IU Health, Inc. d/b/a Riley Hospital for Children v. Mike Meece and Natalie L. Meece, Individually and as Parents and Natural Guardians of Gabriel M. Meece, Minor (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 28, 2019
• Docket: 18A-CT-2968
• Status: Published

Opinion

MEMO RANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 28 2019, 6:56 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES Elliott I. Pinkie John Jacob Warrum Susan E. Cline Mt. Vernon, Indiana Louise K. Conces Cline Law Group, LLC Richard L. Schultheis Indianapolis, Indiana Indianapolis, Indiana

Ronald Warrum Mt. Vernon, Indiana

H. Wayne Turpin Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA IU Health, Inc. d/b/a Riley May 28, 2019 Hospital for Children, Court of Appeals Case No. Appellant-Defendant, 18A-CT-2968 Appeal from the Vanderburgh v. Circuit Court The Honorable David D. Kiely, Mike Meece and Natalie L. Judge Meece, Individually and as Trial Court Cause No. Parents and Natural Guardians 82C01-1607-CT-3266 of Gabriel M. Meece, Deceased Minor,

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 1 of 10 Appellees-Plaintiffs.

Najam, Judge.

Statement of the Case [1] IU Health, Inc. d/b/a Riley Hospital for Children (“Riley”) appeals from two

of the trial court’s orders following a jury verdict in favor of Mike Meece and

Natalie L. Meece, Individually and as Parents and Natural Guardians of

Gabriel M. Meece (“Gabe”), Deceased Minor (collectively, “the Meeces”), on

their complaint against Riley alleging medical malpractice. Riley presents a

single dispositive issue for our review, namely, whether the trial court erred

when it denied Riley’s motion for a directed verdict at the conclusion of the

Meeces’ presentation of evidence at trial.

[2] We reverse.

Facts and Procedural History [3] On May 3, 2010, Gabe, who was five years old, began treatment at Riley for

acute lymphoblastic leukemia/lymphoma (“ALL”). Gabe and his parents lived

near Evansville at that time, and they traveled several hours to reach Riley in

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 2 of 10 Indianapolis for treatment. Dr. Terry Vik was Gabe’s attending physician at

Riley. As part of his treatment, Gabe received chemotherapy at Riley on May

4, May 11, May 18, May 25, and June 2.

[4] On June 2, Gabe received an injection of intrathecal methotrexate. On June 5,

Gabe developed a fever. Gabe’s mother, Natalie, called Riley’s on-call nurse to

report that Gabe had a fever and that he had vomited. Per the nurse’s

instructions, Natalie took Gabe to the emergency room at nearby Deaconess

Hospital (“Deaconess”) in Evansville, where he was treated and released. The

next day, June 6, Natalie again called Riley’s on-call nurse to report that Gabe

had a fever and a headache. Again, the nurse instructed Natalie to take Gabe

to the emergency room at Deaconess, where he was treated and released.

[5] On June 8, Gabe returned to Riley for another round of chemotherapy,

including a lumbar puncture and injection of intrathecal methotrexate. Gabe

did not have a fever or other ailments when he arrived that day. After the

lumbar puncture, Gabe developed a headache, which resolved after he was

given morphine and other medications. Gabe was discharged that evening, and

Natalie drove him home.

[6] During the drive home, Natalie had to pull the car over because Gabe “was

screaming saying his head was hurting.” Tr. Vol. I at 60. Natalie had Gabe lie

down in the back seat of the car, and she drove him home and put him to bed.

The next morning, on June 9, Gabe “woke up screaming . . . [and] kept saying

that his legs hurt, he couldn’t walk,” and Gabe said that “his head hurt[.]” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 3 of 10 Natalie called Riley, and someone there instructed her to take Gabe to a nearby

emergency room. From there, Gabe was transported by ambulance to Riley,

where he was admitted. Health care providers at Riley initially diagnosed Gabe

with meningitis. On June 17, when his symptoms had not improved, Gabe was

transferred to the pediatric intensive care unit at Riley. On June 24, Gabe was

finally diagnosed as suffering from chemotherapy toxicity. Specifically, Gabe

had had an extremely bad reaction to the methotrexate administered to him on

June 8. Gabe died on June 25.

[7] On September 15, 2014, the Meeces filed a second amended proposed

complaint for damages with the Indiana Department of Insurance alleging that

Deaconess, Riley, and Dr. Vik had committed medical malpractice that

proximately caused Gabe’s death. 1 A unanimous medical review panel

concluded that “the evidence [did] not support the conclusion that [any of the

defendants had] failed to meet the applicable standard of care as charged in the

proposed Complaint.” Appellant’s App. Vol. II at 40-41. In addition, two out

of the three panel members concluded that the defendants’ conduct “was not a

factor of the resultant damages.” Id. at 41.

