Jones v. Griffith

• Decision Date: 30 March 1989
• Docket Number: No. 88-2570,88-2570
• Citation: 870 F.2d 1363
• Parties: Carol JONES, as Personal Representative of the Estate of Jon W. Jones, Deceased, Plaintiff-Appellee, v. Harold W. GRIFFITH, M.D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1363

870 F.2d 1363

13 Fed.R.Serv.3d 490

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

No. 88-2570.

United States Court of Appeals Seventh Circuit.

Argued Jan. 13, 1989.

Decided March 30, 1989.

James P. Fenton, Barrett & McNagny, Ft. Wayne, Ind., for defendant-appellant.

Daniel A. Roby, Roby & Hood, Ft. Wayne, Ind., for plaintiff-appellee.

Before CUMMINGS, POSNER, and MANION, Circuit Judges.

POSNER, Circuit Judge.

Dr. Harold Griffith, the potential defendant in a prospective malpractice case, appeals from a "preliminary determination" made by a federal district court under the Indiana Medical Malpractice Act (Ind.Code Secs. 16-9.5-1-1 et seq.). See 688 F.Supp. 446 (N.D.Ind.1988). Preliminary determinations (as the name implies) ordinarily lack finality, and so are not appealable in the federal judicial system. But we shall see that under the Malpractice Act the preliminary determination is the last order made by the trial court in the proceeding before it (a proceeding to obtain a preliminary determination), as well as the first one. It is therefore final and appealable, even though, as we shall also see, it may be preliminary or ancillary to a proceeding in another, or indeed the same, forum. University Life Ins. Co. of America v. Unimarc Ltd., 699 F.2d 846, 848-50 (7th Cir.1983); Graphic Communications Union v. Chicago Tribune Co., 779 F.2d 13, 14-15 (7th Cir.1985).

The problem is not our jurisdiction but the district court's. Does a federal district court have the power to make a preliminary determination under the Indiana Malpractice Act? That is a novel and difficult question.

Jon W. Jones died in an Indiana hospital after Dr. Griffith performed angiography on him. (This is a procedure in which a dye is injected into the bloodstream in order to permit x-ray study of the blood vessels.) At the time, Griffith, like Jones, was an Indiana resident, but he has since moved to California. Mrs. Jones--Jon Jones's widow and legal representative--claims first that Griffith failed to explain the dangers of the procedure to her husband and obtain his informed consent to it, and second that when Mr. Jones went into shock immediately following the angiography, Dr. Griffith gave him an intramuscular injection of a stimulant when he should have given him an intravenous injection.

Mrs. Jones wanted to sue Griffith for malpractice but could not do so immediately because Griffith is covered by the Indiana Medical Malpractice Act. Enacted in 1975 in an effort to reduce the soaring costs of malpractice insurance, see Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 379-80, 404 N.E.2d 585, 589-90 (1980); Sue Yee Lee v. Lafayette Home Hospital Inc., 410 N.E.2d 1319, 1324 (Ind.App.1980), the Act entitles a physician to coverage if he agrees to buy $100,000 in malpractice insurance and to pay a fee to the Indiana Department of Insurance. Coverage buys the physician two things (so far as relevant to this case). First, the Act caps his liability at $500,000, with all but the first $100,000 (which is covered by the physician's malpractice insurance) being paid by the insurance department. Second, and more pertinent, anyone who wants to sue a covered physician for malpractice for $15,000 or more must first file the proposed complaint in the lawsuit both with the commissioner of insurance, Ind.Code Secs. 16-9.5-9-1(c), 2(a), and with a Medical Review Panel that consists of three physicians selected by the parties, plus an attorney appointed by the commissioner to be the nonvoting chairman of the panel. Sec. 16-9.5-9-3. The parties make written submissions to the panel, and the physician members review the submissions and may, but need not, pick one or more of four (actually five) opinions to render: the evidence supports a conclusion that the prospective defendant (for remember that only a proposed complaint has been filed at this point) was negligent; the evidence does not support such a conclusion; there is a triable issue not requiring expert opinion; the defendant's conduct was or was not a cause of the plaintiff's injury. Sec. 16-9.5-9-7. The party who prevails before the panel pays the panel members' fees and expenses. Sec. 16-9.5-9-10(c). After the opinion is rendered, the plaintiff can go ahead and file his malpractice suit. The review panel's opinion is admissible in that suit, although not conclusive, and members of the panel are required to testify if either side calls them as witnesses. Sec. 16-9.5-9-9.

