State Sen. Tyler Johnson has asked an Allen County court to seal certain documents in the medical malpractice case against him.
The legal team for Dr. Johnson, R-Leo-Cedarville, filed four documents Friday in Allen Superior Court. Those documents include his opposition to Jennifer Becerra’s motion for summary judgment, which comes two days after the deadline set by a judge last month.
Becerra’s 20-year-old daughter, Esperanza Umana, died after receiving care from Johnson in 2018, and Becerra filed a lawsuit in May 2022 claiming Johnson, Professional Emergency Physicians Inc. and Parkview Regional Medical Center failed to meet the appropriate standard of care.
In a new affidavit, however, Johnson said he met the standard of care at all times, challenging the assertion made in Becerra’s complaint that Umana was discharged in an unstable condition.
Umana arrived at Parkview Regional Medical Center’s emergency department at 3:13 p.m. Jan. 22, 2018, Johnson’s affidavit said. She reported flu-like symptoms, including a “cough, nasal congestion, fever and generalized muscle aches.”
After examining Umana, Johnson said he ordered a series of treatments, “including albuterol for her breathing, an antibiotic, prescription strength ibuprofen, prednisone and promethazine.”
Then, after the treatments, Johnson said Umana said she had “improved drastically,” was comfortable and “felt completely better.”
“She was not in any respiratory distress at the time,” Johnson said in the affidavit.
Because of that improvement, Johnson said he decided she should be discharged. He said in the affidavit that Umana “did not contest that decision” or tell him she felt too sick to be discharged from the emergency room.
“Based on Umana’s condition at the time I saw her, her death was not foreseeable,” Johnson said. “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’s filing calls for Becerra’s motion for summary judgment to be denied and argues there is a question of fact regarding whether Johnson’s treatment met the standard of care. It cites Johnson’s affidavit as an expert opinion on the case.
“In cases involving allegations of medical negligence, expert opinions that conflict on ultimate issues ‘necessarily defeat summary judgment,’ ” the filing said, citing a 2016 case.
In a separate motion, Johnson’s defense team asks the court to stay all proceedings retroactively and suspend action in the case, citing his role as a state lawmaker. The motion cites Article 4, Section 8 of the Indiana Constitution, which prohibits legislators from being subject to civil suits during the legislative session.
“As an Indiana senator sitting during a session of the Indiana General Assembly, Dr. Johnson is protected from participating in civil proceedings, including this one,” one filing states.
Indiana’s annual legislative session must conclude by the end of the day Saturday.
Johnson is also seeking to exclude certain filings from public access. The motion cites Rule 6 of the Indiana Rules on Access to Court Records, which lets a court keep documents from public view for several reasons.
Those justifications include whether prohibiting access will serve the public interest, when access will create a “significant risk of substantial harm” and when public access would create a “substantial prejudicial effect” to the case. Johnson’s motion claims all three of those concerns apply and argues his reputation has been harmed.
“Dr. Johnson is entitled to due and fair process in his defense of his care,” the motion states. “And yet, it is clear that various interested parties have publicized this lawsuit, needlessly and unfairly litigating this case in public media.”
Becerra’s legal team has until May 4 to file a response to Johnson’s motions, Allen Superior Court Judge Andrew Williams said in an order issued Monday.
Umana, Becerra’s 20-year-old daughter, came to the emergency room with asthma, an upper respiratory infection and signs of sepsis, according to Becerra’s complaint. She claimed the defendants “exacerbated Esperanza’s respiratory distress by overloading her lungs with 4 liters of fluid and violated the standard of care by prematurely discharging Esperanza from the emergency department in an unstable condition.”
About 20 minutes after discharge, the document states, Umana suffered respiratory arrest and died. She left behind a 1-year-old child who is now being raised by Becerra.
Before the suit was filed in May 2022, the Indiana Department of Insurance’s Medical Review Panel – a panel of three doctors – found in a rare unanimous ruling that the evidence support’s Becerra’s assertion that Johnson and the other defendants “failed to comply with the appropriate standard of care.”
A hearing on Becerra’s motion for summary judgment is set for May 19. If Williams determines there’s no real question as to the facts of the case, he could then rule in Becerra’s favor. If not – and if the two sides don’t work out a settlement in the meantime – the case would go to trial, which Williams said could take place as early as the fall.