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INDIANA COURT OF APPEALS
Jody Smedley appealed the trial court's denial of his emergency motion for continuance of trial date due to medical expert witnesses’ unwillingness to testify on her behalf at trial. The Court of Appeals determined that the trial court did not abuse its discretion in denying Smedley’s emergency motion for continuance of trial date, because Smedley failed to show good cause for failure to file the motion for continuance by the deadline established in the Case Management Order.
Jody Smedley v. John W. Arbuckle, M.D. and Indiana Spine Group, P.C., 211 N.E.3d 514 (Ind. Ct. App. May 1, 2023)
On September 15, 2021, the trial court entered an Agreed Case Management Order which set a final pre-trial conference for the case of July 8, 2022, and a trial date of August 8, 2022. The CMO also required all expert witnesses for trial to be identified within 120 days of the trial date. The CMO further required that any motions for continuance be filed no later than fourteen (14) days before the final pre-trial conference.
Smedley’s only identified medical expert witness in the case was Dr. Robert Prince. On July 6, 2022, Dr. Prince sent Smedley an email indicating he had decided to decline from testifying “either in person or by video” at the trial of Smedley’s case. On July 7, 2020, Smedley filed an Emergency Motion for Continuance of Trial Date. The trial court addressed Smedley's motion at the final pre-trial conference. Smedley told the trial court that he first became aware of Dr. Prince's hesitation to testify “two or three weeks” prior to the pre-trial conference.
The Court of Appeals noted that, because Smedley’s claim was dismissed as a result of the trial court’s ruling, prejudice was not at issue in this matter on appeal. Consequently, the court’s sole focus was on whether Smedley demonstrated good cause for filing the motion for continuance after the deadline for filing such a motion had expired pursuant to the CMO.
The Court of Appeals concluded that, because counsel or Smedley had first become aware of Dr. Prince’s hesitation “two or three weeks” before the pre-trial conference, then the Plaintiff could have, and should have, met the CMO deadline for the motion for continuance to be filed 14 days before the date of the final pre-trial conference. The court further concluded that Smedley failed to demonstrate good cause for filing the motion for continuance after the deadline had passed for doing so.
Plaintiff filed a lawsuit for battery against “anonymous physician on duty.” Almost one year later, Plaintiff learned the physician's name and amended her complaint to substitute the physician for “anonymous physician on duty.” The physician filed a motion for summary judgment, arguing that Plaintiff was precluded from amending her complaint by the two-year statute of limitations for a battery claim. The trial court denied the physicians’ summary judgment motion, and the physician appealed. The Court of Appeals held that the physician’s identity was not unknown to Plaintiff such that she should be allowed to amend her complaint after the statute of limitations had run.
Imad Shawa, M.D. v. Kathryn Gillette, 209 N.E.3d 1196 (Ind. Ct. App. May 10, 2023)
Kathryn Gillette sued the “physician on duty-St. Francis” Hospital for battery. Nearly three years after her claim arose, Gillette amended her complaint alleging that Dr. Imad Shawa was the physician who touched her arm without her permission. Dr. Shawa moved for summary judgment on the grounds that Gillette's amendment did not meet the two-year statute of limitations for battery claims and that Gillette's deposition testimony proved she reasonably should have known his identity before the statute of limitations expired. The trial court disagreed, relying on Indiana Trial Rule 17(F), which allows for “unknown” parties to be substituted into a complaint at any time. Dr. Shawa appealed.
On appeal, neither party contested when the clock started on Gillette's claim or that she filed her complaint within the two-year period. Instead, the parties argued about whether Dr. Shawa was “unknown” to Gillette before she amended her complaint to name Dr. Shawa as a defendant under Indiana Trial Rule 17(F).
The Court of Appeals noted that, when Gillette's claim arose, she knew multiple identifying details about Dr. Shawa, including where he worked, the specific department he worked in, when he had been working on a specific day, and even what he looked like. Despite possessing this knowledge from the moment her claim accrued, Gillette's search for Dr. Shawa amounted solely to scanning the website of St. Francis Hospital—a website that included Dr. Shawa's name and photograph.
Gillette raised the issue to the court that Dr. Shawa was listed as an “Independent—Not Employed by Franciscan Health,” a potentially confusing label. However, the court noted that the website was not the only way Gillette could have identified Dr. Shawa. The court determined that many alternative methods of identification existed. The court noted that, at any point, Gillette could have returned to the hospital, for example, and located Dr. Shawa using any of the several identifying details she possessed. The court stated that Gillette’s failure to do so undermined the protection against “litigation of stale claims” that statutes of limitation afford both courts and defendants.
