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May 12, 2011   Court Invalidates Medical Review Panel Opinion Regarding Nurse Panel Member's Medical Causation Opinion
By George M. Plews and Tonya J. Bond
PDF of Court Invalidates Medical Review Panel Opinion Regarding Nurse Panel Member's Medical Causation Opinion (105k PDF file)

Plews Shadley served as appellate co-counsel in a significant case in which the Indiana Court of Appeals found that a medical review panel chair failed to carry out his statutory duties when he allowed a nurse to opine on medical causation in a medical review panel expert opinion.1   Doe Corporation v. Lolita Honore, et al, No. 49A05-1007-MI-408 at 9 (Ind. Ct. App. Apr. 27, 2011).  Based on this holding, medical review panel opinions containing a nurse’s opinion on medical causation are invalid.  Id. at 8–9. 

This issue has been brewing for some time.  Under the Medical Malpractice Act, nurses can serve on medical review panels because they are included in the statutory definition of “health care providers.”  Ind. Code § 34-18-2-14; Harlett v. St. Vincent Hosp. & Health Servs., 748 N.E.2d 291 (Ind. Ct. App. 2001).  The medical review panel’s purpose, however, is to issue an “expert” opinion that is automatically admissible at any subsequent trial.  Ind. Code § 34-18-10-23.  A medical review panel’s expert opinion usually contains an opinion on medical causation.  Ind. Code § 34-18-10-22(b)(4).  Indiana Rule of Evidence 702 and case law interpreting it, however, prohibits nurses from providing expert opinions on medical causation at trial.  Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43, 51 (Ind. Ct. App. 2010).  The Indiana Court of Appeals has found that “there is a significant difference in education, training, and authority to diagnose and treat diseases between physicians and nurses,” and nurses do not have the requisite expertise to opine on medical causation.  Id.; Long v. Methodist Hosp., 699 N.E.2d 1164, 1169 (Ind. Ct. App. 1998), trans. denied.; Stryczek v. The Methodist Hosps., Inc., 694 N.E.2d 1186, 1189 (Ind. Ct. App. 1998). 

In Honore, the Court for the first time held that a nurse could not properly offer an opinion on causation in the medical review panel’s opinion.  Honore, No. 49A-05-1007-MI-405, at 9.  Several earlier opinions had noted, but not resolved, the issue.  Based on this new ruling, medical review panel chairs should instruct nurses sitting on medical review panels to refrain from opining on medical causation.  Otherwise, the opinion will be invalid and inadmissible at trial.
With this decision, the Indiana Court of Appeals also held, as a matter of first impression, that trial courts retain jurisdiction over medical review panel opinions until a valid opinion is issued.  Honore, No. 49A05-1007-MI-408, at 9–10.  The plaintiff argued that the issuance of the medical review panel’s opinion and the filing of the subsequent malpractice action divested the trial court of  jurisdiction over the panel process.

If you have any questions about this case, please contact George Plews  or Tonya Bond

[1]Lara D. Engelking with the Engelking Law Group, LLC served as co-counsel with Plews Shadley on this appeal.  Ms. Engelking represents Midwest Insurance Group (the insurer for the appellant Doe Corporation) in nursing home negligence cases.  Indiana Health Care Association, Hoosier Owners and Providers for the Elderly, and Indiana Association of Homes and Services for the Aging were Amici Curiae.

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