When a Patient’s Medical History Becomes the Malpractice Defense

A woman comes in for a routine outpatient procedure. On the pre-anesthesia questionnaire, the box next to “Any problems from anesthesia?” is checked no. She is sedated, the procedure goes fine, and then in recovery she goes into respiratory and cardiac arrest. She dies nine days later.

Her husband sues. The providers answer that she caused her own death by keeping quiet about a bad reaction to anesthesia two years earlier. If she had told them, the physician says, she never would have been sedated.

That was the defense in Oglesby v. Unnamed Physician, No. 26A-CT-143, decided by the Indiana Court of Appeals on October 2, 2026. The court reversed summary judgment for the providers, and the reasoning is worth knowing in any jurisdiction. Before you can blame a patient for withholding her history, you have to prove the history was real. Here, the medical records could not agree on that.

What happened

On October 9, 2018, Nancy Oglesby had bilateral greater occipital nerve blocks at a surgery center, with sedation given by a certified registered nurse anesthetist (CRNA). Her pre-op form did not mark a seizure disorder, and she answered no to the anesthesia question. The physician completed the blocks without complication. In the recovery unit she arrested, and she died at a hospital on October 18.

The defense looked back to November 2016, when she had a lumbar spinal fusion at a Louisville hospital. Afterward she had intermittent confusion and encephalopathy, and neurology was called in to rule out seizures. Later records told a more dramatic story. A July 2017 emergency room history at a different hospital listed “Complication of anesthesia” and noted “5 days to wake up post anesthesia,” and that note identified the source of history as the patient herself. A March 2018 note at the same hospital said she had been “given a shot and had convulsions & took 5 days to wake up post anesthesia.” After her arrest, the surgery center’s occurrence report attributed a statement to her husband that something similar had happened after her back surgery and that she had been in a coma for five days. He testified that he did not recall saying it.

The providers moved for summary judgment on contributory negligence. The physician signed an affidavit stating that if he had known about a prior anesthesia complication involving seizures or a coma, she would not have received any sedation, and that the sedation was a factor in her death.

What the original records actually showed

The 2016 hospital chart was far less certain than the histories copied into later records. The anesthesiologist’s post-anesthesia evaluation recorded “Anesthesia complications or comments: None.” A head CT was negative. An EEG showed generalized slowing but no epileptiform activity, and the report noted that no active seizure had been reported or recorded. The consulting neurologist diagnosed resolving toxic metabolic encephalopathy and thought the confusion was likely due to pain medication combined with an anesthesia effect. The attending physician thought opiate withdrawal was the more likely cause, in a patient on high-dose opiates at home. She was discharged on December 5, 2016.

She also had two procedures with the same physician and CRNA in March and July 2018, both under monitored anesthesia care, and both operative reports said she tolerated them without complications.

The record was not one-sided, and a careful reader should notice that. The same 2016 neurology note recommended avoiding sedative medications. That detail cuts toward the defense. It is also exactly the kind of fact that needs an expert to explain what it meant clinically and whether anyone ever told the patient.

Why the defense mattered so much in Indiana

Indiana’s Comparative Fault Act does not apply to claims under the Medical Malpractice Act, so the old common law defense of contributory negligence is still available to malpractice defendants (Cavens v. Zaberdac, 849 N.E.2d 526, 529 (Ind. 2006)). Under that rule, any negligence by the patient that proximately contributes to her injury is a complete bar to recovery. A plaintiff who proves the provider was negligent can still recover nothing.

The defense has limits. The patient’s negligence must be a proximate cause of the injury, must be simultaneous with the provider’s fault, and must combine with it to create the cause of action (Foster v. Owens, 844 N.E.2d 216, 221 (Ind. Ct. App. 2006)). In the words the Indiana Supreme Court quoted in Cavens, it must be “simultaneous and cooperating with the fault of the defendant.” 849 N.E.2d at 531. Indiana courts have recognized that a patient can be contributorily negligent by failing to give a complete and accurate history, by ignoring a physician’s instructions, or by refusing recommended testing or treatment (Fall v. White, 449 N.E.2d 628, 633-34 (Ind. Ct. App. 1983); Foster, 844 N.E.2d at 222). It is an affirmative defense, though, and the provider carries the burden of proving it (Johnson v. Wait, 947 N.E.2d 951, 958 (Ind. Ct. App. 2011)).

Where the providers’ case fell short

The court framed the defense in two parts. The providers had to show that Nancy actually had a complication from anesthesia in 2016, and that she then withheld that history when asked. The first part was where they ran into trouble.

Read in the plaintiff’s favor, as the summary judgment standard requires, the 2016 records supported the inference that she never had a seizure or a coma and that her confusion came from pain medication or opiate withdrawal. Whether her symptoms were caused by anesthesia, by medication, or by withdrawal was, in the court’s words, “a complex medical question,” and the providers themselves had argued that a question like that requires expert testimony. A factfinder would also have to decide who supplied the later histories, what Nancy understood about her 2016 admission, and how much weight to give statements her husband denies making. With “conflicting factual inferences” on the record, contributory negligence was not a question for summary judgment.

The court was careful about what it did not decide. It expressly took no position on whether Nancy was contributorily negligent, and it did not address whether the providers were negligent, a question still before the medical review panel. The decision does not take patient fault defenses off the table. It requires that they be proven with evidence, not inferred from a diagnosis that shows up in a later chart.

