Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017 Page 1 of 10

 

ATTORNEYS FOR APPELLANTS

Christopher S. Roberge 

Elizabeth A. Roberge 

Alexandra N. Gortchilova 

RobergeLaw 

Carmel, Indiana 

ATTORNEYS FOR APPELLEES

Stacy F. Thompson 

Adam R. Doerr 

Clendening Johnson & Bohrer, P.C. 

Bloomington, Indiana 

ATTORNEY FOR AMICUS CURIAE

INDIANA TRIAL LAWYERS 

ASSOCIATION

Jerry Garau 

Garau Germano, P.C. 

Indianapolis, Indiana 

ATTORNEYS FOR AMICUS 

CURIAE

DEFENSE TRIAL COUNSEL OF 

INDIANA

Donald B. Kite, Sr. 

Wuertz Law Office, LLC 

Indianapolis, Indiana 

Crystal G. Rowe 

Kightlinger & Gray, LLP 

New Albany, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA 

C.S., a Minor Child, by Her 

Next Friends and Parents, John 

Stevens and Laura Stevens, 

Appellants-Plaintiffs, 

v. 

Aegis Women’s Healthcare, 

P.C., Brian W. Cook, M.D., 

February 22, 2017 

Court of Appeals Case No. 

53A01-1607-CT-1657 

Appeal from the Monroe Circuit 

Court 

The Honorable E. Michael Hoff, 

Judge 

Trial Court Cause No. 

53C01-1506-CT-1134 
Court of Appeals of Indiana | Opinion 53A01-1607-CT-1657 | February 22, 2017 Page 2 of 10

Rhonda S. Trippel, M.D., and 

Lillette (Alice B.) Wood, M.D., 

Appellees-Defendants 

Vaidik, Chief Judge. 

Case Summary 

[1] With limited exceptions, a medical-malpractice plaintiff cannot take her case to 

court until she has submitted a proposed complaint to the Indiana Department 

of Insurance and received an opinion from a panel of doctors (a “medical 

review panel”). Once she has made it through the panel process and into court, 

however, the plaintiff can present any theory of malpractice that (1) was 

encompassed by the proposed complaint that was before the panel and (2) is 

related to evidence that was submitted to the panel. McKeen v. Turner, 61 

N.E.3d 1251 (Ind. Ct. App. 2016), trans. pending. 

[2] In the case before us, John and Laura Stevens filed a proposed complaint 

against Aegis Women’s Healthcare, P.C. and several of its doctors (collectively, 

“Aegis”) after their daughter was born, via emergency c-section, with various 

health problems. The medical review panel issued an opinion in favor of Aegis, 

and the Stevenses have now taken their case to court, where their specific 
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theory of malpractice is that Aegis waited too long to perform the c-section. 

The parties agree that this theory fell within the broad allegations in the 

Stevenses’ proposed complaint but dispute whether there was evidence relating 

to the theory submitted to the panel. Finding that there was, we reverse the 

trial court’s grant of summary judgment to Aegis. 

Facts and Procedural History 

[3] Laura Stevens became a patient of Aegis Women’s Healthcare, P.C. in the 

1990s and was still being seen there when she became pregnant with a 

daughter, C.S., in the summer of 2010. There were several risk factors 

associated with the pregnancy, including Laura’s age (forty), her Rh-negative 

status,1

 her history of miscarriages, and, eventually, marginal insertion of the 

placental cord. At some point before 10:00 a.m. on April 13, 2011, two days 

before her due date, Laura called Aegis to report that she had not felt the baby 

moving overnight and had felt only “diminished” movement that morning. 

Aegis directed her to come to its office for a non-stress test (“NST”). Aegis 

made a Triage Note about this call. Appellants’ App. Vol. II p. 132. The NST 

generated “tracing” strips, and the results were reported on Aegis’ Prenatal 

Flowsheet as follows: “non reactive, no response to vibroacoustic stim[ulation] 

 

1

 A mother’s Rh-negative status presents a risk of antibodies from the mother passing through the placenta 

and destroying the baby’s red blood cells, or “hemolytic disease of the newborn.” See “Hemolytic disease of 

the newborn,” available at https://medlineplus.gov/ency/article/001298.htm (last visited February 16, 

2017). 
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and decel[eration] with contraction.” Id. at 127. The NST prompted Aegis to 

send Laura to IU Health Bloomington Hospital for continued monitoring. 

Laura was admitted to the hospital at 11:57 a.m. 

