Medical Malpractice and Appellate Procedure

Johnson v. Dr. A (Ind. Ct. App. Aug. 28, 2012)

In this medical malpractice case, the Court of Appeals dismissed an appeal on procedural grounds but issued an advisory opinion regarding the discovery of out-of-state non-parties.

In this case, the defendants were attempting to obtain documents from an out-of-state hospital regarding the plaintiff’s expert witness, an out-of-state physician. The hospital refused to produce the documents, claiming that it was concerned that the plaintiff’s expert witness would sue them for producing the documents. The defendants sought and obtained an order from the trial court requiring the plaintiff’s expert witness to execute a release stating that he would indemnify a non-party hospital from any lawsuit against the hospital for providing documents.

The plaintiff appealed the trial court’s order under Appellate Rule 14(B)(2), which allows for an appeal as of right from interlocutory orders compelling the execution of any document. The defendants argued that the trial court’s order did not fall within 14(B)(2) based on prior appellate decisions holding that discovery orders do not fit within the rule. The Court of Appeals agreed that the appeal was improper, but on slightly different grounds then those argued by the defendants. The Court held:
While Defendants’ conclusion is consistent with prior decisions of this Court and our Supreme Court, these decisions have all addressed the case of a party seeking to avoid its own direct participation in discovery. Such disputes have generally centered on the party’s refusal to execute a medical release or to otherwise participate in discovery on a matter in dispute.

This case does not present such a situation. Rather, here a nonparty has been ordered by a trial court to execute a broad Release with significant and unexplored legal consequences for that nonparty, and that order comes dangerously close to the type of “‘fishing expedition’” our discovery rules are intended to foreclose. In such circumstances—and especially where the nonparty is not otherwise subject to the jurisdiction of an Indiana court—we think that Appellate Rule 14(A)(2) permits an interlocutory appeal as of right.

We nevertheless conclude we cannot exercise jurisdiction in this matter because Johnson’s appeal was not properly perfected. As we observed in Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317 (Ind. Ct. App. 2006) [hereinafter Scroghan II], though “we do not condone the practice of intentionally violating discovery orders to obtain appellate review … we recognize that such a practice can act as an important ‘safety valve,’ which relieves parties from generally non-appealable discovery orders.” Thus, unless there is some sanctioning action against a party by the trial court resulting from failure to comply with the Order that Dr. DeBartolo execute the release, or alternately the denial of a motion by Johnson seeking a protective order under Trial Rule 26(C), we cannot conclude that the Order gives rise to an interlocutory appeal as of right.
(Slip Op. pp. 7-9, citations omitted.)

Although the Court of Appeals dismissed the appeal, it took the rarely-used path of issuing an advisory opinion, suggesting to the parties how the Court would have ruled if the issues were properly before the Court. The Court then gave a helpful explanation of how parties should proceed when seeking discovery from an uncooperative out-of-state third-party:
It thus seems that the appropriate route for the Defendants here is to pursue an order from the trial court compelling Delnor to produce documents and then to use the appropriate Illinois process to obtain that production. However inefficient it may have been to follow the discovery procedures set forth in our Trial Rules—and whatever common practice among litigants may be—it is not clear to us that the trial court could sanction Johnson for Dr. DeBartolo’s failure to comply with the Order without abusing its discretion.
(Slip Op. p. 10.)

Although advisory opinions are not binding authority – they do not even bind the parties to the appeal or the trial court – such opinions are useful to the parties and can provide useful additions to Indiana jurisprudence. Such opinions are permitted in Indiana but are not issued by federal courts because federal courts have determined that the U.S. Constitution prohibits such opinions. Indiana courts have found that our state constitution has no such prohibition.

Full disclosure – the author of this post was an attorney of record in this case and argued the case before the Court of Appeals.

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