Gillette further argued that she diligently searched for Dr. Shawa’s existence, that the medical records at issue in the case were voluminous and complex, and that she quickly moved to amend her complaint after learning Dr. Shawa’s name through discovery. The Court of Appeals did not accept that argument and concluded that Gillette's failure to use her “probable knowledge” of Dr. Shawa's identity “preclude[s] operation of [Trial Rule 17(F)’s] unlimited extension of the statute of limitations.”
A mere affidavit averring that, in its own opinion, the trial court could not obtain jurisdiction over a nonparty is simply not enough.
Erie Insurance Exchange v. Myron Corp., 221-CT-2699 (Ind. Ct. App June 9, 2023)
In the case of Erie Insurance Exchange v. Myron Corp., Erie Insurance (the appellant-plaintiff) appealed the trial court's denial of its motion to consider Myron Corporation (the appellee-defendant) as the manufacturer of a power bank charger in order to apply strict liability under the Indiana Product Liability Act. The trial court also granted Myron's motion to dismiss Erie Insurance's strict liability claim.
The dispute arose after a fire occurred at the residence of Kevin and Heather Roberts, which was insured by Erie Insurance. Erie Insurance filed a subrogation suit against Myron, alleging that the fire resulted from a defect in a power bank charger manufactured and sold by Myron. Myron denied being the manufacturer and named Shenzhen C-Star Electric Technology Company, Ltd. as the manufacturer and a non-party liable for Erie Insurance's damages.
The trial court denied Erie Insurance's motion to declare Myron as the manufacturer under the Indiana Product Liability Act and dismissed the strict liability claim. A jury trial was conducted on the remaining negligence claim, and the jury returned a verdict in favor of Myron.
Under the Indiana Product Liability Act, strict liability claims are restricted to manufacturers of defective products. The statute defines a manufacturer as a person or entity involved in the preparation of a product before its sale to a user or consumer. However, an exception known as the domestic distributor exception allows strict liability claims against non-manufacturer defendants who are principal distributors or sellers over whom the court can hold jurisdiction, and if the court cannot hold jurisdiction over the actual manufacturer.
In this case, Erie Insurance failed to provide evidence that the trial court would be unable to hold jurisdiction over the actual manufacturer, Shenzhen. The only evidence presented was an affidavit stating that Shenzhen was not registered in the state of Indiana and had no contact with the state. However, this evidence was deemed inadequate by the Court of Appeals.
Consequently, the Court of Appeals affirmed the trial court's ruling, upholding the denial of Erie Insurance's motion and the dismissal of the strict liability claim against Myron.
Plaintiff brought wrongful death, health care negligence claim against various defendants, claiming that the hospital and its cardiologist had committed medical malpractice which resulted in her husband’s death. Plaintiff motioned for partial summary judgment based upon the medical review panel opinion for the case. The trial court granted the plaintiff’s partial motion for summary judgment and subsequently granted hospital's motion to certify the interlocutory order for appeal. Hospital appealed. The Court of Appeals ultimately held that the totality of the hospital's designated evidence was sufficient to create a genuine issue of material fact as to whether physician's treatment of the decedent complied with the applicable standard of care, thus precluding entry of partial summary judgment in favor of spouse.
Plaintiff brought wrongful death, health care negligence claim against various defendants, including Baptist Health and cardiologist Dr. Sriivas Manchikalapudi (“Dr. Manchi”), for the death of her husband. Two of the medical review panel members selected to review this case determined that Baptist Health and Dr. Manchi complied with reasonable standards of medical care but, because they were not cardiologist, they stated that they could not opine about whether Dr. Manchi’s reading of a TEE complied with reasonable standards of medical care. The cardiologist on the medical review panel determined that Baptist Health and Dr. Manchi did fail to comply with reasonable standards of care in the reading of a TEE for the deceased patient.
Baptist Health Medical Group, Inc. v. Carla Wellman, 212 N.E.3d 233 (Ind. Ct. App. June 19, 2023)
Plaintiff moved for partial summary judgment on the issue of standard of care based upon the opinion of the cardiologist on the medical review panel. Baptist Health filed a response, a memorandum in opposition to the plaintiff’s motion, and a designation of evidence. Baptist Health's designation included a three-page, fifteen-paragraph affidavit from Dr. Manchi which detailed his treatment of the decedent and his perceived compliance with the standard of care in performing and interpreting the TEE, deposition testimony of Dr. Frizzell, analyzing the basis for his opinion on the standard of care on reading a TEE, and certified medical records from the University of Louisville Hospital. On March 31, 2022, the plaintiff replied to Baptist Health's response. After a hearing, the trial court granted the plaintiff’s motion for partial summary judgment on the issue of the standard of care. The defendants appealed.
