MEMO RANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                   May 28 2019, 6:56 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEES
Elliott I. Pinkie                                       John Jacob Warrum
Susan E. Cline                                          Mt. Vernon, Indiana
Louise K. Conces
Cline Law Group, LLC                                    Richard L. Schultheis
Indianapolis, Indiana                                   Indianapolis, Indiana

                                                        Ronald Warrum
                                                        Mt. Vernon, Indiana

                                                        H. Wayne Turpin
                                                        Evansville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA
IU Health, Inc. d/b/a Riley                             May 28, 2019
Hospital for Children,                                  Court of Appeals Case No.
Appellant-Defendant,                                    18A-CT-2968
                                                        Appeal from the Vanderburgh
        v.                                              Circuit Court
                                                        The Honorable David D. Kiely,
Mike Meece and Natalie L.                               Judge
Meece, Individually and as                              Trial Court Cause No.
Parents and Natural Guardians                           82C01-1607-CT-3266
of Gabriel M. Meece, Deceased
Minor,



Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019                     Page 1 of 10
      Appellees-Plaintiffs.




      Najam, Judge.


                                       Statement of the Case
[1]   IU Health, Inc. d/b/a Riley Hospital for Children (“Riley”) appeals from two

      of the trial court’s orders following a jury verdict in favor of Mike Meece and

      Natalie L. Meece, Individually and as Parents and Natural Guardians of

      Gabriel M. Meece (“Gabe”), Deceased Minor (collectively, “the Meeces”), on

      their complaint against Riley alleging medical malpractice. Riley presents a

      single dispositive issue for our review, namely, whether the trial court erred

      when it denied Riley’s motion for a directed verdict at the conclusion of the

      Meeces’ presentation of evidence at trial.


[2]   We reverse.


                                 Facts and Procedural History
[3]   On May 3, 2010, Gabe, who was five years old, began treatment at Riley for

      acute lymphoblastic leukemia/lymphoma (“ALL”). Gabe and his parents lived

      near Evansville at that time, and they traveled several hours to reach Riley in

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019   Page 2 of 10
      Indianapolis for treatment. Dr. Terry Vik was Gabe’s attending physician at

      Riley. As part of his treatment, Gabe received chemotherapy at Riley on May

      4, May 11, May 18, May 25, and June 2.


[4]   On June 2, Gabe received an injection of intrathecal methotrexate. On June 5,

      Gabe developed a fever. Gabe’s mother, Natalie, called Riley’s on-call nurse to

      report that Gabe had a fever and that he had vomited. Per the nurse’s

      instructions, Natalie took Gabe to the emergency room at nearby Deaconess

      Hospital (“Deaconess”) in Evansville, where he was treated and released. The

      next day, June 6, Natalie again called Riley’s on-call nurse to report that Gabe

      had a fever and a headache. Again, the nurse instructed Natalie to take Gabe

      to the emergency room at Deaconess, where he was treated and released.


[5]   On June 8, Gabe returned to Riley for another round of chemotherapy,

      including a lumbar puncture and injection of intrathecal methotrexate. Gabe

      did not have a fever or other ailments when he arrived that day. After the

      lumbar puncture, Gabe developed a headache, which resolved after he was

      given morphine and other medications. Gabe was discharged that evening, and

      Natalie drove him home.

[6]   During the drive home, Natalie had to pull the car over because Gabe “was

      screaming saying his head was hurting.” Tr. Vol. I at 60. Natalie had Gabe lie

      down in the back seat of the car, and she drove him home and put him to bed.

      The next morning, on June 9, Gabe “woke up screaming . . . [and] kept saying

      that his legs hurt, he couldn’t walk,” and Gabe said that “his head hurt[.]” Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019   Page 3 of 10
      Natalie called Riley, and someone there instructed her to take Gabe to a nearby

      emergency room. From there, Gabe was transported by ambulance to Riley,

      where he was admitted. Health care providers at Riley initially diagnosed Gabe

      with meningitis. On June 17, when his symptoms had not improved, Gabe was

      transferred to the pediatric intensive care unit at Riley. On June 24, Gabe was

      finally diagnosed as suffering from chemotherapy toxicity. Specifically, Gabe

      had had an extremely bad reaction to the methotrexate administered to him on

      June 8. Gabe died on June 25.

[7]   On September 15, 2014, the Meeces filed a second amended proposed

      complaint for damages with the Indiana Department of Insurance alleging that

      Deaconess, Riley, and Dr. Vik had committed medical malpractice that

      proximately caused Gabe’s death. 1 A unanimous medical review panel

      concluded that “the evidence [did] not support the conclusion that [any of the

      defendants had] failed to meet the applicable standard of care as charged in the

      proposed Complaint.” Appellant’s App. Vol. II at 40-41. In addition, two out

      of the three panel members concluded that the defendants’ conduct “was not a

      factor of the resultant damages.” Id. at 41.


