INDIANA COURT OF APPEALS
The Court of Appeals says Supreme Court should weigh in on gender marker changes.
S.G.S. (Mother) petitioned the trial court for a change of the gender marker on the birth certificate of her then seven-year-old transgender daughter O.J.G.S. (Child), pursuant to Ind. Code § 16-37-2-10.1 This is Mother's second appeal. In the first, she was part of a consolidated appeal with other parents challenging the denial of their respective petitions for a gender marker change. There, in Matter of A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021), the majority held, as a matter of first impression, that a parent has the authority to petition for a gender marker change on their minor child's birth certificate and determined that the appropriate standard to apply to such a petition is whether the proposed change is in the child's best interests. Thus, the majority reversed and remanded with instructions for the trial court to address Mother's petition in accordance with this standard. Judge Pyle dissented on the basis that I.C. § 16-37-2-10 did not provide trial courts with the authority to change the gender marker on a birth certificate.
On remand, with a new judge presiding, the trial court denied the petition, concluding that it could not find that a gender marker change would be in Child's best interests. Mother appeals, once again, from the denial of the petition. She argues that the trial court abused its discretion because all of the evidence, including from Child's medical providers, supported changing the gender marker on Child's birth certificate to promote her safety and social and emotional well-being. In a Plurality Opinion (Judge Altice writing the Opinion of the Court and Judge Bailey writing separately to concur with result, and Judge Mathias dissenting with a written opinion), the Court of Appeals affirmed the trial court's denial of the Mother’s petition and encouraged the Indiana Supreme Court to weigh in on the issue presented.
Judge Altice noted that regardless of how well taken Mother's arguments were regarding the trial court's best interests determination, he‑like Judge Pyle‑believed that I.C. § 16-37-2-10 has been improperly interpreted by the Court of Appeals on a number of occasions, including in the first appeal in this case. Judge Altice found that the statute does not grant Indiana courts the authority to order a change of a gender marker on a birth certificate. Judge Altice opined that such a policy objective, no matter how worthy, must be sought through the deliberative legislative process rather than via piecemeal litigation with limited records and, most often, in the face of no adversarial process.
The general facts presented to the trial court on remand were that Child (8 years old) presented as a “girl” and had been certain that she was a girl since she was four years old, with Mother and doctor testifying that the gender marker change would help Child with her diagnosis of gender dysphoria and decrease her stress in certain school situations.
Judge Altice’s discussion and decision noted that on appeal Mother contended that the trial court abused its discretion by relying on its own assumptions rather than the evidence presented through her testimony and the letters from Child's medical providers, particularly Dr. Donahue's expert opinion. Mother asserted that the trial court's order thwarts the reasoned decision of a parent instead of deferring to it, and refuses relief that would increase Child's safety and wellbeing.
Judge Altice agreed that Mother's arguments regarding Child's best interests were compelling, said he could not overlook the fact that the Court of Appeals made an improper lane change beginning in 2014, as highlighted by Judge Pyle's dissent in this case's first appeal.
I.C. § 16-37-2-10 provides:
(a) As used in this section, “DNA test” means an identification process in which the unique genetic code of an individual that is carried by the individual's deoxyribonucleic acid (DNA) is compared with the genetic codes of another individual.
(b) The state department may make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence, including the results of a DNA test under subsection (c) or a paternity affidavit executed under section 2.1 of this chapter.
(c) The state department may make an addition to a birth certificate based on the results of a DNA test only if:
(1) a father is not named on the birth certificate; and
(2) a citation to this subsection as the authority for the addition is noted on the birth certificate.
Judge Altice noted that by focusing on only the first clause of subsection (b) and essentially ignoring the rest of the statute, panels of the Court of Appeals had held that Indiana courts have the statutory authority to grant requests for gender marker changes on birth certificates. See In re Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014) (the seminal case involving an adult petitioner); Matter of R.E., 142 N.E.3d 1045, 1052 (Ind. Ct. App. 2020) (holding that adult petitioner need only show that request to change gender marker on birth certificate is made in good faith and not for a fraudulent or unlawful purpose); Matter of A.B., 164 N.E.3d at 169-71 (first case to hold that a parent has the authority – under the “broad” language of the statute and in light of the “fundamental right of parents to make important decisions for their minor children” – to file such a petition on behalf of their minor child and adopting a best interests standard); see also In re A.L., 81 N.E.3d 283, 285 (Ind. Ct. App. 2017) (holding that there is no statutory requirement to publish notice of intent to change one's gender marker).3
Judge Altice cited to Judge Bailey’s plurality opinion in In re H.S., 175 N.E.3d 1184 (Ind. Ct. App. 2021), trans. denied, where Judge Bailey outlined the cases dealing with gender marker changes and noted the legislature's continued inaction to address this emerging area of law. Id. at 1186-87. Judge Altice mentioned that the plurality opinion in In re H.S., handed down last August, put the issue squarely before the Indiana Supreme Court for the first time, as transfer had not been sought in any of the earlier gender marker cases. The Court, however, denied transfer in a vote of 3-2. 178 N.E.3d 798 (Ind. 2021) (order denying transfer with Chief Justice Rush and Justice David voting to grant). Thus, Judge Altice explained, the Court of Appeals remains a divided court on this issue without guidance from our Supreme Court or any action from the General Assembly, the body that is responsible for legislating a remedy, if any, in this context.