The court noted that the issue in this case was whether the totality of the designated evidence is sufficient to raise a genuine issue of material fact.
In its opinion, the court relied upon the fact that in response to the plaintiff’s motion for partial summary judgment, Baptist Health designated Dr. Manchi's affidavit, the Baptist Health certified medical records from the University of Louisville Hospital, which the court believed to bolster the conclusions of Dr. Manchi expressed in his affidavit, and the deposition testimony of Dr. Frizzell in which he conceded that the medical guidelines for the standard of care on which he based his opinion allow for variations in the ability to perform all aspects of a TEE depending on the individual patient's characteristics, anatomic variations, pathologic features, time constraints, and the judgment of the treating physician.
The court concluded that a fair reading of Dr. Manchi's affidavit, together with the University of Louisville Hospital records and Dr. Frizzell's deposition testimony, created a genuine issue of material fact that precluded the entry of summary judgment. Thus, the court held that the entry of partial summary judgment in favor of the plaintiff by the trial court was inappropriate.
A settlement establishing a healthcare provider's factual liability does not necessarily establish coverage under the Medical Malpractice Act or the Patient's Compensation Fund's liability for excess damages. The PCF is permitted to make an independent determination of whether a claim for excess damages is based upon a claim covered by the Act, and the PCF’s responsibility in this regard is not ripe until a claim for excess damages is made.
Indiana Department of Insurance v. Jane Doe, et al., 211 N.E.3d 1014 (Ind. Ct. App. June 2, 2023)
Minor patient and his legal guardians brought action for additional compensation from the Indiana Patient's Compensation Fund after settling underlying claim against defendant physician and hospital arising out of physician's sexual misconduct. The physician and hospital intervened. The trial court denied the PCF’s motion for summary judgment. The PCF filed an interlocutory appeal. The Court of Appeals ultimately held that there were no genuine issues of material fact and that the PCF was entitled to judgment as a matter of law.
The Court of Appeals began its analysis for the case by noting that the ultimate question presented was whether the plaintiffs had satisfied the statutory prerequisites for access to the PCF. In order to answer that question, the court had to address the following issues: (1) whether a freestanding claim of negligent credentialing can exist where the underlying act of negligence does not constitute medical malpractice under the MMA; (2) whether the liability of the health care provider as admitted and established under I.C. §34-18-15-3(5) precludes the PCF from disputing compensability of a claim for excess damages; (3) whether the doctrines of laches and equitable estoppel can prevent the PCF from contesting compensability of an excess damages claim where the PCF did not intervene before the underlying claim was settled; and (4) whether the Court of Appeals opinion in Marinez v. Oaklawn Psychiatric Center, Inc., 128 N.E.3d 549 (Ind. Ct. App. 2019), affected the application of the MMA in this case.
(1) First, the court held that we hold that an underlying act of medical malpractice is a necessary
predicate and condition precedent to a medical credentialing malpractice claim.
The court held that negligent credentialing is a secondary claim of liability that requires two negligent acts: (1) an underlying act of negligent health care by a credentialed physician and (2) negligence by the hospital in credentialing the physician. In order to state a claim that comes within the purview of the MMA, and thus confer access to the PCF, both acts must constitute medical malpractice. A plaintiff cannot assert a claim of negligent credentialing to bootstrap and convert a common law negligence claim into statutory medical malpractice. In this case, the court concluded that the plaintiffs’ claim against the Hospital was tantamount to a common law tort of negligent hiring and retention. Given that the court of appeals has repeatedly held that sexual misconduct is unrelated to the promotion of a patient's health and does not constitute medical malpractice, the court noted that the defendant physician’s misconduct in this case was ordinary negligence, not medical malpractice, and thus the plaintiffs’ secondary claim of negligent credentialing did not come within the purview of the MMA.
(2) Second, the court held that, where the PCF is not a party to a settlement agreement between
the claimant and the provider and the court must consider the liability of the health care provider as “admitted and established,” the PCF is not precluded from making an independent determination and may dispute whether the underlying conduct is compensable under the MMA.
