*1 874 Thеrefore, lack we decline to make Grange’s failure to demonstrate dice.
and delay. contractual prejudice resulting prejudice from the a defense Likewise, Grange’s failure to provision. fails arguments The of these first pro- investigate or otherwise the accident Lumpkins specific fails to forth because set rights little rela- subrogation its bears tect supporting the “his facts his assertion that tionship purpose of the limitations tory genuine raised issue оf the contacts” a that an insured seek- period. We conclude fact, disputed his bur material as was pe- ing agreed-upon avoid limitations an den, raising defense inasmuch as he was acts of must affirmative riod demonstrate (1989), Sprowl Eddy ato defense. v. See support conclusion the insurer 865, 866; Ind.App., Schafer, 547 N.E.2d the limitations. the insurer waived 521-22; 74, Ind.App. 381 at 178 N.E.2d (1982), Ind.App., 430 Coghill v. Badger Judgment affirmed. 405, denying rehearing 418 N.E.2d (1981), The 1201 denied. N.E.2d HOFFMAN, JJ., BUCHANAN transfer by
record is of evidence of acts devoid concur. period. Grange within the limitations unpersuaded Lump- by We also are argument
kins’s that “where an insurer claim, co-operation has notice of a receives insured, protect then from the but fails to tort-feasor, in interest against its should not allowed to resist liabili surer by to com ty raising the insured’s failure (Plaintiff), HARTS, Appellant H. Austin ply precedent awith condition when v. prejudice thereby.” insurer can show no INC., HOSPITAL, CAYLOR-NICKEL Lumpkins Appellant’s Brief at 29-30. As (Defendant). Appellee concedes, рolicy requirements of notice cooperation recovery not bar unless will No. 05A02-8907-CV-323. prejudice insurer suffers a result of Appeals of Court of delay cooperation. or lack Miller v. District. Second 265-66; (1984), Ind., 257, Dilts 463 N.E.2d (1987), 513 Ind.App., v. Mettert Smithers 10, May 1990. 660, 662, N.E.2d denied. transfer Aug. 7, Rehearing Denied limit purpose provision ing period filing is differ action cooper purpose from of a
ent notice requirement. cooperation Notice ation policy pri requirements of a аre intended marily prevent expiration of insur contrast, subrogation rights.
ers’ limiting provision sup of a purpose periods: promote all porting limitations certainty hasten the resolution nothing pur claims.3 There is in these preju- negated lack of poses See, (1981), Dwyer parties given e.g., Ind. 275 insure that formal and season- Shideler 281, 270, 273, ("affording against being 283 securi able notice that a claim is them”). asserted claims”) Canada, ty against (quoting Carey Am.Jur.2d See also Covalt v. Inc. stale 51 Ind., (1970)); (1989), (“rеcognizing Actions 50 In re Pater N.E.2d § Limitation 543 386 (1982), Ind.App., safety improvements product design nity N.E.2d M.D.H. 437 claims"). time”); (“encour- ("preventing stale or fraudulent that come id. at n. 3 Young agement products”) Court But see State ex rel. Noble Circuit for the introduction of new 353, 359, (“to C.J., (1975), (Shepard, dissenting). 263 Ind.
We reverse and remand with instructions jury’s verdict be reinstated.