Thus, Judge Altice affirmed the trial court’s denial of Mother’s Petition finding that the plain language of I.C. § 16-37-2-10 “clearly applies only to the use of DNA testing or other documentary evidence in order to establish paternity for the purpose of including the proper parent's name on a child's birth certificate.” Matter of A.B., 164 N.E.3d at 172 (emphasis in original). Judge Altice urged “the Supreme Court to speak on this matter, which has divided this court and resulted, unfortunately, in unpredictability for petitioners who earnestly desire a remedy. In my view, the mechanism for such a change, no matter how vital to certain members of our society, must be crafted by the General Assembly.” In re O.J.G.S., 187 N.E.3d 324, 330 (Ind. Ct. App. 2022), reh'g denied (June 14, 2022)
Judge Bailey concurring in result wrote that he agreed with the contention of Judge Altice that Indiana Code Section 16-37-2-10 does not provide trial courts with the authority to order the registrar of the division of vital statistics within the Indiana Department of Health to change the gender marker on a birth certificate of a child. He also agreed with Judge Mathias’s dissent that a remedy for a harm should exist in these circumstances and that an equitable action has great appeal. Judge Baily explained that he wrote separately to explain his conclusion that an equitable action cannot accomplish the desired objective where the best interests of a child must be demonstrated yet there is absolutely no statutory framework giving context to that requirement.
Without question, a fit parent has a constitutional right to direct the upbringing of a child. In Matter of A.B., 164 N.E.3d 167, 169 (Ind. Ct. App. 2021), we answered the question of “whether a parent has the authority to ask a court to amend the gender marker on a minor child's birth certificate” in the affirmative. Matter of A.B., 164 N.E.3d at 169-70. Certainly, a parent has the prerogative to treat a child in accordance with the child's expressed gender identity, and to take actions to foster like responses from others in the child's environment. However, the parent's initiation of a lawsuit seeking to change the sex designation on the birth certificate to align with the child's gender identity does not constitute intrusion by the State into the realm of family life. At most, any State infringement took place at the time of birth recordation and was not inconsistent with the physical characteristics that were observed at that time.
A parent is subject to the requirement of reporting a live birth in the State of Indiana. See Ind. Code § 16-37-2-2 (requiring a person in attendance at a live birth to file a certificate of birth with the local health officer or, if there was no person in attendance at the birth, requiring one of the parents to file a certificate of birth). The information to be included is prescribed by Indiana Code Section 16-37-2-9, and the local health officer is required to make a “permanent record” of, among other things, the “sex” of the child. Records pertaining to vital statistics must be maintained by “the employee in charge of the division of the state department administering the system of vital statistics ... known as the state registrar.” I.C. § 16-37-1-2. To the extent that the duty to report a live birth represents an intrusion into family life, it occurred at birth. A parent who wishes to initiate a change to the reported information is not being subjected to unwanted State action at that juncture; rather, the parent is affirmatively requesting State action. He or she is then faced with the reality that there is no statutory mechanism for directing the state registrar to make the desired change.
Once a parent exercises parental authority to request a gender marker change – something not prohibited by statute – the trial court simply has no statutory framework for granting or denying the request. At bottom, a parent has the right to ask, but no right to order the registrar to effect a change, absent an error in the designated sex of the child at the time of birth. Absent a statutory framework, Judge Bailey voted to affirm the trial court's denial of the petition for a gender marker change.
Judge Mathias dissented noting that there is a sizable number of Hoosier transgender children is a well-known fact to our General Assembly. IN the previous legislative session, a bill banning transgender girls from competing with girls in interscholastic sports was passed by both the House and the Senate but was later vetoed by our Governor. See H.R. 1041, 122nd Leg., 2nd Reg. Sess. (Ind. 2022). Therefore, and this fact is critical to this issue and to this appeal, there is no statute in effect that even speaks to, let alone covers, the issue before us in this case: The request of Child's Parents to change the gender marker on Child's birth certificate from male to female. The trial court on remand denied Parents’ request despite the uniform, unchallenged recommendations of medical professionals to the contrary that are a part of the record.
Judge Mathias explained that the majority's analysis followed the dissent in In re A.B., 164 N.E.3d at 171-73 (Pyle, J., dissenting) and concluded, either expressly or in effect, that Indiana's trial courts have no authority to act on a parent's petition to change a child's gender marker unless the General Assembly first enacts a statutory framework under which the judiciary may review such a petition. While Judge Mathias agreed with his colleagues that a statutory framework would be ideal and joined them in calling for our General Assembly to provide that guidance, he could not agree that Indiana's judiciary is unable to act without a statutory framework in Child's case. Further, in reviewing the merits of this appeal, Judge Mathias explained that he would hold that the trial court's judgment denying Mother's petition was clearly erroneous and rely on the well-established constitutional and equitable power of the judicial branch of government to remedy a wrong in the absence of statutory authority to the contrary. State ex rel. Root v. Circuit Court of Allen Cnty., 259 Ind. 500, 289 N.E.2d 503, 507 (1972).