The court noted that under I.C. §34-18-15-3(5), the question of factual compensability is foreclosed when a plaintiff settles with a health care provider. However, such a settlement does not preclude the PCF from contesting the legal compensability of the claimed injury as one that is not compensable under the MMA and therefore also not subject to a claim for excess damages from the PCF. The court concluded that the underlying settlement agreement established only the liability of the defendants and did not preclude the PCF from challenging the applicability of the MMA to the claims of the plaintiffs.
(3) Third, the court held that the PCF does not have an affirmative duty to intervene in settlement
negotiations between a claimant and a provider or to address a claim for excess damages until the claim has been filed in court. Before such a claim is filed, the doctrines of laches and estoppel, on these facts, are unavailable to prevent the PCF from disputing the compensability of an excess damage claim under the MMA.
The court of appeals noted that the parties’ settlement agreement was expressly conditioned upon whether the PCF “successfully rejects” the agreement and the plaintiffs’ petition for excess damages, in which event the agreement “shall be null and void.” The court further noted that, having anticipated that the PCF could well dispute an excess damages claim, the parties cannot now complain that they relied in fact on the PCF's silence and were blindsided when the PCF did just that. In addition, because the Fund had no duty to intervene in the parties’ settlement negotiations, the parties had no right to rely on the Fund's alleged failure to participate in those negotiations.
(4) Fourth, the court held that the Martinez v. Oaklawn Psychiatric Center, Inc. case did not
affect the resolutions of the plaintiffs’ claim in this case. The court noted that in Martinez, it concluded that Oaklawn's employee was acting within the scope of his employment with Oaklawn, a health care provider, and that the employee's “attempt to enforce Martinez's curfew was a part of Oaklawn's provision of healthcare to Martinez. The court noted that it determined in Martinez that the alleged medical malpractice fell squarely within the well-established purview of the MMA. Thus, the court concluded that Martinez did not broaden or otherwise deviate from well-established medical malpractice case law and that the holding in Martinez did not affect the application of the MMA to this case.
An athletic trainer is a qualified health care provider under the Medical Malpractice Act (MMA), and thus plaintiff-student was required to present her proposed complaint to a medical review panel prior to commencing action.
Incremedical, LLC v. Alyssa Kennedy, 212 N.E.3d 220 (Ind. Ct. App. June 14, 2023)
Plaintiff-student brought action against high school, school district, rehabilitation management limited liability corporation (LLC), and its employee, an athletic trainer, for negligence and medical malpractice, alleging that after student was knocked to ground during volleyball game, striking her head on the floor, and was later struck in the head by ball, trainer, who was contracted to work at school, failed to recognize student's brain injury and failed to perform proper tests regarding concussions and brain injuries. Trial court denied Incremedical, LLC’s and the athletic trainer’s motion to dismiss for lack of subject matter jurisdiction. Those defendants appealed.
The court noted that, to fall within the purview of the Medical Malpractice Act (MMA), the provider's curative or salutary conduct must be directed toward the person to whom the provider owes a duty of care; conversely, the MMA does not apply to conduct unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill, or judgment. The court also noted that, generally, under the MMA, a medical malpractice action may not be brought against a health care provider until a proposed complaint has been filed with the Indiana Department of Insurance and an opinion has been issued by a medical review panel.
The court further noted that, in deciding the proper forum, the Indiana Supreme Court has explained that the IDOI is the appropriate entity to make the “determination” of whether a health care provider is qualified under the MMA. Thus, it is prudent for a plaintiff to commence a medical malpractice action by filing [a] proposed complaint with the IDOI. When conflicting information is provided to the claimant concerning the qualified status of a physician under the Act, there is an affirmative obligation on the part of the claimant to determine from the IDOI whether the doctor is qualified.
In this case, the defendants submitted an affidavit by Mary Wilson, the Director of Dedicated Funds of the Indiana Patient's Compensation Fund, Medical Malpractice Division with their motion to dismiss. As part of her duties, as Director of Dedicated Funds, Wilson is responsible for maintaining the records of all individuals and entities who have applied for and are qualified health care providers under the Indiana Medical Malpractice Act, I.C. § 34-18-1-1 et seq.” In her affidavit, Wilson concluded that the defendants were qualified health care providers under the Act for the time periods identified in the plaintiff’s complaint.
Importantly, the court noted that, even without the affidavit of Wilson, it would have reached the same conclusion that Incremedical and the athletic trainer were health care providers, as defined within the province of the MMA in the “catchall provision.”
