, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 49A04-1010-CT-636, which is sure to have a substantial impact on the way that medical malpractice cases are tried. The opinion addresses two distinct issues, one of which deals with expert opinions and the other with what issues must be presented to the Review Panel.
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In this case, a mother took her 2-year old child to Riley Children's Hospital after he bumped his head. The nurse administered an intravenous dose of Benadryl to the child, but gave the child a dose of 125 milligrams, rather than the medically indicated dose of 12.5 milligrams. The child started shaking as if in a seizure and has continued to suffer from tremors since that incident.
The plaintiffs filed a proposed complaint with the IDOI, which asserted that the nurse breached the standard of care. Plaintiffs' submission to the Review Panel argued that the nurse's conduct was deficient in two ways: (1) by failing to give the proper dosage of Benadryl as it was ordered, and (2) by failing to question or ensure whether the dosage of Benadryl that she gave was an appropriate dosage for a child who weighed 15 kg. The Review Panel found that the nurse failed to meet the standard of care, that this caused the child temporary harm, but had no long-term effects. The plaintiffs then filed their complaint in court.
Prior to a jury trial, the defendants moved to exclude the testimony of one of the plaintiffs' experts, a toxicologist who would testify on causation. Plaintiffs then filed a proposed issue instruction that outlined three claims of breaches of the standard of care: 1) that K.D. was given ten times more than the recommended dose of Benadryl; 2) that the rate at which the Benadryl was pushed was deviation in the standard of care; and 3) that the giving of additional central nervous system depressants in the face of specific order to the contrary was a deviation in the standard of care. The defendants moved
in limine to exclude all references to the latter two claimed breaches of the standard of care, arguing these breaches had not been presented to the Review Panel and were not properly before the trial court. The trial court granted both of the defendants' motions. The case was certified for an interlocutory appeal before it went to trial.
On appeal, the Court found that the the trial court erred when it excluded the testimony of the toxicologist. While the Court noted that medical malpractice cases typically require the testimony of a physician, "the reasoning for such statements is that physicians are uniquely qualified to diagnose and treat disease." In this case, the toxicologist was not offering testimony that related to diagnosing or treating a disease; his testimony related to the toxic effects of the overdose and whether these include the child's tremor. The toxicologist could offer this testimony, so the Court remanded "with
instructions to hold an Evidence Rule 702 hearing at which Plaintiffs may present further
evidence of McCoy's qualifications and the scientific basis of his proposed testimony."
After dealing with an intermediary issue, the Court turned to the question of whether a plaintiff can prove at trial breaches of the standard of care that were not presented to the Review Panel. The plaintiffs relied on the Indiana Supreme Court's decision in
Miller v. Mem'l Hosp. of South Bend, Inc., 679 N.E.2d 1329, 1332 (Ind. 1997), which had held "that the plaintiffs' action is [not] restricted by the substance of the submissions presented to the medical review panel." However, the Court distinguished that case and held that a plaintiff cannot present a breach of a standard of case in an action, which had not been submitted to the Medical Review Panel.
As the above statutory provisions show, 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.
Plaintiffs' proposed complaint alleged malpractice committed on May 9 and 10, 1995, and that the Defendants, besides the overdose of Benadryl, gave K.D. "multiple overdoses" and "various other overdoses." These pleading allegations were not per se insufficient, under notice pleading, to give Defendants notice of claimed breaches of the standard of care other than the overdose of Benadryl. However, Plaintiffs' submission to the Review Panel contained no statement or argument and, so far as can be discerned from the appellate record, no evidence of any breaches besides the overdose of Benadryl.
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Because the giving of additional improper doses was not within the scope of Plaintiffs' submission to the Review Panel, they cannot now raise the same as a separate breach, and in this respect we affirm the trial court's ruling to exclude such evidence. We reach a different conclusion, however, regarding Plaintiffs' claim that "the rate at which the Benadryl was pushed was deviation in the standard of care." The failure to give the proper dosage to a child can encompass both the total amount of the drug administered as well as the rate at which the drug is administered. Defendants make too fine a distinction in arguing that only the total amount, not the rate, was before the Review Panel when both allegations stem from the same operative fact of the Benadryl overdose. We therefore conclude the trial court abused its discretion to the extent it precluded Plaintiffs from introducing evidence or arguing that the rate at which the Benadryl was administered breached the standard of care.
Both of the Court's primary holdings in this case will change the way that medical malpractice cases are tried in Indiana. First, the Court's holding that a non-medical expert could offer causation testimony in a medical malpractice case broadens the scope of the types of experts that parties will be able to bring to bear in medical malpractice cases. Moreover, it more broadly demonstrates the principle that attorneys should be careful to find an appropriate expert for the facts that need to be proven and careful to limit an expert's testimony to areas within that person's expertise.
The full effect of the Court's second holding will likely be felt outside of the courtroom, rather than in it. If plaintiffs are required to submit all possible breaches of any standard of care to the Review Panel in order to preserve them for court, then plaintiffs' lawyers may wish to retain an expert earlier in the process of taking a case than they may otherwise have done - even if the conduct in question is egregious, as it apparently was in this case. This will increase the costs of this litigation and, therefore, will prevent lawyers from pursuing some otherwise meritorious claims which would otherwise have been pursued. It will also be interesting to see whether the Court's holding in this case will be reciprocal, i.e., whether defendants will be prevented from raising arguments regarding the lack of a breach of the standard of care that they did not make during the Review Panel process.
