                                                                  FILED
                                                              Oct 04 2016, 5:40 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




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                                Jerry Garau
Donald B. Kite, Sr.                                        Garau Germano, P.C.
Wuertz Law Office, LLC                                     Indianapolis, Indiana
Indianapolis, Indiana
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Charles McKeen, M.D.,                                      October 4, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           53A05-1511-CT-2047
        v.                                                 Appeal from the Monroe Circuit
                                                           Court
Billy Turner,                                              The Honorable Frances G. Hill,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           53C06-1201-CT-88



Baker, Judge.




Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016             Page 1 of 24
[1]   Relying on the Indiana Medical Malpractice Act and precedent from our

      Supreme Court, we hold that a medical malpractice plaintiff need only present

      the following to a medical review panel: (1) a proposed complaint that

      encompasses the theories of malpractice alleged in the subsequent litigation

      sufficiently to satisfy our notice pleading requirements; and (2) evidence relating

      to the theories of alleged malpractice that the plaintiff seeks to raise during the

      subsequent litigation. Additionally, we hold that narrative statements

      submitted to the panel do not subsequently bind the parties. Because these

      requirements were met in this case, we affirm the trial court’s order and remand

      for further proceedings.


                                                      Facts     1




[2]   In May 1998, Rowena Turner was diagnosed with a type of bone marrow

      cancer. Among other things, patients with this type of cancer are at increased

      risk for blood clots.


[3]   In April 2008, Rowena learned that she had malignant tumors in her colon.

      Therefore, on May 23, 2008, Dr. Charles McKeen performed a surgery to

      remove a large portion of Rowena’s colon. Rowena remained in the hospital

      until May 29 (the “first hospital stay”), when she was discharged following




      1
       We held oral argument in Indianapolis on September 13, 2016. We thank counsel for both parties and
      amici for their truly outstanding appellate advocacy.

      Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016                  Page 2 of 24
      post-operative care. Dr. McKeen instructed her not to restart her blood thinner

      medication.


[4]   On the evening of May 31, Rowena returned to the emergency room with a

      complaint of nausea and vomiting. She was admitted to the hospital that

      evening (the “second hospital stay”) under Dr. McKeen’s care. On June 1, Dr.

      McKeen observed that Rowena’s abdomen was distended, and concluded that

      she had a probable small bowel obstruction. Later that day, Rowena’s blood

      pressure dropped and her heart rate increased. She was transferred to the

      critical care unit. Eventually, Rowena was diagnosed with deep vein

      thrombosis2 and acute renal failure. On the morning of June 13, 2008,

      Rowena’s blood pressure dropped and her heart rate increased. Based on the

      clinical deterioration, an on-call surgeon performed an exploratory surgery of

      her abdomen. The surgery revealed that a portion of Rowena’s small bowel

      was dead, and later laboratory tests revealed blood clots in the vessels leading to

      the small bowel, which obstructed blood flow to that organ. Further treatment

      did not improve her condition, and Rowena died on June 20, 2008.


[5]   On January 15, 2010, Rowena’s husband, Billy Turner (Turner), filed a

      proposed complaint for medical malpractice with the Indiana Department of

      Insurance. The proposed complaint alleged that Dr. McKeen provided




      2
       Deep vein thrombosis occurs when a blood clot “forms in one or more of the deep veins in your body,
      usually in your legs.” Deep Vein Thrombosis (DVT), Mayo Clinic, http://www.mayoclinic.org/diseases-
      conditions/deep-vein-thrombosis/basics/definition/con-20031922.

      Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016                    Page 3 of 24
      Rowena with medical and surgical treatment from May 23, 2008, through June

      20, 2008; that the medical and surgical treatment was negligent and below the

      appropriate standard of care; and that Rowena died as a direct proximate result

      of the “negligent substandard medical and surgical care” provided by Dr.

      McKeen. Appellee’s App. p. 1-2.


[6]   On June 23, 2011, Turner filed his submission to the medical review panel

      (MRP). Along with the medical evidence and proposed complaint, Turner’s

      attorney submitted a document to the MRP describing the pertinent evidence

      and discussing the potential issues presented by Dr. McKeen’s care of Rowena.

