The opinion
Jul 08 2015, 10:27 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Morris L. Klapper George M. Plews
Indianapolis, Indiana Tonya J. Bond
Josh S. Tatum
Plews Shadley Racher & Braun, LLP
Indianapolis, Indiana
Lara D. Engelking
Engelking Law Group, LLC
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Virginia Tramill, Miah Gant, July 8, 2015
Marquel Cheaney and Jeremiah Court of Appeals Case No.
Tramill, the Mother and 49A02-1408-CT-528
Children Appeal from the Marion Superior
of Sara Tramill, Deceased, Court
Cause No. 49D13-1308-CT-32116
Appellant-Defendant, The Honorable Timothy Oakes,
Judge
v.
Anonymous Healthcare
Provider,
Appellee-Plaintiff.
Barnes, Judge.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 1 of 15
Case Summary
[1] Virginia Tramill, Miah Gant, Marquel Cheaney, and Jeremiah Tramill
(collectively, “the Appellants”) appeal the trial court’s denial of their motion for
declaratory judgment in a proposed medical malpractice action against
Anonymous Healthcare Provider (“the Facility”). On cross-appeal, the Facility
appeals various trial court orders related to medical review panel proceedings.
We affirm in part and reverse in part.
Issues
[2] The Appellants raise one issue, which we restate as:
I. whether the trial court properly denied their request for
declaratory judgment.
On cross-appeal, the Facility raises one issue, which we restate as:
II. whether we have authority to consider the trial court’s rulings
on various motions related to the medical review panel
proceedings.
Facts
[3] On November 23, 2009, Sara Tramill, the daughter and mother of the
Appellants, was in the care of the Facility following a stroke and died. A
private autopsy was performed by Dr. E. Allen Griggs to determine the cause of
Sara’s death. Dr. Griggs determined that the cause of death was respiratory
arrest due to “[a]spiration of blood and mucous into tracheo-bronchial tree and
lungs[.]” Appellee’s App. p. 101.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 2 of 15
[4] In January 2011, the Appellants filed a proposed medical malpractice
complaint alleging that the Facility negligently caused Sara’s death. The
Facility retained Dr. John Pless as an expert. Dr. Pless prepared a lengthy
affidavit, which was critical of Dr. Griggs’s autopsy and opined in part “that
Dr. Griggs has not presented a clear and balanced autopsy report . . . . It is also
my opinion that the reports have been specifically crafted by Dr. Griggs to meet
the needs of the Plaintiff’s theory in this lawsuit.” Id. at 68-69.
[5] Attorney Don Morton was selected as the medical review panel chairman, and
three doctors were selected to serve as the other panelists. It was later
determined that, because the third panelist, Dr. Hawley, a forensic pathologist,
was a close business associate of Dr. Pless, a new panelist would be selected to
replace him.
[6] On September 6, 2013, correspondence from an attorney on behalf of Dr.
Griggs advised the Facility’s attorney of a potential defamation case against Dr.
Pless based on portions of Dr. Pless’s affidavit. On September 20, 2013, the
Facility sought a preliminary determination of law requesting the ability to
submit Dr. Pless’s affidavit to the medical review panel with absolute
immunity. The Appellants filed a cross-motion for preliminary determination
of law on the issue of panel selection, specifically whether Dr. Hawley’s
replacement was required to be a forensic pathologist.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 3 of 15
[7] On November 25, 2013, the trial court issued an order addressing all of the
parties’ outstanding motions. 1 As to the issue of Dr. Pless’s immunity and the
specialty of the third panelist the trial court ordered:
4. [The Facility’s] Supplemental Motion for Preliminary
Determination of Law Seeking Authorization To Submit Expert
Affidavit Testimony to the Medical Review Panel and for Other Uses
in Pending Litigation with Absolute Immunity is DENIED AS
PREMATURE but the parties and their witnesses are reminded that
civility in their respective professions is a precursor to credibility.
Further, lack of civility can not only lend to loss of credibility, but
worse. The Court is left with the impression that these witnesses have
strayed outside their professional lines and beyond the control of their
counsel. It needs to stop.
