Jones v. Wasserman
656 N.E.2d 1195
Ind. Ct. App.
1995
Check Treatment

*1 JONES, Appellant/Plaintiff Leonard C.

below, WASSERMAN, M.D.,

Antolio G.

Appellee/Defendant below. Appeals of Indiana.

Court of 31,

Oct. 1995. March

Transfer Denied Tabor, Weitgenant, Blachly,

Roger A. Bo- . Hartman, Valparaiso, appellant. zik & Kanne, Carter, Roger Zeig- K. Michael L. Koch, Indianapolis, ler Carter Cohen & appellee.

OPINION DARDEN, Judge. OF THE CASE

STATEMENT appeals dismissal of Leonard C. Jones Department of Insurance. before the Indiana We affirm.

ISSUE trial court abused its discre- Whether proposed medical tion in against Dr. Wasser- man.

FACTS 26, 1992, Jones filed On October Depart- posed complaint with the ment of Insurance Act, Ind.Code complaint alleged that Dr. Anto- seq. et negligent lio G. Wasserman injuries sustained a work-related Jones for on October accident of a medi- April formation completed. panel was cal review date, panel chairman notified the submitted to evidence should be that Jones' with evidence June due 1994 and opinion being "due on or before Octo- was set This schedule 1994." *2 thority impose appropriate sanctions panel to render an to in order the by day time limit set opinionwithin the 180 upon party required a who fails to act as 27-12-10-18(a). the good without the Act cause shown. indicating to chairman wrote panel The Act authorizes the chair to panel had not received Jones' submission establish a reasonable schedule for submis- explanation regarding and had heard no pan- sion of evidence to the medical review comply with the deadline. el, addition, and, panel ... mandates the receipt a new deadline for chairman set days to render its within 180 of the 5, 1995; August Jones' evidence: Dr. Was- complete panel. Implicit selection of the September serman would then have provisions corresponding in these is the 1994, to submit his evidence. The review duty upon parties comply to panel never received an submis- schedule, chair, if one is set Jones; panel sion from nor did the receive upon panel comply and the to any explaining his communication from Jones limit; with the 180 an available reme- inability with either deadline or dy any breach is court-ordered sance- seeking an extension. tions. Necessarily, the initial burden falls filed a motion for party submitting proposed com- requesting of law plaint. from Without evidence the com- proposed complaint prejudice. The mo- plainant support proposed com- alleged prevented tion that Jones had plaint the review is unable to "ex- complying provision press expert opinion its as to whether or requires the Medical Act which days supports to render within 180 the evidence the conclusion hearing, formation. After a trial the defendant defendants acted or court ordered Jones' dismissed. failed to act within the stan- charged in complaint." dards of care as DECISION Only complainant's when the evidence is Jones contends the trial court abused submitted is the defendant by dismissing complaint. discretion As complaint compelledto come forward with authority, he refers us to Associates Finan complainant's to the Serv., (1981), Knapp Ind.App., cial Etc. v. complaint.... 422 N.E.2d and Breedlove v. Breedlove Further, dismissal is a sanction which (1981), Ind.App., 421 N.E.2d 739. As Dr. authority the trial court has the inherent responds, Wasserman neither case involves to order in its discretion. governed by matter omitted). (statutory at 705-706 citations procedural requirements of IC. 27-12-10- Before the dismissal 18(2), how- but rather both involve dis ever, hearing required is order "that the putes. against party sought whom sanctions are record, According trilogy specifically permitted opportunity presented to the trial court good party's show cause for the failure to act describing ability the court dismiss party's duty." Id. at for failure to submit evidence as directed review case, In the second Ground v. Methodist case, the first Christensen Ind.App., Judge Shields ad challenge dressed to the court's discretion we noted that the grounds. dismiss on these provision now at I.C. 2712-10-141 "is an 41(E)-* parallel to Trial Rule Malpractice] specifi- ... administrative [Medical Act cally provides trial au- court has the it affords relief when a mem- provides: desig- 1. LC. 27-12-10-14 sanctions having nated in the A jurisdiction. doing, Act. In so the court discussed comply" with the dilatory or fails to ber is Act,. and said: function of the medical for faflure contemplates that the court's dismissal The statute affirmed panel in order that submit evidence function in an informal and reasonable will *3 within the render its decision could lawyer guided It is a trained manner. limit statute. deny day time set presumptively will not to each 180 who present opportunity to a reasonable court is to the trial third case cited The scope The of its evidence and authorities. (1993), Ind.App., 611 Blackden Kaufman It does not panel's function is limited. we also wherein N.E.2d not or a trial and does conduct prej with the trial court's dismissal 'affirmed is, judgment. or There render a decision timely file a medical for failure to udice therefore, to mandate that no reason panel. medical review with the submission Jones, relegate proof of or argued that statute burdens the Blackdens As does specify proce- duction and to otherwise in inappropriate was an dismissal hearings in and trials. applicable to both Galindo and case. referred dures their We appro conducting inquiry holding dismissal to be an The rational Ground patient's and source of the into the extent imposition of the sanction and priate sanction forming injuries for the of its ex- of sound discretion being "entrusted Further, opinion. The absence from the stat- pert we Id. at 666. the trial court." court had held a that onee the trial specific procedures is reasonable observed ute of light purpose and function impose the sane of this limited hearing and determined noncompliance with rea not constitutional "for and does raise serious tion of dismissal vagueness incum procedural requirements, ground it is of sonable on the why plaintiff to demonstrate bent indefiniteness. required to should have been

