Angelique Lockett and Lanetra Lockett v. Planned Parenthood of Indiana, Inc., and Cathy McGee

Apr 17 2015, 9:28 am

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE

Kevin W. Vanderground Gregory A. Crisman

Church, Church, Hittle & Antrim Carly A. Brandenburg

Eichhorn & Eichhorn, LLP

Rick C. Gikas Hammond, Indiana

Merrillville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Angelique Lockett and Lanetra April 17, 2015

Lockett, Court of Appeals Case No.

45A05-1407-CT-340

Appellants-Plaintiffs,

Appeal from the Lake Superior Court

v. The Honorable William E. Davis,

Judge

Cause No. 45D05-1109-CT-175

Planned Parenthood of Indiana,

Inc., and Cathy McGee,

Appellees-Defendants

Bailey, Judge.

Case Summary

[1] Angelique Lockett (“Angelique”) and her mother Lanetra Lockett (“Lanetra”)

(collectively, “the Locketts”) appeal the trial court’s grant of summary

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judgment in favor of Planned Parenthood of Indiana, Inc. 1 (“Planned

Parenthood”) after Angelique, then a minor, intentionally misrepresented

herself to be eighteen-years-old and obtained an abortion at a Planned

Parenthood clinic without Lanetra’s consent. We affirm the trial court’s grant

of Planned Parenthood’s motion for summary judgment because the Locketts

failed to present their claims first to a medical review panel, as required by the

Medical Malpractice Act2 (“the MMA”), and thus the trial court lacked subject

matter jurisdiction over the claims. However, to the extent that the trial court’s

order appears to have dismissed the Locketts’ claims against defendant Cathy

McGee (“McGee”),3 we reverse and remand with instructions to correct the

order.

Issues

[2] The Locketts present three issues on appeal, which we consolidate and restate

as the following one: whether the trial court erred in granting Planned

Parenthood’s motion for summary judgment where the Locketts’ claims against

a health care provider based on an alleged failure to obtain informed consent

were not presented first to a medical review panel.

1

Now Planned Parenthood of Indiana and Kentucky, Inc.

2

Ind. Code § 34-18.

3

McGee is not a party to this appeal.

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[3] We also address sua sponte the status of the Locketts’ claims against McGee.

Facts and Procedural History

[4] In early 2010, then seventeen-year-old Angelique suspected she was pregnant

and informed her boyfriend’s mother, McGee. Present during the conversation

with McGee was Raven Francis (“Francis”), the girlfriend of another of

McGee’s sons. Although unsure if she was even pregnant, Angelique discussed

with McGee and Francis the possibility of obtaining an abortion at Planned

Parenthood. Francis, who was eighteen-years-old at the time, offered to loan

Angelique her Indiana State-issued identification card (“ID”) so that Angelique

could represent herself to Planned Parenthood as old enough to consent to

medical treatment. Francis’s boyfriend opined that Angelique and Francis

resembled each other, even though Angelique weighed twenty pounds less and

stood four inches shorter than the weight and height listed on Francis’s ID.

Angelique was skeptical that the ruse would work, but borrowed Francis’s ID.

[5] On January 22, 2010, unbeknownst to Lanetra, McGee took Angelique to

Planned Parenthood’s Merrillville office. Angelique stated that “the whole

purpose of going there was first to see if I was pregnant.” (App. 59.) Upon

arrival, Angelique represented herself to the office staff as eighteen-year-old

Francis, and McGee, using her own name, posed as Angelique’s mother.

Angelique presented Francis’s ID to the office staff, who looked at it and made

a copy. The employee who accepted the ID attested that she checked the ID,

“saw no reason to doubt the identity that the patient had presented” and

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“observed that the patient’s identification showed her age to be 18.” (App. 73.)

Angelique and McGee were then given forms to fill out, some of which McGee

filled out on Angelique’s behalf. Angelique also filled out forms, including at

least one on which she began to sign her actual name beginning with the letter

“A,” but adjusted to reflect the name “Raven Francis.”