5. [The Appellants’] Cross Motion for Preliminary Determination
of Law Regarding Panel Selection (specialist), dated October 15, 2013,
is DENIED, but with the instruction to the panel chairman to follow
the statutes and requisite framework in the selection of the medical
review panel. The Court leaves it to the respective counsel to provide
any guidance to the chairman of the medical review panel, Donald
Morton.
Id. at 312.
[8] Because the other panel members did not timely select a replacement for Dr.
Hawley, Chairman Morton selected Dr. Joseph Prahlow, a forensic pathologist,
to replace Dr. Hawley. Although Chairman Morton informed the parties that
1
Several other issues arose between the parties for which they sought guidance from the trial court. Because
those issues are not relevant to this appeal, we do not address them. The Facility’s voluminous appendix
contains many duplicative and irrelevant documents and emails concerning those issues. We remind counsel
that the purpose of an appendix is to present us with “only those parts of the record on appeal that are
necessary for the Court to decide the issues presented.” Ind. Appellate Rule 50(A)(1).
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 4 of 15
they would only be permitted to strike Dr. Prahlow for cause, the Appellants
challenged Dr. Prahlow without cause.
[9] The parties sought guidance from the court regarding the Appellants’ ability to
challenge Dr. Prahlow’s selection. On January 3, 2014, the trial court issued an
order requiring Chairman Morton to comply with the Medical Malpractice Act
(“the Act”) in his selection of the third panelist. Based on this order, Chairman
Morton reversed his earlier decision and allowed the Appellants to challenge
Dr. Prahlow’s selection. The Facility then challenged this decision in the trial
court. On January 16, 2014, the trial court issued an order reiterating its
instruction that Chairman Morton comply with the Act. The trial court also
stated, “Further, the Court Orders the panel process proceed unobstructed
without any further relief being sought from this Court.” Id. at 8.
[10] On February 28, 2014, Chairman Morton selected Dr. Azita Chehresa, who
apparently is not a forensic pathologist, as the third panelist. The parties
continued to file motions with the trial court and, on March 3, 2014, the trial
court issued an order on all outstanding motions on the issue of panel selection.
The trial court denied the Facility’s request to reinstate Dr. Prahlow and
explained that it was leaving the decision as to how the panel selection process
shall proceed in Chairman Morton’s hands. In March 2014, while the selection
process was still unresolved, Chairman Morton retired from the practice of law
and resigned as the chairman of the panel.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 5 of 15
[11] On April 17, 2014, the Appellants filed a “Motion for Declaratory Judgment on
Construction of Certain Statutes under the Indiana Medical Malpractice Act.”
Appellants’ App. p. 141. The Facility objected to the motion on the basis the
Declaratory Judgment Act did not apply. On May 2, 2014, the trial court
summarily denied the Appellants’ motion for declaratory judgment. On May 5,
2014, the Appellants renewed their motion for declaratory judgment, which the
trial court denied. On May 27, the Appellants filed a motion to correct error,
which the trial court denied after a hearing. The Appellants and the Facility
now appeal.
Analysis
I. Declaratory Judgment
[12] The Appellants assert that the trial court should have granted their motion for
declaratory judgment and determined the proper method for selecting the third
panelist. 2 The Uniform Declaratory Judgment Act is intended to furnish an
adequate and complete remedy where none before had existed. Hood’s Gardens,
Inc. v. Young, 976 N.E.2d 80, 84 (Ind. Ct. App. 2012); Ind. Code §§ 34-14-1-1,
34-14-1-2. “The test to determine the propriety of declaratory relief is whether
2
The Facility filed a motion to dismiss the Appellants’ appeal, which the motions panel denied. In its Cross-
Appellant’s Reply Brief, the Facility raises the issue of the propriety of the Appellants seeking declaratory
relief in a medical malpractice action. “The law is well settled that grounds for error may only be framed in
an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived.” Monroe Guar.
Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005). Because the Facility did not raise this issue in its
Cross-Appellant’s Brief, this issue is waived.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 6 of 15
the issuance of a declaratory judgment will effectively solve the problem
involved, whether it will serve a useful purpose, and whether or not another
remedy is more effective or efficient.” Id. “The determinative factor of this test
is whether the declaratory action will result in a just and more expeditious and
economical determination of the entire controversy.” Id.
