Surgical Associates, Inc. v. Zabolotney, 92A03-9104-CV-118

• Decision Date: 28 September 1992
• Docket Number: No. 92A03-9104-CV-118,92A03-9104-CV-118
• Citation: 599 N.E.2d 614
• Parties: SURGICAL ASSOCIATES, INC., J. Michael Musgrave, M.D., Paul J. Raiman, M.D., and James W. Edlund, M.D., Appellants-Defendants, v. Jeri ZABOLOTNEY and Stanley Zabolotney, Husband and Wife, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 614

599 N.E.2d 614

SURGICAL ASSOCIATES, INC., J. Michael Musgrave, M.D., Paul J. Raiman, M.D., and James W. Edlund, M.D. Appellants-Defendants, v. Jeri ZABOLOTNEY and Stanley Zabolotney, Husband and Wife Appellees-Plaintiffs.

No. 92A03-9104-CV-118.

Court of Appeals of Indiana Third District.

Sept. 28, 1992.

Transfer Denied Dec. 15, 1992.

John F. Lyons, David R. Steiner, James P. Fenton, John M. Clifton, Barrett &amp McNagny, Fort Wayne, for appellants-defendants.

Edgar A. Grimm, Grimm & Grimm, P.C., Auburn, for appellees-plaintiffs.

GARRARD, Judge.

This discretionary interlocutory appeal was brought to determine whether it is appropriate to require proposed members of a medical review panel under the medical malpractice act, IC 16-9.5-1-1 et seq., to answer interrogatories from one of the parties concerning their qualifications to serve on the panel, and to tax, as costs of the proceeding, charges made by the proposed panel member for time spent in providing answers. We conclude that it is not.

Zabolotneys initiated their medical malpractice claim and attorney John W. Whiteleather, Jr., was selected as chairman for the medical review panel. Citing IC 16-9.5-10-1, Chairman Whiteleather petitioned the Whitley Circuit Court seeking preliminary determination of an issue of law. The petition disclosed that plaintiffs' counsel had filed with the chairman a list of thirty-five interrogatories which he proposed be propounded to and answered by prospective nominees to the review panel and that the defendants had objected. In addition, the chairman sought a determination of how any costs or expenses charged by proposed panel members should be handled if the questions were allowed to be submitted. The circuit court determined that the parties were entitled to submit questions to proposed panel members, that the chairman had discretion to control the nature and number of questions, and that any charges by proposed panel members be charged and paid as other panel costs. The court then certified the matter for interlocutory appeal and this appeal followed.

Initially, we note that the medical malpractice act, IC 16-9.5-9-1 et seq. invests the courts with limited jurisdiction in medical malpractice claims until the statutory medical review panel has rendered its opinion. While IC 16-9.5-10-1 permits the trial court to compel discovery of matters relevant to the subject matter involved in the pending claim, no provision of the act purports to afford discovery procedures concerning potential members of the medical review panel.

Instead, the legislative scheme for providing fairness and acceptability of the panel members arises from their method of selection. After providing for the selection of the attorney member by agreement or by a process of striking from a list of five randomly selected attorneys from the county of venue or one of its adjoining counties, IC 16-9.5-10-1 provides that all health care providers (except health facility administrators) shall be available for selection; where the defendant is an individual, two of the panel members must be of the same profession as the defendant, and if he or she is a specialist, then two members must be of the same specialty.

Following the practice common in arbitration proceedings, the statute provides that each party (or side) may select and name one panel member and the two so named shall select the third....