[8]   On July 5, 2016, the Meeces filed their complaint against the defendants with

      the trial court. Dr. Vik and Riley moved for summary judgment. In response,




      1
        The record does not show when the Meeces filed their first proposed complaint for damages. In any event,
      the second amended proposed complaint was timely filed.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019                  Page 4 of 10
      the Meeces submitted Dr. David Wilson’s affidavit in which he stated in

      relevant part that

                8. It is below the standard of care for Dr. Vik, his agents and
                representatives, and Riley Hospital, its agents and
                representatives, to not delay the 6/8/10 intrathecal dose of
                methotrexate.

                9. The failure to postpone the intrathecal methotrexate was the
                cause of death on 6/25/10.


      Appellees’ App. Vol. II at 5. Dr. Vik and Riley then withdrew their summary

      judgment motion, and they took Dr. Wilson’s deposition. In his deposition,

      Dr. Wilson did not testify that Riley’s conduct had breached the applicable

      standard of care. Accordingly, Riley filed another summary judgment motion,

      which the trial court denied after a hearing.

[9]   During the ensuing jury trial, 2 the Meeces presented the testimony of a single

      expert witness in their favor, Dr. Wilson. At the conclusion of the Meeces’

      presentation of evidence, Riley moved for a directed verdict. In particular,

      Riley argued that the Meeces had not presented any evidence regarding the

      standard of care owed to Gabe by Riley or whether Riley had breached the

      applicable standard of care. The trial court denied that motion. A jury found

      in favor of the Meeces on their claims against Riley and awarded them

      $3,000,000, but it found in favor of Dr. Vik on their claims against him.




      2
          Deaconess was dismissed as a defendant prior to trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019   Page 5 of 10
       Pursuant to Indiana’s Medical Malpractice Act, the trial court reduced the

       amount of damages awarded to the statutory cap of $1,250,000.

[10]   A few weeks later, Riley moved the trial court for judgment on the evidence

       under Trial Rule 50(A)(3), and Riley also filed a motion to correct error. 3 In

       those motions, Riley again argued that the Meeces had not presented any

       evidence to support a determination of its negligence. The trial court denied

       both of Riley’s motions. This appeal ensued.


                                         Discussion and Decision
[11]   Riley contends that the trial court erred when it denied its motion for a directed

       verdict at the close of the Meeces’ presentation of evidence during trial.

       Motions for a directed verdict, also called motions for judgment on the

       evidence, are controlled by Indiana Trial Rule 50(A). Perez v. Hu, 87 N.E.3d

       1130, 1134 (Ind. Ct. App. 2017). That rule provides in part:

                Where all or some of the issues in a case tried before a jury or an
                advisory jury are not supported by sufficient evidence or a verdict
                thereon is clearly erroneous as contrary to the evidence because
                the evidence is insufficient to support it, the court shall withdraw
                such issues from the jury and enter judgment thereon or shall
                enter judgment thereon notwithstanding a verdict.




       3
         Trial Rule 50(A)(3) provides that a party may move for judgment on the evidence after the presentation of
       all evidence and before judgment. Riley claims that the trial court had not yet reduced the jury verdict to a
       judgment, but a CCS entry dated September 20, 2018, refers to the “judgment.” Appellant’s App. Vol. II at
       19. In any event, Riley timely filed its motion to correct error, and, after the trial court denied that motion,
       Riley timely filed this appeal.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019                        Page 6 of 10
       T.R. 50(A). When reviewing a motion for directed verdict, we use the same

       standard as the trial court. Young v. Ind. Dep’t of Nat. Resources, 789 N.E.2d 550,

       556 (Ind. Ct. App. 2003), trans. denied. That is, our review is de novo. A

       directed verdict is proper only if all or some of the issues are not supported by

       sufficient evidence. Perez, 87 N.E.3d at 1134. “‘We will examine only the

       evidence and the reasonable inferences that may be drawn therefrom that are

       most favorable to the nonmovant, and the motion should be granted only where

       there is no substantial evidence supporting an essential issue in the case.’” Id.

       (quoting Think Tank Software Dev. Corp. v. Chester, Inc., 30 N.E.3d 738, 744 (Ind.

       Ct. App. 2015), trans. denied). A directed verdict or judgment on the evidence is

       improper if there is evidence that would allow reasonable people to differ as to

       the result. Id.


[12]   To prove a claim of medical malpractice, a plaintiff must show that: (1) the

       health care provider owed a duty to the plaintiff; (2) the health care provider

       breached that duty; and (3) the breach proximately caused the plaintiff’s

       injuries. Bhatia v. Khollipara, 916 N.E.2d 242, 245 (Ind. Ct. App. 2009). “‘In

       medical malpractice cases, it is well-established that when the medical review

       panel opines that the plaintiff has failed to make a prima facie case, she must

       then come forward with expert medical testimony to rebut the panel’s

       opinion[.]’” Id. (quoting Brown v. Banta, 682 N.E.2d 582, 584 (Ind. Ct. App.