      Turner stated that “[t]he surgery performed May 23, 2008, was the appropriate

      surgery. . . . Although she more likely than not was ill-prepared for discharge to

      home, there will be no discussion as to that decision.” Appellant’s App. p. 73.

      With no further discussion of the first hospital stay, Turner moves to the second

      hospital stay.


[7]   In short, Turner argued that exploratory surgery should have been performed

      “long before” the June 13, 2008, operation: “The standard of care required

      exploration at that time [June 1 or June 2]. Had the patient been explored in a

      timely fashion she would have survived.” Id. at 74. The MRP submission

      makes no mention of the dosage of anticoagulant medication Dr. McKeen

      prescribed for Rowena during or immediately following the first hospital stay,

      nor does it mention his decision to instruct her to forego her blood thinner

      medication at that time. In Turner’s Reply to the MRP Submission, he

      summarized his contentions as follows:

      Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 4 of 24
              What a surgeon should be thinking when a patient has acute
              renal failure is that it is a surgical emergency until proven
              otherwise. . . . Mrs. Turner was acutely ill from the time that she
              returned to the hospital on May 31, 2008 with serious and
              persistent bandemia, nausea, vomiting, altered mental state,
              hypotension coupled with tachycardia, intra-peritoneal free air,
              an unusual amount of abdominal fluid shown on CT and a
              paracentesis which essentially showed a great deal of pus. These
              things added up to a severe abdominal process that demanded
              exploration. The delay in re-exploration of this surgical patient
              was the cause of her continued decline and eventual death.


      Appellant’s App. p. 85-86. On November 1, 2011, the MRP convened and later

      issued its opinion: “The panel is of unanimous opinion that the evidence does

      not support the conclusion that the defendant failed to meet the applicable

      standard of care, and that his conduct was not a factor of the resultant

      damages.” Appellee’s App. p. 4.


[8]   On January 13, 2012, Turner filed a complaint against Dr. McKeen in the trial

      court. A lengthy discovery process took place over the next two years. On

      February 28, 2014, Turner filed a supplemental expert witness designation,

      disclosing anticipated opinions from an expert hematologist, Dr. Robert

      Manges. Dr. Manges was expected to opine that when Dr. McKeen discharged

      Rowena following the first hospital stay, the anticoagulation medication was

      inadequate given her high risk for blood clots. Dr. Manges would testify that,

      had Rowena received proper anticoagulation medication after the first hospital

      stay, she would not have developed the clots leading to her eventual death.




      Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 5 of 24
[9]   On March 14, 2014, Dr. McKeen filed a motion to strike Dr. Manges’ opinions

      regarding the first hospital stay because this theory of negligence had not been

      presented to the MRP. Initially, the trial court granted the motion to strike on

      April 17, 2014. Turner sought an interlocutory appeal of that decision, which

      this Court ultimately denied on August 1, 2014. On September 29, 2014, the

      trial court entered an order notifying the parties that it was open to

      reconsideration of its ruling on the motion to strike in light of this Court’s ruling

      in Whitfield v. Wren, 14 N.E.3d 792 (Ind. Ct. App. 2014). Following argument

      and briefing, the trial court upheld its original ruling granting the motion to

      strike. On August 12, 2015, as the parties were in the process of argument

      related to motions in limine, Turner filed a motion that the trial court again

      reconsider its ruling on the motion to strike. Following argument, on

      September 15, 2015, the trial court issued an order denying the motion to strike.

      In pertinent part, the trial court ruled as follows:

              16.      . . . Based on the excellent oral argument of both
                       counsel . . . , it is now clear to the Court that the
                       anticoagulation medicine is relevant to blood clotting and
                       Mrs. Turner’s overall condition, and the existence and
                       timing of the clots is relevant and inseparably intertwined
                       with the medical malpractice claim.


