Whitaker v. St. Joseph's Hospital, 3-479A103
| Decision Date | 29 January 1981 |
| Docket Number | No. 3-479A103,3-479A103 |
| Citation | 415 N.E.2d 737 |
| Parties | Dorothy WHITAKER and Harold Whitaker, Plaintiffs/Appellants, v. ST. JOSEPH'S HOSPITAL, Nermin D. Tutunji, M. D. and VanFleit, M. D. and Associates, Inc., Defendants/Appellees. |
| Court | Indiana Appellate Court |
Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, Kokomo, Edward A. Zych, Matthews-Petsche & Associates, South Bend, for plaintiffs/appellants.
Arthur A. May, Vincent P. Campiti, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for St. Joseph's Hospital.
Edward N. Kalamaros, Joseph M. Forte, Edward N. Kalamaros & Associates, Professional Corporation, South Bend, for other defendants/appellees.
Dorothy D. Whitaker and her husband, Harold Whitaker, brought a medical malpractice action against Dr. Nermin D. Tutunji, VanFleit, M. D. and Associates (Associates) and St. Joseph's Hospital. The trial court granted motions for summary judgment made by Dr. Tutunji and Associates. After a trial as to the remaining defendant, St. Joseph's Hospital, the jury returned a verdict for the hospital and against the Whitakers. Judgment was entered accordingly.
On appeal, the Whitakers raise a number of issues for our consideration. For clarity's sake, we have consolidated similar queries.
(1) Because of the Whitakers' reliance upon the incorrect information supplied by the Indiana Department of Insurance, was the granting of the summary judgments as to Dr. Tutunji and Associates contrary to law?
(2) Were they denied a fair trial because of the absence of Dr. Tutunji and Associates from the trial?
(3) Were the Whitakers' constitutional rights violated by the application of the Indiana Medical Malpractice Act, IC 1971, 16-9.5-1-1 et seq. to their case?
(4) Did the trial court err in giving and in refusing to give certain instructions?
(5) Was the jury properly instructed as to the law applicable to the facts of the case?
(6) Did the trial court err by re-reading certain instructions to the jury?
(7) Did the trial court err by refusing to admit the hospital records?
We affirm.
In the case at bar, the motion for summary judgment as to Dr. Tutunji was entered on November 17, 1978; the summary judgment as to Associates was granted on January 30, 1979. The jury verdict was rendered on March 29, 1979.
Because the trial court resolved the issues as to the various parties at different times, Dr. Tutunji and Associates question whether the judgments entered were "final judgments" from which an appeal may be taken. We note that this situation is not one in which a party seeks to appeal a ruling prior to the determination of all of the issues as to all of the parties. See Krueger v. Bailey (1980), Ind.App., 406 N.E.2d 665, for a discussion of Ind.Rules of Procedure, Trial Rule 54(B) and TR. 56(C).
The summary judgments as to Dr. Tutunji and Associates disposed of less than all of the claims as to all of the parties. They were interlocutory in nature and not final for appeal purposes as they were not "certified" by the trial court for review. TR. 56(C); Krueger, supra, at 667.
With the rendering of the verdict as to St. Joseph's Hospital, there was a judgment which disposed of, with all finality the issues between each of the parties. There was nothing left for further determination. Todd v. State (1951), 229 Ind. 664, 101 N.E.2d 45, 56. The Whitakers' motion to correct errors encompassed the alleged errors involved in the granting of the earlier summary judgments as well as the alleged errors pertaining to the jury trial with the remaining defendant, St. Joseph's Hospital. Their appeal is properly framed and we conclude that the cause is before us.
The Whitakers contend that because of their reliance upon the incorrect information supplied by the Indiana Department of Insurance, the granting of the summary judgments as to Dr. Tutunji and Associates was contrary to law.
