Jordan v. Deery

• Decision Date: 09 March 1993
• Docket Number: No. 75S04-9303-CV-314,75S04-9303-CV-314
• Parties: Geneva JORDAN and Lynn Jordan, Individually and as Next Friend of Shelamiah D. Jordan, Appellants (Plaintiffs Below), v. Michael DEERY, M.D., Warren Reiss, M.D., Lake Shore Clinic, Kiem Houser, M.D., Holy Cross Hospital, and Doctors John Doe and John Roe, Appellees (Defendants Below).
• Court: Indiana Supreme Court

Page 1104

609 N.E.2d 1104

Geneva JORDAN and Lynn Jordan, Individually and as Next

Friend of Shelamiah D. Jordan, Appellants (Plaintiffs Below), v. Michael DEERY, M.D., Warren Reiss, M.D., Lake Shore Clinic,

Kiem Houser, M.D., Holy Cross Hospital, and

Doctors John Doe and John Roe, Appellees

(Defendants Below).

No. 75S04-9303-CV-314.

Supreme Court of Indiana.

March 9, 1993.

Bessie M. Taylor, Gary, for appellants.

Mark A. Lienhoop, Leon R. Kaminski, Newby Lewis Kaminski & Jones, La Porte, for appellees Deery, Reiss and Lake Shore Clinic.

Robert J. Palmer, Maggie Mawby Chipman, D. Andrew Spalding, May, Oberfell & Lorber, South Bend, for appellee Holy Cross Parkview Hosp.

KRAHULIK, Justice.

Geneva Jordan and Lynn Jordan, individually and as next friends of Shelamiah D. Jordan (Appellants-Plaintiffs below) seek transfer after the Court of Appeals affirmed, in a memorandum decision, the trial court's grant of summary judgment in favor of Michael Deery, M.D., Warren Reiss, M.D., Lake Shore Clinic, Kiem Houser, M.D., and Holy Cross Hospital (Defendants-Appellees below) in this medical malpractice action. Jordan v. Deery (1992), Ind.App., 590 N.E.2d 669 (Chezem, J., with Shields, J., concurring and Miller, J., concurring in part and dissenting in part, with opinion).

The facts relevant to this petition are as follows. Shelamiah Jordan was born on December 10, 1986, to Geneva and Lynn Jordan, her parents. On December 3, 1988, the Jordans filed a proposed complaint for medical malpractice with the Insurance Commissioner alleging that the defendants' negligence resulted in personal injuries to mother and daughter in the course of labor and delivery. The complaint also alleged loss of consortium and companionship on behalf of the father. The opinion of the panel, in favor of all defendants, was issued on May 4, 1990, and received by the Jordan's counsel on May 7, 1990. On September 12, 1990, the Jordans filed suit in state court.

Defendants moved for summary judgment on the grounds that (1) the complaint was barred by the statute of limitations, and (2) plaintiffs had presented no evidence from a medical expert creating any issue of fact. The Jordans filed a brief in opposition to the motions for summary judgment to which was attached an affidavit of Deborah McCullough, M.D., purporting to supply an expert opinion that the defendants had breached the standard of care. After defendants filed objections to this affidavit, the Jordans filed a second affidavit on January 4, 1991, the date of the hearing on the motions for summary judgment. Defendants objected to the second affidavit on the grounds that it was untimely and substantively insufficient. At the close of the hearing, the trial court took the motions under advisement. Five days later, plaintiff filed what was denominated as an "Amended Affidavit" from Dr. McCullough. Defendants filed objections to this third affidavit on the same grounds as the second.

On January 22, 1991, the trial court granted defendants' motions for summary judgment. With regard to the statute of limitations, the trial court relied on Ind.Code Sec. 16-9.5-9-1(b), and held that because the Jordans had invoked the jurisdiction of the medical review panel by filing a proposed complaint, they had only ninety days after receipt of the panel opinion in which to file suit in state court. The trial court also held that the affidavits were not sufficient to create a question of fact. The court found that even the third affidavit, which could be described as the most comprehensive one filed, was insufficient because it contained no discernible facts upon which Dr. McCullough based her opinions, it did not indicate with any particularity what Dr. McCullough had reviewed in reaching her opinions, and it did not contain any indication that the evidence upon which Dr. McCullough relied was admissible evidence. The trial court concluded that the affidavit contained "so many flaws that it should be held insufficient in its totality."