Article 1, Section 12 of the Indiana Constitution makes clear, “[a]ll courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have a remedy by due course of law.” Ind. Const. art. 1, § 12. The constitutional authority has long been recognized by the Indiana Supreme Court as the duty of a court of equity to provide a wronged party with a remedy, if one does not already exist. Ritter v. Ritter, 219 Ind. 487, 494, 38 N.E.2d 997, 1000 (1942).
Judge Mathias noted that case law has long provided for equitable relief in any number of circumstances in the absence of statutory authority to the contrary:
· See:
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Blackford v. Welborn Clinic, 172 N.E.3d 1219, 1229 (Ind. 2021) (fraudulent concealment as an equitable exception to the statute of limitations);
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River Ridge Dev. Auth. v. Outfront Media, LLC, 146 N.E.3d 906, 912 (Ind. 2020) (trial courts have inherent equitable power to award attorney's fees notwithstanding the General Recovery Rule codified at Indiana Code section 34-52-1-1);
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Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099, 1109 (Ind. 2012) (“Implied trusts are creatures of equity, imposed to do justice” and may arise when parties have “failed to satisfy the statutory requirements for creating an express trust”) (quotation marks omitted);
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Coca-Cola Co. v. Babyback's Int'l, Inc., 841 N.E.2d 557, 568-70 (Ind. 2006) (promissory estoppel as an equitable exception to the Statute of Frauds);
Compare.
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Salyer v. Washington Regular Baptist Church Cemetery, 141 N.E.3d 384, 387 (Ind. 2020) (where a statute establishes a specific type of relief, there is no ground for a “weighing of equities to fashion an alternative form of relief”).
See also
- Ind. Trial Rule 1 (“these rules govern the procedure and practice in all courts of the state of Indiana in all suits of a civil nature whether cognizable as cases at law, in equity, or of statutory origin”) (emphasis added);
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Walters v. Marathon Oil Co., 642 F.2d 1098, 1100 (7th Cir. 1981) (“the ancient maxim that ‘equity will not suffer a wrong to be without a remedy’ has long been the law in the State of Indiana”).
Judge Mathias repeated that Hoosiers would be well served by having statutory authority that addresses petitions such as the one here. Statutory authority would provide uniformity across Indiana when considering how to handle such petitions, and he also invited the General Assembly to consider how to make such petitions adversarial so that evidence may be properly tested as in a typical civil case. Finally, Judge Mathias would remind trial courts that they have the discretion and authority to appoint guardians ad litem to represent a child's best interests in cases such as this.
Declaring that the absence of a statutory framework in this case does not render the judiciary incapable of hearing these petitions or granting relief thereon, Judge Mathias stated that he could not join the plurality and would review the trial court’s denial on the merits.
In reviewing the merits of the trial court's denial of Mother’s Petition, Judge Mathias explained that there was no question that the trial court's judgment is wholly unsupported by the record and, thus, was clearly erroneous. Once Mother presented competent evidence in support of her petition, there must have been clear and convincing evidence to overcome Mother's fundamental right to control the upbringing of Child and conclude that denial of Mother's petition was in Child's best interests. Appellate review of the trial court's judgment, then, should be “to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.” In re R.S., 56 N.E.3d 625, 628 (Ind. 2016).
Despite this unequivocal and uncontradicted evidence from medical professionals supporting the gender marker change, the trial court denied Mother's petition to change Child's gender marker on Child's birth certificate.
Summary Judgment in favor of defendant health care providers added as parties to medical malpractice claim more than two years after the occurrence date of the alleged negligence was appropriate. (Memorandum Decision)
Gerald Morris died on October 1, 2018 after a hospital stay at Anonymous Alliance and after received medical treatment from Anonymous Physician A. Less than one year after his death, the personal representative of Mr. Morris’ estate filed a proposed complaint for damages with the Indiana Department of Insurance for the wrongful death of Mr. Morris. The initial proposed complaint did not include Anonymous Alliance and Anonymous Physician A as defendants.
While the case was pending before the IDOI, a defense medical expert witness opined that a CT scan of the head performed upon Mr. Morris had been incorrectly interpreted by Anonymous Physician A.
On December 10, 2020, more than two years after the occurrence of the alleged malpractice, the Estate amended its proposed complaint to add Anonymous Alliance and Anonymous Physician A as defendants to the lawsuit. Anonymous Alliance and Anonymous Physician A subsequently filed motions for preliminary determination of law and summary judgment based upon the Estate’s failure to comply with the two-years statute of limitations set forth in I.C. §34-18-7-1(b). The trial court found that there was no issue of material fact and granted summary judgment in favor of Anonymous Alliance and Anonymous Physician A based upon the applicable two-year statute of limitations. The Estate appealed.
