The Court of Appeals recently decided  Mooney v. Anonymous.  The trial court dismissed the plaintiff’s proposed medical malpractice complaint after repeated delays stating:

And the Court, having read the Motion, having heard oral argument, and being duly advised, now finds that the Plaintiff has failed to prosecute his case, and has failed to show good cause for failing to file his medicalreview panel submission within the statutory 180-day deadline and comply with the provisions of the Indiana Medical Malpractice Act, and[,] therefore, the Motion for Preliminary Determination of Law should be granted.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff’s Proposed Complaint, pending before the Indiana Department of Insurance, is hereby dismissed, with prejudice, in its entirety, as to Defendants [Anonymous Hospital, Anonymous M.D. 4, and Anonymous M.D. 5].

On appeal, the Court of  Appeals reversed and explained when a trial court can dismiss a proposed complaint stating:

As this court explained in Adams, 874 N.E.2d at 1041-42,

under the Medical Malpractice Act (“the Act”),[] there are three ways a trial court can grant relief before the medical review panel has issued its opinion. First, Indiana Code section 34-18-11-1(a) states that a trial court has the power to “preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure” and “compel discovery in accordance with the Indiana Rules of Procedure.” This grant of authority is limited to “deciding issues of law or fact that may be preliminarily determined under Trial Rule 12(D), and compelling discovery pursuant to Trial Rules 26 through 37, inclusively.” Griffith v. Jones, 602 N.E.2d 107, 110 (Ind. 1992).

Second, Indiana Code section 34-18-8-8 permits the Commissioner [of the Indiana Department of Insurance], on the Commissioner’s own motion or on the motion of a party, to “file a motion in Marion county circuit court to dismiss the case under Rule 41(E) of the Indiana Rules of Trial Procedure” if action has not been taken on the case for at least two years.

Finally, a trial court can grant relief under Indiana Code section 34-18-10-14[.]

Accordingly, here, because a party, and not the Commissioner, moved to dismiss under Trial Rule 41(E), the trial court was without jurisdiction to rule on that motion.

The Court of Appeals  reasoned that since the panel chair had not set a submission schedule and the parties had implicitly agreed to extend the 180 day panel opinion deadline, that the court did not have the authority to dismiss the case.  The Court also noted that a trial court can grant relief under Indiana Code Section 34-18-10-14 only when two conditions have been met: 1) a party, attorney, or panelist has failed to act as required by Indiana Code Chapter 34-18-10 and 2) good cause has not been shown for the failure to act. Id. at 1042-43.    The Plaintiff did not fail to comply with a trial rule or fail to prosecute and thus the trial court did not meet any of the three grounds identified above.

 

 

 

http://scholar.google.com/scholar_case?case=5377431768246271411&q=medical+malpractice+41+2013&hl=en&as_sdt=4,15&as_ylo=2013

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