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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. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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