Before the Medical Review Panel that had been convened to consider Mrs. Jones's proposed complaint had completed its deliberations and rendered an opinion--indeed, before Mrs. Jones and Dr. Griffith had made their written submissions to the panel--Mrs. Jones instituted this diversity action in federal district court against Griffith. It is not a suit in a conventional sense. It was kicked off not by the filing of a complaint but by the filing of Jones's proposed complaint together with a motion asking the court to make a preliminary determination under the Indiana Malpractice Act. For this unusual mode of proceeding Mrs. Jones relied on a section of the Act which provides that during the period between the filing of the proposed complaint and the issuance by the Medical Review Panel of its opinion, "a court having jurisdiction over the subject matter and the parties to a proposed complaint ... 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." Ind.Code Sec. 16-9.5-10-1. (The institution of an action for a preliminary determination stays proceedings before the Medical Review Panel. Sec. 16-9.5-10-4.) Although Jones had not named the insurance commissioner or the chairman of the Medical Review Panel in her proposed complaint or accompanying motion in the district court, she served these papers on both of those gentlemen, as well as, of course, on Griffith. They answered by disclaiming any interest in the merits or in the outcome of Mrs. Jones's complaint against Dr. Griffith.

Griffith moved to dismiss the district court proceeding on a number of grounds, including an absence of complete diversity of citizenship (both the insurance commissioner and the chairman of the Medical Review Panel are, like the plaintiff, citizens of Indiana). In the alternative he asked the district judge to abstain in favor of the Indiana courts, which have not yet interpreted the parts of the Medical Malpractice Act on which Jones wanted the panel instructed. The district judge denied the motion to dismiss or abstain, and proceeded to issue his instructions. There were two. The first was that the panel was to find that there was a triable issue between Jones and Griffith, not requiring expert opinion, on the issue of informed consent (Jones's first malpractice claim). The second was that on the issue of the causal relation between the alleged malpractice and Mr. Jones's death, the panel was to use a "substantial factor" definition of cause. The district judge based these instructions on his interpretation of Indiana cases that had dealt with these issues, although not under the Medical Malpractice Act.

We agree with the district judge that the requirement of complete diversity of citizenship, see Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Fidelity & Deposit Co. v. City of Sheboygan Falls, 713 F.2d 1261, 1264 (7th Cir.1983), was satisfied despite the fact that Mrs. Jones served her pleadings in the district court--her motion for preliminary determination and her proposed complaint--on the insurance commissioner and the panel's chairman, both residents of Indiana as we have said. The Malpractice Act required her to serve them. Ind.Code Sec. 16-9.5-10-2. The question whether serving someone makes him a party, even when the complaint doesn't designate him as a party--and neither Mrs. Jones's motion nor her proposed complaint purports to make either the panel chairman or the insurance commissioner a party--is one of those fundamental legal questions on which there is a curious dearth of authority or discussion. The Federal Rules of Civil Procedure assume rather than require that anyone served with a pleading is a party (e.g., Rule 4), for what could be the purpose of serving a nonparty? There is no provision in the rules for serving a nonparty, but neither is there a provision that service automatically amends the complaint to add the recipient as a party. Rule 21 authorizes the district court to add or drop parties at any stage, and no motion was made in this case under that rule, nor order issued--but no order was necessary if the panel's chairman and the insurance commissioner became parties just by virtue of being served.

The sensible approach, it strikes us, is to regard the pleading's caption, service of process, and perhaps other indications of intention to bring or not to bring a person into a lawsuit as evidence upon which the district court must decide, in cases of doubt, whether someone is a party. "The status of the parties, whether formal or otherwise, does not depend upon the names by which they are designated, but on their relation to the case, its effect on their interest, and whether judgment is sought against them." Heatherton v. Playboy, Inc., 60 F.R.D. 372, 377 (C.D.Cal.1973); see Greenwood v. Ross, 778 F.2d 448, 452 (8th Cir.1985); Spring Water Dairy, Inc. v. Federal Intermediate Credit Bank, 625 F.Supp. 713, 721 n. 5 (D.Minn.1986); 5 Wright & Miller, Federal Practice and Procedure Sec. 1321, at pp. 458-59 (1969). This approach is consistent with the rule that requires federal suits to be...