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Failure to Prescribe Medication In Complaint Against Surgeon


A woman suffered from bone marrow cancer. The woman was under the care of a surgeon. After the woman was discharged from the hospital, the surgeon did not prescribe anticoagulation medicine.

 

The woman’s blood clotted, resulting in readmission to the hospital. After some delay, the woman underwent exploratory surgery and died.

 

The woman’s widower submitted a proposed complaint to the medical review panel (MRP) as a prerequisite to bringing a medical malpractice action against the surgeon. The complaint alleged that the woman died as a result of the surgeon’s negligence with regard to the woman’s medical and surgical treatment. In support of the submission, the widower included the woman’s medical records and a narrative statement describing the records and alleging the delay in exploratory surgery following the woman’s readmission to the hospital resulted in death. The MRP issued a unanimous opinion finding the evidence did not support a conclusion that the surgeon had failed to meet the applicable standard of care.

 

The widower filed a complaint in the Monroe County Circuit Court. After extensive discovery, the widower filed a supplemental witness list naming an expert hematologist who was expected to testify that the surgeon had failed to prescribe the appropriate dosage of anticoagulation medication during and after the woman’s first hospital stay, to the woman’s death.

 

The surgeon moved to strike the widower’s expert hematologist’s opinion. The motion argued that the widower’s submission to the MRP did not allege malpractice relating to the anticoagulation medication and the widower was attempting to raise a new claim in the trial court that was not presented to the MRP, in violation of Indiana statutory law.

 

The trial court denied to the surgeon’s motion.

 

The Indiana Court of Appeals affirmed. The appellate court held that a plaintiff may raise any theories of alleged malpractice during litigation following the MRP process if the proposed complaint encompassed the theories and the evidence relating to those theories had been before the MRP. The appellate court concluded that the widower had met those requirements and could pursue in court the claim related to the anticoagulation medication

 

The Supreme Court of Indiana affirmed. The court held that the widower could raise a new theory, before the trial court, of the surgeon’s alleged medical malpractice based on the failure to prescribe anticoagulation medicine.

 

The widower could raise before the trial court a new theory of the surgeon’s alleged medical malpractice based on the failure to prescribe anticoagulation medicine. The proposed complaint the widower submitted to the MRP sufficiently encompassed allegations related to the surgeon’s failure to prescribe anticoagulation medication during and after the woman’s first of two hospital stays. The complaint specifically covered the dates of both of the woman’s hospital stays. The complaint asserted that both medical and surgical treatment provided by the surgeon was negligent. The evidence related to the allegations related to the surgeon’s failure to prescribe anticoagulation medication during and after the first of the woman’s two hospital stays had been before the MRP because the widower had provided the MRP with the woman’s full medical records related to both hospital stays.

 

The Supreme Court of Indiana affirmed the trial court’s denial of the surgeon and his practice group’s motion to strike the widower’s expert hematologist’s testimony regarding the surgeon’s failure to prescribe anticoagulation medication.

 

See: McKeen v. Turner, 2017 WL 1291342 (Ind., April 7, 2017) (not designated for publication).

 

See also Medical Law Perspectives, December 2013 Report: Thicker than Water: Liability When Blood Clots Cause Injury or Death

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

 

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