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‘So it goes:’ conflicted COA affirms barring estate’s med-mal claim

December 13, 2017

The estate of a woman who died after she was treated by emergency medical technicians cannot sue the EMTs, the Indiana Court of Appeals affirmed Wednesday. But one judge who joined the decision wrote he was “wholly dissatisfied with this outcome” and believes the decision will encourage “legal gamesmanship” by medical malpractice defendants.

In a case marked by confusion from the Indiana Department of Insurance and uncooperative defendants, the Indiana Court of Appeals nevertheless affirmed the trial court’s grant of summary judgment in favor of the defendants on a statute of limitations basis.

The estate of Margo Sue Rumell sued an ambulance service and EMTs individually after she was treated for a medical episode she experienced while boating on Simonton Lake in Elkhart on July 19, 2013.  EMTs from Osolo Emergency Medical Services Inc. sought to resuscitate her, including with the placement of an endotracheal breathing tube. A coroner’s verdict concluded the cause of Rumell’s death was cardiomegaly “complicated by moderate coronary artery disease; placement of esophageal endotracheal tube.” The final coroner’s report did not mention placement of the endotracheal tube.

After the the estate filed a proposed medical malpractice claim with the Indiana Department of Insurance on July 9, 2015, questions arose about whether the defendants were qualified health care providers covered by the Medical Malpractice Act. IDOI initially determined in a letter dated July 22, 2015, that defendants were non-qualified, but later informed an attorney for the estate that the department “lacked definitive proof.”

In October 2015, the estate filed a medical malpractice complaint in Elkhart Superior Court, and earlier this year, the court entered summary judgment in favor of the EMTs. The trial court held the complaint was barred by the two-year professional services statute of limitations.

The Indiana Court of Appeals affirmed in Betty J. Rumell, as Personal Representative of the Estate of Margo Sue Rumell, Deceased v. Osolo Emergency Medical Services, Inc., Todd Byrket, Julie Calloway, and Kim Bryan, 20A03-1704-CT-747.

The COA relied on precedent cases that “provide that a medical malpractice plaintiff enjoys the tolling of the statute of limitations only for as long as it takes the IDOI to come to and communicate its determination of the provider’s status under the MMA. Once the plaintiff is ‘informed’ or ‘notified’, the statute of limitations recommences,” Judge Robert Altice wrote for the panel.

“In sum, we hold that the applicable statute of limitations was tolled from July 9, 2015, when the Estate filed the proposed complaint with the IDOI until on or about July 22, 2015, when the Estate received the IDOI’s letter informing the Estate that the Defendants were not qualified health care providers under the MMA. The Estate thus had until on or about August 3, 2015, to file its complaint for damages with the court. As such, the Estate’s complaint, which was filed on October 15, 2017, was time-barred.”

In a separate concurrence, Judge John Baker wrote he was compelled to follow the caselaw, even though he decried “the reality of the gamesmanship inherent in the setup of this legal field.” He echoed the appellate panel’s advice to attorneys who represent malpractice claimants.

“If the IDOI indicates a possibility that a defendant is not a qualified healthcare provider under the MMA, the best practice for the plaintiff’s attorney is to immediately file a complaint with a trial court before the statute of limitations expires,” Baker wrote. “Should it later become apparent that the defendant is, in fact, a qualified healthcare provider, then the litigation can be stayed during proceedings at the IDOI. But to work around uncooperative defendants and outrace an expiring statute of limitations, the lawsuit should be filed while the rest of it is figured out.

“I regret that this is where we find ourselves in medical malpractice litigation, but in the immortal words of Kurt Vonnegut, ‘So it goes.’”

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