the trial court 404 N.E.2d at 596. differently of law." as a matter rule "(The provides chair- that I.C. Blackden, may conclude, panel] estab- man the medical review [of as we did We merely view of a reasonable schedule for submission put has forth his lish that Jones 2 but to the medical review abuse. but has not demonstrated the facts remedy was a which Because dismissal allow time must sufficient authority, court's presentation within the trial re- adequate make and full employ its discretion court did not abuse It is 1.C. 27- and authorities." lated facts opinions ing remedy for the time limit for 12-10-13 that sets evidentiary up "(Df schedule set (b) panel has not and under section medical review given opinion within the time allowed an (a) days], [180 under subsection affirm. commissioner, report shall submit Therefore, ROBERTSON, J., delay." stating coneurs. the reasons option allowing have the would J., RILEY, opinion. separate dissents plaintiff to submit evidence more time for the RILEY, Judge, dissenting. by a intervenes the defendant doctor before It preliminary determination. In Johnson v. St. motion for respectfully dissent. panel to certainly mandatory for the Ind., is not Hospital, Inc. Vincent supreme upheld the the 180 time opinion within N.E.2d render limit. constitutionality of Thus, (R. 46). malpractice." on ted counsel averred in 1) he motion for when filed the he response, deposition with Jones' treat- seeking employ expert had not scheduled "diligently was still ing physician after the deadline for his witnesses." 2) passed, submission had that could well have concluded The trial court copy received a until he had filing investigation before either deposition that physician's "did he realize subsequent during twen- investigatory efforts treating physician had rendered Plaintiff's own this dilemma. ty-one averted months could have had not commit- that Dr. Wasserman an majority cites Ground v. Methodist rendering opinion, we believe did not simulta- says that 27-12-10-1 neously empower trial intend to courts to parallel to Trial 43 "is an administrative dictate the medical review con- 41(E)-it party or Rule affords relief when a cerning panel's either the content dilatory comply" panel member is or fails to or the manner in which the opinion, arrives at is or the matters Act. The evidence this case shows panel may arriving consider at its "dilatory" was not but had made words, opinion. In grant pow- other showing why cause as to toer the trial court to deter- proper.

was not Dismissal of narrowly mine is to be matters construed. *4 plaintiff's complaint does not seem like added). {emphasis parallel remedy mem plaintiff's would set aside the dismissal of making for not or her decision within complaint as an abuse of the trial court's days. authority because the record was devoid of The statute then limits the trial court appropriate evidence that dismissal was an making pre- intervene for the inadequate there was evidence (1) liminary two functions: intentional, duty the breach of was and there the court can determine either prejudice no evidence of to the defen- fact; affirmative defenses or issues law or dant doctor. (2) may compel discovery it in accordance with Indiana Trial Rules of Procedure. Dis-

missal, then, is a the trial

court has the inherent to order in

its discretion. v. Christensen Ind.App., 569 N.E.2d 706 holds order,

As in the violation of a MILLER, Miller, Melvin and Elizabeth appropriate considerations Appellants-Plaintiffs, exercising its discretion as to the appropriate sanction is whether the breach duty was intentional or contumacious MAY, Gill, L.C. Leah S. Gill d/b/a prejudice and whether resulted. Home, Funeral DOES 1-10 prior Galindo instructs us Appellees-Defendants. sanctions a must be held on the propriety of a sanction as well as the appropriate sanction. Appeals Court Indiana. sup- There is no the record Nov. port moving party's burden of estab- lishing propriety of the sanction as well Transfer Denied March as the sanction. There is no evidence that the failure of the

timely prejudiced submit its evidence any way.

defendant doctor in

Justice Krahulik wrote in the case of Grif (1992), Ind., v. Jones

fith 110, as follows: view of the fact

clearly intended for the medical

panel to function in an informal manner , 3. A designated tions having jurisdiction. sanc-