[13] To say that the parties have filed repetitive motions regarding the selection of
the third panelist is an understatement. Notwithstanding these motions, the
composition of the medical review panel remains unresolved more than four
years after the filing of the proposed complaint. Accordingly, because
declaratory relief is appropriate, if not necessary, to resolve the parties’ dispute
regarding the selection of the third panelist and to facilitate the medical review
panel process, the trial court should have granted the Appellants’ motion. 3 See
Preferred Prof’l Ins. Co. v. W., 23 N.E.3d 716, 725 (Ind. Ct. App. 2014) trans.
denied (concluding that separate declaratory judgment action associated with a
proposed medical malpractice complaint was permissible and appropriate
where it narrowed the issues and determined the path of the case); I.C. § 34-14-
1-12 (“The purpose of this chapter is to settle and to afford relief from
uncertainty and insecurity with respect to rights, status and other legal relations;
and is to be liberally construed and administered.”).
3
It is our goal to provide clarity moving forward, not to revisit decisions made by Chairman Morton.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 7 of 15
A. Specialist
[14] The parties disagree whether the third panelist must be a forensic pathologist.
The Appellants assert there is no statutory requirement that the third panelist be
a forensic pathologist. In support of their argument, the Appellants rely on
Indiana Code Section 34-18-10-5, which provides:
Except for health care providers who are health facility administrators,
all health care providers in Indiana, whether in the teaching profession
or otherwise, who hold a license to practice in their profession shall be
available for selection as members of the medical review panel. Health
facility administrators may not be members of the medical review
panel.
In response, the Facility contends that the Act does not prohibit the parties from
agreeing to a particular specialty and that the parties stipulated the third panelist
would be a forensic pathologist. In support of this assertion, the Facility cites a
portion of a July 2012 email from the Appellants’ attorney stating, “we have no
objection to the third panelist being a pathologist.” 4 Appellee’s App. p. 299.
[15] “Stipulations have been defined as agreements between counsel respecting
business before the court.” Truman v. Truman, 642 N.E.2d 230, 235 (Ind. Ct.
App. 1994). The email language establishes only that the Appellants would not
object to the third panelist being a forensic pathologist. It does not establish
that counsel agreed the third panelist would be a forensic pathologist and is not
a stipulation. Thus, although the Appellants may have waived any objection to
4
For this quote, the Appellees cite a pleading filed with the trial court quoting the email. The Facility did
not provide us with the actual email upon which it relies.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 8 of 15
the third panelist being a forensic pathologist, the quoted language does not
require that the third panelist be a forensic pathologist.
[16] The Facility also argues that a forensic pathologist should be selected to
evaluate the dispute between Dr. Griggs and Dr. Pless. Although a forensic
pathologist might be helpful in resolving the dispute, the medical review panel
functions in an informal manner to render its expert medical opinion. See
Griffith v. Jones, 602 N.E.2d 107, 110 (Ind. 1992). In so doing, the panel “may
consult with other medical authorities (including other physicians) and reports
by other health care providers.” Sherrow v. GYN, Ltd., 745 N.E.2d 880, 884-85
(Ind. Ct. App. 2001) (citing I.C. § 34-18-10-21). Contrary to the Facility’s
assertions, the selection of a forensic pathologist is not the only means for
resolving the contradictory conclusions reached by Dr. Griggs and Dr. Pless.
Thus, neither the agreement of the parties nor the nature of the dispute between
the parties’ respective experts requires that the third panelist be a forensic
pathologist.
B. Challenges to Chairman Morton’s Selection
[17] The parties also challenge the procedure for selecting the third panelist
following Dr. Hawley’s removal. Generally, a medical review panel consists of
one attorney and three health care providers. I.C. § 34-18-10-3(a). The
attorney member acts as the chairman of the panel in an advisory capacity and
does not vote. I.C. § 34-18-10-3(b). The chairman “shall expedite the selection
of the other panel members, convene the panel, and expedite the panel’s review
of the proposed complaint.” I.C. § 34-18-10-3(c). The parties shall select a
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 9 of 15
chairman by agreement or, if no agreement can be reached, they may request
the clerk of our supreme court to draw a random list of five qualified attorneys
and strike names alternatively until one name remains. I.C. § 34-18-10-4.
