ILNews

Proposed med mal complaint fee divides Court of Appeals

Back to TopCommentsE-mailPrintBookmark and Share

In a dissent from Judge Nancy Vaidik involving a proposed medical malpractice complaint filed with the Department of Insurance before filing fees were paid, Vaidik claimed Judge James Kirsch created a new test to determine whether a complaint is timely filed and shifted the burden of ensuring fees are paid to the Department of Insurance instead of the attorney.  

In Ann L. Miller and Richard A. Miller v. Glenn L. Dobbs, D.O., and Partners in Health, 15A05-1108-CT-431, the majority reversed the grant of summary judgment for Dr. Glenn Dobbs and Partners in Health on the issue of whether Ann and Richard Miller’s proposed medical malpractice complaint was timely filed with the DOI. Ann Miller had a stroke a few weeks after giving birth.

The complaint was mailed March 18, 2008, within the two-year statute of limitations, but the $7 filing fee was not included. The attorney sent the fee on the date the statute of limitations expired, and the department file-stamped the proposed complaint April 7, 2008.

Indiana Code 34-18-7-3(b), in the Medical Malpractice Act, provides that, “A proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” Indiana Code 34-18-8-2 provides that the filing fees “must accompany each proposed complaint filed.”

Kirsch decided the matter is not controlled by Supreme Court precedent, which has said filing fees must be filed with the complaint within the statute of limitations or the complaint is considered untimely. He wrote the case should be decided on the merits and can proceed two ways: treat the proposed complaint as unfiled until the fees are paid, or treat the complaint as filed and issue a show cause to the plaintiffs that they must pay the fee “in short order.” He went with the second option as it will allow the parties to proceed to determine the complaint on the merits.

Judge Elaine Brown concurred in result, writing, “… under the MMA, filing the proposed complaint by delivering or mailing by registered or certified mail, by itself, tolls the statute of limitations.” Under I.C. 34-18-7-3(b), the limitations period was tolled beginning on that date, and under I.C. 34-18-8-2, the Millers had to pay the $7 in fees to commence their action, which they satisfied in short order, she wrote.

Vaidik argued that Kirsch’s opinion creates a new test that is “fraught with problems.” She questioned where the line would be drawn in his test in other cases regarding how late the fees were paid and how much was owed. Requiring the trial courts and DOI to file show-cause orders to ensure that filing and processing fees are paid goes “too far,” and that burden should remain on attorneys, she wrote.

She believes Supreme Court precedent applies to this case, and that the statute is clear that a proposed medical malpractice complaint isn’t considered filed until the fees are paid.

“We should expect a minimum level of competence from the attorneys who practice in this State, and this minimum level of competence includes knowing that the filing and processing fees must be included with a proposed complaint in order for it to be considered filed,” she 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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

ADVERTISEMENT