On appeal, the Estate argued that the negligent conduct of Anonymous Alliance and Anonymous Physician A was not reasonably discoverable prior to the expiration of the two-year statute of limitations. The Estate argued that it had no reason to question the accuracy of Anonymous Physician A’s interpretation of Mr. Morris’ head CT scan until the defense expert witness opined that Anonymous Physician A had misread the film. The Estate further contended that it was not practical nor financially reasonable for a plaintiff patient to obtain expert opinions regarding the accuracy of every diagnostic test result.
The Court of Appeals noted that the Estate had stopped accepting the propriety of Mr. Morris’ medical treatment at face value when it sued for medical malpractice. Thus, the Court determined that circumstances of the Estate’s case was unlike other cases in which the plaintiff had no reason to suspect an injury was connected to negligence until after the statute of limitations ran, or where inquiring into potential negligence was deflected. The Court also noted that the only thing preventing the Estate from completing the same sort of medical record review that was later performed by the defense expert was the Estate’s desire to minimize litigation costs. The Court ultimately held that, because the Estate had sued for medical malpractice and possessed the medical records of Mr. Morris on which it based its claims against Anonymous Alliance and Anonymous Physician A for more than a year before the two-year, occurrence-based statute of limitations had run, the trigger date for the negligence was well within the statute of limitations. The Court of Appeals upheld the trial court’s granting of summary judgment in favor of Anonymous Alliance and Anonymous Physician A.
Plaintiffs’ claim for battery based upon a lack of informed consent allegation against defendant health care providers was not among the issues of law or fact that the trial court could preliminarily decide before a medical review panel opinion was obtained for the case. Plaintiffs’ claim for battery based upon a lack of informed consent allegation against defendant health care providers fell within the purview of the Indiana Medical Malpractice Act.
Dylan Woodcox was born on January 26, 2015. He was diagnosed with Tetralogy of Fallot, a serious heart condition. Due to his medical condition, Dylan had to be fed through an NG tube.
On April 11, 2015, Dylan was admitted to a hospital in South Bend, Indiana with symptoms of respiratory distress. He was transferred to Defendant Anonymous Hospital by helicopter that night and his parents also traveled there. After his arrival to the hospital, Dylan was placed in a cardiac intensive care unit. Anonymous Hospital's admission documents noted that Dylan's parents were his legal guardians for purposes of consenting to proposed treatments.
The next morning, Dylan's treatment team decided to replace Dylan's NG tube with an NJ tube. A nurse placed the NJ tube in Dylan. Although Dylan’s father was present at Anonymous Hospital that morning, placement of the NJ tube was not discussed with him in advance. The father signed a general consent form for medical treatment, but only after the NJ tube was placed.
The nurse incorrectly placed the NJ tube in Dylan and perforated his intestines. He died on April 17, 2015, due to the perforation and resulting sepsis despite later surgical intervention.
The plaintiffs filed a health care negligence lawsuit against the defendants for the death of their son with the Indiana Department of Insurance. A medical review panel was selected to review the claim.
After the lawsuit was filed, the parties exchanged written discovery and depositions were taken. As a result of those efforts, the plaintiffs learned about the nurse’s participation in Dylan’s health care. The plaintiffs filed an amended proposed complaint for damages with the IDOI adding the nurse as a defendant, raising a new claim under 42 U.S.C. §1983 against all defendants, and requesting injunctive relief.
The defendants filed a joint petition for preliminary determination of law and motion for summary judgment. The nurse asked to be dismissed from the case based upon the plaintiffs’ failure to comply with the applicable statute of limitations for their claim against her.
The plaintiffs filed a second amended proposed complaint for damages with the IDOI in which they no longer named the nurse as a defendant, eliminated their §1983 claim, raised claims of medical malpractice and battery, and asked for declaratory judgment. The plaintiffs sought a declaration that the health care providers’ decision to place an NJ tube in Dylan fell outside the jurisdiction of the MRP, because the health care providers did not obtain informed consent from his parents prior to the procedure, and, in the absence of such consent, the health care providers committed a battery on Dylan.
The plaintiffs also filed a counterclaim for declaratory judgment, battery, and medical malpractice in response to the nurse’s joint petition for preliminary determination of law and motion for summary judgment. The plaintiffs asked the trial court: (1) to declare that the placing of the NJ tube without parental consent was a battery as a matter of law; (2) to further declare that the battery claim fell outside the jurisdiction of the Review Panel; and (3) to award damages for the battery and the Providers’ medical malpractice. The plaintiffs conceded that the statute of limitations had expired as to their claims against nurse, but they claimed Defendant Anonymous Hospital remained vicariously liable for her actions.
The defendants filed a motion to dismiss the plaintiffs’ counterclaim. They argued that the plaintiffs were asking the trial court to decide the merits of their medical malpractice claim even though the MRP had exclusive jurisdiction over those claims until it issued an opinion.
The trial court subsequently granted the nurse’s motion for summary judgment, dismissing the plaintiffs’ claims against her. In a separate order, the trial court denied the plaintiffs’ motion for summary judgment and declaratory judgment and dismissed, without prejudice, their claims for declaratory judgment, battery, and medical malpractice. An appeal was taken.
