Estate of McGoffney v. Anonymous Skilled Nursing Facility

• Decision Date: 31 January 2018
• Docket Number: Court of Appeals Case No. 49A02–1707–MI–1657
• Citation: 93 N.E.3d 1104
• Parties: ESTATE OF Carrie Etta Mills MCGOFFNEY, Appellant–Respondent, v. ANONYMOUS SKILLED NURSING FACILITY, Appellee–Petitioner.
• Court: Indiana Appellate Court

93 N.E.3d 1104

ESTATE OF Carrie Etta Mills MCGOFFNEY, Appellant–Respondent,

v.ANONYMOUS SKILLED NURSING FACILITY, Appellee–Petitioner.

Court of Appeals Case No. 49A02–1707–MI–1657

Court of Appeals of Indiana.

FILED January 31, 2018

Attorney for Appellant : Robert Owen Vegeler, Vegeler Law Office LLC, Fort Wayne, Indiana

Attorneys for Appellee : Melinda R. Shapiro, Philip J. List, SmithAmundsen LLC, Indianapolis, Indiana

Brown, Judge.

[1] The Estate of Carrie Etta Mills McGoffney (the "Estate") appeals the trial court's order denying the Estate's motion to correct errors and affirming its prior dismissal of the Estate's Second Amended Proposed Complaint, in favor of Anonymous Skilled Nursing Facility (the "Facility"). The Estate raises one issue which we restate as whether the trial court abused its discretion. We affirm.

Facts and Procedural History

[2] On December 22, 2010, Carrie Etta McGoffney, by her daughter, Kelly McGoffney ("McGoffney"), filed a Proposed Complaint with the Indiana Department of Insurance ("IDOI") alleging medical malpractice by the Facility from September 30, 2008, through June 30, 2009. On August 5, 2015, the Estate, by counsel, filed its Second Amended Proposed Complaint. On September 4, 2015, the Facility sent a letter to Sally Zweig requesting her services as Chairperson of the Medical Review Panel (the "Panel"), which Zweig agreed to and initiated efforts to establish the Panel.¹

[3] Following months of correspondence regarding the Panel formation, McGoffney sent Zweig an e-mail on April 13, 2016 concerning obtaining new counsel and also stating:

Sally, I'm the one that suggested for you to serve on my panels and I could've selected any chairperson.

I don't appreciate you suggesting for my attorney to contact everyone as if you don't want to communicate with me.

Of course my attorney would enter their appearance and contact everyone and if they haven't obviously there isn't one at the moment.

I'm getting tired of the comments in your letters as well.

I'm not even going to go there with an opinion from someone else that isn't certified. It would be of no value.

Appellee's Appendix Volume 2 at 84. In response to the May 24, 2016 nomination of Dr. Naeem Z. Malik to the Panel, McGoffney sent an e-mail message striking him. She also struck the June 16, 2016 nomination of Dr. Michael J. Baker. In a June 30, 2016 letter concerning the seating of either Dr. Malik or Dr. Baker to the Panel, Zweig explained:

Given that Dr. Malik was not struck for reason of conflict, if Ms. McGoffney would feel more comfortable with seating him in place of Dr. Baker and if [the Facility] is in agreement, we can seat Dr. Malik as the third member to this panel.

If Ms. McGoffney or [the Facility] are not in agreement to seat Dr. Malik, I will notify Dr. Baker that he has been selected to serve and will gladly confer with him to confirm that he is an appropriate panelist to review this case, providing details about the claim at that time.

Id. at 109. McGoffney responded on July 5, 2016 in an e-mail stating that she disagreed with Zweig's letter, that Zweig's "suggestions for the panel nominees have been horrible," and that, had McGoffney known that Zweig was "going to nominate the ones that you did, I would've never suggested that you be panel chair." Id. at 111.

[4] By July 19, 2016, only two health care providers, Drs. Daniel M. Gelfman and Anne K. Knox, had been seated as Panel members, despite those members' attempts to name a third panelist pursuant to the statutory requirement² and Zweig's efforts as Chairperson to "follow the applicable statute" and to "keep the process moving for all concerned." Id. at 115–116. On July 21, 2016, McGoffney sent Zweig a message stating that she "was thinking that if you would scrap all of the current nominees and nominate or comprise a striking panel of physicians from I.U. Methodist, University Hospital, I.U. West and I.U. Carmel ..., then I would strike and be satisfied with those nominees." Id. at 123. On July 25, 2016, McGoffney sent another e-mail addressed to the Facility's counsel, in which she stated that "[q]uite frankly, the Vigo County trial court is sick and tired of the frivolous motions that your partner has filed in the past," that she was "going to report [counsel for the Facility] to the Disciplinary Commission, if they continue filing frivoulous motions, trying to delay the process," and that "[w]e are almost finished, but I'm willing to start the process over since it wasn't performed correctly to begin with." Id. at 126. On August 3, 2016, Zweig resigned as Chairperson of the Panel in a letter addressed to both McGoffney and the Facility, pursuant to "McGoffney's request that I recuse myself from service as panel chair in all her claims" and "expressed concerns about my neutrality." Id. at 139.