[18] Regarding the selection of the other three panelists, “Each party to the action
has the right to select one (1) health care provider, and upon selection, the two
(2) health care providers thus selected shall select the third panelist.” I.C. § 34-
18-10-6. “Within fifteen (15) days after their selection, the health care provider
members shall select the third member within the time provided and notify the
chairman and the parties. If the providers fail to make a selection, the chairman
shall make the selection and notify both parties.” I.C. § 34-18-10-9.
[19] A selected panel member may be challenged as follows:
Within ten (10) days after the selection of a panel member, written
challenge without cause may be made to the panel member. Upon
challenge or excuse, the party whose appointee was challenged or
dismissed shall select another panelist. If the challenged or dismissed
panel member was selected by the other two (2) panel members, the
panel members shall make a new selection. If two (2) such challenges
are made and submitted, the chairman shall within ten (10) days
appoint a panel consisting of three (3) qualified panelists and each side
shall, within ten (10) days after the appointment, strike one (1)
panelist. The party whose appointment was challenged shall strike
last, and the remaining member shall serve.
I.C. § 34-18-10-10.
[20] Here, after Chairman Morton was selected, each party selected a panel member
and those panel members selected Dr. Hawley as the third panelist. Upon Dr.
Hawley’s removal from the panel because of his business relationship with Dr.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 10 of 15
Pless, it was necessary to select his replacement. 5 Consistent with Indiana Code
Section 34-18-10-6, Chairman Morton requested that the two party-selected
panelists select Dr. Hawley’s replacement. The two remaining panelists did not
timely name a replacement, leaving the selection to Chairman Morton. See I.C.
§ 34-18-10-9. At issue is whether, as the Appellants assert, the parties are
permitted to challenge Chairman Morton’s selection pursuant to Indiana Code
Section 34-18-10-10 or whether, as the Facility asserts, Chairman Morton’s
selection is final because Indiana Code Section 34-18-10-10 does not provide a
mechanism for challenging his selection.
[21] “In applying a statute, our primary goal is to ascertain and give effect to the
Legislature’s intent.” Crowel v. Marshall Cnty. Drainage Bd., 971 N.E.2d 638, 645
(Ind. 2012). The best indicator of legislative intent is the statutory language. Id.
at 646. Where the statute is clear and unambiguous, we apply it as drafted
without resorting to the nuanced principles of statutory interpretation. Id.
“Further, we will not read into the statute that which is not the expressed intent
of the legislature.” N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002). “As
such, it is just as important to recognize what the statute does not say as it is to
recognize what it does say.” Id.
5
Indiana Code Section 34-18-10-12 allows for a panel member to be excused by the chairman for good cause
but does not explain how that panelist should be replaced. Indiana Code Section 34-18-10-16(a) allows for
the removal of a panelist by the chairman if the panelist is not fulfilling his or her duties. If a panelist is
removed under Indiana Code Section 34-18-10-16, “a new member shall be selected under this chapter.” I.C.
§ 34-18-10-16(b). Neither of these sections resolves the issue before us today.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 11 of 15
[22] The Act requires the chairman to “expedite the selection of the other panel
members” and to select the third panelist if the other two panel members fail to
make a timely selection of a third panelist. I.C. §§ 34-18-10-3(c), 34-18-10-9.
The Act explains how to replace a challenged party-selected panelist or a panel-
member-selected panelist. I.C. § 34-18-10-10. The Act, however, is silent
regarding the replacement of a chairman-selected panelist. See id. Thus, we
conclude that the Legislature did not intend to allow challenges to a chairman-
selected panelist.
[23] This is for good reason. Unlike panelists who are selected by the parties or by
the party-selected panelists, the chairman is not acting on behalf of a party.
Moreover, it is clear that the Legislature intended the medical review panel
process to proceed expeditiously. See, e.g., I.C. § 34-18-10-4(1) (explaining that
the parties shall select a chairman within fifteen days after the request for the
formation of the panel unless no agreement can be reached); I.C. § 34-18-10-9
(requiring the parties to select a panelist within fifteen days after the selection of
the chairman and requiring the parties’ panelists to select a third panelist within
fifteen days); I.C. § 34-18-10-13 (requiring the panel to give its expert opinion
within 180 days absent specific circumstances). Allowing parties to challenge a
chairman-selected panelist would unnecessarily prolong the selection process
only to end up with the same result—a panelist who was nominated by the
chairman. The danger of unnecessary delay is evidenced by this case.