[6] During the visit, Angelique underwent an ultrasound and blood and urine tests.

The tests confirmed that Angelique was in fact pregnant and in her first

trimester. After undergoing counseling outside of McGee’s presence,

Angelique forged the name “Raven Francis” on a form consenting to an

abortion and acknowledging that she had received the statutorily-prescribed

information regarding the procedure and abortion alternatives. McGee paid in

advance for the procedure. Angelique did not tell anyone at Planned

Parenthood that she was actually Angelique Lockett or that McGee was not her

mother.

[7] After a six day waiting period, Angelique returned to Planned Parenthood on

January 28, 2010, again represented herself as Raven Francis, and an abortion

was provided. McGee was not present at the beginning of the appointment, but

arrived later. Lanetra, who was not aware that her daughter was pregnant and

considering an abortion, did not consent to the procedure.

[8] On August 30, 2011, Angelique, now an adult, and Lanetra filed a complaint

against Planned Parenthood and McGee, alleging that Angelique and Lanetra

were harmed when Planned Parenthood’s physician performed an abortion on

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Angelique without Lanetra’s consent. Angelique and Lanetra specifically

alleged against Planned Parenthood the following two claims: strict liability for

failing to comply with Indiana Code chapter 16-34-2 (concerning requirements

for legal abortions, informed consent procedures, parental consent, and

criminal penalties for noncompliant physicians) and negligence for breaching

duties imposed by Indiana Code chapter 16-34-2. Angelique also brought

against both Planned Parenthood and McGee claims for assault, battery, and

negligent infliction of emotional distress.

[9] On December 5, 2013, Planned Parenthood filed a motion for summary

judgment, in which it argued that immunity provisions in the Health Care

Consent Act4 relieved Planned Parenthood of liability and that the Locketts

should be equitably estopped from pursuing their claims due to Angelique’s

misrepresentations. After the Locketts filed their response on May 28, 2014,

Planned Parenthood filed a reply brief on June 5, 2014 in which it also argued

that Indiana’s statutes governing abortion, including Indiana Code chapter 16-

34-2, do not create a private right of action for individuals such as the Locketts.

[10] On June 13, 2014, the trial court held a hearing on Planned Parenthood’s

motion for summary judgment. The court also heard argument on the

Locketts’ motion to strike portions of affidavits designated by Planned

Parenthood in support of its summary judgment motion.

4

See I.C. § 16-36-1-10(a).

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[11] On June 20, 2014, the trial court entered an order granting the Locketts’ motion

to strike certain evidence. The court also found: “There is no genuine issue that

the Statute I.C. § 16-34-2-4 [governing parental consent for abortions performed

on minors] does not confer on the Plaintiff a private right of action, which

would allow her to bring a civil suit against the Defendants.” (App. 1.) The

trial court then granted Planned Parenthood’s motion for summary judgment.

The court also dismissed the Locketts’ complaint in its entirety and entered

“Judgment for Defendants.”

[12] The Locketts now appeal the trial court’s grant of summary judgment in favor

of Planned Parenthood.

Discussion and Decision

Standard of Review

[13] Indiana Trial Rule 56 governs motions for summary judgment. Trial Rule

56(C) provides that a trial court shall grant summary judgment for the movant

“if the designated evidentiary matter shows that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter

of law.” When we review a grant or denial of a motion for summary judgment,

our standard of review is the same as for the trial court. Asklar v. Gilb, 9 N.E.3d

165, 167 (Ind. 2014). The moving party must show there are no genuine issues

of material fact and that the party is entitled to judgment as a matter of law. Id.

Summary judgment is improper if the moving party fails to carry its burden, but

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if it does, then the non-movant must present evidence establishing the existence

of a genuine issue of material fact. Id.

[14] When we decide whether summary judgment was properly granted or denied,

we consider only the evidence the parties specifically designated to the trial

court. T.R. 56(C), (H). We construe all facts and all reasonable inferences

established by the designated evidence in favor of the non-moving party.

