Indiana Medical Malpractice Plaintiff’s Loss In Stillborn Baby Case Upheld On Appeal

162017_132140396847214_292624_nA woman whose baby died in the womb before birth filed an Indiana medical malpractice lawsuit against her physicians and their medical practice who had provided her with prenatal care, alleging that medical negligence during the month before birth while the fetus was viable led to the baby’s death.

The Indiana woman filed a Proposed Complaint for Medical Malpractice with the Indiana Department of Insurance, as required under Indiana’s Medical Malpractice Act, which she subsequently amended to add her stillborn baby as a party. An Indiana Medical Review Panel that reviewed her medical malpractice claim issued its opinion “that the evidence does not support the conclusion that the [Appellees] failed to meet the applicable standard of care, and that their conduct was not a factor of the resultant damages.”

The medical malpractice plaintiff subsequently filed a Complaint for Medical Malpractice in court. The medical malpractice defendants filed a motion for summary judgment, alleging that the plaintiff had failed to establish a genuine issue of material fact in the standard of care by the defendants and because the stillborn baby’s claim under Indiana’s Child Wrongful Death Statute was time-barred.

After a hearing on the defendants’ motion for summary judgment and the plaintiff’s response to the motion, the trial court granted the defendants’ motion; the plaintiff appealed to the Court of Appeals of Indiana, which issued its opinion in this case on July 15, 2014.

The Court of Appeals of Indiana (“Court of Appeals”) noted that the plaintiff provided expert testimony that one of the medical malpractice defendants either performed an insufficient biophysical profile or interpreted the profile improperly, five days before the baby was stillborn. The Court of Appeals determined that the plaintiff’s expert had failed to establish that the defendant conducted and interpreted the perceived insufficient biophysical or otherwise failed to apply the appropriate standard of care in his treatment of the plaintiff, and therefore concluded that the Medical Review Panel’s unanimous opinion in favor of the defendants was not rebutted and no genuine material issue of fact existed.

The plaintiff also alleged that a physician involved with her care, who was not named as a defendant in the claim filed with the Indiana Department of Insurance and therefore the Medical Review Panel had not reviewed his conduct, had failed to follow up on a glucose screen ordered within the month before the stillbirth, which indicated a high blood sugar level, and that the failure to decrease the plaintiff’s sugar level contributed to the stillbirth. The plaintiff sought to hold this physician’s medical practice liable for the physician’s alleged acts and omissions of medical negligence under the principle of respondeat superior (vicarious liability).

The Court of Appeals responded to the plaintiff’s attempt to hold this physician’s medical practice liable for his alleged medical negligence by stating, “we are asked to analyze whether a health care provider can be held vicariously liable for the perceived acts of medical malpractice committed by its agent-physician when the physician’s conduct was never reviewed by the medical review panel. We hold that it cannot.”

The Court of Appeals explained, “To allow the introduction of a perceived breach in [this physician’s] standard of care by virtue of his association with the named corporate health care provider … would enable Appellants to bypass the procedural requirements of the [Medical Malpractice] Act and would create a potential avenue for patients to sue their physicians for medical negligence by simply presenting the perceived lack of care in the corporate entity before the Panel and, upon completion of the Panel process, pursue an action against any individual physicians. Such a procedure, which would strip a physician’s protections against the escalation of malpractice claims under the Act, was neither intended nor anticipated by the legislature.”

With regard to the stillborn baby’s medical malpractice claim under Indiana’s Child Wrongful Death Statute (“CWDS”), the Court of Appeals noted that the baby’s claim accrued at the time of his stillborn delivery (a claim under the CWDS must be brought no later than two years after the date of death) and that at that time, the CWDS only permitted recovery for a child born alive, not for a viable fetus that died in utero (the CWDS was amended, effective July 1, 2009, that re-defined “Child” under the statute to include any fetus that had attained viability, which specifically only applied to claims which accrued after June 30, 2009 — two years after the plaintiff’s stillborn delivery and one month after the plaintiff filed her initial proposed complaint). Therefore, the Court of Appeals held that the trial court properly concluded that no recovery exists for the 2007 death of a child not born alive under the Child Wrongful Death Statute, as amended.

Rebecca Stafford, Individually and as Surviving Parent of Drayden Powell, Deceased, and Drayden Powell, Deceased, Appellants-Plaintiffs, vs. James E. Szymanowski, M.D. and GYN, LTD., INC., Appellees-Defendants, No. 89A01-1401-CT-48. Read the entire opinion of the Court of Appeals of Indiana by clicking here.

If you may have been injured as a result of medical malpractice in Indiana or in another U.S. state, you should promptly seek the legal advice of an Indiana medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Friday, July 18th, 2014 at 6:13 am. Both comments and pings are currently closed.


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