Johnson v. Dr. A.

Citation973 N.E.2d 623
Decision Date28 August 2012
Docket NumberNo. 90A05–1109–PL–487.,90A05–1109–PL–487.
PartiesAnn Rachelle JOHNSON, Appellant, v. DR. A., Dr. B., and Medical Provider, Appellees.
CourtCourt of Appeals of Indiana

973 N.E.2d 623

Ann Rachelle JOHNSON, Appellant,
v.
DR. A., Dr. B., and Medical Provider, Appellees.

No. 90A05–1109–PL–487.

Court of Appeals of Indiana.

Aug. 28, 2012.


[973 N.E.2d 624]


Andrew B. Miller, Esq., Starr Austen & Miller, LLP, Logansport, IN, Attorney for Appellant.

Edward L. Murphy, Jr., William A. Ramsey, Murphy Ice & Koeneman LLP, Fort Wayne, IN, Attorneys for Appellees.


OPINION

BAILEY, Judge.
Case Summary

Ann Rachelle Johnson (“Johnson”), an Indiana resident, filed a proposed complaint with the Indiana Department of Insurance (“Department of Insurance”), alleging medical malpractice by Dr. A, Dr. B, and their medical practice (collectively, “Defendants”), all of which are located in Indiana. Discovery disputes arose over the Defendants' attempts to obtain discovery of records concerning the work history of Dr. Hansel M. DeBartolo, Jr. (“Dr. DeBartolo”), an Illinois-based physician retained by Johnson as an expert witness. Upon the Defendants' motion, the trial court ordered Dr. DeBartolo to execute a release that requires him to indemnify one of his prior employers from liability that may result from inadvertent disclosure of confidential information (“the Release”). Johnson appeals the trial court's order.

We dismiss.

Issues

Johnson's appeal raises several issues, which we reframe as whether the trial court abused its discretion when it ordered Dr. DeBartolo to execute the indemnifying release. As threshold matters, the Defendants raise the following issues:

[973 N.E.2d 625]

I. Whether this Court has jurisdiction to hear Johnson's appeal; and

II. Whether, if the Court has jurisdiction to hear the appeal, Johnson has standing to pursue this appeal.1

Facts and Procedural History2

On December 4, 2008, Johnson filed a proposed complaint with the Department of Insurance, in which complaint she alleged that the Defendants were negligent in providing her medical care and treatment. SeeInd.Code § 34–18–8–4. On February 19, 2009, Johnson filed an anonymous complaint in the trial court against the Defendants, alleging the same negligent acts. SeeI.C. § 34–18–8–7. On March 5, 2009, the Defendants filed a motion to stay the proceedings except for determination of legal issues and discovery matters.3SeeI.C. § 34–18–11–1.

At some point in the proceedings, Johnson designated Dr. DeBartolo, who practiced medicine in Sugar Grove, Illinois, as an expert witness. The Defendants deposed Dr. DeBartolo for several hours on May 10, 2010. The deposition was adjourned and reconvened on June 29, 2010; the June 29, 2010 portion of the deposition was video-recorded.

During the June 29, 2010, deposition, Dr. DeBartolo declined to sign documents authorizing disclosure to the Defendants “of records and documents concerning his education, background, and medical and surgical experience.” (Appellees' App. at 3.) These included an authorization to obtain copies of Dr. DeBartolo's academic records from medical school and surgical records and litigation-related documents of one of Dr. DeBartolo's former employers, Delnor Community Hospital (“the Authorization”).

Consequently, on August 9, 2010, the Defendants filed a consolidated Motion for Preliminary Determination and Motion to Set Reasonable Expert Witness Fees and Motion to Compel (“Defendants' First Motion to Compel”). In Defendants' First Motion to Compel, the Defendants sought an order compelling “Dr. DeBartolo to sign any record authorizations.” (Appellees' App. at 4.)

The parties' dispute over discovery matters continued. On March 4, 2011, Johnson filed a Motion to Compel (“Plaintiff's Motion to Compel”) requesting an order for the Defendants to provide signed authorizations for the release of records related to the Defendants' credentials and professional histories. On April 14, 2011, the trial court conducted a hearing on the

[973 N.E.2d 626]

Defendants' First Motion to Compel and Plaintiff's Motion to Compel. After taking the motions under advisement, on May 12, 2011, the trial court entered numerous orders on the case; among them was an order compelling Dr. DeBartolo to execute releases to several hospitals at which he worked. Dr. DeBartolo complied with the order.

On July 12, 2011, counsel for the Defendants communicated to counsel for Johnson that one of the hospitals at which Dr. DeBartolo had worked, Delnor Community Hospital (“Delnor”), “refus[ed] to provide the records Dr. DeBartolo authorized the hospital to provide” in the Authorization because of “fears that Dr. DeBartolo [would] institute legal proceedings against the hospital for complying.” (Appellant's App. at 17.) In addition, counsel for Delnor had informed Defendants' counsel that Dr. DeBartolo had previously filed an action in a Kane County, Illinois, court against Delnor.

To “quell [Delnor's] fear of your expert,” counsel for the Defendants submitted a release (“the Release”) to Johnson's attorney for Dr. DeBartolo to execute. (Appellant's App. at 17.) The Release provided that Dr. DeBartolo would

release, acquit and forever discharge [Delnor], and any other person firm or corporation as its agent from all actions, suits, causes of action, claims, or demands of any kind in nature whatsoever, whether known or unknown at this time, on account of Delnor or its agents' compliance with [the Authorization] signed by [Dr. DeBartolo].

(Appellant's App. at 18.) The Release also provided that, by signing, Dr. DeBartolo


agreed [to] indemnify and forever hold harmless [Delnor] and its agents against any expenses, costs, or payments of any kind, including court costs and attorneys' fees, which they may be compelled to make or expend based on any litigation that I or any person or entity bring against Delnor regarding the Request Authorization for Access to Records or action taken by Delnor pursuant [to the Request].

(Appellant's App. at 18.)


Dr. DeBartolo did not sign the Release provided to counsel for Plaintiff. On August 17, 2011, the Defendants filed a Motion to Enforce Order, contending that the Second Release “does not require Dr. DeBartolo to take any steps not ordered by the Court” and that “there is no reason for Dr. DeBartolo not to sign ... unless he plans on suing [Delnor] for complying with the Authorization.” (Appellant's App. at...

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