[5] On August 8, 2016, the Facility filed a Motion for Preliminary Determination of Law pursuant to Ind. Code §§ 34–18–11–1, –2 and Ind. Code § 34–18–10–14, requesting that the trial court issue an order sanctioning McGoffney for failing to act as required by Chapter 10 of the Indiana Medical Malpractice Act (the "Act"). In support of its motion, the Facility submitted approximately forty exhibits chronicling the Panel selection process and highlighting McGoffney's conduct and interactions with Zweig and counsel for the Facility during that time period. On October 19, 2016, the trial court held a hearing on the motion with McGoffney present and, on November 21, 2016, issued its order, stating:

1. The Court finds that it is undisputed that McGoffney's behavior, as outlined in [the Facility's] Motion for Preliminary Determination of Law , prior to and during the formation of the Medical Review Panel in this matter has been unreasonable and inappropriate, and it has resulted in unnecessary delays in forming the Medical Review Panel and in the previous Panel Chairperson's resignation in this matter.

2. As such, as a sanction, the Court ORDERS [the Estate] to pay attorney's fees and costs to the Petitioner for the fees and costs incurred by [the Facility] in connection with researching, drafting, and submitting [the Facility's] Motion for Preliminary Determination of Law and in connection with preparing and appearing for the hearing on [the Facility's] Motion for Preliminary Determination of Law . The Court further ORDERS counsel for [the Facility] to file a Supplemental Motion for Attorney's Fees and Costs, and Proposed Order, for purposes of assisting the Court with determining the appropriate amount that [the Estate] shall pay as a sanction, which will be outlined in a separate Order from this Court.

3. The Court ORDERS the Parties to agree upon a new Panel Chair for the Medical Review Panel within 14 days of the execution of this Order. Once the parties have selected a new Panel Chair, the Panel Chair will confirm that the two previously selected voting members of the Panel, Drs. Gelfman and Knox, remain on the Medical Review Panel, unless they notify the new Panel Chair of a conflict. The new Panel Chair will also notify the previously nominated third voting member of the Medical Review Panel, Michael J. Baker, DPM, CWS, of his selection as the final member of the Medical Review Panel.

4. The parties are to comply with the instructions and directions of the new Panel Chair so as not to cause further delay in this matter. The failure to do so may result in additional sanctions including dismissal of [the Estate's] Second Amended Proposed Complaint.

5. Finally, if [the Estate] engages in inappropriate behavior that is similar to what is outlined in the Petitioner's Motion for Preliminary Determination of Law , at any point after the execution of this ORDER, or if [the Estate] fails to pay the award of attorney's fees and costs, [the Estate] will be subject to additional sanctions including dismissal of her Second Amended Proposed Complaint.

Appellant's Amended Appendix Volume 2 at 22–23. On December 20, 2016, the trial court ordered the Estate to pay $3,282 to the Facility as a sanction within sixty days.

[6] Pursuant to the trial court's order, counsel for the Facility sent an e-mail message to the Estate's counsel on November 22, 2016, inquiring into whether her client was agreeable to Neil Bemenderfer serving as the Panel Chairman, an individual whom McGoffney had personally suggested to the Facility's counsel on both July 29, 2015, and September 7, 2016. On December 5, 2016, the Estate's counsel confirmed that her client agreed to Bemenderfer as the Panel Chairman, and the Facility's counsel sent a request to Bemenderfer and enclosed a copy of the November 21, 2016 order. Bemenderfer's response to the parties, sent on December 8, 2016, stated that he would "certify the Panel as formed and notify Michael J. Baker, DPM, CWS of his selection in the near future." Appellee's Appendix Volume 3 at 31. On December 21, 2016, Bemenderfer sent correspondence to the parties, which stated the Panel "would be considered formed as of December 21, 2016," listed the names and addresses of Drs. Gelfman, Knox, and Baker, and furnished a schedule for the submission of evidence that required the Estate's submission by February 6, 2017. Id. at 33.

[7] On January 3, 2017, McGoffney sent an e-mail to counsel for the Facility to share that her counsel, Coralette Waite, would no longer represent the Estate. On January 4, 2017, McGoffney wrote another e-mail to Facility's counsel and Attorney Waite titled "Cease and desist communication with Coralette and Neil," and stated that she "never authorized Neil Bemenderfer to be the chair," that she was going to "schedule another hearing," that Attorney Waite was "going to be sued for malpractice" and McGoffney was "reporting her to the Disciplinary Commission," and that counsel was to cease all communication with Attorney Waite because McGoffney "never authorized anything that she has done or said." Id. at 38. On January 5, 2017, McGoffney sent another e-mail...