The Jordans appealed on several grounds which are summarized as follows: (1) that the decision of the medical review panel was not properly before the trial court, (2) that their claims were not barred by the statute of limitations, and (3) that the affidavits were sufficient to establish an issue of fact. A unanimous panel of the Court of Appeals held that the medical review panel decision was properly before the trial court. A majority of the Court of Appeals affirmed the trial court's holding as to the statute of limitations. On this issue, the majority held that suit had to be commenced in state court within the ninety-day period following receipt of the panel decision, as provided in Ind.Code Sec. 16-9.5-9-1(b). Judge Miller dissented on the ground that the statute allows a claimant an additional ninety days to file a malpractice action after issuance of the panel decision where the statute of limitations expired during the pendency of the panel's review, but does not cut short a limitation period which has not yet expired.

A majority of the panel also agreed that the trial court had properly granted summary judgment because Dr. McCullough's affidavits were legally insufficient as expert opinion, and the second and third were filed late. Judge Miller dissented on the grounds that the affidavits were not so flawed as to be insufficient under Kopec v. Memorial Hosp. of South Bend (1990), Ind.App., 557 N.E.2d 1367, and that even if they were filed late, the trial court exercised its discretion and considered them.

I. Standard of Review

This case was resolved in the trial court by summary judgment. Summary judgment is appropriate only if the pleadings and evidence sanctioned by Indiana Trial Rule 56(C) show "there is no genuine issue as to any material fact and ... the moving party is entitled to summary judgment as a matter of law." Once the movant shows entitlement to summary judgment, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." T.R. 56(E). Rational assertions of fact and reasonable inferences therefrom are deemed to be true. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 994-95. Summary judgments, like all trial court judgments, are clothed with the presumption of validity. Dept. of Revenue v. Caylor-Nickel Clinic (1992), Ind., 587 N.E.2d 1311, 1313. The reviewing court faces the same issues that were before the trial court and follows the same process. Id. The party appealing from the grant of summary judgment has the burden of persuading the appellate tribunal that the grant of summary judgment was erroneous. Id. The trial court's determination is then "carefully scrutinized to assure that the non-prevailing party is not improperly prevented from having his day in court." Id.

II. The Child's Claim Was Timely Filed

We agree with the Jordans that issuance of a medical review panel decision does not shorten the time a plaintiff would otherwise have in which to file a complaint in state court. The statute of limitations for actions brought under the Medical Malpractice Act, found in Ind.Code Sec. 16-9.5-3-1(a) ¹, is an occurrence statute which begins to run on the date of the alleged malpractice. Havens v. Ritchey (1991), Ind., 582 N.E.2d 792, 794. The statute provides that minors under the age of six years old at the time of the occurrence have until their eighth birthday in which to file actions. Thus, under this statute, Shelamiah's limitation period runs until December 10, 1994.

Defendants argue that Ind.Code Sec. 16-9.5-9-1(b) ² cuts short Shelamiah's limitation period to the ninety days following receipt of the panel decision. Defendants rely on Johnson v. St. Vincent Hosp. (1980), Ind., 404 N.E.2d 585, 603-4, in which this Court recognized that the legislative intent behind the use of an "occurrence" limitation period was to shorten the time in which patients could sue health care providers. Waiving the banner of legislative intent, defendants invite us to shorten the limitation period in any manner possible. We decline. The clear meaning of the limitation period found in Chapter 3-1(a) is that a child under six years of age at the time of the occurrence has until her eighth birthday to file a claim. Chapter 9-1(b) operates to toll the applicable statute of limitations, not to shorten it. The word "toll" means "to suspend or stop temporarily as the statute of limitations is tolled during the defendant's absence from the jurisdiction and during the plaintiff's minority period." Black's Law Dictionary, 1488 (1990 6th ed.). Therefore, the running of a limitation period is suspended for the period of time from the date of filing the proposed complaint until ninety days following receipt of the panel opinion.

Defendants assert that allowing Shelamiah to wait longer than ninety days after issuance of the panel opinion would be contrary to the policy of the prompt presentation of claims as discussed in Johnson. We do not agree. In fact, because the proposed complaint was filed early, the policy of prompt presentation of claims has been fulfilled. Both sides are aware that litigation is possible and have had the opportunity to investigate the claim. The law did not compel Shelamiah to file her proposed complaint at this early date. We find nothing in Ind.Code Sec. 16-9.5-9-1(b) convincing us that the time otherwise allotted to her should be cut short. In Shelamiah's case, the limitation period began to run on December 10, 1986, the day she was born, at which time Ind.Code Sec. 16-9.5-3-1(a) provided her with eight years in which to file her claim. Under Ind.Code Sec. 16-9.5-9-1(b), the limitation period stopped running for a period of some twenty months beginning on December 3, 1988, the day her proposed complaint was filed, and ending ninety days after receipt of the panel decision on May 7, 1990. Because the running of her limitation period was tolled by Section 9-1(b), her limitation period will not...