[24] For these reasons, we conclude that Indiana Code Section 34-18-10-10 does not
apply to chairman-selected panelists. As it stands, Chairman Morton selected
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 12 of 15
Dr. Chehresa as the third panelist. We see no reason why this selection should
not stand.
II. Cross-Appeal
[25] On cross-appeal, the Facility challenges the trial court’s 2013 denial of its
request for a preliminary determination of law regarding immunity for Dr. Pless
in a potential defamation action based on statements in his affidavit. The
Facility also challenges the trial court’s January 2014 and February 2014 orders
denying its request to reinstate Dr. Prahlow.
[26] Our authority to exercise appellate jurisdiction is generally limited to appeals
from final judgments. Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012).
Indiana Appellate Rule 2(H) defines final judgment and provides:
Final Judgment. A judgment is a final judgment if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule
54(B) or Trial Rule 56(C) that there is no just reason for delay and in
writing expressly directs the entry of judgment (i) under Trial Rule
54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule
56(C) as to fewer than all the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
(4) it is a ruling on either a mandatory or permissive Motion to Correct
Error which was timely filed under Trial Rule 59 or Criminal Rule 16;
or
(5) it is otherwise deemed final by law.
[27] The rulings challenged by the Facility did not dispose of all claims as to all
parties. Regarding the request for a preliminary determination of law on the
issue of Dr. Pless’s immunity, the trial court’s ruling does not resolve a claim
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 13 of 15
raised by any party. Instead, it is based on a potential defamation claim by Dr.
Griggs against Dr. Pless, neither of whom is a party in the medical malpractice
action between the Appellants and the Facility. Moreover the trial court’s
denials of the Facility’s motion for preliminary determination of law and
requests to reinstate Dr. Prahlow did not dispose of the larger medical
malpractice case, which continued despite the trial court’s ruling. Thus, the
rulings challenged by the Facility are not final judgments pursuant to Appellate
Rule 2(H)(1). See Ramsey, 959 N.E.2d at 253 (dismissing an appeal of trial
court’s order on a preliminary determination of law in a proposed medical
malpractice complaint where the trial court’s order did not dispose of all claims
as to all parties).
[28] Further, the rulings challenged by the Facility were not made pursuant to
Indiana Trial Rule 60(C), Trial Rule 59, and do not contain the “magic
language” described in Appellate Rule 2(H)(2). Nor is there any indication that
they are otherwise deemed final by law. Thus, the trial court’s rulings are not
final judgments pursuant to Appellate Rule 2(H).
[29] Finally, there is no indication that the Facility pursued a timely interlocutory
appeal of the trial court’s orders pursuant to Appellate Rule 14. Thus, we do
not have authority to review the issues raised by the Facility on cross-appeal. 6
6
“[T]he lack of appellate jurisdiction can be raised at any time, and if the parties do not question subject
matter jurisdiction, the appellate court may consider the issue sua sponte.” Georgos v. Jackson, 790 N.E.2d
448, 451 (Ind. 2003).
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 14 of 15
See Schriber v. Anonymous, 848 N.E.2d 1061, 1065 (Ind. 2006) (“Not only is the
trial court’s ruling not appealable because it is not a final judgment, it is
likewise not eligible for interlocutory appeal because it has not been so certified
by the trial court pursuant to Indiana Appellate Rule 14(B).”).
Conclusion
[30] The trial court should have granted the Appellants’ motion for declaratory
judgment to facilitate the medical review panel process in this case. Regarding
the specialty of the third panelist, although the Appellants agreed not to object
to the selection of a forensic pathologist, they did not agree that only a forensic
pathologist could be selected. Regarding challenges to the third panelist,
Indiana Code Section 34-18-10-10 does not provide a method for challenging a
chairman’s selection. As for the Facility’s cross-appeal, we do not have
authority to review the challenged rulings because they were not final
judgments. We affirm in part and reverse in part.
[31] Affirmed in part and reversed in part.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015 Page 15 of 15