FACTS February 1985, Harts,
On aged then 77, was Caylor-Nickel admitted to up- for per gastrointestinal days distress. Two la- ter lying hospital bed, while in his Harts attempted to turn himself from his back to moved, his left side. As Harts he reached hand, for the right bed rail with his but the railing result, “was there.” As a Harts fell from the hip. bed and broke his aggravated fall also hip injury an earlier During Harts had sustained. stay Harts’ hospital, at the only people who had raised or Cay- lowered the bed rails were personnel. lor-Nickel Harts had no visi- tors day on the of the fall other than the Caylor-Nickel. staff of January 26, Harts filed a 1987, alleging Caylor-Nickel neg- ligent negligence and that its proximately through- caused the fall. At various times out the proceedings, Caylor-Nickel moved judgment for on the summary evidence or judgment, alleging that the trial court jurisdiction lacked over the case because initially presented Harts had not his ease to required by Medical Review Panel as (1988) (Medical Ind.Code 16-9.5-1-1 -10-5 Act). Caylor-Nickel When made its final motion at the conclusion of evidence, all the trial court held its in abeyance pending jury’s decision ver- dict. jury returned a verdict for Harts $25,000 James, Benson, awarding damages him Pantello,
Ronald E. con- Mor- James, cluded that Caylor-Nickel seventy-five Wayne, appellant. ris & Fort for percent at twenty-five fault and Harts was Walda, Lyons, John F. John D. Barrett & fault, percent thereby reducing the ver- McNagny, Wayne, appellee. Fort for $18,750. dict to the sum of BUCHANAN, Judge. 16, 1988, On Caylor-Nickel November
filed another judgment on the evidence, 16, 1989, CASE SUMMARY and on March the trial judge jury’s set aside the verdict and en- Plaintiff-appellant Austin H. Harts following tered the prоvided order which (Harts) appeals grant Caylor- from the pertinent part: Hospital’s (Caylor-Nickel) Nickel motion for on the evidence after March, the trial “1. That on the 23rd day of Defendants, concluded that lacked mat- Caylor-Nickel Inc., ter over the case. Hospital, Inc., controlling
Center, Summary Motion for as the case in this filed a cause of action. Judgment. Court, Appellate 11. That the the Wi for the That the basis motion case, negli that not nona detеrmined all
summary judgment *3 providers gent medical health fell acts of appropriate remedy his pursued had not the purview within the of Indiana Medi pursuant Malprac- to the Indiana Medical Act, Malpractice consequently, cal thereof, Act, tice result this and as a liability, it premises the of was not area jurisdiction proceed. Court lacked first necessary plaintiff present for a 3. the Defendants contended that That his claim to the Medical Review Panel. Malpractice the Act made it man- Medical plain- 12. of That at the conclusion the plaintiff datory that the first must have jury tiffs in chief at the trial in the case Complaint Proposed to the submitted action, defendant cause of the filed a Insurance Commissioner for a review Judgment Motion on Evidence for opinion from the Medical Review again raising issue as the same the de- precedent to the Panel as a condition in their fendants’ had done motion for lawsuit. filing оf the had summary judgment which been de- nied the Court. at 7. That the evidence the trial indi- plain- 13. conclusion of That at the following facts: cated the chief, hearing tiff’s evidence in after oral plaintiff A. That the arguments on the defendants’ motion for Hospital. judgment the evidence or the alter- on plaintiff B. was in his That bed. native, summary judgment, the Court de- put safety however, C. a nurse had motion, That nied the ad- Court up position. in an rails parties again vised the that it would re- at the considеr said motion conclusion of pursuant plaintiff, D. to the he That in the case. evidence attempted to turn over in bed placed of his hand on one the side rails of 14. at the conclusion the evi- That support collapsed trial, for and the rail caus- jury dence at the defendant causing him to fall out of ing again judgment bed its motion renewed injuries hip. to his on the and the Court made the evidence time: following findings at that pursuant testimony E. That to the nurses, plaintiff judgment must one of thе A. That the pulled himself over the side rail to the pertains have defen- evidence summary judgment then fell to the floor because she dants’ motion for up pursuant provisions believed the side rail was still in the Indiana position the incident after occurred. code 16-9.5-2-1. hearing no de- all of
