Jones v. Griffith

• Citation: 688 F. Supp. 446
• Decision Date: 14 June 1988
• Docket Number: Civ. No. F 88-10.
• Parties: Carol JONES, as Personal Representative of the Estate of Jon W. Jones, Deceased, Plaintiff, v. Harold W. GRIFFITH, M.D., Defendant.
• Court: U.S. District Court — Northern District of Indiana

688 F. Supp. 446

Carol JONES, as Personal Representative of the Estate of Jon W. Jones, Deceased, Plaintiff, v. Harold W. GRIFFITH, M.D., Defendant.

Civ. No. F 88-10.

United States District Court, N.D. Indiana, Fort Wayne Division.

June 14, 1988.

Daniel A. Roby, G. Stanley Hood and Kathryn G. Roudebush, Roby & Hood, Fort Wayne, Ind., for plaintiff.

John W. Clifton, Barrett & McNagny, Fort Wayne, Ind., for defendant.

Alfred K.B. Tsang, Deputy Atty. Gen., Indianapolis, Ind., for Indiana Ins. Comr.

John W. Whiteleather, Jr., Columbia City, Ind., for Panel Chairman.

ORDER

WILLIAM C. LEE, District Judge.

The plaintiff, Carol Jones, has filed a motion for a preliminary determination under I.C. 16-9.5-10-1 which presents a number of important issues under Indiana law. Defendant Griffith has filed a motion to dismiss this action under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Both motions are fully briefed and the court heard oral argument on May 23, 1988.¹ To expedite matters, the court will deal both with the defendant's motion to dismiss and the plaintiff's motion for a preliminary determination in this order.

I. Factual Background

For purposes of these motions, the important facts are undisputed. On June 27, 1985, plaintiff's decedent, Jon W. Jones, a 44 year old white male police officer, entered Parkview Memorial Hospital in Fort Wayne, Indiana, for a diagnostic outpatient angiogram prescribed by his physician, Dr. David Sowden. Mr. Jones was experiencing pain and weakness in his lower extremities and Dr. Sowden suspected claudication.

Upon admission, Mr. Jones signed a consent form and was taken to the radiology department. A technician employed by Parkview Hospital, but working exclusively for the radiology department, explained the procedure to Mr. Jones, but did not tell him about any of the risks of the procedure, and more specifically did not tell him that death was a risk.

Mr. Jones was then medicated and an intravenous line was established to keep a vein open should it become necessary to instill intravenous medication. A catheter was also inserted into Mr. Jones' groin area and was used by defendant, Harold M. Griffith, M.D., a board certified radiologist, to infuse the contrast media into the patient's vascular system.

The femoral angiographic procedure was carried out uneventfully and the findings indicated that Mr. Jones could have been treated chemically and that surgery was unnecessary. However, while the films were being developed the patient became flushed, nauseous, and began sweating. After attempting to vomit, the patient appeared slightly improved. Due to Mr. Jones' appearance, benadryl and adrenalin were drawn up. The patient seemed to improve for a very short time, but then became nauseated and lost consciousness. Adrenalin was administered and CPR was immediately started, and was carried on for over an hour with the help of anesthesiologists, internists and cardiologists. Despite all efforts, Mr. Jones died.

Epinephrine is a form of adrenalin which is used to resuscitate patients who have anaphylactic reactions to angiographic dye contrast material. It can be administered subcutaneously (under the first layer of skin), intramuscularly (in the deltoid or shoulder muscle), intravenously (into a patent I.V. line) and intracardiac (into the heart muscle). On the day of Mr. Jones' angiographic procedure, an emergency crash cart was available in the radiology department, with drugs stocked at the request of the radiologists, including defendant Griffith. However, only intramuscular and subcutaneous epinephrine were available on the radiological crash cart. Intravenous epinephrine was available on the Code Blue cart outside the radiological theater.

The plaintiff contends that defendant Griffith's failure to administer epinephrine intravenously was negligent. Defendant Griffith, while he was apparently responsible to see that the crash cart was equipped with resuscitative epinephrine, contends that Mr. Jones would not have survived even if the epinephrine would have been administered intravenously. The plaintiff contends that it would have made a difference in Jones' chances of survival. On this issue of causation, the plaintiff seeks an appropriate medical review panel instruction by way of the motion for a preliminary determination.

