Hoskins v. Sharp
| Decision Date | 03 March 1994 |
| Docket Number | No. 30A01-9308-CV-259,30A01-9308-CV-259 |
| Citation | 629 N.E.2d 1271 |
| Parties | Pamela HOSKINS, Appellant-Plaintiff, v. Gary SHARP, M.D., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Thomas E.Q. Williams, Greenfield, for appellant-plaintiff.
Robert J. Shula, Richard S. Pitts, Lowe Gray Steele & Hoffman, Indianapolis, for appellee-defendant.
Pamela Hoskins brings this appeal from the entry of summary judgment for Gary Sharp, M.D., in a medical malpractice action arising from Sharp's treatment of her late husband, James Hoskins. Pamela filed a proposed complaint with the Indiana Department of Insurance pursuant to the Medical Malpractice Act (the "Act") 1 alleging that Dr. Sharp was negligent in his care of James. After the trial court had ruled on various discovery and other motions, Pamela's challenge to the constitutionality of the Act and a dispute over formation of the medical review panel, the panel rendered its unanimous opinion that the evidence did not support the conclusion that Dr. Sharp failed to meet the applicable standard of care charged in the complaint. Pamela then filed a complaint in the trial court, specifically alleging that Dr We reverse.
Sharp was negligent because he failed to refer James to a hematologist "due to the possibility of the diagnosis of acute leukemia" which she alleged caused his death. Dr. Sharp moved for summary judgment and submitted only the panel's opinion in support of his motion. Pamela submitted affidavits and letters, James' medical records and his cause of death report in opposition to the motion. The trial court entered summary judgment for Sharp.
1. Whether Dr. Sharp waived the statutory requirement of a medical review panel by asking the trial court to compel the formation of two properly constituted medical review striking panels.
2. Whether the trial court had jurisdiction to order the panel chairman to form striking panels constituted as provided in the Act.
3. Whether the Act is constitutional.
4. Whether Dr. Sharp is entitled to summary judgment as a a matter of law.
Dr. Sharp, a specialist in family practice, treated James from approximately 1976 until James' death in June of 1989. In February of 1989, James submitted to a blood test that Dr. Sharp had ordered which revealed an abnormally low platelet count. That result was unchanged from a blood test which Sharp had ordered in 1985, which had also revealed a low platelet count. In May of 1989, James, then 45, was admitted to the emergency room of Hancock Memorial Hospital in serious condition. He was then treated by Dr. Sharp and other physicians, and was diagnosed with severe encephalopathy. 2 One of the treating physicians noted in James' medical records that James also had a history of alcohol abuse. James was later transferred to Community Ritter Hospital in Indianapolis where he was diagnosed with acute promyelocytic leukemia. James remained hospitalized until his death on June 18, 1989.
Pamela first contends Dr. Sharp waived his right to have Pamela's claim presented to a medical review panel. She asserts that Dr. Sharp refused to accept the striking panels selected by the panel chairman and instead obtained a court order requiring a panel "under other conformity." She argues that where voluntary compliance with the formation of a panel becomes "impossible" and a trial court is asked to intervene in the panel selection process, the informal procedure contemplated by the Act has failed and the statutory right to a medical review panel should be deemed waived. We cannot agree.
Generally, no action against a health care provider may be commenced in any court of this state before the claimant's proposed complaint has been presented to a medical review panel established pursuant to the Act and an opinion has been rendered by the panel. 3 IND.CODE Sec. 16-9.5-9-2(a). A claimant can waive this requirement in only one prescribed manner. "A claimant may commence an action in court for malpractice without the presentation of the claim to a medical review panel if the claimant and all parties named as defendants in the action agree that the claim is not to be presented to a medical review panel." IND.CODE Sec. 16-9.5-9-2(b). That agreement must be in writing and must be signed by each party or the authorized agent of a party. Id. A copy of the agreement must be attached to the complaint filed with the court in which the action is commenced. Id.