[4] The OB Flowsheet from the hospital indicates that Laura was “admitted from 

ob office for [complaints of] decreased fetal movement and [fetal-heart-rate] 

deceleration on tracing in office” and that Aegis doctors continued to monitor 

C.S.’s heart rate, which generated additional “tracing” strips. Id. at 167. Notes 

on the OB Flowsheet show that C.S.’s heart rate was “undulating” and that an 

“urgent” c-section was called at 1:33 p.m. Id. at 165-170. C.S. was delivered 

forty minutes later, at 2:13 p.m. C.S. was born alive but with significant health 

issues; among other things, she had suffered a fetomaternal hemorrhage (some 

of her blood had passed to her mother before or during delivery). 

[5] In April 2013, Laura and her husband John filed a proposed complaint for 

medical malpractice against Aegis with the Indiana Department of Insurance. 

The Stevenses detailed the risks associated with the pregnancy, the care Aegis 

provided to Laura in the days and weeks leading up to the day of the c-section, 

including Aegis’ management of Laura’s Rh-negative status, and the health 

problems suffered by C.S. Id. at 54-59. Regarding the hours that immediately 

preceded the c-section, the Stevenses noted that Laura “was seen at Aegis,” that 

Aegis sent Laura to the hospital for further monitoring, and that, at the hospital, 

“several worrisome signs were immediately observed and an emergency 

caesarian section was performed.” Id. at 57. They also alleged more generally 

that Aegis “failed to adequately monitor Laura’s pregnancy and [C.S.’s] 
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condition” and “failed to provide appropriate medical care and treatment to 

Laura and [C.S.]” Id. at 58. 

[6] A medical review panel was formed, and the parties submitted numerous 

medical records, including the Aegis Triage Note, the Aegis Prenatal 

Flowsheet, and the OB Flowsheet from the hospital. However, the NST and 

fetal-heart-rate tracings themselves were not submitted, and the panel did not 

ask the parties to submit them. In addition to medical records, the Stevenses 

submitted a narrative statement that focused, as their proposed complaint had, 

on Laura’s Rh-negative status and the other risks inherent in her pregnancy. 

They did not argue that Aegis waited too long to perform the c-section. In 

March 2015, the panel issued a unanimous opinion that “[t]he evidence does 

not support the conclusion that the Defendants failed to meet the applicable 

standard of care as charged in the complaint.” Id. at 60-63. 

[7] Three months later, the Stevenses sued Aegis in Monroe Circuit Court. Their 

complaint is substantially similar to their proposed complaint, including the 

allegation that Aegis “failed to adequately monitor Laura’s pregnancy and 

C.S.’s condition” in light of risks associated with the pregnancy. Id. at 37. 

Aegis promptly moved for summary judgment based on the medical review 

panel’s opinion. 

[8] In support of their opposition to Aegis’ motion, the Stevenses filed an affidavit 

from Dr. James Jarrett. Dr. Jarrett noted that he had reviewed the medical 

records from the day of C.S.’s birth, including the NST and fetal-heart-rate 
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tracings. He concluded that the medical records, particularly the tracings, 

revealed that C.S. had been in “significant distress”; that Aegis should have 

recognized this distress and performed the c-section sooner; and that Aegis 

breached the standard of care by failing to do so. Id. at 191-96. In reply, Aegis 

argued that summary judgment was still appropriate because the Stevenses were 

raising a theory of malpractice that was not specifically articulated to the 

medical review panel, based on evidence—the tracings—that was not submitted 

to the panel. 

[9] After holding a hearing, the trial court issued an order granting Aegis’ motion 

for summary judgment. The court concluded that the Stevenses’ submission to 

the medical review panel “did not claim that the Defendants breached the duty 

of care in their timing of the caesarian section performed on Ms. Stevens, nor 

did they provide any information to the panel that could have supported such a 

claim.” Id. at 15. 

[10] The Stevenses now appeal. 

Discussion and Decision 

[11] The Stevenses ask us to reverse the trial court’s ruling that they did not present 

their “delayed-c-section” theory to the medical review panel and that they are 

therefore barred from presenting it in court. On appeal from a grant of 

summary judgment, we address the issues de novo, giving no deference to the 
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trial court’s decision. Rogers Group, Inc. v. Tippecanoe Cty., 52 N.E.3d 848, 850 

(Ind. Ct. App. 2016), trans. denied. 