              17.      The Court concludes that evidence of the anticoagulation
                       medicine was presented to the medical review panel, and
                       that the prescription of the anticoagulation medicine is so
                       intertwined with the claim that [Dr. McKeen] was
                       negligent in his care of Mrs. Turner post-surgery, that the
                       finder of fact needs to be informed about the prescribing of
                       the anticoagulants historically and throughout [Dr.
      Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016     Page 6 of 24
                        McKeen’s] treatment of Mrs. Turner. . . . It therefore
                        follows that because the prescription of anticoagulation
                        medicine is so intertwined in the ultimate question of
                        negligence, the experts should not be barred from assessing
                        whether the prescription of the anticoagulants, itself,
                        constituted a breach of the standard of care, and even
                        whether it caused or contributed to the cause of death.


               18.      Although this Court initially believed that it could and
                        must separate out the claims of breach of standard of care
                        related to prescribing anticoagulation medicine from the
                        breach of standard of care in failing to conduct post-
                        operative surgery or other exploratory measures, the Court
                        now concludes that was error. These alleged breaches are
                        intertwined, and the finder of fact is entitled to hear the
                        expert opinion whether the prescription of anticoagulation
                        medicine met the standard of care as well and whether and
                        how it may affect the reasonableness (standard of care) of
                        the Defendant’s post-operative decision-making and
                        medical action or inaction. The evidence of coagulation
                        was before the medical review panel, was within the scope
                        of the panel’s deliberations, and the panel had the
                        opportunity to consider it as a factor in its determination,
                        even if [Turner] had not specifically designated to the
                        medical review panel the prescription of the
                        anticoagulation medicine as a separate breach of the
                        standard of care.


       Appellant’s App. p. 25-27. Dr. McKeen now brings this interlocutory appeal.


                                     Discussion and Decision
[10]   The decision to admit or exclude evidence lies within the sound discretion of

       the trial court. E.g., Morse v. Davis, 965 N.E.2d 148, 155 (Ind. Ct. App. 2012).


       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 7 of 24
       This standard also applies to a trial court’s decision to admit or exclude expert

       testimony. Id. We will reverse only if the trial court’s decision “is clearly

       against the logic and effect of the facts and circumstances before the court or the

       reasonable, probable, and actual deductions to be drawn therefrom.” Id.


[11]   Dr. McKeen argues that the trial court should have granted his motion to strike

       the testimony of Dr. Manges insofar as that testimony relates to the prescription

       (or lack thereof) of anticoagulation medicine to Rowena during and

       immediately following the first hospital stay. Dr. McKeen contends that

       because this theory of liability was not presented to the MRP, Turner is

       prohibited from raising it at this point. Dr. McKeen relies primarily on caselaw

       in making his argument, although an exploration of relevant statutes is also

       required.


                   I. The Medical Malpractice Act and Narrative
                                   Statements
[12]   First, we will turn to the Indiana Medical Malpractice Act 3 (the Act) to

       determine what, precisely, the MRP may consider in reaching its conclusion.

       Specifically, we must decide whether a narrative statement drafted by the

       plaintiff’s attorney constitutes evidence to be considered by the MRP.




       3
           Ind. Code art. 34-18.


       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 8 of 24
[13]   The Indiana Medical Malpractice Act 4 (the Act) is in derogation of the common

       law. Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 726-27 (Ind. Ct. App. 2014),

       trans. denied. As such, it must be strictly construed against limitations on a

       claimant’s right to bring suit. Id.


[14]   Before a medical malpractice lawsuit may be filed against a healthcare provider,

       two prerequisites must be met: (1) the claimant must present a proposed

       complaint to an MRP; and (2) the MRP must give its opinion. 5 Ind. Code § 34-

       18-8-4. An MRP consists of three healthcare providers and an

       attorney/chairperson, who acts in an advisory capacity but does not vote. Ind.

       Code § 34-18-10-3. Within twenty days of the filing of the proposed complaint,

       either party may request the formation of an MRP. I.C. § 34-18-10-2.


[15]   Upon formation, the MRP chairperson may establish a schedule for

       “submission of evidence” to the MRP and must allow sufficient time “for the

       parties to make full and adequate presentation of related facts and authorities.”