Asklar, 9 N.E.3d at 167. “As a reviewing court, we are not limited to reviewing

the trial court’s reasons for granting or denying summary judgment but rather

may affirm a grant of summary judgment upon any theory supported by the

evidence.” Keaton & Keaton v. Keaton, 842 N.E.2d 816, 821 (Ind. 2006).

Claims against Planned Parenthood

[15] On appeal, the Locketts challenge the trial court’s grant of summary judgment

in favor of Planned Parenthood. Mindful that we may affirm a grant of

summary judgment “upon any theory supported by the evidence,” id., we

examine first whether the trial court had subject matter jurisdiction over the

Locketts’ claims against Planned Parenthood.

Subject Matter Jurisdiction

[16] Subject-matter jurisdiction is the power of a court to hear and decide a

particular class of cases. Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288

(Ind. Ct. App. 2006), trans. denied. To resolve the issue of subject-matter

jurisdiction, we must determine that the claim involved falls within the general

scope of authority conferred on a court by the Indiana Constitution or by

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statute. Id. Subject-matter jurisdiction cannot be waived and may be raised by

the parties or the court at any time, including on appeal. Id.

[17] Indiana Code section 34-18-8-4 provides that, with limited exceptions, “an

action against a health care provider may not be commenced in a court in

Indiana before: (1) the claimant’s proposed complaint has been presented to a

medical review panel . . . and (2) an opinion is given by the panel.” Therefore,

the MMA “grants subject-matter jurisdiction over medical malpractice actions

first to the medical review panel, and then to the trial court.” Putnam Cnty.

Hosp. v. Sells, 619 N.E.2d 968, 970 (Ind. Ct. App. 1993). “‘Until the panel

issues its opinion, the trial court has no jurisdiction to hear and adjudicate the

claim.’” Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App.

2014) (quoting Stafford v. Szymanowski, 13 N.E.3d 890, 897 (Ind. Ct. App.

2014)).

[18] The MMA defines “malpractice” as “a tort or breach of contract based on

health care or professional services that were provided, or that should have been

provided, by a health care provider, to a patient.” I.C. § 34-18-2-18. Under the

MMA, a “tort” is “a legal wrong, breach of duty, or negligent or unlawful act

or omission proximately causing injury or damage to another.” I.C. § 34-18-2-

28. “Health care” is defined as “an act or treatment performed or furnished, or

that should have been performed or furnished, by a health care provider for, to,

or on behalf of a patient during the patient’s medical care, treatment, or

confinement.” I.C. § 34-18-2-13. A “health care provider” includes “a

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corporation . . . licensed or legally authorized by this state to provide health

care or professional services as a . . . hospital. . . .” I.C. § 34-18-2-14(1).

[19] Under the MMA, a “patient” means “an individual who receives or should

have received health care from a health care provider, under a contract, express

or implied[.]” I.C. § 34-18-2-22. A patient also “includes a person having a

claim of any kind, whether derivative or otherwise, as a result of alleged

malpractice on the part of a health care provider.” I.C. § 34-18-2-22. The

statute further provides that “[d]erivative claims include the claim of a parent or

parents . . . including claims for loss of services, loss of consortium, expenses,

and other similar claims.” I.C. § 34-18-2-22.

[20] Neither the fact that the alleged misconduct occurs in a healthcare facility or

that the injured party was a patient of the facility or provider are dispositive as

to whether the claim sounds in medical malpractice. Madison Ctr., Inc. v.

R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006), trans. denied. The MMA

indisputably concerns itself with the behavior or practices of a physician acting

in his or her professional capacity as a provider of medical services, but does

not apply to acts or omissions of a health care provider unrelated to or outside

the provider’s role as a health care professional. Collins v. Thakkar, 552 N.E.2d

507, 510 (Ind. Ct. App. 1990), trans. denied. Furthermore, the language of the

MMA, “read with due regard to the subject matter, suggests actions undertaken

in the interest of or for the benefit of the patient’s health, i.e. conduct engaged

in by a physician which is curative or salutary in nature or effect.” Id. It thus

excludes from its scope “conduct of a provider unrelated to the promotion of a

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patient’s health or the provider’s exercise of professional expertise, skill or

judgment.” Id. “It is therefore the substance of a claim, not its caption, which

determines whether compliance with the [MMA] is necessary.” Van Sice v.

