Charles McKeen, M.D. v. Billy Turner , 2017 Ind. LEXIS 263 ( 2017 )

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Michael E. O’Neill James H. Young
Nathan D. Hansen Young & Young
O’Neill McFadden & Willett LLP Indianapolis, Indiana
Schererville, Indiana
ATTORNEY FOR AMICUS CURIAE
ATTORNEYS FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION
DEFENSE TRIAL COUNSEL OF INDIANA Jerry Garau
Donald B. Kite, Sr. Garau Germano, P.C.
Wuertz Law Office, LLC Indianapolis, Indiana
Indianapolis, Indiana
Crystal G. Rowe FILED
Kightlinger & Gray, LLP Apr 07 2017, 3:20 pm
New Albany, Indiana
CLERK
Indiana Supreme Court
ATTORNEYS FOR AMICUS CURIAE Court of Appeals
and Tax Court
STEPHEN W. ROBERTSON, COMMISSIONER
OF THE INDIANA DEPARTMENT OF INSURANCE
AND ADMINISTRATOR OF THE INDIANA
PATIENT’S COMPENSATION FUND
Matthew W. Conner
Bryan H. Babb
Bose McKinney & Evans LLP
Indianapolis, Indiana
Wade D. Fulford
Indiana Department of Insurance
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 53S05-1704-CT-202
CHARLES MCKEEN, M.D.,
Appellant (Defendant below),
v.
BILLY TURNER , Appellee (Plaintiff below).
_________________________________
Appeal from the Monroe Circuit Court, No. 53C06-1201-CT-000088
The Honorable Frances G. Hill, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 53A05-1511-CT-02047
_________________________________
April 7, 2017
Per Curiam.
Billy Turner filed a proposed malpractice complaint with the Indiana Department of
Insurance pursuant to the Medical Malpractice Act, alleging Doctor Charles McKeen’s medical
and surgical treatment of Turner’s wife, Rowena, failed to meet the appropriate standard of care.
In addition to the complaint, Turner’s submission to the Medical Review Panel (“MRP”)
included Rowena’s medical records and a narrative statement describing the records and alleging
the delay in exploratory surgery following Rowena’s readmission to the hospital resulted in her
death. (Appellant's App. pp. 74, 86.) The MRP issued a unanimous opinion finding the
evidence did not support a conclusion that Dr. McKeen had failed to meet the applicable
standard of care.
Turner then filed a complaint in court. After extensive discovery, Turner filed a
supplemental witness list naming an expert hematologist who was expected to testify that Dr.
McKeen had failed to prescribe the appropriate dosage of anticoagulation medication, leading to
Rowena’s death. Dr. McKeen filed a motion to strike the hematologist’s opinion on grounds
Turner’s submission to the MRP did not allege malpractice relating to the anticoagulation
medication, and so Turner could not pursue the claim in court. The trial court denied Dr.
McKeen’s motion, and this interlocutory appeal followed.
Before a plaintiff may pursue a malpractice complaint in court against a qualified
healthcare provider, the Medical Malpractice Act requires the plaintiff to present a proposed
complaint to a MRP, and the MRP must give its opinion as to whether the provider breached the
standard of care.1 See Ind. Code § 34-18-8-4. Dr. McKeen contends Turner is attempting to
raise a new claim in the trial court that he did not present to the MRP, in violation of the statute.
The Court of Appeals disagreed in an opinion authored by Judge Baker, holding “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.” McKeen v. Turner, 61 N.E.3d 1251, 1262 (Ind. Ct. App.
2016). The Court of Appeals concluded Turner met these requirements and may pursue in court
his claim related to the anticoagulation medication.
We agree with the Court of Appeals, finding its opinion consistent with Miller v.
Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997). We thus grant transfer
and adopt and incorporate by reference the Court of Appeals opinion. See Ind. Appellate Rule
58(A)(1). We further find K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011), is at odds
with Miller on the issue we address today and expressly disapprove K.D.
All Justices concur.
1
None of the limited exceptions to this general rule apply here.