119 N.E.3d 1124
Ind. Ct. App.2019Background
- In 2006 the Overshiners sued Hendricks Regional Health and Dr. Ian Johnston after their daughter Kaitlyn developed neonatal hyperbilirubinemia and later kernicterus; a medical review panel unanimously found no breach.
- Trial began in November 2017; plaintiffs’ key expert was Dr. Robert Shuman, a retired neuropathologist/pediatric neurologist who primarily did medical‑legal work and was retired from active clinical practice.
- Dr. Shuman testified about what he believed the proper care should have been (more aggressive monitoring, formation of a pediatric/neonatal team, different nursing placement and bilirubin surveillance), criticized obstetric, pediatric, and nursing care, and stated the injury was preventable.
- On cross‑examination Dr. Shuman conceded he was not an obstetrician or neonatologist, had not completed pediatric training or been involved in post‑delivery handovers, and was not in active clinical practice or an active member of pediatrics organizations. He also acknowledged he would not treat the pregnancy in his specialty.
- Defendants moved for a directed verdict arguing Dr. Shuman did not establish familiarity with the applicable standard of care for obstetricians, pediatricians, or community hospital nursing in 2004. The trial court granted the directed verdict and denied the motion to correct error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in granting a directed verdict where plaintiff’s expert did not expressly state familiarity with the applicable standard of care | Shuman’s testimony identified applicable practices and breaches; an express statement of familiarity is not required—credentials and record review suffice | Expert failed to show he was familiar with standards for obstetrics, pediatrics, or community hospital nursing; his testimony reflected personal preferences, not the applicable standard | Trial court did not err: expert testimony failed to establish the applicable standard of care for the providers at issue; directed verdict affirmed |
| Whether a retired specialist may testify about standards in other specialties without demonstrating specific competence in those specialties | Expertise and practical explanations of care and breach allowed jury to infer standard | Expert must demonstrate familiarity or competence in the specialty whose standard is at issue; otherwise the jury cannot apply the standard reliably | Court held that an expert must provide testimony allowing the trier of fact to apply the appropriate standard; Dr. Shuman’s cross‑specialty criticisms without demonstrated competence were insufficient |
| Whether the medical review panel decision required rebuttal expert proof | Plaintiffs argued their trial evidence sufficed to dispute care | Defendants noted the medical panel found no breach; plaintiff must come forward with expert testimony to rebut panel | Court observed precedent requiring expert evidence to overcome a panel opinion in favor of defendants and that mere opinion differences are insufficient |
| Whether plaintiff proved breach and causation without explicit standard‑of‑care testimony | Plaintiff claimed Dr. Shuman showed how treatments deviated and caused injury | Defendants argued the link requires an expert grounded in the applicable standard | Held for defendants—without admissible standard‑of‑care foundation, breach and causation could not be proved to the jury |
Key Cases Cited
- McIntosh v. Cummins, 759 N.E.2d 1180 (Ind. Ct. App. 2011) (expert familiarity with standard of care relevant to admissibility)
- Robertson v. Bond, 779 N.E.2d 1245 (Ind. Ct. App. 2002) (plaintiff must rebut a medical review panel opinion with expert testimony)
- Oelling v. Rao, 593 N.E.2d 189 (Ind. 1992) (affidavit stating only that expert would have treated differently insufficient to defeat summary judgment)
- Aldrich v. Coda, 732 N.E.2d 243 (Ind. Ct. App. 2000) (affidavit by orthopedic surgeon inferred familiarity with podiatrist standard in that context)
- Lusk v. Swanson, 753 N.E.2d 748 (Ind. Ct. App. 2001) (expert in one specialty not automatically familiar with standards of a different specialty)
- Chi Yun Ho v. Frye, 880 N.E.2d 1192 (Ind. 2008) (expert testimony ordinarily required to establish breach in medical malpractice)
- Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000) (medical treatment’s technical nature usually requires expert evidence)
- Whitfield v. Wren, 14 N.E.3d 792 (Ind. Ct. App. 2014) (elements of medical malpractice claim summarized)