                                                                     FILED
                                                                Feb 22 2017, 9:51 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEES
Christopher S. Roberge                                   Stacy F. Thompson
Elizabeth A. Roberge                                     Adam R. Doerr
Alexandra N. Gortchilova                                 Clendening Johnson & Bohrer, P.C.
RobergeLaw                                               Bloomington, Indiana
Carmel, Indiana


ATTORNEY FOR AMICUS CURIAE                               ATTORNEYS FOR AMICUS
INDIANA TRIAL LAWYERS                                    CURIAE
ASSOCIATION                                              DEFENSE TRIAL COUNSEL OF
Jerry Garau                                              INDIANA
Garau Germano, P.C.                                      Donald B. Kite, Sr.
Indianapolis, Indiana                                    Wuertz Law Office, LLC
                                                         Indianapolis, Indiana

                                                         Crystal G. Rowe
                                                         Kightlinger & Gray, LLP
                                                         New Albany, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

C.S., a Minor Child, by Her                              February 22, 2017
Next Friends and Parents, John                           Court of Appeals Case No.
Stevens and Laura Stevens,                               53A01-1607-CT-1657
Appellants-Plaintiffs,                                   Appeal from the Monroe Circuit
                                                         Court
        v.                                               The Honorable E. Michael Hoff,
                                                         Judge
Aegis Women’s Healthcare,                                Trial Court Cause No.
P.C., Brian W. Cook, M.D.,                               53C01-1506-CT-1134


Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017             Page 1 of 10
      Rhonda S. Trippel, M.D., and
      Lillette (Alice B.) Wood, M.D.,
      Appellees-Defendants




      Vaidik, Chief Judge.



                                           Case Summary
[1]   With limited exceptions, a medical-malpractice plaintiff cannot take her case to

      court until she has submitted a proposed complaint to the Indiana Department

      of Insurance and received an opinion from a panel of doctors (a “medical

      review panel”). Once she has made it through the panel process and into court,

      however, the plaintiff can present any theory of malpractice that (1) was

      encompassed by the proposed complaint that was before the panel and (2) is

      related to evidence that was submitted to the panel. McKeen v. Turner, 61

      N.E.3d 1251 (Ind. Ct. App. 2016), trans. pending.


[2]   In the case before us, John and Laura Stevens filed a proposed complaint

      against Aegis Women’s Healthcare, P.C. and several of its doctors (collectively,

      “Aegis”) after their daughter was born, via emergency c-section, with various

      health problems. The medical review panel issued an opinion in favor of Aegis,

      and the Stevenses have now taken their case to court, where their specific

      Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017   Page 2 of 10
      theory of malpractice is that Aegis waited too long to perform the c-section.

      The parties agree that this theory fell within the broad allegations in the

      Stevenses’ proposed complaint but dispute whether there was evidence relating

      to the theory submitted to the panel. Finding that there was, we reverse the

      trial court’s grant of summary judgment to Aegis.



                             Facts and Procedural History
[3]   Laura Stevens became a patient of Aegis Women’s Healthcare, P.C. in the

      1990s and was still being seen there when she became pregnant with a

      daughter, C.S., in the summer of 2010. There were several risk factors

      associated with the pregnancy, including Laura’s age (forty), her Rh-negative

      status,1 her history of miscarriages, and, eventually, marginal insertion of the

      placental cord. At some point before 10:00 a.m. on April 13, 2011, two days

      before her due date, Laura called Aegis to report that she had not felt the baby

      moving overnight and had felt only “diminished” movement that morning.

      Aegis directed her to come to its office for a non-stress test (“NST”). Aegis

      made a Triage Note about this call. Appellants’ App. Vol. II p. 132. The NST

      generated “tracing” strips, and the results were reported on Aegis’ Prenatal

      Flowsheet as follows: “non reactive, no response to vibroacoustic stim[ulation]




      1
        A mother’s Rh-negative status presents a risk of antibodies from the mother passing through the placenta
      and destroying the baby’s red blood cells, or “hemolytic disease of the newborn.” See “Hemolytic disease of
      the newborn,” available at https://medlineplus.gov/ency/article/001298.htm (last visited February 16,
      2017).

      Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017                    Page 3 of 10
      and decel[eration] with contraction.” Id. at 127. The NST prompted Aegis to

      send Laura to IU Health Bloomington Hospital for continued monitoring.

      Laura was admitted to the hospital at 11:57 a.m.