At the time the Whitakers' cause of action arose, Dr. Tutunji and Associates were qualified as health care providers 1 under the provisions of the Indiana Medical Malpractice Act (Act), IC 1971, 16-9.5-1-1 et seq. As a result, the Whitakers were required by the Act to present their complaint to a medical review panel before they could commence an action in a state court. IC 1971, 16-9.5-9-2. They, however, failed to comply. The trial court granted the motions for summary judgments made by Dr. Tutunji and Associates accordingly.
The Whitakers' pivotal argument on appeal questions the impact of the incorrect information given by the Indiana Department of Insurance upon their non-compliance with the Act. In their "verified objection" to the motions for summary judgment, their attorney swore, under oath, that on October 24, 1977, 2 he had called the Department of Insurance in Indianapolis to check upon the status of Dr. Tutunji and Associates. 3 The attorney stated that he had been assured by that office that there was no record of premium payments 4 having been made by Dr. Tutunji or Associates. Relying upon the section of the Act which deals with health care providers who fail to qualify under the Act, IC 1971, 16-9.5-1-5, the Whitakers filed their action accordingly.
On appeal, the Whitakers urge that the granting of the summary judgments was improper because there was a genuine issue of material fact raised by the October 24, 1977 conversation. They contend that it is for the jury to decide the validity of this conversation and the weight to be assigned to it.
In making this contention, they rely solely upon their aforementioned "verified objection," which the trial court properly characterized as a TR. 56(C) affidavit in opposition to the motions for summary judgment. As such, it was subject to the requirements of TR. 56(E):
The party seeking a summary judgment has the burden of establishing that there is no genuine issue as to any material facts and any doubt must be resolved against the movant. Ang v. Hospital Corp. of America (1979), Ind.App., 395 N.E.2d 441. In determining whether to grant a motion for summary judgment, the court considers the facts set forth in the non-moving party's affidavits as true. Ang, supra. A court may properly grant a summary judgment only if no issue as to a material fact is raised. Poxon v. General Motors Acceptance Corp. (1980), Ind.App., 407 N.E.2d 1181, 1184.
Affidavits which support and oppose motions for summary judgment must be made on personal knowledge. Additionally, they must affirmatively show that the affiant is competent to testify as to the matters covered as well as set forth facts as would be admissible in evidence. TR. 56(E); Podgorny v. Great Central Insurance Co. (1974), 160 Ind.App. 244, 311 N.E.2d 640, 648; Renn v. Davidson's Southport Lumber Co., Inc. (1973), 157 Ind.App. 446, 300 N.E.2d 682, 685.
The court, in the case at hand, struck the portion of the Whitakers' "verified objection" which indicated that the Department of Insurance had no record of premium payments having been made by Dr. Tutunji or Associates. 5 It properly concluded that the affiant was not competent to testify as to this hearsay evidence and, as a result, such evidence would be inadmissible at trial. While their attorney's statement may be used to indicate that he believed, in good faith, that Dr. Tutunji and Associates were not qualified, it may not be used to indicate the truth of the matter asserted. See Indianapolis Newspapers, Inc. v. Fields (1970), 254 Ind. 219, 259 N.E.2d 651, 673, for a detailed discussion of the hearsay rule in Indiana.
In light of the remaining assertions in the Whitakers' "verified objection," there was no competent evidence presented to establish that Dr. Tutunji and Associates were not qualified health care providers. In fact, insurance commissioner Cooper's affidavits, supporting the motions for summary judgment, indicated to the contrary.
We are constrained, as was the trial court, to view this "verified objection" in terms of a TR. 56(E) affidavit. As such, we conclude that there was no admissible evidence which would give rise to a genuine issue of material fact with regards to the qualifications or lack thereof of Dr. Tutunji and Associates under the Act. Dr. Tutunji and Associates have met their burden of establishing the non-existence of a genuine issue of a material fact. The Whitakers have failed to show otherwise.
The Whitakers next contend that Dr. Tutunji and Associates were not entitled to the summary judgments as a matter of law because of the mistake, surprise or excusable neglect on the part of the Indiana Department of Insurance. They filed a motion in this regard with the trial court. In its denial of their Motion for Relief from Summary Judgment, the court explained its reasoning:
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