Sentany, 595 N.E.2d 264, 266 (Ind. Ct. App. 1992).

[21] Here, there is no question that Planned Parenthood qualifies as a “health care

provider” under the MMA. Health care providers include hospitals, I.C. § 34-

18-2-14(1), and the MMA defines a “hospital” as “a public or private institution

licensed under IC 16-21-2.” I.C. § 34-18-2-16. Abortion clinics, such as

Planned Parenthood’s Merrillville office, are licensed under Indiana Code

section 16-21-2. See I.C. § 16-21-2-1.

[22] Angelique presented at Planned Parenthood, a health care provider, seeking

health care services: specifically, a pregnancy test, ultrasound, and ultimately an

abortion procedure performed by a physician at a licensed clinic. Under

Indiana law, legal abortions occur for reasons and in circumstances

determinable only in “the professional, medical judgment of the pregnant

woman’s physician.” I.C. §§ 16-34-2-1(a)(1)-(3). Thus, the abortion provided

to Angelique at a licensed clinic by a licensed physician falls squarely within the

MMA’s definition of “health care.” See I.C. § 34-18-2-13.5

5

We find the case at hand clearly distinguishable from Collins, 552 N.E.2d 507, in which a panel of this

Court confronted the applicability of the MMA to a case involving abortion. As succinctly summarized in

Boruff v. Jesseph, “[i]n Collins, the plaintiff alleged the defendant physician was her lover, and that he had

committed a battery against her by deliberately, wrongfully, and painfully aborting their fetus immediately

after performing a pelvic exam on the plaintiff and lying to her that she was not pregnant.” 576 N.E.2d 1297,

1298 (Ind. Ct. App. 1991). The Collins court held that the MMA did not apply to such “wanton and

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[23] As an individual who sought health care from a health care provider, Angelique

unquestionably qualifies as a “patient” under the MMA. See I.C. § 34-18-2-22.

Although Lanetra did not directly receive health care from Planned

Parenthood, as Angelique’s mother, she also qualifies as a patient to the extent

that she has “a claim of any kind, whether derivative or otherwise, as a result of

alleged malpractice on the part of a health care provider.” I.C. § 34-18-2-22.

[24] Turning to the substance of the Locketts’ claims, they allege five theories of

recovery all arising out of the same act. As succinctly explained in their brief,

“the act that is complained of” is Planned Parenthood’s “failure to obtain

voluntary and informed consent before performing an abortion” and that this

failure was “the direct cause of the injuries suffered by both Lanetra and

Angelique Lockett.” (Appellant’s Br. 17.) More specifically, the alleged wrong

is that Planned Parenthood’s patient intake procedures were inadequate to

detect Angelique’s intentional misrepresentations about her identity, age, and

ability to consent to medical treatment. Because Angelique was in fact a minor,

and Lanetra did not provide her consent, the Locketts allege that Planned

Parenthood failed to obtain informed consent before providing health care to

Angelique and that the failure led to both Angelique’s and Lanetra’s injuries.

gratuitous” conduct undertaken “without the patient’s consent and despite her protests[,]” reasoning that

“[i]n no way can it logically be said that the legislature intended such behavior to constitute the rendition of

health care or professional services.” Collins, 552 N.E.2d at 511. No such wanton and gratuitous conduct is

at issue here, where Angelique presented at a licensed clinic as a patient seeking professional health care

services.

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[25] The duty to obtain informed consent “arises from the relationship between the

doctor and patient, and is imposed as a matter of law as are most legal duties.”