The procedural fight over a late expert affidavit

There was a second ruling that trial lawyers will appreciate. At 11:12 a.m. on the day of the 1:00 p.m. summary judgment hearing, the providers moved to add the later hospital records to their designated evidence. The trial court let them in over objection and gave the plaintiff two weeks to respond. The plaintiff responded with an affidavit from a board-certified anesthesiologist, who said the March 2018 notation was “wholly inconsistent” with the 2016 records and did not describe an anesthesia reaction. The trial court then struck that affidavit on the ground that it had never allowed new expert evidence.

The Court of Appeals held that this was an abuse of discretion. Having admitted the providers’ records on terms that included a response, the trial court could not refuse to consider the response. The court added that an anesthesiologist’s affidavit is the natural, in-kind answer to medical records offered to prove an anesthesia complication. Still, the outcome did not depend on it. The conflict was visible on the face of the records that were timely designated.

Charts repeat what they are told

Anyone who reviews medical records for a living has seen this. A diagnosis enters a chart once, sometimes from a patient’s loose description or a family member’s recollection, and then it travels. Each new intake form copies the problem list forward, and after a few encounters it reads like settled fact. Nobody goes back to the original admission to see whether the event happened the way the history says.

Oglesby has a second example of the same problem. The anesthesia record for the fatal procedure had boxes marked showing the patient awake and stable with no anesthesia complications. At deposition, the CRNA explained that he had filled those in ahead of time, calling it “something that I do pre-charting, just a time-saver.” The chart described a smooth recovery. In reality, she arrested in the recovery unit.

There is also a fairness point that Indiana recognized decades ago. In Fall, the court acknowledged that a patient does not have a duty to diagnose her own condition and can reasonably expect the physician to ask the proper questions. 449 N.E.2d at 634. A patient who remembers being confused and slow to recover after surgery may have no idea that a clinician would call it an anesthesia complication. That is a very different situation from a patient who was told plainly that she had a serious reaction and then denied it on the form. The July 2017 note in Oglesby, where the patient herself is listed as the source, shows why these facts get litigated rather than assumed.

Timing matters too

Patient conduct that creates the need for treatment is not the same as conduct that contributes to negligent treatment. In Cavens, the Indiana Supreme Court refused to let a physician treating an acute asthma attack blame the patient’s earlier overuse of her medication and delay in getting care. The physician takes the patient as he finds her. 849 N.E.2d at 529-32. Florida reached a similar result in Matthews v. Williford, 318 So. 2d 480, 481-83 (Fla. 2d DCA 1975), holding that a patient’s conduct that only furnished the occasion for medical treatment is not a defense to malpractice that causes a distinct later injury.

Most states now use some form of comparative fault rather than Indiana’s all-or-nothing rule, so check the governing law first. But the evidence problem is the same everywhere. Showing that a patient gave incomplete information does not, by itself, show that the omission was unreasonable, that it mattered to the treatment decision, or that it caused the injury.

A practical checklist for both sides

If you represent the plaintiff and the defense says your client hid her history:

• Get the original records of the supposedly undisclosed event, not just later problem lists and intake summaries.
• Compare the contemporaneous findings (anesthesia record, imaging, EEG, consult notes) with how later records describe them.
• Identify who supplied each history entry and on what date.
• Find out what the patient was actually told at discharge and afterward.
• Line up an expert in the right specialty early if the underlying event is medically ambiguous.

If you represent the provider and are considering contributory negligence as a dispositive defense:

• Prove the condition existed with competent medical evidence, not just a diagnosis that appears somewhere in the chart.
• Show the patient knew, or reasonably should have understood, the information.
• Show she was asked and failed to disclose it.
• Tie the omission to a specific treatment decision that would have changed, and connect that change to the injury through expert testimony.

For both sides: build a separate medical history chronology before filing or opposing a patient fault defense. Trace every disputed diagnosis back to its first appearance, note what clinicians communicated to the patient, keep the underlying event distinct from later descriptions of it, and name the treatment decision that supposedly turned on it. If you are the party relying on late-produced records, expect the other side to respond with an expert and plan your schedule accordingly.

The takeaway

A medical record is evidence. It is not a perfect account of what happened to the patient. A patient’s history can be a legitimate and powerful defense, but when liability turns on what the patient knew, what the record means, and whether an omission changed the outcome, those questions get the same scrutiny as the provider’s conduct. The defense that wins is not simply that the patient left something off a form. It is proof that she unreasonably withheld information that would have changed the care and prevented the harm.

How Med Legal Pro helps

Cases like Oglesby are often decided by the records and by the expert who can explain them. Med Legal Pro matches attorneys with physician and nurse experts, including anesthesiologists, nurse anesthetists, neurologists, and pain management physicians, and our team builds medical chronologies that trace disputed history back to its source. We work with plaintiff and defense counsel on medical malpractice, personal injury, nursing home, and wrongful death cases.

Call 844-633-5345 or submit your case for a prompt review.

Sources

• Oglesby v. Unnamed Physician, No. 26A-CT-143 (Ind. Ct. App. Oct. 2, 2026)
• Cavens v. Zaberdac, 849 N.E.2d 526 (Ind. 2006)
• Fall v. White, 449 N.E.2d 628 (Ind. Ct. App. 1983)
• Foster v. Owens, 844 N.E.2d 216 (Ind. Ct. App. 2006)
• Johnson v. Wait, 947 N.E.2d 951 (Ind. Ct. App. 2011)
• Matthews v. Williford, 318 So. 2d 480 (Fla. 2d DCA 1975)

This article is for informational purposes only and is not legal or medical advice. The facts described are as summarized in the court’s opinion, which is not yet certified. Consult qualified counsel and a qualified medical expert about the specific facts of any case.