On appeal, the plaintiffs argued that their motion for summary judgment and declaratory relief was proper, and should have prevailed, because their claim for battery fell outside of the medical review panel process. The Court of Appeals noted that, based upon the Indiana Supreme Court precedent of Griffith v. Jones, 602 N.E.2d 107 (Ind. 1992), the plaintiffs’ motion was not a permissible use of the preliminary question of law. The court in Griffith specifically held that claims involving issues of informed consent are not among the issues of law or fact that may be preliminarily addressed by a trial court under Trial Rule 12 or Trial Rules 26 though 37. Thus, the Court of Appeals held that the trial court did not err in denying the plaintiffs’ motion for summary judgment and declaratory judgment because the court lacked jurisdiction to address the issue.
The Court of Appeals further noted that, even if a petition for preliminary determination of law or fact was an appropriate method by which the trial court could have addressed whether the MRP had judication over the plaintiffs’ battery claim, the plaintiffs would not prevail because their battery claim was, in substance, a matter for the medical review panel to address. The court held that the choice to replace Dylan’s NG tube with an NJ tube, as well as the process of placing the NJ tube in his body, were related to the promotion of Dylan’s health and required the heath care provider to exercise professional skill, expertise, and judgment. Thus, the plaintiffs’ claim was subject to the requirements of the Indiana Medical Malpractice Act.
The Court of Appeals held that the medical review panel process had to proceed to its conclusion before the trial court could adjudicate the substance of the plaintiffs’ negligence claims.
No harm no foul on mask mandate shut down.
Yergy's State Road BBQ, LLC (“Yergy”) appealed a trial court's order dismissing Yergy's complaint against the State of Indiana (“the State”) and Governor Eric Holcomb (“the Governor”) (collectively, “the State Defendants”) and the Wells County Health Department (“the County Health Department”). Yergy argued that the trial court erred by dismissing its complaint as moot. Concluding that the trial court did not err, the Court of Appeals affirm the trial court's order dismissing Yergy's complaint.
On March 6, 2020, in response to the Covid-19 pandemic, the Governor issued Executive Order 20-02, declaring a public health emergency in Indiana. Executive Order 20-32, issued on June 6, 2020, provided, in relevant part, that “all [restaurant] employees and staff sh[ould] wear face coverings” and that the capacity limits for a restaurant's in-person dining was limited to 75% of a restaurant's maximum capacity.
Yergy is a restaurant in Blufton, Indiana, which is in Wells County. The Health Department Order informed Yergy that the restaurant was required to “immediately close and terminate violative operations” due to the restaurant's failure to comply with face-covering requirements for employees and due to the failure to comply with the required in-person dining capacity limits. The restaurant was “ordered closed for a period of 24 hours” and that it would “be allowed to re-open after an inspection” by the County Health Department and a “signed statement by [Yergy] of [its] intent to comply” with the employee face-covering requirement and seating limit requirement. Yergy petitioned for review of the Health Department Order, and a panel from the County Health Department held a hearing (“the hearing panel”). The hearing panel found in favor of the County Health Department.
Yergy filed a complaint seeking: (1) judicial review of the Health Department Order; (2) declaratory and injunctive relief challenging the constitutionality of the EMDL as applied; and (3) declaratory and injunctive relief challenging the Governor's executive orders as violating the EMDL. For all three claims, Yergy's ultimate request for relief was to have the trial court order the County Health Department to vacate the Health Department Order and to enjoin the County Health Department from enforcing any aspect of that order.
State Defendants filed a motion to dismiss, arguing that the trial court should dismiss Yergy's complaint because Yergy's request for relief had been rendered moot by the Governor's Executive Order 21-09 (issued on March 31, 2021) and Executive Order 21-12 (issued on April 29, 2021), which had eliminated the mandate for face coverings for restaurant employees. The County Health Department argued that Yergy's case had also been rendered moot by the legislature's passage of various public laws during the 2021 session. Yergy argued that its case was not moot because the Governor could potentially issue another executive order in the future and could re-impose face-covering requirements for restaurant employees. The trial court held a hearing and issued an order, concluding that Yergy's case was moot and granting the motion to dismiss Yergy's complaint. Yergy appealed.
The Court of Appeals noted that Yergy sought to have the trial court order the County Health Department to vacate the Health Department Order and to enjoin the County Health Department from enforcing any aspect of that order. It was undisputed that there was no longer an executive order requiring restaurant employees to wear face coverings. Thus, the Court of Appeals found that the basis of the issuance of the challenged Health Department Order no longer existed. Because there was no effective relief that could be rendered to Yergy on its complaint, the Court of Appeals determined that the trial court properly held the case was moot.
