Anything Goes: Indiana Supreme Court Holds Malpractice Claimants Not Limited to Theories Presented to Medical Review Panel

Indiana’s Medical Malpractice Act requires that before claimants may bring a malpractice action against qualified healthcare providers in court, their claims must be reviewed by a medical review panel (“panel”). The panel renders an expert opinion as to whether there was a breach of the standard of care and if so, whether such breach proximately caused claimant’s injuries. Only after the panel issues its expert opinion may a claimant pursue an action in court. This process has created a point of contention between claimants’ and defense counsel: Can a claimant present theories of malpractice in court that were not presented to the panel and addressed in its opinion?

The Indiana Supreme Court held on April 7, 2017 that a malpractice claimant may indeed raise additional theories of alleged malpractice during litigation following the panel process, provided that (1) the proposed complaint encompasses the theories, and (2) the evidence relating to those theories was before the panel.[1] This decision adopted and incorporated the McKeen v. Turner[2] appellate court decision and expressly disapproved of K.D. v. Chambers[3], a 2011 Indiana Court of Appeals decision that held a malpractice claimant could not present theories of malpractice following the medical review panel process that were not presented to the panel.

Indiana employs a broad notice pleading standard, requiring claimants to provide a short and plain statement of the claim showing their entitlement to relief. While operative facts must be pleaded, they need not be minutely detailed. Thus, claimants face a low hurdle to successfully assert that a new theory of liability was encompassed in their proposed complaint.

Additionally, the evidence that may be submitted to the panel includes “medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses and parties, and any other form of evidence allowable by the medical review panel.”[4] In essence, there is little limit to what may be submitted to a panel for consideration. As such, as long as a malpractice claimant can point back to a portion of evidence to support the new theories raised at trial and the theory is encompassed in the complaint reviewed by the panel, the argument can be made at trial.

The McKeen case appears to leave at least one avenue open for further interpretation – whether a claim for lack of informed consent is encompassed in a malpractice complaint that generally alleges that medical care and treatment was substandard. It appears to us that the appropriate interpretation of McKeen should be that a claim for lack of informed consent is not covered in a claim for general negligent medical care and treatment. This is because the genesis of informed consent theories in Indiana flow from the law of battery – an unprivileged physical contact – not a negligence theory.

In sum, we should take note of the McKeen decision as it unwinds legal precedent that served as a barrier to claimants introducing new theories of liability at trial that were not presented to the panel. Without framing the issues in the litigation at the panel stage, the quality of the panel opinion process is put in jeopardy.

If you have any questions with respect to this decision, or any issue of healthcare professional liability, please contact one of our Medical Malpractice Practice Group attorneys.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


[1]McKeen v. Turner, ___ N.E.3d ___ (Ind. 2017)

[2]McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016)

[3]K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011)

[4] Ind. Code 34-18-10-17(b)