Appeals court reinstates proposed med mal complaint

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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.



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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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