Yergy also contended that its case fell within the public interest exception because the Governor could issue a future executive order that imposes further mandates on restaurants as part of this pandemic or could do so in response to a future pandemic. Citing T.W., 121 N.E.3d at 1042 (quoting Matter of Tina T., 579 N.E.2d 48, 54 (Ind. 1991)) and I.J. v. State, 178 N.E.3d 798, 799 (Ind. 2022), the Court of Appeals agreed that Indiana recognizes a public interest exception to the mootness doctrine, which may be invoked when the issue involves a question of great public importance which is likely to recur. However, the Court noted that the exception should not be invoked when “for all practical purposes,” a decision on the merits results in the issuance of an advisory opinion. See I.J., 178 N.E.3d at 799. The Court of Appeals repeated that appellate courts do “not engage in discussions of moot questions or render advisory opinions.” Irwin v. State, 744 N.E.2d 565, 568 (Ind. Ct. App. 2001).
Additionally, the Court of Appeals noted that the General Assembly had changed the legislative framework for both states of emergency and review of orders issued by local health officials to enforce restrictions imposed in a public health emergency like those Yergy challenged. As a result, the Court of Appeals declined to apply the public interest exception to this case or to issue an advisory opinion. Accordingly, the Court of Appeals affirmed the trial court's determination that Yergy's request for relief was moot and affirmed the trial court's order dismissing Yergy's complaint.
No abuse of discretion in denying motion to set aside default where defendant claimed being too busy.
F.H. Paschen, S.N. Nielsen & Associates, Inc. (“Paschen”) entered into a lease to rent property from Lafayette Rentals, Inc., which is owned by Jeffrey D. Baker. The lease term expired on November 30, 2020, but the parties were in negotiations to allow a holdover period so Paschen could move into its new premises. Paschen paid Lafayette Rentals $1,400.00, representing one month's rent in December 2020 for the holdover period.
However, in early December 2020, Baker informed Paschen that Lafayette Rentals would no longer discuss a holdover period and that Paschen must vacate the premises immediately without removing all of its property. On December 9, 2020, Paschen, its movers, and its attorney arrived at Baker & Associates P.C., spoke with Baker, and requested access to the Leased Premises to remove the property. Baker refused to grant access to the Leased Premises to Paschen and refused to allow Paschen to remove its property. Paschen, through its counsel, contacted Baker by email and requested a date and time when Paschen could remove its property from the Leased Premises. Baker emailed Paschen's counsel demanding: (i) an acknowledgment that Paschen breached the Lease; (ii) payment of one month's rent for such alleged breach; (iii) payment of $300 for Baker's personal time; (iv) payment of attorney fees in an unspecified amount; and (v) removal of paint cans and cigarette butts outside the Leased Premises. Paschen's counsel emailed Baker, advising that one month's rent had been paid and demanding access to the Leased Premises to remove its personal property on either December 17 or 18. Baker emailed Paschen's counsel, advising that he would be removing the property from the Leased Premises and putting it in storage.
Because Baker and Lafayette Rentals (together, “Defendants”) refused to allow Paschen access to remove its property, Paschen filed a complaint against Defendants. Default judgment was entered against them after they failed to file an answer or appear for a hearing on a request for a preliminary injunction and the hearing on the motion for default judgment.
Defendants filed a motion to set aside the default judgment. The trial court held a hearing where Baker acknowledged that the reason he failed to attend the Default Judgment hearing was because:
I am a CPA, I'm working well over a [sic] 110 hours per week during this period of time I didn't want to come down for COVID and such. I admit the first hearing that I missed was because I thought he was filing an agreed—we had come up with an agreed order so that they could get their belongings. Turns out that he didn't file that. It also turns out that I think my staff sent it to his phone number instead of his fax number when the day that they were trying to get that to him which was a morning that I think that the hearing was for. I was under the impression that would put off a default judgment and then he put the default judgment in.
The trial court entered an order denying Defendants’ Motion to Set Aside Default Judgment. On appeal, Defendants argued that the trial court abused its discretion in denying the motion.
The Court of Appeals noted that in denying Defendants’ motion to set aside the default judgment, the trial court found that:
Defendant was aware of the hearing on March 1, 2021[,] and chose not to appear for various reasons, including COVID-19 concerns and he was too busy because it was tax season. The defendant had means to retain counsel and time to file a motion to continue. Instead, he ignored the matter ....
Baker admitted that he was aware of Paschen's complaint, Paschen's motion for default judgment, and the hearing scheduled for the motion for default judgment. Defendants did not file an answer to the complaint, did not attend any hearings, or otherwise attempt to defend the lawsuit until after default judgment was granted. Because Baker admitted that he was aware of the motion for default judgment filed by Paschen and of the hearing set on the motion and that the reason for the failure to attend the hearing was that Baker was a busy CPA and “for COVID and such,” the Court of Appeals found that he had not shown evidence of excusable neglect. See Coslett v. Weddle Bros. Constr. Co., 798 N.E.2d 859, 862 (Ind. 2003) (holding that in ruling on motions to set aside default judgments, the controlling question is whether there is even slight evidence of excusable neglect).
Defendants next argued they are entitled to relief from default judgment under Indiana Trial Rule 60(B)(3) for fraud, misrepresentation, or other misconduct of an adverse party. Defendants asserted that Paschen made false statements in the complaint and essentially challenge the allegations in the complaint. But the allegations in the complaint had no bearing on the trial court granting Paschen's motion for default judgment.
