Sherrow v. GYN, LTD.
| Citation | 745 N.E.2d 880 |
| Decision Date | 27 March 2001 |
| Docket Number | No. 89A01-0007-CV-219.,89A01-0007-CV-219. |
| Parties | Shannon Kincaid SHERROW, Appellant-Plaintiff, v. GYN, LTD., James E. Szymanowski, M.D., Richard N. Woodruff, M.D., Marvin Scott Haswell, M.D., and Reid Hospital & Health Care Center, Appellees-Defendants. |
| Court | Court of Appeals of Indiana |
745 N.E.2d 880
Shannon Kincaid SHERROW, Appellant-Plaintiff,v.
GYN, LTD., James E. Szymanowski, M.D., Richard N. Woodruff, M.D., Marvin Scott Haswell, M.D., and Reid Hospital & Health Care Center, Appellees-Defendants
No. 89A01-0007-CV-219.
Court of Appeals of Indiana.
March 27, 2001.
David J. Mallon, Jr., Ice Miller Donadio & Ryan, Indianapolis, IN, Attorney for Reid Hospital and Health Care Center.
J. Scott Fanzini, Johnson Smith Pence & Heath, Indianapolis, IN, Attorney for James E. Szymanowski, M.D.
Daniel R. Fagan, Karl L. Mulvaney, Nana Quay-Smith, Bingham Summers Welsh & Spilman, Indianapolis, IN, Attorneys for Richard N. Woodruff, M.D., Marvin Scott Haswell, M.D. and GYN, Ltd.
OPINION
SHARPNACK, Chief Judge.
Shannon Kincaid Sherrow appeals the trial court's ruling on her motion for preliminary determination of law. Sherrow raises one issue, which we expand and restate as:
(1) whether Sherrow failed to exhaust administrative remedies before filing her motion for preliminary determination of law;
(2) whether the trial court lacked subject matter jurisdiction to rule upon Sherrow's request to redact legal argument from the parties' submissions to the medical review panel; and
(3) whether the trial court erred in refusing to require the parties to redact all legal argument from their submissions to the medical review panel.
We reverse and remand.
The relevant facts follow. On December 6, 1996, Sherrow filed a proposed complaint with the Indiana Department of Insurance for personal injuries and wrongful death against Dr. James E. Szymanowski, Dr. Richard N. Woodruff, Dr. Marvin Scott Haswell, Reid Hospital and Health Care Center, and GYN, Ltd. ("GYN") (collectively, "health care providers"). A medical review panel was convened pursuant to the Indiana Medical Malpractice Act, and the parties tendered their evidentiary submissions to the panel.
The submission tendered on behalf of Dr. Woodruff, Dr. Haswell, and GYN included legal argument, including the following phrase: "Nor is a physician liable for errors in judgment or honest mistakes in the treatment of a patient." Record, p. 21. Sherrow took exception to the inclusion of legal discussion in the evidentiary submission and wrote to the chairperson of the panel, James Riley, contending that the submission contained "slanted statements of law and dicta" that "distort the issues and ... flatly misrepresent the law." Record, p. 23. Noting that the panel chairperson is the only proper person to advise the panel regarding the law applicable to its review, Sherrow requested that the evidentiary submission be returned to Dr. Woodruff, Dr. Haswell, and GYN to have all legal citations and argument purged. Riley refused to require Dr. Woodruff, Dr. Haswell, and GYN to remove the objected-to language, finding that the phrase quoted above was not misleading because it was followed by a quotation
Thereafter, Sherrow petitioned for the removal of Riley as panel chairperson pursuant to Ind.Code § 34-18-10-15.1 In her petition, Sherrow alleged that Riley's refusal to redact legal argument from Dr. Woodruff, Dr. Haswell, and GYN's submission violated Riley's statutory obligation to advise the panel relative to any legal question involved in the review proceeding. The Commissioner of the Indiana Department of Insurance denied Sherrow's petition on February 1, 2000.
One week later, Riley recused himself as panel chairperson because of a potential conflict of interest. Before a successor panel chairperson could be named, Sherrow filed a motion for preliminary determination of law in the trial court. In the motion, Sherrow requested that the trial court issue an order finding that: (1) the panel chairperson may not delegate his duty to advise the medical review panel on the law applicable to its determination; and (2) the objected-to language was not a correct statement of law and, therefore, neither the panel chairperson nor any of the parties could so instruct the panel. In response, Dr. Woodruff, Dr. Haswell, and GYN offered to revise the disputed language in their submission to read: "Nor is a physician liable for an honest mistake of judgment in the treatment of a patient if the physician has reasonable skill and learning and uses ordinary care." Record, p. 87. On June 1, 2000, the trial court issued an order wherein it noted that the complained-of language ineptly paraphrased a passage from a case. However, because the language was immediately followed by a quote from the passage it attempted to paraphrase, its deficiencies were apparent and redaction of the statement was unnecessary. The trial court determined that a complete redaction of all legal discussion was not required. The trial court then noted that Dr. Woodruff, Dr. Haswell, and GYN had offered to modify their evidentiary submission to cure the defect and ordered them to modify their submission as proposed.
I.
The first issue is whether Sherrow failed to exhaust administrative remedies before filing her motion for preliminary determination of law. Dr. Woodruff, Dr. Haswell, and GYN note that a successor panel chairperson has not yet been appointed, and they contend that Sherrow should be required to submit her request for redaction of the challenged legal statement to the new chairperson. Until the new chairperson rules on her request and agrees with Riley's decision to accept the legal statements in their submission of evidence, Dr. Woodruff, Dr. Haswell, and GYN contend that Sherrow has suffered no injury and has failed to exhaust her administrative remedies. However, a review of the record reveals that Dr. Woodruff, Dr....
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