Indiana GOP lawmaker seeks to seal malpractice case from public
A state senator embroiled in a medical malpractice case wants an Allen County judge to block public access to court records and pause proceedings while he finishes the legislative session.
Sen. Tyler Johnson, R-Leo — an ER physician — said he is concerned filings in the lawsuit will be “manipulated or misused” by interested parties.
The case predates his election in November 2022, and has a hearing scheduled in May.
On Friday, just eight days before the General Assembly must adjourn on April 29, Johnson’s lawyers filed a motion to stay, a motion opposing summary judgment and a petition to prohibit public access, citing Johnson’s position as the elected senator of District 14 in northeastern Indiana.
The filings, which also include an affidavit from Johnson, appeared on a public docket Monday but had to be requested personally from the Allen County Courthouse.
Johnson, a Republican, declined a request for comment from the Indiana Capital Chronicle. He is the author of the state’s ban on gender-affirming medical care for transgender teens and is also a plaintiff in the national case to block access to abortion medication.
Friday’s motions
Following a canceled pretrial conference on April 18, Johnson moved to temporarily halt the case and related deadlines, based on the “privileges and immunities afforded to Dr. Johnson as an Indiana state senator.”
The Indiana constitution bars civil proceedings against sitting members of the General Assembly during session, with a few exceptions. Additionally, Indiana law allows a court to shield records if doing so is in the public interest, if access would create significant risk or substantial harm to a party, or if having them publicized would influence judgment.
“In the instant case, all three of these concerns are triggered,” the filing argues. “… It is clear that various interested parties have publicized this lawsuit, needlessly and unfairly litigating this case in public media. Dr. Johnson’s professional and personal reputations have been damaged through these tactics.”
Further, Johnson’s attorneys said that he should be able to present his arguments without worrying that the filings will be used against him, or impact his personal, professional or legislative lives.
Case background
The lawsuit centers around the death of Esperanza Umana, a 20-year-old from Fort Wayne. She died shortly after receiving care from Johnson in an emergency room at Parkview Regional Medical Center in January 2018.
Johnson was sued alongside Professional Emergency Physicians Inc. and Parkview Hospital Inc.
Umana had a history of asthma and signs of sepsis, according to court filings from the plaintiff. Those filings contend that Johnson “overload(ed) her lungs with 4 liters of fluid” before discharging her in an “unstable condition.”
The complaint alleges that Johnson’s “negligence” resulted in Umana’s cardiac arrest and death in January 2018. She left behind a newborn son.
Johnson, in an affidavit obtained by the Indiana Capital Chronicle, pushed back against that claim, saying Umana was alert and responsive when he examined her on Jan. 22 and “demonstrated no apparent distress, but demonstrated some slight increased work while breathing.”
Johnson said he ordered albuterol, a lung airway dilator; prescription-strength ibuprofen; prednisone, a corticosteroid used for asthma; and promethazine, which is used to treat allergic reactions.
Umana told Johnson she had improved drastically following tests and treatments, according to Johnson’s affidavit. Johnson said he felt it was appropriate to discharge Umana. He prescribed more albuterol, ibuprofen and prednisone, plus Zithromax – which treats bacterial respiratory infections.
“Based on Umana’s condition at the time I saw her, her death was not foreseeable. Had she appeared too ill for discharge or had her presentation suggested any risk of a fatal event, I would not have discharged her,” Johnson said in the affidavit.
Umana’s mother, Jennifer Becerra — who filed suit on behalf of Umana’s estate — disputed Johnson’s account. She said it contained “new facts, not previously disclosed to the medical review panel.”
Becerra’s filing earlier this month said that Umana had been to the emergency department the night before with the same symptoms. On the night she died, Becerra said Johnson briefly saw her daughter at 4 p.m. and “stuck his head in the room” at 6 p.m.
The two accounts list different medications – including a sedative to relieve Umana’s anxiety – and treatments: Becerra’s filing included 3.6 liters of intravenous fluids for sepsis, delivered rapidly as a “bolus.” That’s nearly a gallon of fluid.
Becerra asserted that when Johnson discharged her daughter, she pushed for additional treatment. Johnson then ordered another breathing treatment, according to the filing.
“During this treatment, (Umana)’s lungs did not improve,” court records said. “Dr. Johnson documented that (Umana) was ‘stable’ for discharge and had no further wheezing, which is not consistent with the medical record.”
The lawsuit alleges that 20 minutes after Umana was discharged, she went into respiratory distress in a Walgreen’s parking lot while filling the prescriptions from Johnson, and died.
The legal case
A medical review panel unanimously ruled in March 2022 that Johnson deviated from the “appropriate standard of care,” a rarity in malpractice cases.
Two others have previously filed complaints with the Indiana Department of Insurance against Johnson, but in those cases, Johnson’s peers agreed with his care and dismissed the complaints.
This case has been delayed numerous times, as reported by the Fort Wayne Journal-Gazette.
According to the Indiana State Medical Association, physicians are responsible for the first $250,000 in damages in individual malpractice cases under the state cap. The state Patient’s Compensation Fund pays the rest, which cannot exceed $1 million, putting the total cap at $1.25 million.
According to a 2021 report, the latest available, the fund paid $115.5 million in 2020 across more than 150 claims — for an average payout of about $740,000.
The next case action is scheduled for May 19: a hearing on the plaintiff’s motion for summary judgment.
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