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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. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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