       I.C. § 34-18-10-3. Indiana Code section 34-18-10-17(b) elaborates on what may

       be included in the category: “The evidence 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.” The

       MRP’s access to information is detailed as follows:




       4
           Ind. Code art. 34-18.
       5
           There are certain limited exceptions to this general rule that are not applicable to the case at hand.


       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016                             Page 9 of 24
                  (a)       The panel has the right and duty to request all necessary
                            information.


                  (b)       The panel may consult with medical authorities.


                  (c)       The panel may examine reports of other health care
                            providers necessary to fully inform the panel regarding the
                            issue to be decided.


                  (d)       Both parties shall have full access to any material
                            submitted to the panel.


       I.C. § 34-18-10-21.


[16]   It is common practice for the parties’ attorneys to draft and submit narrative

       statements to accompany the medical evidence. ITLA Am. Br. p. 3. These

       statements generally summarize the medical evidence and often point out

       potential breaches of the standard of care by the defendant(s). Id. Nothing in

       the Act requires the inclusion of such narrative statements.


[17]   After receiving and reviewing the evidence, the MRP is then charged with “the

       sole duty to express the panel’s 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.”6 I.C. § 34-

       18-10-22(a) (emphases added). Therefore, having reviewed the evidence and




       6
           The plaintiff would only have filed a proposed, rather than a final, complaint at this point. I.C. § 34-18-8-4.


       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016                           Page 10 of 24
the proposed complaint, the MRP must form and provide its expert opinion on

the matter at hand:


        After reviewing all evidence and after any examination of the
        panel by counsel representing either party, the panel shall, within
        thirty (30) days, give one (1) or more of the following expert
        opinions, which must be in writing and signed by the panelists:


        (1)      The evidence supports the conclusion that the defendant or
                 defendants failed to comply with the appropriate standard
                 of care as charged in the complaint.


        (2)      The evidence does not support the conclusion that the
                 defendant or defendants failed to meet the applicable
                 standard of care as charged in the complaint.


        (3)      There is a material issue of fact, not requiring expert
                 opinion, bearing on liability for consideration by the court
                 or jury.


        (4)      The conduct complained of was or was not a factor of the
                 resultant damages. If so, whether the plaintiff suffered:


                 (A)      any disability and the extent and duration of the
                          disability; and


                 (B)      any permanent impairment and the percentage of
                          the impairment.


I.C. § 34-18-10-22(b). The Act does not call for, or permit, the disclosure of the

specific reasons underlying the MRP’s opinions. Id.



Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016    Page 11 of 24
[18]   Our Supreme Court, in finding the Act to be constitutional, emphasized that

       the MRP process is intended to be “informal” and “limited[.]” Johnson v. St.

       Vincent Hosp., 404 N.E.2d 585, 596 (Ind. 1980), overruled on other grounds by In re

       Stephens, 867 N.E.2d 148 (Ind. 2007). Indeed, the Johnson Court noted with

       approval that “[t]here is little likelihood that appellant will incorrectly estimate

       the steps that should be taken in procuring and presenting evidence and

       authorities to the panel, and should he do so, there is little or no risk that he will

       be harmed thereby.” Id. at 596.


[19]   We agree with Turner and his amicus, the Indiana Trial Lawyers Association

       (ITLA), that the plain language of the Act does not require that the submission

       to the MRP contain specifications of the breaches of standards of care.

       Furthermore, the narrative statements provided to the MRP by the attorneys do

       not constitute “evidence.” The MRP is only to consider “evidence” and the

       proposed complaint. To hold, therefore, that a medical malpractice claimant is

       bound by narrative and argumentative statements made by his attorneys—

       which the MRP need not consider in rendering its opinion, and which need not

       be included in the submission at all—is contrary to the plain language of the

       Act. Nothing in the Act prohibits these narrative statements—indeed, they are

       likely helpful to the MRP and opposing counsel—but nothing in the Act

       countenances an approach that treats these statements as evidence or as binding

       legal documents. See Sherrow v. Gyn, Ltd., 745 N.E.2d 880, 885 (Ind. Ct. App.

       2001) (finding that legal argument in MRP submissions is inappropriate

       because, if that were the practice, “parties’ evidentiary submissions would


       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 12 of 24
       become lengthy legal memoranda in which the parties debate and argue points

       of law” and that result “would not further the legislature’s intent that [MRPs]

       should operate in an informal manner”).