[4]   The OB Flowsheet from the hospital indicates that Laura was “admitted from

      ob office for [complaints of] decreased fetal movement and [fetal-heart-rate]

      deceleration on tracing in office” and that Aegis doctors continued to monitor

      C.S.’s heart rate, which generated additional “tracing” strips. Id. at 167. Notes

      on the OB Flowsheet show that C.S.’s heart rate was “undulating” and that an

      “urgent” c-section was called at 1:33 p.m. Id. at 165-170. C.S. was delivered

      forty minutes later, at 2:13 p.m. C.S. was born alive but with significant health

      issues; among other things, she had suffered a fetomaternal hemorrhage (some

      of her blood had passed to her mother before or during delivery).

[5]   In April 2013, Laura and her husband John filed a proposed complaint for

      medical malpractice against Aegis with the Indiana Department of Insurance.

      The Stevenses detailed the risks associated with the pregnancy, the care Aegis

      provided to Laura in the days and weeks leading up to the day of the c-section,

      including Aegis’ management of Laura’s Rh-negative status, and the health

      problems suffered by C.S. Id. at 54-59. Regarding the hours that immediately

      preceded the c-section, the Stevenses noted that Laura “was seen at Aegis,” that

      Aegis sent Laura to the hospital for further monitoring, and that, at the hospital,

      “several worrisome signs were immediately observed and an emergency

      caesarian section was performed.” Id. at 57. They also alleged more generally

      that Aegis “failed to adequately monitor Laura’s pregnancy and [C.S.’s]

      Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017   Page 4 of 10
      condition” and “failed to provide appropriate medical care and treatment to

      Laura and [C.S.]” Id. at 58.


[6]   A medical review panel was formed, and the parties submitted numerous

      medical records, including the Aegis Triage Note, the Aegis Prenatal

      Flowsheet, and the OB Flowsheet from the hospital. However, the NST and

      fetal-heart-rate tracings themselves were not submitted, and the panel did not

      ask the parties to submit them. In addition to medical records, the Stevenses

      submitted a narrative statement that focused, as their proposed complaint had,

      on Laura’s Rh-negative status and the other risks inherent in her pregnancy.

      They did not argue that Aegis waited too long to perform the c-section. In

      March 2015, the panel issued a unanimous opinion that “[t]he evidence does

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

      standard of care as charged in the complaint.” Id. at 60-63.


[7]   Three months later, the Stevenses sued Aegis in Monroe Circuit Court. Their

      complaint is substantially similar to their proposed complaint, including the

      allegation that Aegis “failed to adequately monitor Laura’s pregnancy and

      C.S.’s condition” in light of risks associated with the pregnancy. Id. at 37.

      Aegis promptly moved for summary judgment based on the medical review

      panel’s opinion.


[8]   In support of their opposition to Aegis’ motion, the Stevenses filed an affidavit

      from Dr. James Jarrett. Dr. Jarrett noted that he had reviewed the medical

      records from the day of C.S.’s birth, including the NST and fetal-heart-rate


      Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017   Page 5 of 10
       tracings. He concluded that the medical records, particularly the tracings,

       revealed that C.S. had been in “significant distress”; that Aegis should have

       recognized this distress and performed the c-section sooner; and that Aegis

       breached the standard of care by failing to do so. Id. at 191-96. In reply, Aegis

       argued that summary judgment was still appropriate because the Stevenses were

       raising a theory of malpractice that was not specifically articulated to the

       medical review panel, based on evidence—the tracings—that was not submitted

       to the panel.

[9]    After holding a hearing, the trial court issued an order granting Aegis’ motion

       for summary judgment. The court concluded that the Stevenses’ submission to

       the medical review panel “did not claim that the Defendants breached the duty

       of care in their timing of the caesarian section performed on Ms. Stevens, nor

       did they provide any information to the panel that could have supported such a

       claim.” Id. at 15.


[10]   The Stevenses now appeal.



                                   Discussion and Decision
[11]   The Stevenses ask us to reverse the trial court’s ruling that they did not present

       their “delayed-c-section” theory to the medical review panel and that they are

       therefore barred from presenting it in court. On appeal from a grant of

       summary judgment, we address the issues de novo, giving no deference to the




       Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017   Page 6 of 10
       trial court’s decision. Rogers Group, Inc. v. Tippecanoe Cty., 52 N.E.3d 848, 850

       (Ind. Ct. App. 2016), trans. denied.


[12]   The Stevenses rely on Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d

       1329 (Ind. 1997), and our recent decision in McKeen v. Turner, 61 N.E.3d 1251.