F. That there were mechanical B. That after the evi- case, in either the side rail or the bed the Court fects dence in the believes the side fall. cause rail to motion does have that would the defendants’ merit. plaintiff contends that rely lowering safety parties upon of bed rails C. raising and That both function, case Memorial merely is a ministerial Founda- Winona individual, by any Lomax, performed tion N.E.2d 731. could be vs. pur- falls consequently outside plaintiff proceeding D. That Malpractice view the Medical Act. theory premises legal with the liabil- pro- ity in this that the fact 9. That the Plaintiff case is and believes situation theory reasonably ceeding premisеs case are under Winona facts in this liability. similar to the cause action. plaintiff and the de That both requests plaintiff E. That the that the fendant cite the case Winona Memo Lomax, (1984) Court to a final rial vs. continue verdict due Foundation the fact that all of the evidence has Did the trial court err when it set aside presented jury been to a and also jury’s verdict based on the conclusion upon based the fact that it lacked matter health, years age, good not in comply because Harts failed to with the chance that he reasonable Act? Indiana length would not survive the of time PARTIES’ CONTENTIONS—Harts main- perfect appeal that it would take to tains that his claim was based “ordi- and, successful, if retrial of this cause therefore, nary” negligence and he was not of action. required comply requirements with the court, time, F. That the at this denies the defendants’ motion for *4 on the evidence at the conclusion of the Caylor-Nickel rеsponds that trial presentation of evidence in this cause properly granted judg- its motion for however, action, again of the court will any ment on the evidence because claim of Jury’s review the evidence after the negligence against provider a health care is presented to the in verdict is Court this scope within the cause of action. Jury returned a in 15. That verdict in CONCLUSION—The trial court erred plaintiff determining that favor of comparative fault оf the defendant granting Caylor-Nickels judg- motion for (75%) seventy-five percent and that it ment on the evidence when determined damages in the plaintiff’s total were subject jurisdiction it lacked matter $25,000.00 resulting in a verdict sum of of action. over this cause in in favor of the the sum of malpractice a medical action Before $18,750.00. any in may be commenced court of this upon request of the attor- 16. That provider, against state a health care defendant, ney for the the Court did not requires Act that a Jury’s judgment enter based proposed complaint presented to a medi verdict, parties but advised entering judgment panel opinion withhold and an rendered would cal review present parties until the could further by panel. Hosp. Ray Methodist arguments regards the defen- oral 463; (1990), Ind.App., Ogle judgment on the evi- dants’ motion for (1985), Hosp. Ind. Hickey Mem. St. John’s dence. denied; App., 473 N.E.2d trans. Wi Memorial Foundation v. Lomax
nona motion (1984), Ind.App., 465 N.E.2d trans. defendants’ for judgmеnt on the evidence should be denied; Hosp. Methodist Inc. of solely due to the that this granted 315; fact (1982), Ind.App., v. Rioux purview cause action within the falls panel 16-9.5-9-2. The medical review IC Malpractice Act and that the Medical proposed malpractice com reviews all without this Court plaints against providers health care cover case proceed until such time as this Rioux, by supra; supra. Ogle, ed the Act. to the Medical Review Panel presented However, recognized this court has determination. their for Malpractice Act portions of the Medical disagree not 20. That this Court does ambiguous prem a claim for as whether however, Jury, of the with the verdict scope liability by patient ises is within the grant of this Court to the decision 16-9.5-l-l(h) defines mal of the Act. IC is based defendants’ practice “any tort or breach of contract jurisdiction.” solely upon the issue of professional health care or servic based on (emphasis supplied). at 202-06 Record rendered, es or which should have been rendered,
