally, the court found K.D. to be at odds with Miller, and thus “expressly disapproved” of its holding.