Plaintiff Jones originally filed claims against Dr. Griffith and Parkview Memorial Hospital. Since both defendants were qualified health care providers under Indiana law, the plaintiff was required to file the proposed complaint with the Indiana Department of Insurance and was required to proceed through a medical review panel. I.C. 16-9.5-9-2. See also Hines v. Elkhart General Hospital, 465 F.Supp. 421 (N.D.Ind.), aff'd, 603 F.2d 646 (7th Cir.1979). Parkview Hospital was later dismissed, leaving Dr. Griffith as the sole defendant.

Prior to the initiation of this preliminary determination proceeding, a medical review panel was formed, consisting of John W. Whiteleather, Jr., attorney, as panel chairman, and three physicians. The parties were preparing their written materials for submission to the panel for a determination when the plaintiff initiated this proceeding.

Under I.C. 16-9.5-10-1, the parties to a proceeding under Indiana's Medical Malpractice Act may file a copy of the proposed complaint and a written motion seeking a preliminary determination of an issue of fact or law. The statute requires the moving party or his attorney to serve summonses on the Commissioner of Insurance, each nonmoving party to the proceeding, and the chairman of the medical review panel. I.C. 16-9.5-10-2. It is undisputed that both the Commissioner of Insurance and Panel Chairman Whiteleather are residents and citizens of Indiana. Defendant Griffith argues that they are parties and that their presence destroys this court's diversity jurisdiction.

II. Analysis

Before the court addresses the plaintiff's motion for a preliminary determination, it must decide whether defendant's motion to dismiss for lack of subject matter jurisdiction is well taken, and if not, whether the court should abstain. If the Commissioner of Insurance and the panel chairman are necessary parties whose presence destroys diversity jurisdiction, then this action must be dismissed and the plaintiff's motion will not be reached. If, on the other hand, the motion to dismiss for lack of subject matter jurisdiction is not well taken, and there are no grounds for abstention, then the court will have to address the plaintiff's motion for a preliminary determination.

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Chapter 10 of the Medical Malpractice Act provides that "a court having jurisdiction over the subject matter and the parties to a proposed complaint filed with the commissioner under this article may, upon the filing of a copy of the proposed complaint and a written motion under this chapter, (1) preliminarily determine any affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure; or, (2) compel discovery in accordance with the Indiana Rules of Procedure; or (3) both." I.C. 16-9.5-10-1. There is no dispute in this case that this court has diversity jurisdiction to hear medical malpractice actions which have gone through the procedures of the Indiana Medical Malpractice Act. Hines v. Elkhart General Hospital, 603 F.2d 646 (7th Cir.1979). And the defendant does not dispute the fact that this court would have jurisdiction to hear the ultimate claim presented in the plaintiff's proposed complaint. But the defendant argues that this court does not have jurisdiction to make a preliminary determination.

Defendant Griffith's argument that the court lacks subject matter jurisdiction is based primarily on I.C. 16-9.5-10-2. That section of Chapter 10 provides that the Commissioner of Insurance or the chairman of any medical review panel may invoke the jurisdiction of the court to make a preliminary determination. That section also provides that the moving party or his attorney shall cause as many summonses as are necessary to be served on the commissioner and panel chairman. Defendant Griffith argues that the commissioner and panel chairman are necessary and indispensible parties, so that their presence (as Indiana citizens) destroys diversity jurisdiction.

The plaintiff's response to the defendant's argument is two-fold. First, the plaintiff argues that neither the commissioner nor the panel chairman are parties to the instant preliminary determination matter. The plaintiff relies upon the text of the preliminary determination statute, which refers to the insurance commissioner and the panel chairman as distinct and separate entities from the parties to the underlying cause of action. Second, the plaintiff argues that even if the commissioner and chairman are considered parties for purposes of the preliminary determination, they are merely nominal parties, whose citizenship does not in any way affect the court's jurisdiction.

Federal courts have jurisdiction over controversies between "citizens of different states" by virtue of 28 U.S.C. § 1332(a)(1) and the United States Constitution, Article III, section 2. The Supreme Court established early on that the "citizens" upon whose diversity a plaintiff grounds jurisdiction must be real and substantial parties to the controversy. McNutt v. Bland, 2 How. 9, 15, 11 L.Ed. 159 (1844). Thus, a federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy. See Navarro Savings Assn. v. Lee, 446 U.S. 458, 461, 100 S.Ct. 1779, 1782, 64 L.Ed.2d 425 (1980). Although one serving in a representative capacity is a real party in interest in the sense that the action is properly maintained in his name, see Fed.R.Civ.P. 17(a), a representative is not necessarily the...