Medical Malpractice Claim

Mooney v. Anonymous M.D. 4 (Ind. Ct. App. June 12, 2013)[1]

In this case, the Court of Appeals reversed the dismissal of a medical malpractice claim, finding that the trial court abused its discretion by dismissing the complaint under Indiana Code section 34-18-10-14 and that it lacked jurisdiction to dismiss the complaint under Indiana Trial Rule 41(E).

In November of 2007, the plaintiff in this case brought a malpractice claim against a hospital, family care physicians, and cardiologists following care the physicians provided to the patient that allegedly caused the patient’s death. As required by Indiana law, the plaintiff first filed a proposed complaint with the Indiana Department of Insurance. The Court’s opinion includes a lengthy recitation of the procedural history, including delays in responding to discovery, motions to compel, and numerous letters between the parties and the medical review panel chair. Eventually, the attorney for the hospital and two of the physicians named in the suit filed a motion to dismiss based on the plaintiff’s failure to timely answer discovery

The Court began by reciting a helpful overview of the procedure for medical malpractice claims provided "Before a party brings a medical malpractice action in an Indiana court, the [Act] requires that the proposed complaint be presented to a medical review panel and that the panel render an opinion. Ind. Code § 34-18-8-4 (2008). The chairman of the medical review panel has various powers, such as establishing a reasonable schedule for the parties’ submission of evidence. Id. § 34-18-10-3(c). Furthermore, the [Act] states that “[t]he evidence in written form to be considered by the medical review panel shall be promptly submitted by the respective parties.” Id. § 34-18-10-17(a).

When a plaintiff fails to adhere to the submission schedule, a defendant may seek recourse in a trial court while a complaint is pending before a medical review panel. In these instances, two additional provisions of the [Act] become pertinent. See Galindo v. Christensen, 569 N.E.2d 702, 704-05 (Ind. Ct. App. 1991).

First, a defendant may request the appropriate trial court to “preliminarily determine an . . . issue of law or fact.” I.C. § 34-18-11-1(a)(1). Second, a plaintiff “who fails to act as required by this chapter without good cause shown is subject to mandate or appropriate sanctions upon application to” the trial court. Id. § 34–18–10–14.

Thus, a defendant may file a motion with the trial court for a preliminary determination on the plaintiff’s failure to adhere to the submission schedule, and the defendant may request the sanction of dismissal. See Galindo, 569 N.E.2d at 705. The court may dismiss the complaint pending before the medical review panel if the plaintiff fails to show good cause for not adhering to the submission deadline. See Beemer v. Elskens 677 N.E.2d 1117, 1119 (Ind. Ct. App. 1997), trans. denied.

The Court first addressed the trial court’s dismissal under Indiana Code Section 34-18-10-14, The Court explained:

"[The statute] does not permit relief when a party has failed to prosecute its case within a specified time period.” Adams v. Chavez, 874 N.E.2d 1038, 1042 (Ind. Ct. App. 2007). Instead, a trial court can grant relief under Indiana Code Section 34-18-10-14 only when two conditions have been met: 1) a party, attorney, or panelist has failed to act as required by Indiana Code Chapter 34-18-10 and 2) good cause has not been shown for the failure to act. Id. at 1042-43."

The Court recognized that a trial court may dismiss an action as a sanction for a medical malpractice plaintiff’s failure to follow a submission schedule, but found that no submission schedule was actually in place at the time the defendant physicians asked the trial court to dismiss the action. Therefore, the Court found that the plaintiff had not failed to act as required by the Medical Malpractice Act and that the trial court’s dismissal was an abuse of the court’s discretion.

The Court then addressed the trial court’s decision to dismiss the action under Indiana Trial Rule 41(E), which allows trial courts to dismiss actions based on a party’s inaction for a period of 60 days or based on a party’s failure to comply with the Indiana Rules of Trial Procedure. The Court found that only the Commissioner of the Department of Insurance has the authority to move for dismissal under Rule 41(E).

The effect of the Court’s ruling is that parties seeking dismissal of complaints based on inaction or violation of discovery rules while a claim is pending in the Department of Insurance must rely on Trial Rule 37, which allows a trial court to dismiss an action for violation of a court order. See Griffith v. Jones, 602 N.E.2d 107, 110 (Ind. 1992) (recognizing that under the Medical Malpractice Act a trial court may decide “issues of law or fact that may be preliminarily determined under Trial Rule 12(D), and compelling discovery pursuant to Trial Rules 26 through 37, inclusively”).

The unfortunate effect of this case is that it discourages parties and attorneys from cooperating and agreeing to informal extensions while matters are pending in the Department of Insurance. Indeed, much of the Court’s rationale for reversing the dismissal under Indiana Code section 34-18-10-14 focused on the defendant physicians’ counsel’s agreements to “reasonable” extension “if necessary.” The Court refused to read in an implied requirement of diligence on behalf of the plaintiff. So, in the future, defendants’ counsel will probably refuse to agree to reasonable extensions for fear of becoming unable to, in the event that substantial delays occur, seek dismissal or other sanctions.

[1] Indiana’s Medical Malpractice Act generally prohibits claimants from commencing an action against a qualified healthcare provider without first presenting the proposed complaint to a medical review panel in the Indiana Department of Insurance and allowing the panel to render an opinion. See Ind. Code § 34-18-8-4. The Malpractice Act allows plaintiffs to commence an action in state court before the medical review panel has rendered an opinion, but requires that the complaint provided to the trial court contain no information that would allow a third party to identify the defendants. See Ind. Code § 34-18-8-7(a)(1).This confidentiality requirement “serves to ‘disfavor subjecting a health care provider to public accusations of medical malpractice until after such claim is presented to a medical review panel.’” Kho v. Pennington, 875 N.E.2d 208, 213 (Ind. 2007) Schriber v. Anonymous, 848 N.E.2d 1061, 1065 n. 3 (Ind. 2006).

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