ILNews

Appeals court reinstates proposed med mal complaint

Back to TopCommentsE-mailPrintBookmark and Share

Finding that a Hendricks County court didn’t have jurisdiction to dismiss a man’s proposed complaint for damages under Trial Rule 41(E) or based on noncompliance under the Medical Malpractice Act, the Indiana Court of Appeals Wednesday reinstated the proposed complaint.

John Mooney filed his proposed complaint for damages with the Indiana Department of Insurance in November 2007 alleging that a group of unnamed family care physicians and a group of cardiologists committed medical malpractice that caused Joseph Mooney’s 2005 injuries and death. Mooney’s attorney, Lance Cline, informed the attorney of the family care physicians, Marilyn Young, and the cardiologists’ attorney, Peter Pogue, that he believed discovery would take a while to complete due to his schedule and the amount of evidence he sought.

Several years went by without Cline completing the discovery, which included depositions from Young’s and Pogue’s clients. He sought extensions of the 180-day deadline, to which neither Young nor Pogue objected. In 2012, the family care physicians sought to dismiss the proposed complaint for failure to comply with Trial Rule 41(E) and the Medical Malpractice Act. In July 2012, Hendricks Superior Judge Stephenie LeMay-Luken granted the request, dismissing the complaint with prejudice.

In John H. Mooney, as Special Administrator of the Estate of Joseph S. Mooney, Deceased v. Anonymous M.D. 4, Anonymous M.D. 5, and Anonymous Hospital, 32A04-1208-CT-414, the Court of Appeals reversed after finding the trial court abused its discretion when it dismissed Mooney’s proposed complaint under I.C. 34-18-10-14. The trial court may grant relief under this section when a party, attorney or panelist has failed to act as required under the Medical Malpractice Act and good cause has been shown for the failure to act. But there was no submission schedule in place at the time of the physicians’ motion for a preliminary determination, Judge Edward Najam pointed out. When Cline objected to a proposed schedule set by the panel chairman, neither Young nor Pogue responded in any way. In addition, Young had previously agreed to extend the 180-day deadline if necessary.

Also, Cline didn’t sit idly by as Young alleged. He tried several times for more than a year to set up depositions with Pogue, who never responded, and Young also did not schedule times for depositions with her client.

The trial court also didn’t have jurisdiction to dismiss the proposed complaint under Trial Rule 41(E) because under the Medical Malpractice Act, only the commissioner of the Department of Insurance can file a motion to dismiss under this trial rule, Najam wrote.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

ADVERTISEMENT