[8] On July 5, 2016, the Meeces filed their complaint against the defendants with

the trial court. Dr. Vik and Riley moved for summary judgment. In response,

1 The record does not show when the Meeces filed their first proposed complaint for damages. In any event, the second amended proposed complaint was timely filed.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 4 of 10 the Meeces submitted Dr. David Wilson’s affidavit in which he stated in

relevant part that

8. It is below the standard of care for Dr. Vik, his agents and representatives, and Riley Hospital, its agents and representatives, to not delay the 6/8/10 intrathecal dose of methotrexate.

9. The failure to postpone the intrathecal methotrexate was the cause of death on 6/25/10.

Appellees’ App. Vol. II at 5. Dr. Vik and Riley then withdrew their summary

judgment motion, and they took Dr. Wilson’s deposition. In his deposition,

Dr. Wilson did not testify that Riley’s conduct had breached the applicable

standard of care. Accordingly, Riley filed another summary judgment motion,

which the trial court denied after a hearing.

[9] During the ensuing jury trial, 2 the Meeces presented the testimony of a single

expert witness in their favor, Dr. Wilson. At the conclusion of the Meeces’

presentation of evidence, Riley moved for a directed verdict. In particular,

Riley argued that the Meeces had not presented any evidence regarding the

standard of care owed to Gabe by Riley or whether Riley had breached the

applicable standard of care. The trial court denied that motion. A jury found

in favor of the Meeces on their claims against Riley and awarded them

$3,000,000, but it found in favor of Dr. Vik on their claims against him.

2 Deaconess was dismissed as a defendant prior to trial.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 5 of 10 Pursuant to Indiana’s Medical Malpractice Act, the trial court reduced the

amount of damages awarded to the statutory cap of $1,250,000.

[10] A few weeks later, Riley moved the trial court for judgment on the evidence

under Trial Rule 50(A)(3), and Riley also filed a motion to correct error. 3 In

those motions, Riley again argued that the Meeces had not presented any

evidence to support a determination of its negligence. The trial court denied

both of Riley’s motions. This appeal ensued.

Discussion and Decision [11] Riley contends that the trial court erred when it denied its motion for a directed

verdict at the close of the Meeces’ presentation of evidence during trial.

Motions for a directed verdict, also called motions for judgment on the

evidence, are controlled by Indiana Trial Rule 50(A). Perez v. Hu, 87 N.E.3d

1130, 1134 (Ind. Ct. App. 2017). That rule provides in part:

Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict.

3 Trial Rule 50(A)(3) provides that a party may move for judgment on the evidence after the presentation of all evidence and before judgment. Riley claims that the trial court had not yet reduced the jury verdict to a judgment, but a CCS entry dated September 20, 2018, refers to the “judgment.” Appellant’s App. Vol. II at 19. In any event, Riley timely filed its motion to correct error, and, after the trial court denied that motion, Riley timely filed this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 6 of 10 T.R. 50(A). When reviewing a motion for directed verdict, we use the same

standard as the trial court. Young v. Ind. Dep’t of Nat. Resources, 789 N.E.2d 550,

556 (Ind. Ct. App. 2003), trans. denied. That is, our review is de novo. A

directed verdict is proper only if all or some of the issues are not supported by

sufficient evidence. Perez, 87 N.E.3d at 1134. “‘We will examine only the

evidence and the reasonable inferences that may be drawn therefrom that are

most favorable to the nonmovant, and the motion should be granted only where

there is no substantial evidence supporting an essential issue in the case.’” Id.

(quoting Think Tank Software Dev. Corp. v. Chester, Inc., 30 N.E.3d 738, 744 (Ind.

Ct. App. 2015), trans. denied). A directed verdict or judgment on the evidence is

improper if there is evidence that would allow reasonable people to differ as to

the result. Id.

[12] To prove a claim of medical malpractice, a plaintiff must show that: (1) the

health care provider owed a duty to the plaintiff; (2) the health care provider

breached that duty; and (3) the breach proximately caused the plaintiff’s

injuries. Bhatia v. Khollipara, 916 N.E.2d 242, 245 (Ind. Ct. App. 2009). “‘In

medical malpractice cases, it is well-established that when the medical review

panel opines that the plaintiff has failed to make a prima facie case, she must

then come forward with expert medical testimony to rebut the panel’s

opinion[.]’” Id. (quoting Brown v. Banta, 682 N.E.2d 582, 584 (Ind. Ct. App.