[20]   We have concluded, based upon the language and intent of the Act, that the

       narrative statements commonly included among MRP submissions do not

       constitute evidence to be considered by the MRP. As noted above, the MRP

       considers “evidence” and the plaintiff’s proposed complaint in reaching an

       ultimate conclusion. I.C. § 34-18-10-22(a). Therefore, we must next determine

       what, precisely, must be included in the proposed complaint.


                      II. Caselaw and the Proposed Complaint
                                                    A. Miller
[21]   In Miller v. Memorial Hospital of South Bend, Inc., our Supreme Court considered

       the effect that the materials provided to an MRP could have on the litigation of

       a medical malpractice claim. 679 N.E.2d 1329 (Ind. 1997). In Miller, the

       plaintiffs filed medical malpractice claims against a physician and a hospital for

       injuries that their son suffered before, during, and after the time of his birth. Id.

       at 1330. The proposed complaint filed with the Department of Insurance and

       final complaint filed with the trial court had “[v]irtually identical language”

       containing four counts—two against the hospital and two against the doctor—

       for negligence and breach of contract “on and after June 7, 1982,” when their

       son was born. Id. After submitting the claim to an MRP, the plaintiffs filed a

       lawsuit in the trial court.

       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 13 of 24
[22]   Before the trial occurred, the plaintiffs settled their claims against the doctor

       and received the maximum recovery authorized by the Act. The hospital then

       sought summary judgment, alleging that the Act prohibits any recovery beyond

       the statutory maximum for any one injury and that the injuries sustained by the

       infant as a result of the actions of the doctor and/or hospital are identical. Id. at

       1331. In response, the plaintiffs asserted that they were seeking recovery for

       two different sets of injuries: the claims against the hospital were based on the

       infant’s postnatal injuries, whereas the claims against the doctor were based on

       the infant’s prenatal injuries. The hospital argued that because the plaintiffs

       had never raised the distinction between prenatal and postnatal injuries in their

       proposed complaint or their submission to the MRP, they were prohibited from

       making the argument to the trial court. Id. The trial court granted the

       hospital’s summary judgment motion, finding that the plaintiffs were barred

       from alleging separate injuries to the trial court.


[23]   In considering the parties’ arguments, our Supreme Court focused on the

       principles of notice pleading. Indiana Trial Rule 8(A) requires only “(1) a short

       and plain statement of the claim showing that the pleader is entitled to relief,

       and (2) a demand for relief to which the pleader deems entitled. . . .” More

       specifically, “[o]ur notice pleading rules do not require that the complaint state

       all the elements of a cause of action.” Miller, 679 N.E.2d at 1332. Instead, a

       plaintiff need only plead the operative facts involved in the litigation. Id.


[24]   Our Supreme Court then held, in accordance with the principles of notice

       pleading, that the plaintiffs’ complaint was sufficient to present claims for

       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 14 of 24
       separate acts of malpractice by the doctor and by the hospital. With respect to

       the material submitted to the MRP, our Supreme Court disagreed with the

       hospital’s position:


               We decline to accept Memorial Hospital’s argument that the
               plaintiffs’ action is restricted by the substance of the submissions
               presented to the medical review panel. Pursuant to the statute,
               the panel was authorized to review the medical records and other
               submitted material pertaining to each defendant’s treatment of
               [the infant]. While a medical malpractice plaintiff must, as a
               prerequisite to filing suit, present the proposed complaint for review and
               expert opinion by a medical review panel, there is no requirement for such
               plaintiff to fully explicate and provide the particulars or legal contentions
               regarding the claim.


       Id. at 1332 (emphasis added) (internal citation omitted). Ultimately, our

       Supreme Court reversed the summary judgment order and remanded the cause

       for further proceedings. Id.


                                        B. K.D. and Progeny
[25]   In K.D. v. Chambers, a panel of this Court considered a similar issue to that

       presented in Miller. 951 N.E.2d 855 (Ind. Ct. App. 2011), trans. denied,

       disapproved of on other grounds by Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011).