Accordingly, because the court determined that Incremedical and the athletic trainer were qualified health care providers under the MMA, the plaintiff was required to present her proposed complaint to a medical review panel before commencing an action in the trial court. She failed to do so. Because the trial court lacked subject matter jurisdiction, the Court of Appeals reversed the trial court's denial of Appellants’ motion to dismiss.
Medical Malpractice Act applied to class action against hospital and anonymous healthcare providers, alleging that hospital sent letters to over a thousand patients, informing them that a technician failed to complete a step in procedure for sterilizing certain surgical instruments and that, as a result, they may have been exposed to infectious diseases. Trial court had subject-matter jurisdiction to grant plaintiffs' motion for class certification as a preliminary determination under provision of the MMA, because issue of whether to certify was a matter that could have been preliminarily determined by motion under rules of civil procedure.
Linda Gierek v. Anonymous 1, et al., 212 N.E.3d 208 (Ind. Ct. App. June 14, 2023)
Linda Gierek and over a thousand other patients who underwent surgical procedures at a hospital operated by Anonymous 1, Anonymous 2, and Anonymous 3 were informed by the Hospital that one of its technicians had failed to complete a step in the procedure for sterilizing certain surgical instruments and that, as a result, the patients may have been exposed to infectious diseases. Linda and her husband Stephen filed a class-action complaint with the trial court and a proposed class-action complaint with the commissioner of the Indiana Department of Insurance asserting claims against the defendants for negligent infliction of emotional distress, negligence, and, in the alternative, medical malpractice. The Giereks also filed motions requesting the certification of two classes, one for the defendants’ patients and one for the patients’ spouses. Additional plaintiffs were permitted to intervene in the Giereks’ action, which was consolidated with a later-filed class action brought by Cheyanne Bennett, who filed her own motion for class certification.
The Indiana Patient's Compensation Fund intervened and filed a motion for partial summary judgment asserting that the MMA does not apply to Plaintiffs’ claims. The defendants filed a cross-motion for partial summary judgment asserting that the MMA does apply to the plaintiffs’ claims. The trial court entered an order denying the PCF's motion for partial summary judgment and granting the defendants’ cross-motion for partial summary judgment, ruling that the MMA applied to the plaintiffs’ claims. The court also denied plaintiffs’ motions for class certification on the basis that it did not have subject matter jurisdiction to grant them as a preliminary determination under the MMA.
The Court of Appeals affirmed the trial court’s determination that the MMA applied to the plaintiffs’ claims. The court noted that the substance of plaintiffs’ claims was that the defendants owed the plaintiffs a duty to perform surgical procedures with sterile instruments; that the defendants breached that duty by performing surgical procedures with instruments that may not have been properly sterilized, which may have exposed plaintiffs to infectious diseases; and that the defendants’ breach proximately caused them to suffer emotional distress. The Court found that, without question, a surgical procedure is the very essence of “health care” as defined by the MMA. Thus, because the alleged torts were based on health care that was provided by the defendants to the plaintiffs, the MMA clearly applied to the plaintiffs’ claims.
The Court of Appeals then reversed the trial court’s ruling that it lacked subject matter jurisdiction to grant the plaintiffs’ motions for class certification as a preliminary determination under the MMA. The court noted that Trial Rule 23 is related to Trial Rule 12(B)(7), failure to join a party needed for just adjudication under Rule 19, which is a provision that has been previously determined to be a preliminary matter that a trial court can decide pursuant to Trial Rule 12(D). The court further noted that Rule 12(B)(7) directly incorporates Rule 19 which in turn, directly incorporates Rule 23. The court also noted that a class action is a species of traditional joinder that merely enables a court to adjudicate claims of multiple parties at once, instead of in separate suits. And like traditional joinder, it leaves the parties’ legal rights and duties intact and the rules of decision unchanged. Finally, the court noted that Trial Rule 23(C) specifically states that the determination of whether an action is to be maintained as a class action should be made “as soon as practicable after the commencement of” the action.
The court ultimately concluded that the issue of whether to certify a proposed class is a matter that may be preliminarily determined by motion per Trial Rule 12(D) and -(B)(7).
Plaintiff in bankruptcy can pursue claim in her own name.
Red Lobster Restaurants, LLC., et al. v. Abigail Fricke Court of Appeals Case No. 22A-CT-2221
In the case of Red Lobster Restaurants, LLC., et al. v. Abigail Fricke, the Court of Appeals affirmed the denial of Red Lobster's motion for summary judgment in a personal injury action filed against them by Abigail Fricke. The court addressed two issues raised by Red Lobster: (1) whether the trial court abused its discretion in denying the motion to strike Fricke's affidavit opposing the motion for summary judgment, and (2) whether the trial court erred in denying the motion for summary judgment based on judicial estoppel and lack of standing.
