In July 2011, the Court of Appeals handed down its opinion in Campbell v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011). The issue in this case was whether or not a mother was precluded from presenting evidence that there was a breach in the standard of care relating to her claim for negligent infliction of emotional distress at trial when evidence of the breach of this standard of care was not presented to the Medical Review Panel.
Plaintiff’s proposed complaint and trial court complaint did not mention her emotional distress in any way. Plaintiff’s submissions to the Review Panel contained no statement or argument of any breaches besides the overdose of Benadryl. Specifically, Plaintiff’s submission to the Panel asked to determine if the defendant “was negligent in one or more of the following ways: 1) failed to give the proper dosage of Benadryl as it was ordered. 2) Failed to question or ensure whether the dosage of Benadryl that she gave was an appropriate dosage for a child who weighed 15kg.”
In support of Plaintiff’s argument, they turn to the decision in Miller v. Mem’l Hospital of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997). In Miller, the Court stated “while a medical malpractice plaintiff must, as a prerequisite to fling suit, present the proposed complaint for review and expert opinion by a medical review panel, there is no requirement for such plaintiff to fully explicate and provide the particulars or legal contentions regarding the claim.” Id at 1332. However, the Court refused to interpret the language to allow a plaintiff to argue at trial separate breaches of the standard of care that were not presented in a submission of evidence to the panel. Campbell v. Chambers at 865.
As a result the Court stated, “the standard of care must be presented to the medical review panel and answered based on the evidence submitted to it. It logically follows a medical malpractice plaintiff cannot present one breach of the standard of care to the medical review panel and, after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion.” Campbell v. Chambers, 951 N.E. 2d 855, 864 (Ind. Ct. App. 2011). Basically, a plaintiff must present all claimed breaches of the standard of care to the medical review panel.
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