       In K.D., the plaintiff filed a medical malpractice claim after a nurse

       administered an intravenous dose of Benadryl to the plaintiff’s son that was ten

       times the dose he should have received.


[26]   The proposed complaint filed with the Department of Insurance alleged two

       counts. Count I alleged that two treating physicians “were careless and
       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016        Page 15 of 24
       negligent” in their care of the child, as the child “suffered a Benadryl overdose”

       and “various other overdoses” while in their care. Id. at 858. Count II alleged

       that the hospital and its employees, including the nurse, “were careless and

       negligent” in their care and treatment of the child, as he “suffered from multiple

       overdoses” administered by the defendants. Id.


[27]   The submission tendered to the MRP, which set forth “issues, facts, and

       evidence,” explained that the issues presented were whether the defendants

       breached the standard of care in one or more of the following ways: “(1) Failed

       to give the proper dosage of Benadryl as it was ordered. (2) Failed to question

       or ensure whether the dosage of Benadryl that she gave was an appropriate

       dosage for a child who weighed 15 kg.” Id. at 859. The submission referred to

       the proposed complaint, “but did not specify any overdoses or breaches of the

       standard of care other than the overdose of Benadryl.” Id.


[28]   After receiving the opinion from the MRP, the plaintiff filed a complaint in the

       trial court that was virtually identical to the proposed complaint. In preparation

       for trial, the plaintiffs filed a proposed jury instruction outlining three claims of

       breaches of the standard of care: (1) that the child was given ten times more

       than the recommended dose of Benadryl; (2) that “the rate at which the

       Benadryl was pushed was a deviation in the standard of care;” and (3) that “the

       giving of additional central nervous system depressants in the face of [a] specific

       order to the contrary was a deviation in the standard of care.” Id. The

       defendants objected to the instruction and filed a motion in limine seeking to

       exclude all references to the latter two claimed breaches of the standard of care,

       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 16 of 24
       arguing that these alleged breaches had not been presented to the MRP. The

       trial court granted the motion in limine and the plaintiffs brought an

       interlocutory appeal of the order.7


[29]   This Court explained the relevant statutory provisions, largely outlined above in

       this opinion, and then concluded that,


                  [a]s the above statutory provisions show, the question of whether
                  defendants breached the standard of care must be presented to
                  the [MRP] 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.


       Id. at 864 (emphasis added). The Court acknowledged that the pleaded

       allegations contained in the proposed complaint were not “per se insufficient,”

       given notice pleading rules, but the “submission to the Review Panel contained

       no statement or argument and . . . no evidence of any breaches besides the

       overdose of Benadryl.” Id.


[30]   This Court then turned to Miller, finding it distinguishable:


                  As we are addressing a different issue, namely, Plaintiffs’ failure
                  to present all claimed breaches of the standard of care to the
                  Review Panel, we do not interpret the above language so broadly
                  as to allow a plaintiff to argue at trial separate breaches of the



       7
           The plaintiffs also appealed other orders not relevant to the case at hand.


       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016          Page 17 of 24
               standard of care that were not presented in a submission of
               evidence to the panel. Whereas the number of occurrences of
               malpractice and allowable recoveries under the MMA has been
               treated as a question of law, the factual question of whether the
               standard of care was breached must be initially addressed and
               answered by the panel.


       Id. at 865 (internal citations omitted). In the end, the K.D. Court found that,

       “[b]ecause 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.” Id. The Court reached a different result with respect to the

       claim that the rate at which the Benadryl was administered was a breach,

       finding that “[t]he 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.” Id. Therefore, this Court reversed the trial court’s order

       to the extent that it excluded evidence regarding the rate at which the Benadryl

       was administered.


[31]   Since K.D., which muddied the post-Miller waters, this Court has considered

       similar issues on at least two occasions. In Whitfield v. Wren, 14 N.E.3d 792

       (Ind. Ct. App. 2014), this Court noted that K.D.’s holding “focused on the fact

       that the only evidence which was submitted to the [MRP] for their consideration

       concerned the Benadryl overdose.” Id. at 805 (emphasis added). In Whitfield,

       in contrast, all evidence related to breaches being alleged at trial was submitted

       to the MRP. Because it can be presumed that the MRP considered the evidence


       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 18 of 24
       and possible breaches, this Court concluded that evidence related to new

       breaches first presented on summary judgment was properly considered by the

       trial court.