Defendants next argued that they were entitled to relief from default judgment under Indiana Trial Rule 60(B)(8), which allows the trial court to set aside a default judgment for “any reason justifying relief from the operation of the judgment, other than those reasons set forth in” (B)(1)–(B)(4). But Defendants did not raise this issue to the trial court in the Motion to Set Aside Default Judgment, and thus the Court of Appeals determined that this argument had been waived.
Lastly, Defendants contend that the trial court erred in awarding attorney fees to Paschen because the case was not decided on the merits. The Court of Appeals noted that the lease stated, “Each party shall pay the other party's reasonable legal costs and attorney's fees incurred in successfully enforcing, against the other party any covenant, term or condition of the Lease.” The Court of Appeals determined that by obtaining a default judgment in its favor, Paschen successfully enforced a term of the Lease against Defendants which were alleged to have been breached in Paschen's complaint. Thus, the Court of Appeals affirmed all of the trial court's rulings.
Patient was not precluded from attempting to rebut facts as established by his conviction and prove that he was not responsible for the act underlying his conviction; genuine issue of material fact existed at to whether patient was legally responsible for his criminal act for which he pled “guilty but mentally ill” to voluntary manslaughter; and criminal proceeding wherein patient pled “guilty but mentally ill” to voluntary manslaughter did not collaterally estop patient from litigating medical malpractice claim.
On several occasions in December 2016 and early January 2017, the defendants provided health care and treatment to plaintiff Zachary Miller regarding his mental health issues. On January 9, the plaintiff killed his grandfather. As a result, the State charged the plaintiff with murder, aggravated battery as a Level 3 felony, and voluntary manslaughter as a Level 2 felony. The plaintiff pleaded guilty but mentally ill to voluntary manslaughter and was sentenced to twenty years, twelve of which was executed.
In the meantime, the plaintiff filed a proposed complaint for damages with the Indiana Department of Insurance, alleging that the defendants had committed medical malpractice in their treatment of him which resulted in him suffering mental trauma, emotional distress, and loss of his freedom. The Medical Review Panel found that the defendants failed to comply with the appropriate standard of care and that this failure was a factor in the resulting damages alleged by the plaintiff.
After obtaining the opinion of the medical review panel selected to review his medical negligence claim, the plaintiff filed a complaint for damages against the defendant health care providers in the trial court. The defendants filed a motion for summary judgment to which the plaintiff responded. The trial court granted summary judgment for the defendants. The plaintiff’s motion to reconsider was denied, and he appealed.
The Court of Appeals first addressed whether the plaintiff’s claim against the defendant was barred by the general rule of public policy that a criminal defendant cannot shift responsibility for the consequences of his or her criminal acts to third parties. The court noted that there is an important limitation to that public policy – the controlling consideration to imposing the policy is the plaintiff’s legal responsibility for the criminal act in question. Thus, a problem arises when it is unclear whether the plaintiff is legally responsible for the criminal act in question. The court also noted that such a problem is encountered in the present case, because the plaintiff claims that he was insane at the time of the killing and an insane person is not held criminally responsible for his acts.
The court further noted that the plaintiff in this case had not based his civil claims against the defendants on his criminal act. Instead, the plaintiff’s complaint alleged damages based upon the defendants’ failure to comply with the appropriate standard of care.
In addition, the Court of Appeals recognized that it had previously taken the positive that a policy of precluding a convicted individual from imposing upon others civil liability for his criminal conduct is not justified and should not operate to preclude a civil action when the convicted individual-plaintiff is not responsible for the act in question.
The court ultimately determined that public policy should not preclude the plaintiff from attempting to rebut the facts as established by his criminal conviction and prove that he was criminally insane at the time of the killing and thus not responsible for the act.
Next, the Court of Appeals addressed whether the plaintiff’s health care negligence claim was barred by the doctrine of collateral estoppel. The court noted that because the defendants were making the claim of a defensive collateral estoppel, they had the burden of showing that they were entitled to its use. The court also noted that the primary considerations in deciding whether the defensive use of collateral estoppel is appropriate are: (1) whether the party against whom the prior judgment is asserted had a full and fair opportunity to litigate the issue; and (2) whether it would be otherwise unfair under the circumstances to permit the use of collateral estoppel.
With the primary considerations in mind for the defensive use of collateral estoppel, the Court of Appeals noted that the plaintiff did not exercise his right to a criminal jury trial which meant that a trier of fact had not heard evidence or passed judgment on his sanity or intent with regard to the killing of his grandfather. The court also noted that the transcript from the plaintiff’s sentencing hearing provided evidence that his mother had attempted to obtain medical treatment for the plaintiff before the killing and that the prosecutor was well aware of the role the lack of mental health treatment played in the plaintiff’s actions. The Court of Appeals further noted that the plaintiff’s mental health issues had been considered by the criminal court to be a mitigating circumstance that established substantial grounds to excuse or justify his offense. The court ultimately concluded that the plaintiff did not have a full and fair opportunity to litigate the issue of his criminal responsibility in the criminal case.
