Overshiner v. Hendricks Reg'l Health & Ian Johnston

• Decision Date: 21 February 2019
• Docket Number: Court of Appeals Case No. 18A-CT-582
• Parties: Marigold OVERSHINER and Earl Overshiner, Individually and as Parents and Guardians of Their Minor Daughter, Kaitlyn Overshiner, and Kaitlyn Overshiner, Appellants-Plaintiffs, v. HENDRICKS REGIONAL HEALTH and Ian Johnston, M.D., Appellees-Defendants.
• Court: Indiana Appellate Court

119 N.E.3d 1124

Marigold OVERSHINER and Earl Overshiner, Individually and as Parents and Guardians of Their Minor Daughter, Kaitlyn Overshiner, and Kaitlyn Overshiner, Appellants-Plaintiffs,

v.HENDRICKS REGIONAL HEALTH and Ian Johnston, M.D., Appellees-Defendants.

Court of Appeals Case No. 18A-CT-582

Court of Appeals of Indiana.

FILED February 21, 2019

Rehearing denied April 16, 2019

Attorneys for Appellants: John Morris, Stan Brown, Morris Law Firm, Lafayette, Indiana

Attorneys for Appellee Hendricks Regional Health, Ronald A. Mingus, Nicholas G. Brunette, Katherine M. Haire, Reminger Co., LPA, Indianapolis, Indiana

Attorney for Appellee Ian Johnston, M.D.: James W. Brauer, Katz Korin Cunningham PC, Indianapolis, Indiana

Brown, Judge.

[1] Marigold Overshiner and Earl Overshiner, Individually and as Parents and Guardians of their Minor Daughter, Kaitlyn Overshiner, and Kaitlyn Overshiner (collectively, the "Overshiners") appeal the trial court's directed verdict in favor of Hendricks Regional Health ("Hendricks Regional") and Ian Johnston, M.D. ("Dr. Johnston" and together with Hendricks Regional, "Providers"). We affirm.¹

Facts and Procedural History

[2] On September 27, 2006, the Overshiners filed a complaint for damages against Providers and other defendants in the Putnam Circuit Court, after having filed a proposed complaint with the Indiana Department of Insurance pursuant to the Indiana Medical Malpractice Act. The medical review panel, consisting of a board-certified pediatrician, a board-certified obstetrician-gynecologist, and a neonatologist, unanimously decided that Providers and other defendants did not breach the standard of care or cause the claimed injuries. The complaint alleged that Marigold presented in active labor on October 26, 2004, at Hendricks Regional Hospital in Danville, Indiana, that "Marigold was admitted to the hospital under the care, treatment and supervision of [Dr. Johnston]," and that Dr. Johnston "was Marigold's obstetrician during this pregnancy, beginning on or about March 11, 2004" and "[k]new that Marigold was blood type O negative and anti-D positive" early on in her pregnancy and prior to October 26, 2004. Appellee Hendricks Regional's Appendix Volume II at 5. It stated that, within the first twenty-four hours following her birth the night of October 26, 2004, Kaitlyn's cord blood indicated that she was RH positive, which was indicative of hemolytic disease of the newborn ; that on the morning of October 27, 2004,² Kaitlyn's newborn Total Serum Bilirubin ("TSB") was 9.2; and that she developed jaundice and was treated with phototherapy on the same day. The complaint further alleged that Kaitlyn's risk factors for severe neonatal hyperbilirubinemia were present prior to, during, and after her birth, and that she suffered hyperbilirubinemia and other medical conditions and physical injuries, including, but not limited to, blindness.

[3] On November 27, 2017, an eight-day jury trial commenced. On November 30, 2017, the Overshiners began four days of testimony by Dr. Robert Shuman, a retired neuropathologist who currently provides "mostly medical-legal consultations."³ Transcript Volume II at 39. He testified that he decided to be a pediatric neuropathologist and "wanted to be a person who looked at the brains of children we lost and reason, or figure out, or explore, or determine why we lost those children" in medical school. Id. at 10. He indicated that, when he started his pediatric neuropathology training, he "changed from the bedside to the autopsy room" and from 1971 to 1975 autopsied "4,300 brains, of which 1,500 were infants and children." Id. at 13-14. He testified he did not engage in direct patient practice from the period of 1970 through 1975 "when we still had Rh disease." Id. at 15.

[4] Dr. Shuman stated that he has a board certification in neuropathology and that he was "board-certified in neurology with special competence in neurology." Id. at 30. He later indicated he was not, nor eligible to be, a member of the American Academy of Pediatrics and that he was "not an active member but ... retired" from the American Academy of Neurology. Supplemental Transcript Volume II at 103. He testified that he had been licensed to practice medicine "[s]ince 1990, or 1991" and, from 1991 until 2014, was in South Bend, Indiana, where he "practiced child neurology, founding a ... clinical practice of child neurology ... which [he] then maintained until [his] retirement in 2006,"⁴ and he later testified that upon retiring he moved to California. Transcript Volume II at 4, 26.