ISSUE provider, a health care to a patient,” and the Act also defines a tort as following presents Harts issue for duty, negli- “any legal wrong, breach of or our review: proxi- gent ground or act or omission Act does not indicate unlawful mately causing injury damage legislature or to anoth- difficulties aware 16-9.5-l-l(g). gen- er.” IC providers obtaining care coverage ordi- liability eral insurance In Ogle, this court determined nary non-medical accidents on their plaintiff, psychiatric patient in the defen- premises. unavailability No threatened hospital, provi- to the dant’s link in the of such insurance existed as a of the Act when she was sions beaten relational chain to the diminu- threatened raped by patient. affirming another legisla- tion of health care services. The grant summary judgment court’s trial only responding to a crisis in ture was of the con- hospital, entered favor we ability providers health care cluded: malpractice obtain medical insurance cov- providing providing “The suit- (which erage not cover non-medical did [psychiatric] for such able confinement accidents) providing and thus to continue hardly anything can be classed as public. health care services [Cita- professional judgment other than based tions omitted]. knowledge on medical under the terms Thus, the im- the conditions that were Act as written. This is true even *5 petus legislature’s the enactment though experienced not the harm was nothing Malpractice the Medical Act had attempt another self-destruction. liability any to do with the sort of exposure Proper of a men- limitations provider—whether hospital care a or a patient public ill tally or to other practitioner—risks pa- private when a necessarily judg- patients is medical tient, else, anyone injured by or the recog- legislаture ment. The expressly negligent provider’s maintenance of the nized that an act proper confinement is premises. being it business not of medical care as drafted the Health liability brought pas- that encompass Definition section sort of about Care to during Act, occurring patient’s sage acts of the it is absurd to believe ‘the care, legislature medical treatment or have reached out to would confine- ” liability by including ment.’ restrict such it with- 1 in the Act.” (emphаsis original). Ogle, supra, at 1059 in Lomax, supra, (emphasis origi- at 739 However, as the Act not so broad nal). subject to every patient-provider claim Lomax, coverage. con its In this court Caylor-Nickel While contends plaintiff’s ex cluded that claim was negligent act or omission a health empt Malpractice Act from the Medical provider patient constitutes mal care to a Lomax, pa when it was established that Act, scope practice within thе of the we hospital, tripped at the and fell on a tient de rejected argument Lomax and at a she protruding floor board time when termined that: of the was under care treatment as the “Such matters maintenance of medical staff. reasonably premises are within safe writing for Judge knowledge1 experience Miller a unanimous common and this carefully average person. pro reviewed the cases on Health care viders, explained and diffеrence be- up who must make the medical 16-9.5-9-3, “health care” maintenance panel tween review IC under premises: safe qualified experts no more on such average juror. matters And Malprac- than wholeQ] ... the Medical “[A]s as we have ‘When the mat legislative stated: ... response tice Act ters at within issue are the common availability the crisis in the of medical insurance, turn, knowledge experience jury, which, of the malpractice expert testimоny regarding exercise threatening availability of health public. supreme improper care is care services to The reasonable Physic Emig court’s review of historical back- should excluded.’ Service, Inc., Physical Therapy ians’ proximate 5.The direct and cause Lomax, supra, Winski, (1975) 249).” [52] at 740 at 53 (emphasis supplied). (citing Ind.App. Rosenbalm Record at quently, Harts filed gence fall (emphasis Defendants.” Plaintiff an affidavit which supplied). Subse- negli- pro- Caylor-Nickеl also maintains that vided: places Rioux decision Harts' claim within “1. I am the Plaintiff in this cause of scope of the action. Rioux, plaintiff fell on the floor and 21, 1985,1 February 2. On fell from a hip her broke while a at Methodist bed in Hospital. Hospital. only allegation raised in the falling bed, 3. Prior to from the I was hospital “negligent- was that the attempting to turn over and tried to use ly carelessly provide appro- failed guardrail the side appeared to be