[12] The Stevenses rely on Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d 

1329 (Ind. 1997), and our recent decision in McKeen v. Turner, 61 N.E.3d 1251. 

In Miller, our Supreme Court rejected the argument that a medical-malpractice 

plaintiff’s action “is restricted by the substance of the submissions presented to 

the medical review panel,” explaining: 

Pursuant to the [Indiana Medical Malpractice Act], the panel 

was authorized to review the medical records and other 

submitted material pertaining to each defendant’s treatment of 

Nicholas. While a medical malpractice plaintiff must, as a 

prerequisite to filing 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. 

679 N.E.2d at 1332. In McKeen, we relied on Miller, as well as the language of 

the Medical Malpractice Act, in holding that a medical-malpractice plaintiff 

who has made it through the medical-review-panel process and into court can 

pursue a theory of malpractice if (1) the theory was encompassed, under the 

liberal rules of notice pleading, by the proposed complaint that was before the 

panel and (2) evidence relating to the theory was submitted to the panel. 61 

N.E.3d at 1261. 

[13] The Stevenses argue that their “delayed-c-section” theory satisfies the 

requirements of McKeen. Aegis does not dispute the applicability of McKeen, 
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nor does it dispute that the first of the two McKeen requirements was satisfied in 

this case, i.e., that Stevenses’ “delayed-c-section” theory was encompassed by 

the general allegations contained in their proposed complaint.2

 However, 

focusing on the fact that the tracings from the NST at Aegis and from the fetalheart-rate monitoring at the hospital were not submitted to the medical review 

panel, Aegis asserts that “the Stevens family did not provide evidence 

supporting their claim that C.S.’s delivery was unduly delayed to the medical 

review panel[.]” Appellees’ Br. p. 16. We disagree. 

[14] There is no question that the NST and fetal-heart-rate tracings are highly 

relevant to the Stevenses’ “delayed-c-section” theory. However, it is equally 

clear that the panel had before it other significant evidence that supports the 

theory, including records specifically addressing the NST and the fetal-heartrate monitoring. The panel had: (1) the Aegis Triage Note indicating that 

Laura called Aegis at some point before 10:00 a.m. to report that she had not 

felt any fetal movement overnight and had felt only “diminished” movement 

that morning; (2) the Aegis Prenatal Flowsheet indicating that an NST was 

conducted because of the decreased fetal movement, that the test was “non 

reactive,” and that there was “no response to vibroacoustic stim[ulation] and 

decel[eration] with contraction”; (3) the OB Flowsheet from the hospital 

 

2

 A petition to transfer is pending in McKeen, but Aegis does not argue that it was wrongly decided. In 

another case we decide today, the defendant did make that argument, which we reject. See Llobet v. Gutierrez, 

No. 45A04-1605-CT-01133 (Ind. Ct. App. Feb. 22, 2017). We also note that we did not hand down McKeen

until six months after the trial court made its decision in this case. 
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indicating that Laura was admitted at 11:57 a.m. “from ob office for 

[complaints of] decreased fetal movement and [fetal-heart-rate] deceleration on 

tracing in office,” that continued monitoring showed that C.S.’s heart rate was 

“undulating,” that Aegis doctors were reviewing the fetal-heart-rate “tracing,” 

and that an “urgent” c-section was called at 1:33 p.m.; and (4) evidence that 

C.S. was not delivered until forty minutes later, at 2:13 p.m. 

[15] While Aegis’ emphasis on the NST and fetal-heart-rate tracings is 

understandable, we simply cannot agree with its assertion that, without them, 

the medical review panel “did not have the opportunity to evaluate the 

timeliness of C.S.’s delivery.” Appellees’ Br. p. 20. The evidence that the panel 

did have put it on notice not only that the NST and the fetal-heart-rate 

monitoring had been conducted but also that the results of both were abnormal 

and that there were “tracings” associated with each. And to the extent that the 

panel was incapable of fully evaluating the timeliness of the c-section without 

the tracings themselves, we simply note that it had a right to request them. See

Ind. Code § 34-18-10-21(a) (“The panel has the right and duty to request all 

necessary information.”). 

[16] Because evidence relating to the “delayed-c-section” theory was submitted to 

the medical review panel, and because the proposed complaint encompassed 

that theory, the Stevenses are entitled to present it in court. See McKeen, 61 

N.E.3d at 1261. Therefore, we reverse the trial court’s grant of summary 

judgment in favor of Aegis. 
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[17] Reversed. 

Bradford, J., and Brown, J., concur.