Here, there was no written agreement between the parties for waiver of a medical review panel. In fact, in his motion opposing plaintiff's motion for further instruction, Dr. Sharp stated, "the Defendant rejects Plaintiff's offer to waive the panel formation in this case." Record at 161. The evidence also shows that Dr. Sharp did not simply refuse to accept the striking panels selected by the panel chairman but only insisted that the panels be composed of qualified physicians as provided under the Act. See IND.CODE Sec. 16-9.5-9-3(b)(1) (). Sharp merely insisted upon compliance with Indiana Code Sec. 16-9.5-9-3(b)(1), and we can discern no waiver from his insistence that the medical review panel be composed of at least two members from his medical specialty.
Pamela asks that we fashion a common law waiver rule which would apply when the parties are unable voluntarily and informally to select a medical review panel. She suggests that this waiver rule should be applied in a case such as this one where the procedure "while followed by the parties in good faith, has broken down due to a requirement that reasonably necessitates a court opinion." Brief of Appellant at 11. We decline to fashion such a rule where the legislature has narrowly prescribed the circumstances under which an effective waiver occurs under Indiana Code Sec. 16-9.5-9-2(b). Dr. Sharp did not waive his right to a medical review panel merely by insisting upon compliance with the Act.
Pamela next disputes the trial court's order directing the panel chairman to form two striking panels of family practitioners. The court ordered the formation of new striking panels because the striking panels previously submitted by the panel chairman contained only one qualified physician in contravention of Indiana Code Sec. 16-9.5-9-3(b)(1). 4 Pamela contends that the court interfered with the informal panel formation process and exceeded its jurisdiction under Indiana Code Sec. 16-9.5-10-1.
The Act invests the courts with limited jurisdiction over medical malpractice claims until the medical review panel has rendered its opinion. Surgical Associates, Inc. v. Zabolotney (1992), Ind.App., 599 N.E.2d 614, 615, trans. denied. The Act provides that "any party to the proceeding may invoke the limited jurisdiction of the court by paying the statutory filing fee to the clerk and filing a copy of the proposed complaint and motion with the clerk." IND.CODE Sec. 16-9.5-10-2. A court having jurisdiction over the subject matter and the parties to a proposed complaint filed with the Commissioner of Insurance may, upon the filing of a copy of the proposed complaint and a written motion, (1) preliminarily determine any affirmative defense or issue of law or fact that may be so determined under the Indiana Rules of Procedure; or (2) compel discovery in accordance with the Indiana Rules of Procedure; or (3) both. IND.CODE Sec. 16-9.5-10-1.
On December 3, 1990, Pamela invoked the jurisdiction of the Hancock Circuit Court by filing a motion for a discovery order. 5 Pamela Pamela cites Griffith v. Jones (1992), Ind., 602 N.E.2d 107, for her position, although Griffith is inapposite. In Griffith, the trial court had instructed the medical review panel concerning the definition of terms and phrases used in the Act, the evidence that the panel could consider in reaching its opinion and the form and substance of its opinion. Id. at 109. Our supreme court held that the trial court exceeded its jurisdiction and interfered with the informal operation of the medical review panel as contemplated by the legislature. Id. However, in the present case, the panel had not yet been formed, and the trial court did not instruct the panel or interfere in any manner with its operation. The court did not dictate to the panel concerning the content of the panel's opinion, the manner in which the panel should arrive at its opinion, or the matters that the panel could consider in arriving at its opinion. See Griffith, 602 N.E.2d at 110. Instead, the court merely acted to facilitate selection of a panel by ordering compliance with the specific statutory requirements for panel formation.
does not dispute the composition of the panel as it was finally established or allege any defect in the panel's operation. Pamela cannot show that the medical review panel deliberations did not comply with the statutory requirements or that she was prejudiced in any way by the trial court's order directing the panel chairman to form striking panels properly composed of a sufficient number of family practitioners. See Jordan v. Deery (1993), Ind., 609 N.E.2d 1104, 1108-09.
We conclude that it was permissible for the trial court to invoke its jurisdiction for this limited purpose under Indiana Code Sec. 16-9.5-10-1. If the trial court in any way intruded upon the informality of the panel formation process, it was harmless error.
Pamela's third claim is that the Medical Malpractice Act is unconstitutional because the panel selection process is unworkable "in a real life situation," although she concedes that "the idea of the statute seems...
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