[32]   Finally, in Ball Memorial Hospital, Inc. v. Fair, 26 N.E.3d 674 (Ind. Ct. App.

       2015), this Court acknowledged the plaintiff’s argument that K.D. directly

       conflicts with Miller. The Court, however, noted that it did not need to rely on

       K.D. to reach its results and it left “the question of K.D.’s validity for another

       day.” Id. at 680. The Ball Memorial Court ignored K.D. and focused on Miller,

       emphasizing Miller’s reliance on notice pleading and finding that the language

       of the complaint at issue was broad enough to put the hospital on notice that

       the possible negligence of any of its staff was at issue. Id. at 682.


                    C. Synthesizing the Precedent and the Act
[33]   It is challenging, to say the least, to synthesize K.D. with these other cases. To

       find our answer, we believe the best approach is to return to our Supreme

       Court’s last guidance on the issue, found in Miller. And Miller could not be

       clearer. That case instructs us to focus on the content of the proposed

       complaint and analyze whether, under principles of notice pleading, that

       complaint encompasses theories of negligence raised by the plaintiff after the

       MRP process has concluded. Our Supreme Court clearly and explicitly held

       that the plaintiff’s action is not “restricted by the substance of the submissions

       presented to the [MRP].” Miller, 679 N.E.2d at 1332. Indeed, there is no




       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 19 of 24
       requirement whatsoever that a plaintiff “fully explicate and provide the

       particulars or legal contentions regarding the claim” to the MRP. Id.


[34]   We believe that Miller and the Act require two things of a medical malpractice

       plaintiff seeking to raise new breaches of the standard of care after the MRP

       process has concluded. First, under the rules of notice pleading, the proposed

       complaint must encompass the theories regarding breach sought to be raised at

       trial. Second, “evidence,” as defined by the Act, related to the theories must

       have been submitted to the MRP. If the plaintiff has complied with both of

       these requirements, then evidence related to the new theories of negligence may

       be admitted during litigation following the MRP process.8 To the extent that

       K.D. has been read to require a narrative statement be submitted to the MRP, to

       bind parties to the content of those narrative statements, or to depart from Miller

       or the plain language of the Act, we believe that it was wrongly decided and/or

       has been misread.


[35]   To depart from these basic guidelines would be to defeat the purposes of the

       MRP process. It is intended to be informal and limited; it is also intended to




       8
         At oral argument, a member of this panel raised a concern to the attorneys about the possibility of plaintiffs’
       attorneys “gaming the system” by intentionally hiding the proverbial football during the MRP process and
       then ambushing the defendant with new theories at trial. Counsel for the appellees explained that there
       would be no such incentive because plaintiffs have every incentive to succeed during the MRP process and
       receive an MRP opinion that would aid them during litigation; therefore, there would be no reason to “hide
       the ball.” We would like to laud counsel for the appellants, who had the opportunity to speak negatively
       about plaintiffs’ lawyers but declined to do so. Instead, he stated that in his twenty-five years of being a
       medical malpractice attorney, he has never known of a plaintiffs’ lawyer who would intentionally game the
       system in that way. We thank Mr. O’Neill for this moment of professionalism and candor, and hope that
       attorneys throughout this State will follow his excellent example.

       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016                         Page 20 of 24
       place little to no risk on the participants. If plaintiffs were required to present

       each and every possible theory of negligence to the MRP, and were bound by

       those allegations, then plaintiffs would be required to conduct full and complete

       discovery long before the litigation even began. This would create barriers of

       expense and time that would be insurmountable for most, if not all, potential

       plaintiffs, and the cost of the process would also be borne by the defendants.

       We do not believe that our Legislature intended such a result in creating the

       MRP process.