       In Miller, our Supreme Court rejected the argument that a medical-malpractice

       plaintiff’s action “is restricted by the substance of the submissions presented to

       the medical review panel,” explaining:

               Pursuant to the [Indiana Medical Malpractice Act], the panel
               was authorized to review the medical records and other
               submitted material pertaining to each defendant’s treatment of
               Nicholas. 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.


       679 N.E.2d at 1332. In McKeen, we relied on Miller, as well as the language of

       the Medical Malpractice Act, in holding that a medical-malpractice plaintiff

       who has made it through the medical-review-panel process and into court can

       pursue a theory of malpractice if (1) the theory was encompassed, under the

       liberal rules of notice pleading, by the proposed complaint that was before the

       panel and (2) evidence relating to the theory was submitted to the panel. 61

       N.E.3d at 1261.

[13]   The Stevenses argue that their “delayed-c-section” theory satisfies the

       requirements of McKeen. Aegis does not dispute the applicability of McKeen,


       Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017   Page 7 of 10
       nor does it dispute that the first of the two McKeen requirements was satisfied in

       this case, i.e., that Stevenses’ “delayed-c-section” theory was encompassed by

       the general allegations contained in their proposed complaint.2 However,

       focusing on the fact that the tracings from the NST at Aegis and from the fetal-

       heart-rate monitoring at the hospital were not submitted to the medical review

       panel, Aegis asserts that “the Stevens family did not provide evidence

       supporting their claim that C.S.’s delivery was unduly delayed to the medical

       review panel[.]” Appellees’ Br. p. 16. We disagree.

[14]   There is no question that the NST and fetal-heart-rate tracings are highly

       relevant to the Stevenses’ “delayed-c-section” theory. However, it is equally

       clear that the panel had before it other significant evidence that supports the

       theory, including records specifically addressing the NST and the fetal-heart-

       rate monitoring. The panel had: (1) the Aegis Triage Note indicating that

       Laura called Aegis at some point before 10:00 a.m. to report that she had not

       felt any fetal movement overnight and had felt only “diminished” movement

       that morning; (2) the Aegis Prenatal Flowsheet indicating that an NST was

       conducted because of the decreased fetal movement, that the test was “non

       reactive,” and that there was “no response to vibroacoustic stim[ulation] and

       decel[eration] with contraction”; (3) the OB Flowsheet from the hospital




       2
        A petition to transfer is pending in McKeen, but Aegis does not argue that it was wrongly decided. In
       another case we decide today, the defendant did make that argument, which we reject. See Llobet v. Gutierrez,
       No. 45A04-1605-CT-01133 (Ind. Ct. App. Feb. 22, 2017). We also note that we did not hand down McKeen
       until six months after the trial court made its decision in this case.

       Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017                     Page 8 of 10
       indicating that Laura was admitted at 11:57 a.m. “from ob office for

       [complaints of] decreased fetal movement and [fetal-heart-rate] deceleration on

       tracing in office,” that continued monitoring showed that C.S.’s heart rate was

       “undulating,” that Aegis doctors were reviewing the fetal-heart-rate “tracing,”

       and that an “urgent” c-section was called at 1:33 p.m.; and (4) evidence that

       C.S. was not delivered until forty minutes later, at 2:13 p.m.

[15]   While Aegis’ emphasis on the NST and fetal-heart-rate tracings is

       understandable, we simply cannot agree with its assertion that, without them,

       the medical review panel “did not have the opportunity to evaluate the

       timeliness of C.S.’s delivery.” Appellees’ Br. p. 20. The evidence that the panel

       did have put it on notice not only that the NST and the fetal-heart-rate

       monitoring had been conducted but also that the results of both were abnormal

       and that there were “tracings” associated with each. And to the extent that the

       panel was incapable of fully evaluating the timeliness of the c-section without

       the tracings themselves, we simply note that it had a right to request them. See

       Ind. Code § 34-18-10-21(a) (“The panel has the right and duty to request all

       necessary information.”).

[16]   Because evidence relating to the “delayed-c-section” theory was submitted to

       the medical review panel, and because the proposed complaint encompassed

       that theory, the Stevenses are entitled to present it in court. See McKeen, 61

       N.E.3d at 1261. Therefore, we reverse the trial court’s grant of summary

       judgment in favor of Aegis.



       Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017   Page 9 of 10
[17]   Reversed.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017   Page 10 of 10