The court held that the trial court did not err in denying the motion to strike Fricke's affidavit,
as her statements explained her mindset and intentions rather than contradicting her prior sworn testimony. The court determined that Fricke's failure to disclose her personal injury lawsuit in her bankruptcy filing was a good faith mistake and not an attempt to hide her bankruptcy. Therefore, the trial court's decision to deny the motion to strike was upheld.
Regarding the motion for summary judgment, the court concluded that Red Lobster failed to
demonstrate that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law. The court found that Fricke's bankruptcy filing did not prevent her from pursuing her personal injury claim against Red Lobster. They noted that Fricke had standing to sue because she sustained a direct injury and that she was acting on behalf of the bankruptcy estate. The court emphasized that Fricke's personal injury claim arose after she filed for bankruptcy, and she disclosed the claim to the bankruptcy trustee. Any recovery obtained would have been available to satisfy her creditors.
In summary, the Court of Appeals of Indiana affirmed the trial court's denial of Red Lobster's motion to strike and motion for summary judgment, allowing Abigail Fricke to pursue her personal injury claim against Red Lobster despite having filed for bankruptcy.
Sexual groping by a healthcare provider is not “curative or salutary conduct” covered by the Medical Malpractice Act, it is conduct unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill, or judgment outside the reach of the MMA.
Jatindar Kansal, M.D., P.C. v. Taylor Kreiter, 213 N.E.3d 573 (Ind. Ct. App. July 10, 2023)
Taylor Krieter sued Dr. Jatinder Kansal for battery and intentional infliction of emotional distress, alleging that he touched her inappropriately when she was seeing him for allergies and eczema. Krieter did not present a proposed complaint to a medical-review panel before going to court, as would be required under the MMA. Dr. Kansal moved to dismiss for lack of subject-matter jurisdiction, arguing that the Act applies because any sexual misconduct would have occurred during medical appointments where Dr. Kansal examined and treated Krieter. The trial court denied Dr. Kansal's motion. The Court of Appeals affirmed.
The court noted that the issue was not whether the alleged tortious conduct occurred during the provision of medical care but whether the conduct itself involved the provision of medical care. Krieter claimed that she went to see Dr. Kansal for medical treatment and that at some point during the appointments Dr. Kansal's conduct would transition from examination for medical purposes to groping for sexual purposes. The court concluded that the detour to sexual groping, if it occurred, was not medical care and did not “involve” medical care. Therefore, Krieter is not claiming medical malpractice, the MMA did not apply, and the trial court has subject-matter jurisdiction.
Non-evidentiary matters such as mere allegations raised in another case are inappropriate in evidentiary submissions to a medical review panel under the Medical Malpractice Act, and a trial court may mandate compliance with the statutory provision describing evidence that may be considered by striking such non-evidentiary matters from a party's evidentiary submission.
Richard Bojko, et al. v. Anonymous Physician, et al., 215 N.E.3d 376 (Ind. Ct. App. July 28, 2023)
Anonymous Physician provided medical care to Richard Bojko, Patricia Gadzala, Katie Greenberg, Vernita Johnson-Macklin, Kurt Claussen, and Rachel Richardson. Each of the plaintiff patients filed a proposed complaint for damages against defendants Anonymous Physician and his practice, Anonymous Medical Practice, with the Indiana Department of Insurance. Each of the plaintiffs also tendered an evidentiary submission to the medical review panel in their respective cases. Pursuant to I.C. §34-18-10-14, defendants filed a petition asking the trial court to order the plaintiffs to remove non-evidentiary allegations from their submissions. The trial court granted the petition. The plaintiffs appealed and argued that the trial court lacked subject matter jurisdiction to grant the petition. The Court of Appeals affirmed the trial court’s ruling.