       1997), trans. denied). To determine whether the health care provider’s conduct

       fell below the legally prescribed standard of care, the plaintiff must present




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019   Page 7 of 10
       expert testimony to establish what a reasonably prudent health care provider

       would or would not have done in treating the plaintiff. 4 Id.


[13]   Here, because the medical review panel concluded that Riley had not breached

       the applicable standard of care in its treatment of Gabe, the Meeces were

       required to present expert testimony that Riley breached the applicable duty of

       reasonable care. Id. At trial, the Meeces called a single expert witness to testify

       on their behalf, Dr. Wilson. Dr. Wilson testified that Gabe had died of an

       “adverse drug reaction from the intrathecal methotrexate” which the health

       care providers “didn’t recognize” until it was too late. Tr. Vol. I at 143. On

       direct examination, the Meeces’ counsel asked Dr. Wilson, “And based on your

       statement that [Dr. Vik] and Riley just missed this, you believe the Doctor’s conduct

       fell below the standard of care?” Id. at 152 (emphasis added). Dr. Wilson

       responded, “I do believe that the conduct fell below the standard of care.” Id.

       Despite that testimony, again, the jury entered a verdict in favor of Dr. Vik.

[14]   The following colloquy then transpired on cross-examination:


                Q: You’re not testifying in this case that the nurses at Riley
                Hospital for Children breached the standard of care in treating
                Gabe, are you?

                A: They did not. I am not testifying to that.




       4
         An exception to this rule is that a plaintiff is not required to present expert testimony in those cases where
       the deviation from the standard of care is a matter commonly known to lay persons. Bhatia, 916 N.E.2d at
       246 n.1. The Meeces make no argument that the applicable standard of care in this case is a matter
       commonly known to lay persons.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019                         Page 8 of 10
               Q: And you don’t have any criticism with the nursing care
               provided to Gabriel Meece, do you?

               A: No, sir.


       Id. at 158. Thus, contrary to his affidavit, where he had stated that Riley’s

       conduct had breached the applicable standard of care, Dr. Wilson explicitly

       testified at trial that Riley had not breached the standard of care. Accordingly,

       we must agree with Riley that Dr. Wilson’s testimony did not rebut the medical

       review panel’s opinion that Riley was not negligent in its treatment of Gabe.

[15]   Still, on appeal, the Meeces direct us to Dr. Vik’s testimony that the standard of

       care required that Gabe’s health care providers “[w]atch [Gabe] carefully for

       side effects while [he received] methotrexate and chemotherapy.” Id. at 118.

       But, while that testimony established the standard of care for all of Gabe’s

       health care providers, the Meeces do not direct us to any expert testimony

       presented at trial that Riley’s conduct fell below that standard of care.


[16]   Instead, in their brief on appeal, the Meeces state, generally, that Riley’s

       records, as well as the testimony of Dr. Wilson, Dr. Vik, Natalie, and a nurse

       show that Riley violated the standard of care. But the Meeces’ citations to

       portions of the transcript and exhibits do not include any evidence showing that

       Riley breached the applicable standard of care. The Meeces direct us only to

       evidence to support their general allegations that Riley made perceived errors in

       its treatment of Gabe, such as not having explained “the possibility of

       methotrexate toxicity” to the Meeces before starting Gabe’s treatment or that


       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019   Page 9 of 10
       the methotrexate infusion given on June 8 “could have been delayed.”

       Appellees’ Br. at 15. The Meeces state, without citation to relevant portions of

       the record, that Riley’s “nurses, nurse practitioners, fellows, and residents . . .

       either caused or contributed to Gabe’s death.” Id. at 16.


[17]   We hold that the Meeces did not present evidence at trial to prove that Riley

       breached the applicable standard of care in its provision of health care to Gabe.

       Accordingly, the trial court erred when it denied Riley’s motion for directed

       verdict at the close of the Meeces’ presentation of evidence at trial. Cf., Syfu v.

       Quinn, 826 N.E.2d 699, 704 (Ind. Ct. App. 2005) (holding summary judgment

       warranted for defendant where plaintiff’s expert did not state that defendant’s

       conduct fell below the standard of care); Perry v. Driehorst, 808 N.E.2d 765, 770

       (Ind. Ct. App. 2004) (holding summary judgment warranted for defendant

       where plaintiff designated portions of defendant physician’s deposition

       testimony that test done on plaintiff was “suboptimal and flawed,” but did not

       establish either standard of care or that defendant’s conduct fell below standard

       of care), trans. denied. The issue of whether Riley committed medical

       malpractice should not have been presented to the jury. We reverse the

       judgment in favor of the Meeces on their negligence claims against Riley.

[18]   Reversed.


       Baker, J., and Robb, J., concur.




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