Kranda v. Houser-Norborg Medical Corp.

Majority - YOUNG, Presiding Judge

No, the trial court did not err in permitting medical review panel members to testify or admit their individual written opinions, nor is the Indiana Medical Malpractice Act unconstitutional. The court affirmed that the term "medical authorities" in IC 16-9.5-9-6, allowing the panel to consult with such authorities, includes both written materials and qualified individuals. Kranda's claim that she had no opportunity to cross-examine these physicians was rejected, as IC 16-9.5-9-5 provides for either party to convene the panel and question members. The panel's function is informal inquiry to form an expert opinion, not adjudication, so formal rules of evidence are not required. The court also rejected the hearsay argument for panel member opinions, citing Trinity Universal Insurance Co. v. Town of Speedway and Rosenbalm v. Winski, which permit expert witnesses to draw upon reliable sources of information, including other doctors. The Act does not require a collegial or unanimous opinion, and individual panel member opinions are admissible as part of the panel's report (IC 16-9.5-9-9), with IC 16-9.5-9-10 contemplating the possibility of no majority opinion. The court affirmed the constitutionality of the Indiana Medical Malpractice Act, reiterating that the Indiana Supreme Court's decision in Johnson v. St. Vincent’s Hospital, Inc., 404 N.E.2d 585 (Ind. 1980), was dispositive of Kranda's various constitutional challenges, including arguments regarding 'chilling effect,' cost and delay, quasi-judicial procedures, delegation of judicial power, and separation of powers doctrine. No, the trial court did not err in withdrawing the issue of informed consent from the jury's consideration. An action based on informed consent is one of negligence, requiring duty, breach, and proximate cause. Indiana law requires a physician to make a "reasonable disclosure of material facts." However, expert medical testimony is generally required to establish the content of such reasonable disclosure, unless the situation is clearly within a layman's comprehension. Bartholin cyst surgery is not such a matter. Kranda failed to present expert medical testimony indicating that a reasonable disclosure would include the risk of rectal injury, as all medical testimony suggested such an injury was unexpected. Although Kranda testified she would not have consented had she known of this specific risk, there was no evidence that revelation of any other risk would have changed her consent, and no duty to disclose the specific, unexpected risk was established. Without proof that the physician's failure to inform about a duty-bound risk proximately caused Kranda to undergo the treatment, the element of proximate cause was not met, rendering judgment on the evidence proper. No, the trial court did not err in refusing to instruct the jury on res ipsa loquitur. While the doctrine applies when an injury is of a character that would not occur but for negligence and is caused by an instrumentality within the physician's exclusive control, expert testimony is required when the conclusion is not within common knowledge. Here, although the injury occurred under Dr. Houser's control and experts testified they had not seen such an injury in their combined experience, no expert testified that this injury would not ordinarily occur but for negligence, especially in a complex case involving a patient with Crohn's disease, prior surgery, and scar tissue. Thus, there was no evidence to support the conclusion that the injury was one that would not ordinarily occur in the exercise of due care.