COA dismisses provider’s appeal of ruling in med-mal case, finding ruling wasn’t a final judgment

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A provider cannot yet appeal a ruling in a medical malpractice complaint against him because the ruling at issue was not a final judgment, the Court of Appeals of Indiana ruled in a Tuesday dismissal.

According to court records, in December 2021, the estate of Ryan Askew filed a proposed complaint against Anonymous Provider 2 and two other parties with the Indiana Department of Insurance.

According to the complaint, Askew, a security guard at Community Hospital, died after being shot during an encounter with a mentally ill and dangerous patient. His estate alleged that the defendants committed medical malpractice in part by failing to timely and properly evaluate the patient and transfer the patient to an appropriate unit or facility for hospitalization and treatment.

In November 2022, Anonymous Provider 2 filed a Petition for Preliminary Determination of Law and 12(B)(1) Motion to Dismiss. The petition argued that the estate had exhausted its sole and exclusive remedy under the Worker’s Compensation Act and was seeking to “circumvent” that remedy by pursuing additional compensation under the Indiana Medical Malpractice Act.

The Lake Superior Court denied that petition in April, determining Askew had been employed by the hospital, but he and the physician were not co-workers under Indiana Code § 22-3-2-13(a).

Also, citing Indiana Trial Rule 54(B), the trial court ruled that a “final and appealable judgment is entered in favor of [the Estate] and against [AP2].”

The provider then filed a notice of appeal, but the estate moved to dismiss the appeal, arguing the trial court’s order was not a “final judgment.”

The Court of Appeals agreed and dismissed the provider’s appeal.

“Here, the only substantive claim is the Estate’s medical malpractice claim,” Judge Elaine Brown wrote. “The trial court’s order denying AP2’s motion to dismiss did not dispose of the Estate’s single claim. The court’s order did not possess the requisite degree of finality to be certifiable under Trial Rule 54(B) and did not constitute an appealable order under Appellate Rule 2(H)(2).

“… We cannot say the order falls into any of the remaining categories of Appellate Rule 2(H),” Brown continued. “Accordingly, the appealed order is not a final judgment under Appellate Rule 2. AP2 is therefore appealing from an interlocutory order.

“AP2 does not assert the right to appeal from the interlocutory order under Appellate Rule 14(A), there is no indication AP2 sought certification from the trial court or permission from this Court to file a discretionary interlocutory appeal, and AP2 has not stated a statutory right to appeal,” she concluded. “Accordingly, we dismiss the appeal and remand for further proceedings.”

Judges Nancy Vaidik and Cale Bradford concurred in Anonymous Provider 2 v. Estate of Ryan K. Askew, by Fonetta Askew, Personal Representative, 23A-CT-992.

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