Each of the plaintiffs’ submissions of evidence included the following information. Chapter 1 of each submission described the saga of Dr. Mark Weinberger, but not the defendants’ treatment of the plaintiffs. Chapter 2 included excerpts from expert depositions taken in other cases filed against the defendant. Chapter 3 noted that multiple cases “similar to the instant case” had been filed against the defendant. Finally, Chapter 4 stated that the defendant died in February 2020, and it quotes from a proposed complaint for damages that the defendant’s wife filed on behalf of his estate. The chapter notes that the defendant suffered from chronic alcohol and drug abuse, and upon presentation to a hospital's emergency department on February 02, 2020, was visibly intoxicated, showed signs of delusional ideation, mental illness, grave disability and was aggressive and dangerous, among other things. The chapter also includes deposition testimony taken in an unrelated case against the defendant, in which his wife's proposed complaint was read to the expert witnesses, who were then asked to opine whether mental illness or addiction issues could render a physician too impaired to treat patients and whether unnecessary surgeries would raise concerns about a physician's mental state. In support of their submissions, each plaintiff attached as exhibits his or her own proposed complaint, his or her medical records, the parties’ answers to interrogatories, and the proposed complaint filed by the defendant’s wife.
The defendants filed a petition with the trial court pursuant to I.C. 34-18-10-14. The petition, which was later amended, named the plaintiffs as respondents. The petition argued that the submissions made by the plaintiffs included materials which were not evidence, but are mere allegations. The petition stated that the defendants had asked the plaintiffs to redact allegations regarding alleged drug or alcohol abuse and mental illness from their submissions, but the plaintiffs would not do so. Finally, the petition requested an order mandating that the plaintiffs redact any and all references from their submissions to alleged drug or alcohol abuse or mental illness. The plaintiffs objected to the defendants’ petition, claiming that the trial court lacked subject matter jurisdiction to grant it.
The Court of Appeals noted that Indiana has long-standing precedent that a trial court has subject matter jurisdiction under I.C. 34-18-10-14 to order a party to redact legal argument from its evidentiary submissions to the medical review panel because legal argument is not evidence as described in Indiana Code Section 34-18-10-17. The court noted that unsworn, unsubstantiated allegations in a third-party proposed medical malpractice complaint are not evidence as described in I.C. 34-18-10-1. Finally, the court noted that it is the clear import of I.C. 34-18-10-17 and I.C. 34-18-10-22 that a medical review panel's expert opinion regarding whether the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint must be based on the actual facts (and sworn testimony regarding those facts) of the particular case before the panel and not on mere allegations raised in another case or cases.
Summary judgment in favor of defendant health care providers affirmed where evidence showed that the defendants did not render life-prolonging care in the face of a valid refusal. The defendants could not be liable for medical battery because there were unmet conditions precedent regarding the applicability of the patient’s DNR provisions in her living will and because the patient’s adult son consented to further care of the patient which he was statutorily empowered to do.
Estate of Gillette v. Franciscan Alliance, Inc., et al., 2023 WL 5344983, (Ind. Ct. App. August 21, 2023) Unpublished Disposition
The Estate of Joyce Gillette brought filed suit against a hospital and other medical providers concerning treatment rendered to 91-year-old Joyce during a hospital stay prior to her death, when Joyce was unable to speak. The complaint focused on whether the defendants committed battery by providing life-prolonging care to Joyce when Joyce's living will had DNR provisions that only applied under specific circumstances and when one of Joyce's adult children consented to the care, but only after he was outvoted in a family-wide vote to withhold additional care.
Eventually, there were competing motions for summary judgment. In general, the summary-judgment proceedings concerned the applicability of the DNR provisions in Joyce's living will and the validity of the adult son's consent tendered after the family-wide decision. The parties also focused on parts of Indiana's Health Care Consent Act (“HCCA”). Following a hearing, the trial court granted summary judgment to the defendants. The plaintiff appealed, arguing instead that the estate was entitled to summary judgment.
Upon review, the Court of Appeals held that summary judgment in favor of the defendants was appropriate, because there were no genuine issues of material fact under the terms of the HCCA in effect at the time of the events at issue. The court noted that there were unmet conditions precedent to the applicability of the DNR provisions in Joyce’s living will. The court also noted that Joyce's adult son was statutorily empowered to consent to further care. The court further noted that the HCCA allows for court intervention when a person is incapable of consenting and a family member or health care provider disagrees with the course of action as to the person's care.
In Joyce's living will, she did not unconditionally refuse life-prolonging care. Rather, consistent with the living will declaration form provided in I.C. 16-36-4-10, the DNR provisions in Joyce's living would be applied only if there was an eligible written certification from her attending physician. That written certification must be from Joyce's attending physician, and the certification must state that Joyce has an incurable injury, disease, or illness, that her death will occur within a short time, and the use of life-prolonging procedures would serve only to artificially prolong the dying process. The only certification from Joyce’s treating physicians was that palliative care was considered appropriate for her. The court held that such a certification focused on improving Joyce’s quality of life and was not equivalent to a certification that the use of life-prolonging procedures would serve only to artificially prolong the dying process.
