The Indiana Court of Appeals recently affirmed a trial court’s order directing patients in related medical malpractice claims to redact portions of their submissions tendered to medical review panels formed to review the cases under the Indiana Medical Malpractice Act. In Bojko v. Anonymous Physician, 215 N.E.3d 376 (Ind. Ct. App. 2023), six patients filed medical malpractice claims against a physician and the physician’s practice (the “physician”). After medical review panels were formed in each of the cases, the patients tendered separate, but in parts similar, submissions to the panels. Among other things, the patients’ submissions referenced a medical malpractice complaint filed by the physician’s wife on behalf of the physician’s estate (the physician was allegedly killed after being prematurely discharged from a hospital ER) wherein the physician’s wife stated the physician suffered from chronic alcohol and drug abuse with signs of mental illness. The physician in Bojko objected and filed a petition in court requesting the trial court order non-evidentiary allegations in the patients’ submissions be redacted. After a hearing, the trial court granted the physician’s petition and ordered the patients to redact “any and all references to the [malpractice complaint]” filed by the physician’s wife and “any and all references to allegations of drug and/or alcohol abuse or mental health issues of [the physician].”
Indiana patients pursuing medical malpractice claims against healthcare providers covered under the Indiana Medical Malpractice Act must first present their cases to medical review panels, which are comprised of one non-voting advisory attorney and three healthcare providers selected by the parties, and receive opinions from the medical review panels before pursing those cases in court. Ind. Code §§ 34-18-8-4, 8-7, 10-3 to 10-10. After the panels are formed, the parties are to submit “evidence,” which “may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable by the medical review panel.” Ind. Code § 34-18-10-17. Panels are then to “express [their] expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint,” and whether “[t]he conduct complained of was or was not a factor of the resultant damages.” Ind. Code § 34-18-10-22. Under the Indiana Medical Malpractice Act, “[a] party, attorney, or panelist who fails to act as required by [the Act] without good cause shown is subject to mandate or appropriate sanctions upon application to the court… having jurisdiction.” Ind. Code § 34-18-10-14.
On appeal the patients in Bojko argued the trial court lacked subject matter jurisdiction to grant the physician’s petition ordering them to redact portions of their submissions. However, in its decision affirming the trial court, the Indiana Court of Appeals referenced its prior decision in Sherrow v. GYN, Ltd., 745 N.E.2d 880 (Ind. Ct. App. 2001), in which it found that Indiana Code section 34-18-10-14 of the Medical Malpractice Act supplied subject matter jurisdiction to trial courts to order redaction of legal argument in “evidentiary submissions because legal argument is not ‘evidence.’” Sherrow, 745 N.E.2d at 884-885. Similar to legal argument, the Court in Bojko reasoned “unsworn [and] unsubstantiated allegations in a third-party proposed medical malpractice complaint are not evidence as described in Indiana Code Section 34-18-10-17.” Bojko, 215 N.E.3d at 380. According to the Court, Indiana Code sections 34-18-10-17 and 10-22 of the Medical Malpractice Act require panel opinions to be “based on the actual facts (and sworn testimony regarding those facts) of the particular case before the panel and not on mere allegations raised in another case or cases,” which are “non-evidentiary matters [that] are ‘inappropriate in evidentiary submissions’ to a medical review panel.” Bojko, 215 N.E.3d at 381. Finding the trial court had authority under Indiana Code section 34-18-10-14 to mandate compliance with Indiana Code section 34-18-10-17, the Court affirmed the trial court’s order requiring redactions of the patients’ submissions.