On April 7 the Indiana Supreme Court handed the plaintiffs’ bar a solid victory in the six-year battle that has raged since issuance of the 2011 Indiana Court of Appeals decision in K.D. v. Chambers.  That decision was generally read as severely limiting the right of a medical malpractice plaintiff to add a new theory of liability after the conclusion of the Medical Review Panel phase of proceedings.

The case before the Indiana Supreme Court was McKeen v. Turner, in which the Court of Appeals not only ruled in favor of the plaintiff, allowing a new theory under certain conditions, but baldly stated that K.D. “was wrongly decided and/or has been misread.”

The issue was so important that when the defendant physician—supported by the Defense Counsel of Indiana as amicus–petitioned the Supreme Court to accept transfer and rule in his favor, the plaintiff—supported by the Indiana Trial Lawyers as amicus–also urged the Court to accept transfer so that the decision could be “summarily affirmed.”

A scant 15 days after oral argument, the Supreme Court announced its unanimous decision, squarely siding with the plaintiff: “We agree with the Court of Appeals … [and] thus grant transfer and adopt and incorporate by reference the Court of Appeals opinion.”  Not only that, the Court went on to state, “We further find K.D. v. Chambers [cite omitted] is at odds with [our decision in] Miller on the issue we address today and expressly disapprove K.D.”

The case is McKeen v. Turner, No. 53S05-1704-CT-202 (Ind., 2017).