1997), trans. denied). To determine whether the health care provider’s conduct

fell below the legally prescribed standard of care, the plaintiff must present

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 7 of 10 expert testimony to establish what a reasonably prudent health care provider

would or would not have done in treating the plaintiff. 4 Id.

[13] Here, because the medical review panel concluded that Riley had not breached

the applicable standard of care in its treatment of Gabe, the Meeces were

required to present expert testimony that Riley breached the applicable duty of

reasonable care. Id. At trial, the Meeces called a single expert witness to testify

on their behalf, Dr. Wilson. Dr. Wilson testified that Gabe had died of an

“adverse drug reaction from the intrathecal methotrexate” which the health

care providers “didn’t recognize” until it was too late. Tr. Vol. I at 143. On

direct examination, the Meeces’ counsel asked Dr. Wilson, “And based on your

statement that [Dr. Vik] and Riley just missed this, you believe the Doctor’s conduct

fell below the standard of care?” Id. at 152 (emphasis added). Dr. Wilson

responded, “I do believe that the conduct fell below the standard of care.” Id.

Despite that testimony, again, the jury entered a verdict in favor of Dr. Vik.

[14] The following colloquy then transpired on cross-examination:

Q: You’re not testifying in this case that the nurses at Riley Hospital for Children breached the standard of care in treating Gabe, are you?

A: They did not. I am not testifying to that.

4 An exception to this rule is that a plaintiff is not required to present expert testimony in those cases where the deviation from the standard of care is a matter commonly known to lay persons. Bhatia, 916 N.E.2d at 246 n.1. The Meeces make no argument that the applicable standard of care in this case is a matter commonly known to lay persons.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 8 of 10 Q: And you don’t have any criticism with the nursing care provided to Gabriel Meece, do you?

A: No, sir.

Id. at 158. Thus, contrary to his affidavit, where he had stated that Riley’s

conduct had breached the applicable standard of care, Dr. Wilson explicitly

testified at trial that Riley had not breached the standard of care. Accordingly,

we must agree with Riley that Dr. Wilson’s testimony did not rebut the medical

review panel’s opinion that Riley was not negligent in its treatment of Gabe.

[15] Still, on appeal, the Meeces direct us to Dr. Vik’s testimony that the standard of

care required that Gabe’s health care providers “[w]atch [Gabe] carefully for

side effects while [he received] methotrexate and chemotherapy.” Id. at 118.

But, while that testimony established the standard of care for all of Gabe’s

health care providers, the Meeces do not direct us to any expert testimony

presented at trial that Riley’s conduct fell below that standard of care.

[16] Instead, in their brief on appeal, the Meeces state, generally, that Riley’s

records, as well as the testimony of Dr. Wilson, Dr. Vik, Natalie, and a nurse

show that Riley violated the standard of care. But the Meeces’ citations to

portions of the transcript and exhibits do not include any evidence showing that

Riley breached the applicable standard of care. The Meeces direct us only to

evidence to support their general allegations that Riley made perceived errors in

its treatment of Gabe, such as not having explained “the possibility of

methotrexate toxicity” to the Meeces before starting Gabe’s treatment or that

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 9 of 10 the methotrexate infusion given on June 8 “could have been delayed.”

Appellees’ Br. at 15. The Meeces state, without citation to relevant portions of

the record, that Riley’s “nurses, nurse practitioners, fellows, and residents . . .

either caused or contributed to Gabe’s death.” Id. at 16.

[17] We hold that the Meeces did not present evidence at trial to prove that Riley

breached the applicable standard of care in its provision of health care to Gabe.

Accordingly, the trial court erred when it denied Riley’s motion for directed

verdict at the close of the Meeces’ presentation of evidence at trial. Cf., Syfu v.

Quinn, 826 N.E.2d 699, 704 (Ind. Ct. App. 2005) (holding summary judgment

warranted for defendant where plaintiff’s expert did not state that defendant’s

conduct fell below the standard of care); Perry v. Driehorst, 808 N.E.2d 765, 770

(Ind. Ct. App. 2004) (holding summary judgment warranted for defendant

where plaintiff designated portions of defendant physician’s deposition

testimony that test done on plaintiff was “suboptimal and flawed,” but did not

establish either standard of care or that defendant’s conduct fell below standard

of care), trans. denied. The issue of whether Riley committed medical

malpractice should not have been presented to the jury. We reverse the

judgment in favor of the Meeces on their negligence claims against Riley.

[18] Reversed.

Baker, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2968 | May 28, 2019 Page 10 of 10