In addition, the court noted that Joyce’s son was statutorily empowered to consent to her further healthcare, because he had coequal decision-making authority to consent to the placement of a feeding tube for her under the HCCA. Thus, the court held that the defendants could not be liable for batter for placing a feeding tube in Joyce, after her son provided consent for the care. The son’s unilateral consent was valid under the circumstances and the statutes then in effect, vitiating the prior refusal of further care for Joyce.
Medical Malpractice Act applied to claim against treatment facility for persons with addictions and mental health where the plaintiff alleged that the facility was negligent during his inpatient psychological treatment when he was a minor child by failing to prevent his sexual relationship with another patient and by attempting to cover up relationship once it was discovered which caused the plaintiff further emotional damage.
Shane Willingham v. Anderson Center, 2023 WL 5186652, (Ind. Ct. App. August 14, 2023)
The Court of Appeals ultimately held that the plaintiff’s claim against the defendant treatment facility was one for medical malpractice rather than negligence, because the plaintiff’s complaint alleged that he checked in for psychological treatment following suicide attempt, that he had history of mental and emotional issues and previous suicide attempts, that he was in need of facility's psychological services, that he had history of depression, pornography addiction, and suicidal thoughts and attempts, and that facility was aware of his psychological history and owed him a duty of care in his treatment. The Court noted that, in light of the plaintiff’s allegations, it could not say that the alleged actions by defendant and its employees were demonstrably unrelated to the promotion of the plaintiff’s health or that there is not a causal connection between the alleged actions and the nature of the patient-health care provider relationship. Thus, the plaintiff’s breach of duty claim was, in substance, a medical malpractice claim and subject to the provisions of the MMA.
Actions taken by a court master have the same effect as if done by the disobedient party and the appointment of a commercial court master is within the discretion of the court based on the circumstances of the case.
James K. McConnell v. Martha A. Doan; Marilyn S. Hall; David Fee; Jerome Henry,
Jr.; Thomas P. Walsh; Tim Miller; and Nicolas Ciocca Court of Appeals Case No. 23A-CT-145
The case of James K. McConnell v. Martha A. Doan, Marilyn S. Hall, David Fee, Jerome Henry, Jr., Thomas B. Walsh, Tim Miller, and Nicolas Ciocca involves a derivative shareholder lawsuit filed by James McConnell against the former board of directors of F. McConnell & Sons (FMS). McConnell and the defendants entered into a settlement agreement in May 2022, which required FMS to redeem McConnell's shares and sever his connection with the
company. McConnell refused to comply with the terms of the agreement, leading to contempt of court charges. The commercial court appointed a commercial court master (CCM) to enforce the settlement agreement and take necessary actions to transfer McConnell's shares
and unwind his transfers. McConnell argues that the appointment of the CCM was
an abuse of discretion and that the agreement is unenforceable.
A commercial court master, appointed under Indiana Commercial Court Rule 5 and Trial Rule 70, has the authority to assist the court in resolving a case in a just and timely manner. The appointment can be made with the consent of all parties or if the court finds it probable that the appointment will materially assist in resolving the case. The commercial court master is empowered to perform specific acts that a party has failed to comply with, as directed by the court. The actions taken by the commercial court master have the same effect as if done by the disobedient party. The appointment of a commercial court master is within the discretion of the court and is based on the circumstances of the case.
The Court of Appeals affirmed the judgment of the commercial court. It concluded that the appointment of the commercial court master was within the court's discretion under Commercial Court Rule 5 and Trial Rule 70. The commercial court master was given the authority to perform specific acts that McConnell had failed to complete, which would assist
in resolving the case in a just and timely manner. The Court of Appeals found that McConnell's arguments against the appointment of the commercial court master lacked merit.
Regarding the enforceability of the settlement agreement, the Court of Appeals held that the agreement was binding and enforceable. It noted that Indiana strongly favors settlement agreements and that, in the absence of fraud or mistake, a settlement is as binding and conclusive as a judgment on the merits. McConnell's claims that the agreement was unenforceable due to the redemption of his shares held in trust and that it was an "agreement to agree" were dismissed by the court. The court found that there were options for redeeming McConnell's trust shares and that the minor uncertainties in the agreement did not render
it unenforceable.
Therefore, the Court of Appeals affirmed the judgment of the commercial court.
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