Citing intentional delay, COA tosses med-mal complaint

January 31, 2018

The Indiana Court of Appeals has affirmed the dismissal of a medical malpractice complaint after determining the plaintiff engaged in intentional conduct over six years that delayed the panel proceedings.

In December 2010, Carrie Etta McGoffney and her daughter, Kelly, filed a proposed medical malpractice complaint with the Indiana Department of Insurance against Anonymous Skilled Nursing Facility. McGoffney’s estate filed a second amended proposed complaint in August 2015, and Sally Zweig agreed to serve as chair of the medical review panel.

Kelly McGoffney then began striking numerous nominations to the panel, telling Zweig her nominations were “horrible” and that she would not have suggested Zweig to serve as chair had McGoffney known who she would nominate. She then threatened to report the nursing facility’s counsel to the Indiana Supreme Court Disciplinary Commission for filing “frivolous motions” and “trying to delay the process.”

Zweig eventually resigned, and the facility moved for the trial court to sanction McGoffney for failure to comply with the Indiana Medical Malpractice Act. The facility presented nearly two dozen exhibits highlighting McGoffney’s conduct during the panel selection process, and the Marion Superior Court found that conduct to be “unreasonable and inappropriate.”

Thus, the court ordered the estate to pay $3,282 in attorney’s fees and costs to the facility, and ordered both parties to agree to a new panel chair. If McGoffney did not comply, she would be subject to additional sanctions.

Shortly after the parties agreed to a new chair, McGoffney sent an email claiming she never agreed to authorize the chair who had been selected, nor had she authorized any of her counsel’s actions in the case. The facility once again filed a motion against McGoffney, this time for dismissal of her complaint for failure to comply with the Medical Malpractice Act, and the trial court agreed.
Specifically, the court found McGoffney had not paid the attorney fees and had continued to unnecessarily delay the proceedings. After the court denied her motion to correct error, the estate appealed in Estate of Carrie Etta Mills McGoffney v. Anonymous Skilled Nursing Facility, 49A02-1707-MI-1657.

On appeal, the estate argued the trial court abused its discretion in dismissing its complaint, but the Indiana Court of Appeals upheld that decision Wednesday. Judge Elaine Brown wrote for the unanimous panel that after the second panel chair was appointed, McGoffney dismissed her counsel, advised the court she would be selecting another chair and directed the chair to “(s)top the process right now,” among other acts that delayed the panel process.

“Based on these circumstances where, six years after the original 2010 IDO filing, the Panel had yet to be formed and McGoffney persisted in prolonging its formation in disregard of the trial court’s clear directives otherwise … we cannot say the trial court erred or abused its discretion by determining … that McGoffney’s conduct was not only ‘dilatory and disobedient, but … intentional and contumacious,’” Brown wrote.


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