[5] At a later point during cross-examination, Dr. Shuman answered affirmatively when he was asked "we've already gone over that you're not a pediatrician and not an obstetrician, correct[?]" Supplemental Transcript Volume II at 130. He answered affirmatively when he was asked whether the guidelines of the American Academy of Neurology provided "[i]f a medical expert is not in active clinical practice when offering an expert opinion," the expert "should be prepared to demonstrate competence to provide such an opinion," and that evidence of competence may include "active clinical practice," "relevant publications in medical or scientific journals," and "active teaching or supervision of medical students, residents, or fellows in an area relevant to the expertise opinion ...." Id. at 104. Dr. Shuman agreed that he did not meet the American Academy of Neurology's guidelines for testifying because he was not in active clinical practice, did not teach, and had no publications "since you returned." Id. at 104-105. He also indicated that he had never been involved in the handover between the obstetrician and the pediatrician after a child is born, "[e]xcept in [his] training as a pediatrician," which he subsequently admitted he did not complete. Id. at 130.

[6] When counsel for the Overshiners moved to submit Dr. Shuman "as qualified to be an expert," the following exchange occurred:

THE COURT: Any statement from the defense? I thought we –

[Counsel for Hendricks Regional]: Your Honor, I'm sorry. Don't we have a motion in limine already –

THE COURT: Right.

[Counsel for Hendricks Regional]: – that the Court has already addressed.

THE COURT: Right. Ladies and gentlemen, we'll show that the doctor – it [sic] obviously is a doctor. You'll hear from a lot of doctors here the next few days, okay? And we've already heard what his areas of his practice were in.

Transcript Volume II at 40.

[7] Dr. Shuman indicated that he "really [thought] that there's a tremendous amount of variability" to dealing with Rh disease with respect to the standards of practice. Id. at 114. In comparing himself to a typical practitioner, he testified:

I am less aggressive than neonatologists. I am as aggressive as those whom I consider to be very good pediatricians. I am much more aggressive than many pediatricians. And then, I qualify that by telling you that I've only known good pediatricians.

I'm terribly proactive. Aggressive has a bad connotation. I'm terribly proactive in my practice of pediatric neurology. I would rather prevent seizures than treat seizures.

Id. at 114. In explaining the standard of care when dealing with an Rh baby, he stated that "from the moment of first visit to the obstetrician, the obstetrician's standard of care is one of hypervigilance and diligence." Id. at 201.

[8] He indicated that the obstetrician must consult a fellow physician in hematology to ensure coverage on the anti-Rh antibody and its course, that "you really have to recruit a fetal and maternal medicine person," and that "you're going to need sophisticated nursing care." Id. at 202. When asked to address the care provided by Dr. Johnston, Dr. Shuman testified in part that there was no evidence that a pediatric team was contacted or formed and that Kaitlyn was delivered into a hospital "where the blood bank was not prepared, where the pediatric staff were not informed, a team had not been made, and the resources were not available to take care of her in crisis." Id. at 212. At a later point, during cross-examination, Dr. Shuman acknowledged that Dr. Johnston had recommended to Marigold that a high-risk specialist should be brought on board, and that she had refused, which Dr. Shuman characterized as "wrong-headed"; that Marigold should have accepted Dr. Johnston's advice; that Dr. Johnston's recommendation to involve a high-risk specialist was "the start of putting together a team"; and that a high-risk specialist could be a maternal fetal specialist or a neonatologist or both. Supplemental Transcript Volume II at 150.

[9] Concerning the nursing staff's performance following Kaitlyn's birth, Dr. Shuman stated in part:

I certainly object to the nurses' lack of education^{[5 ]} about the treatment of hyperbilirubinemia and the influence of breastfeeding on hyperbilirubinemia in the neonate and blaming mother for being a bad mother because she refused to breastfeed. That certainly falls below my standard of nursing care.

Id. at 146. He testified that the normal newborn nursing staff behaved

as casually about this normal newborn delivery which is not of course a normal newborn delivery, but instead a high risk ... a delivery of a high risk infant with hemolytic disease of the newborn. And off she goes to the nursery without any warning signs posted – without any communication given to tighten observation.

In fact, she really should not have gone to the normal newborn nursery. She really should have gone to the special care nursery where the observation could be closer and perhaps where the pediatric nurses are more pediatrically oriented and more experienced.

Transcript Volume II at 212. When counsel for the Overshiners stated, "in your opinion, you know, we have here a child in the 21st century who is suffering – who was suffering from Rh disease, and now has been diagnosed with kernicterus, kernicteric CP" and asked "[s]hould this have happened," Dr. Shuman answered in the...