In addition, under the circumstances presented by this case, the court held that it would be otherwise unfair to apply collateral estoppel to preclude the plaintiff from attempting to rebut the inference of his sanity established by his plea of guilty but mentally ill. Consequently, the court found that the trial court's application of collateral estoppel to preclude the plaintiff’s civil claim was in error.
Importantly, the Court of Appeals concluded its opinion by stating as follows:
While we recognize that our holding allows for potentially inconsistent determinations of fact in a criminal trial and a subsequent civil action, we nonetheless believe that, in the circumstances before us, affording Miller the opportunity to have his day in court to fully litigate his medical malpractice claim overrides our apprehension about the potential for inconsistent determinations.
. . .
Indeed, we are mindful that our open courts clause mandates, “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” IND. CONST. art. 1, § 12. This clause thus “ ‘guarantees access to the courts to redress injuries to the extent the substantive law recognizes an actionable wrong.’ ” Escamilla v. Shiel Sexton Co., Inc., 73 N.E.3d 663, 666 (Ind. 2017) (quoting Smith v. Ind. Dep't of Corr., 883 N.E.2d 802, 807 (Ind. 2008)).
Additionally, we are concerned that to rule otherwise and refuse “to look behind the curtain of the negotiated guilty plea” would require every criminal defendant with a potential civil suit to proceed with a criminal trial, regardless of the risks. Talarico, 226 Ill.Dec. 222, 685 N.E.2d at 331. This would result in the acceptance of fewer plea agreements, which would, in turn, cause our trial courts to function less efficiently.
Summary Judgment in favor of defendant physician was appropriate because plaintiffs failed to satisfy second prong of McKeen v. Turner regarding new theories of negligence raised post-medical review panel during subsequent litigation. (Memorandum Decision)
The plaintiffs brought a health care negligence claim against Dr. Long, an ophthalmologist, for: (1) failure to perform an appropriate cataract surgery in Mrs. Radil’s right eye; (2) negligently causing a peaked pupil to the surgical incision due to vitreous that was likely externalized; and (3) negligently causing endophthalmitis as a result of poor surgical technique during surgery or when injecting the right eye with intra-operative steroid and antibiotic medication.
For their submission of evidence, the plaintiffs provided all of Mrs. Ardith’s relevant medical records to the medical review panel members. The plaintiffs’ submission of evidence did not refer to any telephone calls that took place between Mrs. Radil and Dr. Long regarding postoperative symptoms that Mrs. Radil had been experiencing.
The medical review panel issued a unanimous opinion in favor of Dr. Long. The plaintiffs then proceeded to file their lawsuit with the trial court.
With a panel decision in his favor, Dr. Long filed a motion for summary judgment with the trial court. In response in opposition to the defendant’s summary judgment motion, the plaintiffs designated an affidavit from Mrs. Radil and an affidavit from ophthalmologist Dr. Bernard Spier. The defendant then withdrew their summary judgment motion.
For the first time in her affidavit, Mrs. Radil stated that she had called Dr. Long on the weekend dates of April 26, 2014 and April 27, 2014 to report that she had worsening pain and vision changes in her right eye postoperatively. She stated that Dr. Long had instructed her during both of those calls to continue to use the prescribed eyedrops and to see him on Monday, April 28, 2014. She further stated in the affidavit that she had telephoned Dr. Long on April 28th before she saw him and that he told her that he wanted to see her immediately.
In his affidavit, Dr. Spier’s sole criticism of Dr. Long’s care was based upon Dr. Long’s failure to either examine Mrs. Radil after talking with her on each weekend day or to refer her to another health care provider to be examined. Dr. Spier opined that Dr. Long’s failure to examine Mrs. Radil or to instruction her to see another health care provider for examination caused her injuries.
Prior to trial of the lawsuit, Dr. Long filed a second motion for summary judgment based upon the MRP opinion in his favor. Dr. Long argued that, because the plaintiffs did not include evidence in their submission that Mrs. Radil called Dr. Long on April 26 or April 27, 2014, and because Dr. Spier’s expert opinion was based upon those phone calls, Dr. Spier’s expert opinion was not admissible evidence upon which the plaintiffs could rely to rebut the MRP decision. In opposition, the plaintiffs argued that they had sufficiently alleged negligence related to the phone calls under Indiana’s notice pleading rules. Following a hearing, the trial court entered summary judgment for Dr. Long. Plaintiffs appealed.
The Court of Appeals noted that, based upon the Indiana Supreme Court’s holding in McKeen v. Turner, 71 N.E.3d 833 (Ind. 2017), a plaintiff may raise any theories of alleged malpractice during litigation following the MRP process if (1) the proposed complaint encompasses the theories; and (2) the evidence related to those theories was before the panel.
The Court of Appeals ultimately held that because the Radils did not refer or allude to the April 26, 2014 or April 27, 2014 telephone calls between Dr. Long and Mrs. Radil in their submission of evidence to the MRP, the plaintiffs did not satisfy the second prong under McKeen and did not designate any admissible evidence to create a genuine issue of material fact precluding summary judgment for Dr. Long.
