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Published by the Indiana Office of Court Services

Holsten v. Faur, No. 20A-CT-2072, __ N.E.3d __ (Ind. Ct. App., July 8, 2021).

July 12, 2021 Filed Under: Civil Tagged With: Appeals, L. Weissmann

Weissmann, J.
In this interlocutory appeal, we are asked to determine whether a medical malpractice plaintiff’s proposed complaint encompassed a particular theory of negligence, such that the plaintiff can be said to have presented the theory to a medical review panel before filing suit, as required by Indiana’s Medical Malpractice Act. We find the theory was not encompassed by the plaintiff’s proposed complaint, and therefore, the trial court lacked subject matter jurisdiction to enter partial summary judgment on that portion of the plaintiff’s medical malpractice claim. Accordingly, we vacate the court’s entry of partial summary judgment and remand for partial dismissal without prejudice
….
While a medical malpractice plaintiff generally must go through the MRP process before filing suit, “there is no requirement for such plaintiff to fully explicate and provide the particulars or legal contentions regarding the claim.” Miller by Miller v. Mem’l Hosp. of S. Bend, Inc., 679 N.E.2d 1329, 1332 (Ind. 1997). Our Supreme Court has held 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 relating to those theories was before the MRP.” McKeen v. Turner, 71 N.E.3d 833, 834 (Ind 2017) (quoting and adopting 61 N.E.3d at 1262).
Though the McKeen opinion does not directly link its two-part test to a trial court’s subject matter jurisdiction, both the test and a court’s jurisdiction over a medical malpractice claim are grounded in the Act’s requirement that such a claim first be submitted to a MRP. See McKeen, 61 N.E.3d at 1256 (emphasizing that a MRP must consider whether “defendants acted or failed to act within the appropriate standards of care as charged in the complaint”). We therefore find the McKeen test applicable in determining subject matter jurisdiction over a medical malpractice plaintiff’s claim.
III. Notice Pleading
There is no dispute that the MRP heard evidence relating to the sepsis theory— after all, it was a panelist’s review of that evidence which brought the theory to light. Linda also concedes that she did not specifically allege the sepsis theory in her proposed complaint. Appellant’s Br. p. 19; Reply Br. p. 8. In such circumstances, our analysis “focus[es] on the content of the proposed complaint” and “whether, under principles of notice pleading, that complaint encompasses theories of negligence raised by the plaintiff after the MRP process has concluded.” McKeen, 61 N.E.3d at 1260.
….
IV. Specific Allegations
Linda’s proposed complaint narrowly focused on two specific theories of negligence—the X-ray theory and the steroid theory. Rhetorical paragraphs 5 and 6 specifically alleged that Cameron Hospital was negligent in those “two areas,” both of which concern the health care Paul received at the urgent care center. App. Vol. II, p. 54 (emphasis added). Nowhere in her proposed complaint does Linda mention the sepsis theory of negligence or any other specific theory related to Paul’s care at the hospital emergency room.
….
V. Beyond the Pleadings
Alternatively, Linda claims Cameron Hospital had actual notice that her medical malpractice claim may go beyond the specific theories of negligence alleged in her proposed complaint. Specifically, Linda highlights the following objection, which she lodged in response to a Cameron Hospital interrogatory asking her to identify the hospital’s alleged breaches of the standard of care:

Objection. . . . The investigation of this case is continuing. In addition, the Plaintiff, on the advice of counsel, relies upon the Indiana Medical Malpractice Act and the provisions therein which provide for the review of any case by a Medical Review Panel to determine any act or omission on the part of any health care provider which may be below the standard of care. This matter has been initiated as a Proposed Complaint filed with the Insurance Commissioner providing for review of any claim and determination of the validity of a claim by a Medical Review Panel as a preliminary matter. See the Proposed Complaint for allegations of negligence.

App. Vol. II, p. 134.
A court may look beyond the pleadings in determining whether a complaint adequately notifies the defendant of a particular claim. Strain, 446 N.E.2d at 630. But as indicated above, it is the MRP, not Cameron Hospital, that required notice—at least as it relates to the transfer of jurisdiction from the MRP to the trial court under Indiana’s Medical Malpractice Act. See Ind. Code § 34-18-8-4. There is no indication that Linda’s interrogatory objection was submitted to the MRP. And even if it was, the objection does nothing to expand upon or generalize the specific theories of negligence alleged in Linda’s proposed complaint.
Again, the MRP “has 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.” Ind. Code § 34-18-10-22(a) (emphasis added). The sepsis theory was not encompassed by the allegations of Linda’s proposed complaint and, therefore, was not presented to the MRP. Accordingly, the trial court lacked subject matter jurisdiction to adjudicate that portion of Linda’s medical malpractice claim.
….
The trial court lacked subject matter jurisdiction over the sepsis theory portion of Linda’s medical malpractice claim. We therefore vacate the court’s entry of partial summary judgment and remand, instructing the trial court to dismiss, without prejudice, the sepsis theory portion of Linda’s claim. [25] Kirsch, J., and Altice, J., concur.

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