priate prevеnt care ... [her] fall up to assist me in turning. Rioux, injury.” supra (emphasis at 316 put my 4. As I turned and arm on the supplied). This court reversed the trial guardrail gave way, my hospital’s causing court’s denial of the arm to summary judgment, determining creating fall and momentum which pulled Rioux’s claim fell within the broad lan- me off the bed and onto floor. guage Act. Lo- I5. contend that the em- Defendant’s distinguished grounds max Rioux on the ployees properly failed to restrain or se- alleged only that the hos- guardrail, negli- cure the side and their pital appropriate failed to render care. gence my caused fall. presented Rioux no other evidence that *6 anyone 6. At no time did tell me that might have removed her claim from the guardrail the was not secure or that it scope Malpractice Act. help should not be used to turn over. Conversely, complaint alleged Lomax’s pursuing Iam not a claim for medi- more than a mere appropriate failure of negligence arising cal out of this fall. clearly pursued premises care. She liabil- sayeth naught. affiant Further ity contending claim that “she fell as /s/ Austin H. Harts” proximate negligent result of defendant’s allowing maintenance of the floor in ... a Record at 33. up broken board to stick in said floor....” complaint The tenor of Harts’ taken as a
Lomax, supra at 742. Lomax did not sim- clearly supports allegation whole of or- ply pleadings rest on her after filed Winona dinary negligence. say cannot that We summary judgment. its motion for She allegations part parcel these were and of stating clearly filed an affidavit that she diagnosis and treatment would sub- which receiving was not care or treatment at the ject coverage the his claim to under Act. complaint time of the fall. The Id. that allege any duty He did not of direct- breach alleged in part Harts filed relevant that: ly negligence associated with medical that February “3. On or about integral rendеring of medical Caylor- Plaintiff was a in the subject treatment that would his claim to Hospital Incorporated Nickel the under the Medical Act. employees agents Caylor- care of and We therefore conclude that because Incorporated Nickel Harts’ claim was not to a medical Center, Incorporated. review, panel’s the in trial court erred set- hospital February 4.While in the on ting jury’s granting aside the verdict and in 21, 1985 turning while in Plaintiff Caylor-Nickel’s bed his bеd resulting in a fell from the evidence. hip, in his aggravation fracture fracture, judgment is instruc- pre-existing as well The reversed with as other damages. jury’s be reinstated. tion verdict
CONOVER, J.,
Although
Ogle may
facts in
fall at the
concurs.
very
health
margin of what constitutes
SULLIVAN, J.,
opinion.
with
dissents
care,
previously
that
indicates
we have
SULLIVAN,
dissenting.
Judge,
clearly
included conduct which is not
In
Inc.
Hospital
Methodist
negligence.”
“medical
Ind.App.,
(1990),2d
Ray
Dist.
may,
Be that as it
Harts himself states
recently
complaint
that
held
we
treatment,
in
that
“care and
the deci
his
“negli-
alleging
hospital
that
defendant
sion was
that
rails
made
side
should
permitted
gently
carelessly
caused and
placed
‘up’ position”. Appellant’s
in the
infect-
premises
its
to
infested and
become
(Emphasis supplied).
brief
In this
Legionnaire’s Pneu-
deadly
ed
...
regard,
as in
as well
consideration of
fall
the Medi-
monia
did not
within
Virus”
facts,
differing
in
Ray
our decision
We noted that
cal
Act.
case, supra,
distinguished.
must be
complaint
allegе
appro-
did not
“failure
Furthermore, authority from two other
allegations
priate
did
care”
that
support my
lends
conclusion
Ac-
of health care.
relate to
scheme
coverage
that
claim here is within
de-
cordingly,
affirmed the trial court’s
we
of the Act.
12(b)(1)
to Dis-
nial of defendant’s
Motion
miss.
Hospital
Zobac v.
District
Southeastern
so,
(1980)
broadly
Fla.App.,
In
Palm
doing
County
we stated somewhat
Beach
of
382
distinguished
the manner in which the issue
an earlier
So.2d
case,
if
cruсial
Hospital
framed is
Mount Sinai
Greater
negligence
premises Miami,
in ordinary
Fla.App.,
sounds
Inc. v. Wolfson
liability
provide
883, 884,
rather
for failure to
than
the plaintiff
327 So.2d
care,
scope
it is
alleged,
alia,
hospital
outside
had
that a
had
inter
proper
adequate
to provide
failed
bed
protection
patients.
its
rails to insure the
us, majority
focus-
the case before
alle
Zobac decision observed
“ordinary negli-
es
aspect
gation
case created an issue
gence”
person-
Wolfson
hospital
involved with
malpractice
opposed
issue
nel’s
secure
properly
failure
the bedrail.1
ordinary
negl
Zobac which was
non-medical
It
that a
does not
would seem hold
claim
*7
igence.2
Hospital
In Pitre v.
