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Medical Malpractice Complaint Too Specific as to Malpractice Theories Results in Dismissal of Additional Theory in Court after Medical Review Panel Opinion

The Indiana Court of Appeals recently directed a trial court to dismiss a particular theory of liability pursued by a medical malpractice plaintiff after completion of the medical review panel process because the plaintiff’s proposed complaint did not encompass the theory. In Holsten v. Faur, Linda Holsten (“Holsten”) filed a medical malpractice and wrongful death lawsuit arising out of medical care her husband, Paul Holsten (“Paul”), received at an urgent care facility and hospital. Under Indiana’s Medical Malpractice Act, medical malpractice claimants must file a proposed complaint before the Indiana Department of Insurance and obtain an opinion from a medical review panel before they can prosecute their medical malpractice claims in court.

Holsten filed a proposed complaint specifically alleging the defendants committed malpractice in not ordering a chest x-ray (“the x-ray malpractice theory”) and in ordering steroids (“the steroid malpractice theory”), which she alleged resulted in her husband’s death of necrotizing staphylococcus aureus pneumonia. The medical review panel formed to review the case found the defendants failed to comply with the appropriate standard of care; however, they were unable to determine if the defendants’ conduct was a factor in Paul’s death. After receiving the opinion and speaking with the panelists, Holsten filed a state court complaint that was identical in pertinent parts to her proposed complaint, except that she removed the steroid malpractice theory and added another theory which she learned from one of the panelists, that is, that the hospital’s sepsis protocol was not followed (“the sepsis malpractice theory”).

The hospital filed for partial summary judgment arguing that Holsten’s sepsis malpractice theory had not been presented to the medical review panel as required by the Medical Malpractice Act. The trial court agreed with the hospital and entered partial summary judgment in favor of the hospital as to the sepsis malpractice theory. Agreeing that Holsten had failed to present the sepsis malpractice theory to the panel, but that the trial court did not, therefore, have subject matter jurisdiction as to that theory, the Indiana Court of Appeals vacated the trial court’s summary judgment order and remanded the case with instructions for the trial court to dismiss, without prejudice, Holsten’s sepsis malpractice theory of liability.

Under the Medical Malpractice Act, subject matter jurisdiction rests first with the medical review panel and then to the trial court. Trial courts do not have general subject matter jurisdiction over medical malpractice claims until the medical review panel issues its opinion. Medical malpractice plaintiffs are not required to fully explain or provide the particulars or legal contentions of their claims during the medical review panel process. However, in order to raise an alleged theory of negligence in court post-panel, (1) the proposed complaint must encompass the theory and (2) evidence relating to the theory must have been presented to the medical review panel.

Here, the parties did not dispute that Holsten had presented evidence relating to the sepsis malpractice theory to the medical review panel. However, the hospital alleged, and the Indiana Court of Appeals agreed, that Holsten did not sufficiently plead and provide notice of the sepsis malpractice theory in her proposed complaint. Indiana law requires only notice pleading, that is, a short and plain statement of the claim showing the pleader is entitled to relief and a demand for relief to which the pleader is entitled. Under Indiana law, a complaint is sufficient under notice pleading if it puts a reasonable person on notice as to why the claimant is suing. The Indiana Court of Appeals reasoned and found that “[w]here a proposed complaint alleges negligence generally, it can be presumed that the [medical review panel] had notice of, and considered, all theories of negligence relating to the evidence before it.” “However, where a complaint alleges only specific theories of negligence, the [medical review panel] may reasonably rely upon those allegations in issuing its opinion.”

The Court of Appeals found Holsten’s proposed complaint did not encompass the sepsis malpractice theory because she specifically plead only the x-ray malpractice theory and the steroid malpractice theory, and neither the other allegations in her complaint nor her discovery responses, which were not presented to the panel in any case, expounded upon the two specific theories of negligence raised by her in her complaint. Finding the sepsis malpractice theory was not presented to the medical review panel as required by the Medical Malpractice Act and that the trial court, therefore, did not have subject matter jurisdiction as to that malpractice claim, the Court vacated the trial court’s order granting partial summary judgment to the hospital on that theory and instead directed the trial court to dismiss that portion of her claim.

You can read the full opinion here.

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