                            III. Applying the Act and Caselaw
[36]   Having outlined the requirements under these circumstances, we must

       determine whether, in this case, those requirements were met. Turning first to

       Turner’s proposed complaint, we note that it contains the following allegations:


               1.       The Plaintiff, Bill Turner, is the surviving spouse of
                        Rowena Turner who died on June 20, 2008.


               2.       Bill Turner and Rowena Turner were married on July 17,
                        1966 and remained husband and wife until Rowena
                        Turner’s death on June 20, 2008.


               3.       The Defendant, Charles McKeen, M.D., provided the
                        Plaintiff’s Decedent, Rowena Turner, with medical and
                        surgical treatment from May 23, 2008 through her death
                        on June 20, 2008.


               4.       Said medical and surgical treatment was negligent and
                        below the appropriate standard of care.


       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 21 of 24
               5.       As a direct proximate result of the negligent substandard
                        medical and surgical care rendered to the Plaintiff’s
                        Decedent, Rowena Turner, by the Defendant, Charles
                        McKeen, M.D., Rowena Turner died on June 20, 2008.


               6.       As a direct and proximate result of the Defendant’s
                        negligence as described above the Plaintiff, Bill Turner,
                        has lost the care, love, affection and companionship of his
                        wife, Rowena Turner, and has suffered great emotional
                        distress, pain and suffering.


               7.       Medical, funeral and burial expenses were incurred for
                        Rowena Turner as a direct and proximate result of the
                        Defendant’s negligence.


       Appellee’s App. p. 1-2. Therefore, the proposed complaint encompasses the

       dates of both the first hospital stay, which began on May 23, 2008, and the

       second hospital stay, which ended with Rowena’s death on June 20, 2008. The

       proposed complaint also alleges that both the “medical and surgical treatment”

       provided by Dr. McKeen was negligent and below the standard of care. Id. In

       other words, under our broad principles of notice pleading, the allegations in

       the proposed complaint readily encompass Turner’s theory regarding the

       anticoagulation medication prescribed to Rowena during and after the first

       hospital stay.


[37]   Next, we must consider the evidence presented to the MRP. It is undisputed

       that Turner provided the MRP with Rowena’s full medical records related to




       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 22 of 24
       both the first and second hospital stays.9 Therefore, evidence relating to the

       anticoagulation medication was before the MRP.


[38]   In this case, Turner’s proposed complaint encompassed the allegations related

       to the anticoagulation medication prescribed during and after the first hospital

       stay. And evidence related to those allegations was before the MRP.

       Consequently, the trial court properly denied Dr. McKeen’s motion to strike

       evidence related to those allegations.


                                                   Conclusion
[39]   The Act requires that the MRP consider two things in reaching its conclusion

       on a claim of medical malpractice: (1) the proposed complaint; and (2) the

       evidence submitted by the plaintiff. Our Supreme Court has held that so long

       as, under principles of notice pleading, the proposed complaint encompasses

       specific allegations regarding the defendant’s alleged malpractice that were not

       explicitly raised to the MRP, those allegations may be raised for the first time

       during subsequent litigation. In other words, the plaintiff’s narrative at trial

       need not be identical to his MRP narrative so long as evidence relating to his

       theories of malpractice was before the panel.




       9
         Dr. McKeen notes that, when deposing the members of the MRP, Turner did not question the physicians
       regarding the first hospital stay or the anticoagulation medication, arguing that the failure to do so should
       prohibit Turner from raising the issues at a later date. We agree with the ITLA, however, that we are
       “unaware of any authority for the proposition that a plaintiff’s allegations at trial can be limited by what
       plaintiff’s counsel chooses to ask—or not ask—witnesses at a discovery deposition, and Dr. McKeen has
       cited no such authority.” ITLA Am. Br. p. 9 n.5. We do not find this to be a relevant consideration.

       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016                        Page 23 of 24
[40]   To synthesize these two sources of authority, we hold that 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

       related to those theories was before the MRP. In this case, those requirements

       were met, and Turner may therefore raise his theory related to the

       anticoagulant at this time.


[41]   The judgment of the trial court is affirmed and remanded for further

       proceedings.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 53A05-1511-CT-2047 | October 4, 2016   Page 24 of 24