Culbertson v. Mernitz, 602 N.E.2d 98, 101 (Ind. 1992) (citation and quotation

marks omitted). In obtaining informed consent, a physician must comply with

the standard of a reasonably prudent physician. Id. at 104. Complete lack of

informed consent to a harmful touching in the medical context traditionally was

viewed as a battery claim. Spar v. Cha, 907 N.E.2d 974, 979 (Ind. 2009). See

also Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007) (“Failure to

obtain informed consent in the medical context may result in a battery.”).

More recently, unless there is a complete lack of consent, the theory is

considered a specific form of negligence for breach of the required standard of

professional conduct. Spar, 907 N.E.2d at 979. Regardless of the caption, it is

now well-settled in Indiana law that,“[i]n the course of rendering professional

services to a patient, a physician’s acts of negligence, including acts which

constitute a breach of the duties to disclose information and obtain informed

consent, are malpractice.” Boruff, 576 N.E.2d at 1299. Furthermore, we

observe that cases in which patients have alleged a lack of informed consent,

but in which the applicability of the MMA is not specifically raised as an issue,

generally have proceeded under the MMA. See, e.g., Spar, 907 N.E.2d 974;

Mullins, 865 N.E.2d 608; Culbertson v. Mernitz, 602 N.E.2d 98 (Ind. 1992);

Cacdac v. West, 705 N.E.2d 506 (Ind. Ct. App. 1999), trans. dismissed; Auler v.

Van Natta, 686 N.E.2d 172 (Ind. Ct. App. 1997), trans. denied.

[26] With this background in mind, we examine each of the Locketts’ claims in turn.

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Assault & Battery

[27] Assault “is effectuated when one acts intending to cause a harmful or offensive

contact with the person of the other or an imminent apprehension of such

contact.” Cullison v. Medley, 570 N.E.2d 27, 30 (Ind. 1991) (citing Restatement

(Second) of Torts § 21 (1965)). An actor is subject to liability for battery if “(a)

he acts intending to cause a harmful or offensive contact with the person of the

other or a third person, or an imminent apprehension of such a contact, and (b)

a harmful contact with the person of the other directly or indirectly results.’”

Mullins, 865 N.E.2d at 610 (quoting Restatement (Second) of Torts § 13 (1965)).

In short, “assault creates an apprehension of imminent harmful or offensive

contact, while battery is the intentional harmful or offensive contact.” Knight v.

Ind. Ins. Co., 871 N.E.2d 357, 362 (Ind. Ct. App. 2007).

[28] The Locketts allege that Planned Parenthood’s physician assaulted and battered

Angelique when he performed an abortion at a licensed clinic without first

obtaining consent. These claims fall squarely within the purview of the MMA.

See Van Sice, 595 N.E.2d at 267 (finding that plaintiff’s complaint, even though

captioned as battery, alleged a failure to obtain informed consent and thus fell

within the scope of the MMA).

Negligent Infliction of Emotional Distress

[29] The right to seek damages for emotional distress in actions for negligence, often

referred to as actions for negligent infliction of emotional distress, is carefully

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circumscribed under Indiana jurisprudence. Spangler v. Bechtel, 958 N.E.2d 458,

466 (Ind. 2011). As our supreme court has explained:

[A]ctions seeking damages for emotional distress resulting from the

negligence of another are permitted in two situations: where the

plaintiff has (1) witnessed or come to the scene soon thereafter the

death or severe injury of certain classes of relatives (i.e., the bystander

rule), or (2) suffered a direct impact (i.e., the modified impact rule).

Id. (citations omitted).

[30] Angelique’s negligent infliction of emotional distress claim is based on a direct

impact theory, in which she seeks to recover for emotional trauma sustained as

the result of a direct impact, that is, the abortion. To recover from Planned

Parenthood on this claim, Planned Parenthood’s negligence must be the

proximate cause of the direct impact Angelique sustained. See id. at 466

(explaining that the modified impact rule arises when the defendant owes a

legal duty to the plaintiff or a third-party and the direct impact to the plaintiff is

proximately caused by the defendant’s breach of that duty).