Dis
Services
coverage
fall
Act unless
within
(1988)
La.App.,
trict No. 1
532 So.2d
duty
“directly
the breach of
associated
plaintiff brought
injuries
suit for
sustained
Opinion
negligence.” Slip
with medical
...
x-ray
of an
table
when
fоotrest
became
at 8. I
that the
“health
do
believe
term
causing her
detached
to fall. The
narrowly
so
care” is to be
construed.
held the
cover
be within the
Memorial
Ogle
Hickey
v. St. John’s
age
Act
reason
(1985)
Hospital
Dist.Ind.App.,
2d
ing
injuries
incurred
“were
when
denied,
N.E.2d
trans.
integral
machine
to the
which was
render
psychiatric
hospital
unit of defendant
ing
properly.”
of treatment did not function
Ogle’s complaint
raped by
patient.
another
So.2d
at 502.
alleged
provide
nеgligent failure to
securi-
hospital patients
Beds in
ty
protection.
held that the com-
We
their
provide
placed during
the course of
care and
plaint alleged a failure to
Ogle’s
routinely
necessarily
treatment
have
proper
care
confinement
because
parcel
diagnosis
attributes and features not found on ordi-
“part
homes,
nary
her
1059.
hotels
private
treatment of
condition.” Id. at
beds in
and the
majority equates
particular
this failure with thе
2.
It
be noted that the
should
Florida
provider’s
legislation
"negligent
of the
busi-
maintenance
involved
case
Wolfson
premises"
subsequently
Act in
ness
found to be outside the
declared unconstitutional
Indianapolis
grounds
rigid
v.
Winona Memorial Foundation
that the narrow and
statute
(1984)
Ind.App.,
process.
due
Ho
Lomax
4th Dist.
limitations violated
Aldana v.
Fla.,
lub
tation of care and protec- treatment and for patient. They integral
tion of the are an part reason, of the medicаl care. For this I allegations hold that concerning
would negligence regard positioning place
of the bed rails this lawsuit within purview of our judgment.3 I would affirm the Subpoena In re the Duces Tecum to H. BENNETT, Appellant, Kennard
v. NSR, INC., Appellee. NSR, INC., Plaintiff and
Counter-Defendant, ROBERTS, INC., al., DREYER et Defendants, Counter-Claimant Plaintiff, Third-Party GARDNER,
William Third-Party Defendant. No. 49A02-8906-CV-258. Bennett, Bennett, H. Kennard Brazill & Indianapolis, appellant. Appeals Court of Second District. Barnhard, Klineman, Rose, Dean T. Wolf *8 Wallack, Indianapolis, appellee. & May
BUCHANAN, Judge.
CASE SUMMARY
Appellant
(Bennett)
H. Kennard Bennett
appeals the denial of
modify
his motion to
quash
subpоena
duces tecum issued
Court,
County Superior
Marion
may
(T.R. 8(A)(2))
arguably
damages requested
It
be noted that the trial court
amount of
differs,
event,
vacating
jury
damage
had available an alternative to
from an actual
award,
might
may
permissible
verdict. The court
have observed that
have been
for the
(Burns
give plaintiff
Ed.Supp.1989)
opportunity
I.C. 16-9.5-9-2.1
Code
court to
for remit-
$15,000.
permits
recovery
avoidance of the Act if the
titur so as to reduce his
$15,000
Dist.,
Although
Weenig
restricts his claim to
framing
or less.
See
v. Wood
2d
169 Ind.
precludes
App.
of a claim
a recitation of the