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

Crystal G. Rowe                                                             FILED
Kightlinger & Gray, LLP                                                 Apr 07 2017, 3:20 pm
New Albany, Indiana
                                                                            CLERK
                                                                        Indiana Supreme Court
ATTORNEYS FOR AMICUS CURIAE                                                Court of Appeals
                                                                             and Tax Court
STEPHEN W. ROBERTSON, COMMISSIONER
OF THE INDIANA DEPARTMENT OF INSURANCE
AND ADMINISTRATOR OF THE INDIANA
PATIENT’S COMPENSATION FUND
Matthew W. Conner
Bryan H. Babb
Bose McKinney & Evans LLP
Indianapolis, Indiana

Wade D. Fulford
Indiana Department of Insurance
Indianapolis, Indiana

______________________________________________________________________________

                                                In the
                             Indiana Supreme Court
                                  _________________________________

                                         No. 53S05-1704-CT-202

CHARLES MCKEEN, M.D.,
                                                         Appellant (Defendant below),

                                                    v.

BILLY TURNER ,                                        Appellee (Plaintiff below).
                                  _________________________________

               Appeal from the Monroe Circuit Court, No. 53C06-1201-CT-000088
                             The Honorable Frances G. Hill, Judge
                            _________________________________
     On Petition to Transfer from the Indiana Court of Appeals, No. 53A05-1511-CT-02047

                            _________________________________

                                          April 7, 2017

Per Curiam.

       Billy Turner filed a proposed malpractice complaint with the Indiana Department of

Insurance pursuant to the Medical Malpractice Act, alleging Doctor Charles McKeen’s medical

and surgical treatment of Turner’s wife, Rowena, failed to meet the appropriate standard of care.

In addition to the complaint, Turner’s submission to the Medical Review Panel (“MRP”)

included Rowena’s medical records and a narrative statement describing the records and alleging

the delay in exploratory surgery following Rowena’s readmission to the hospital resulted in her

death. (Appellant's App. pp. 74, 86.) The MRP issued a unanimous opinion finding the

evidence did not support a conclusion that Dr. McKeen had failed to meet the applicable

standard of care.

       Turner then filed a complaint in court. After extensive discovery, Turner filed a

supplemental witness list naming an expert hematologist who was expected to testify that Dr.

McKeen had failed to prescribe the appropriate dosage of anticoagulation medication, leading to

Rowena’s death. Dr. McKeen filed a motion to strike the hematologist’s opinion on grounds

Turner’s submission to the MRP did not allege malpractice relating to the anticoagulation

medication, and so Turner could not pursue the claim in court. The trial court denied Dr.

McKeen’s motion, and this interlocutory appeal followed.

       Before a plaintiff may pursue a malpractice complaint in court against a qualified

healthcare provider, the Medical Malpractice Act requires the plaintiff to present a proposed

complaint to a MRP, and the MRP must give its opinion as to whether the provider breached the
standard of care.1 See Ind. Code § 34-18-8-4. Dr. McKeen contends Turner is attempting to

raise a new claim in the trial court that he did not present to the MRP, in violation of the statute.

          The Court of Appeals disagreed in an opinion authored by Judge Baker, holding “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 relating to

those theories was before the MRP.” McKeen v. Turner, 61 N.E.3d 1251, 1262 (Ind. Ct. App.

2016). The Court of Appeals concluded Turner met these requirements and may pursue in court

his claim related to the anticoagulation medication.

          We agree with the Court of Appeals, finding its opinion consistent with Miller v.

Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997). We thus grant transfer

and adopt and incorporate by reference the Court of Appeals opinion. See Ind. Appellate Rule

58(A)(1). We further find K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011), is at odds

with Miller on the issue we address today and expressly disapprove K.D.



All Justices concur.




1
    None of the limited exceptions to this general rule apply here.