[31] Here, the negligence complained of is Planned Parenthood’s inadequate patient

screening procedures, the result of which was the provision of a medical

procedure to Angelique without informed consent. Again, Angelique’s claim

for negligent infliction of emotional distress arising out of a medical procedure

performed without informed consent sounds in medical malpractice and is

subject to the MMA.

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Statutory Claims

[32] The Locketts’ first two counts, brought by both Angelique and Lanetra, are

premised on alleged violations of Indiana Code chapter 16-34-2. Though more

broadly pleaded, this case implicates two specific sections of the chapter: the

informed consent and parental consent requirements. 6 Section 16-34-2-1.1

provides that a physician may only perform an abortion with the “voluntary

and informed consent of the pregnant woman upon whom the abortion is to be

performed[,]” and specifies an exhaustive list of procedures that must be

followed before a physician is considered to have obtained voluntary and

informed consent. See I.C. § 16-34-2-1.1(a)(1)-(4). Section 16-34-2-4 provides

that “[n]o physician shall perform an abortion on an unemancipated pregnant

woman less than eighteen (18) years of age without first having obtained the

written consent of one (1) of the parents or the legal guardian of the minor

pregnant woman.” I.C. § 16-34-2-4(a). However, a minor who objects to the

parental consent requirement or whose parent or legal guardian refuses to

consent may petition the juvenile court for a waiver of the requirement by

following the statutory procedures. I.C. § 16-34-2-4(b). A physician may also

petition for a waiver in certain circumstances. I.C. § 16-34-2-4(c). The juvenile

court shall waive the parental consent requirement “if the court finds that the

minor is mature enough to make the abortion decision independently or that an

6

In their brief, the Locketts approach their statutory claims even more narrowly, focusing only on section 16-

34-2-4.

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abortion would be in the minor’s best interests.” I.C. § 16-34-2-4(d). Parental

consent requirements generally reflect a legislative judgment that, “[a]s

immature minors often lack the ability to make fully informed choices that take

account of both immediate and long-range consequences, . . . parental

consultation often is desirable and in the best interest of the minor.” Bellotti v.

Baird, 443 U.S. 622, 640 (1979) (Bellotti II). Informed consent is the basis of

parental consent requirements.

[33] We think it is clear that the statute supplements the common law with respect

to a physician’s duty to obtain informed consent when providing an abortion.

The statute provides that “consent to an abortion is voluntary and informed

only if” the specific statutory conditions are met, I.C. § 16-34-2-1.1(a) (emphasis

added), and, in the case of unemancipated minors, parental consent or a

judicial waiver is obtained. The physician still has a duty to obtain informed

consent, but for this particular health care service, the legislature has expressly

established a standard of care to which a physician must adhere.

[34] Although the statute provides the standard of care, the statute has not altered

the basic nature of the Locketts’ alleged wrong: that Planned Parenthood

provided health care to Angelique without first obtaining the patient’s informed

consent. Angelique’s injuries flow directly from an alleged failure to follow the

statute’s informed consent and parental consent provisions before providing her

an abortion. Lanetra also claims injury arising from Planned Parenthood’s

failure to obtain her consent before providing care to Angelique; as such,

Lanetra’s claims are derivative of Angelique’s claims. See I.C. § 34-18-2-22.

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[35] When the act complained of is a negligent failure to obtain informed consent in

the course of rendering professional services to a patient, the act sounds in

malpractice. See Boruff, 576 N.E.2d at 1299. And where the claims allege

medical malpractice, the Locketts cannot ignore the MMA’s procedural dictates

and side-step our legislature’s grant of subject matter jurisdiction to the medical

review board simply by framing their claims as violations of Indiana Code

chapter 16-34-2.

[36] In sum, our examination of the complaint and designated facts reveals that,

regardless of the individual claim captions, the gravamen of the Locketts’

complaint against Planned Parenthood is that the Locketts suffered injury when

a health care provider, in the course of rendering professional services to a

patient, failed to obtain informed consent. Each of their claims sounds in

medical malpractice and fits squarely and firmly within the purview of the

MMA. Thus, the Locketts’ complaint should have been presented first to a

medical review panel.7 Because the Locketts failed to follow the procedural

dictates of the MMA, the trial court had no power to adjudicate the Locketts’

claims. Accordingly, the trial court did not err in granting summary judgment

in favor of Planned Parenthood and dismissing the Locketts’ claims against

Planned Parenthood.

7

Presentation to the medical review panel is not necessary where all defendants agree to proceed directly to

court or the patient’s pleadings include a declaration that the patient seeks damages of fifteen thousand

dollars or less. I.C. §§ 34-18-8-5 & 34-18-8-6(a). We see no such agreement in the record or damages

limitation in the complaint.

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Claims against McGee

[37] We turn our attention now to the Locketts’ claims against McGee. In its order,

the trial court granted Planned Parenthood’s motion for summary judgment.

The court also purportedly dismissed the Locketts’ complaint in its entirety and

entered “Judgment for Defendants,” even though McGee may not have been

served.

[38] The Locketts’ statement of the case asserts that “McGee has never appeared

and no default was entered against her[.]” (Appellant’s Br. 1.) We note that

Trial Rule 55(B) requires that “[i]n all cases the party entitled to a judgment by

default shall apply to the court therefor;” however, it does not appear from the

record that the Locketts have moved for default judgment. Moreover, to the

Locketts’ point that McGee has not appeared, it is unclear whether the Locketts

have ever successfully served McGee. The Chronological Case Summary

(“CCS”) contains two entries on September 30, 2011, showing that service of

the summons and complaint was attempted on McGee by certified mail on

September 6, 2011 and returned on September 30, 2011. One entry states

“ACCEPTED,” while the other indicates “Unsuccessful – Unclaimed.” (App.

6.) Then, on August 16, 2012, the CCS contains an entry showing that the

Locketts attempted to serve by sheriff an alias summons and complaint.

According to an August 27, 2012 entry in the CCS, service by sheriff was

returned as “Unsuccessful – Moved” with the comment “BOARDED UP

ABANDONED PER SGT. L. SMITH ON 8/24/201[2].” (App. 6.)

Thereafter, the CCS contains no additional entries of attempted service on

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McGee, but notes “returned mail addressed to Cathy McGee” on February 25,

2014 (App. 4), and “MAILE[D] PLEADINGS OF 6-20-14 RETURNED

UNABLE TO FORWARD ON CATH[Y] MCGEE RECEIVED 7-14-14” on

July 16, 2014. (App. 3.)

[39] The fact that McGee did not move for summary judgment does not preclude

the trial court from sua sponte granting summary judgment to McGee on any

issues raised by Planned Parenthood. See T.R. 56(B) (“When any party has

moved for summary judgment, the court may grant summary judgment for any

other party upon the issues raised by the motion although no motion for

summary judgment is filed by such party.”) Nevertheless, since it appears that

McGee has not been served, we think the court’s order granting “Judgment for

Defendants” and dismissing the complaint entirely was premature. Moreover,

although the claims the Locketts state against McGee are framed identically to

those brought against Planned Parenthood, McGee’s role in encouraging

Angelique’s misrepresentation to Planned Parenthood places McGee in a

substantially different position than Planned Parenthood. In this respect, we

believe the trial court’s order was also overly-broad. We accordingly remand

this case to the trial court to correct its order as to the claims against McGee

and for further proceedings.

Conclusion

[40] The trial court did not err in entering summary judgment in favor of Planned

Parenthood on all of the Locketts’ malpractice claims brought against Planned

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Parenthood. However, because the trial court’s order was premature and

overly-broad with respect to claims brought against defendant McGee, we

remand with instructions to correct the order and for further proceedings

consistent with this opinion.

[41] Affirmed in part, reversed in part, and remanded.

Robb, J., and Brown, J., concur.

Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 20 of 20