Opinion

Winbush v. Memorial Health System, Inc.

  • 581 N.E.2d 1239
  • 1991 Ind. LEXIS 224
  • 1991 WL 246834
Court
Indiana Supreme Court
Filed
Nov 26, 1991
Status
Published
Author
Givan
On the bench
Dickson, Shepard, Debruler, Krahulik, Givan
Cited by
12 cases
Authority
More cited than 9.7%

stating “the facts alleged in a complaint must be taken as true except to the extent that they are negated by depositions, affidavits, admissions, answers to interrogatories, or testimony presented at the hearing”

How later courts described this case

  • stating “the facts alleged in a complaint must be taken as true except to the extent that they are negated by depositions, affidavits, admissions, answers to interrogatories, or testimony presented at the hearing”
  • upholding summary judgment against one of several defendants because plaintiff failed to provide expert testimony rebutting opinion of medical review panel

Written by the judges who cited it.

The opinion

ON CIVIL PETITION TO TRANSFER

GIVAN, Justice,

dissenting.

I respectfully dissent from the majority opinion in this case. I cannot agree with the rationalization in the majority opinion that because the medical review panel decision was not properly certified, the improperly certified affidavits of the plaintiff's experts also should be considered.

In the first place, I find nothing in this record to indicate that the authenticity of the medical review panel's decision was ever challenged or questioned. In the see-ond place, even if we would assume for the sake of argument that the panel's decision was not properly certified, such is not a valid reason to ignore the existing law followed by both the Court of Appeals and the trial court.

As stated in the Court of Appeals slip opinion at 6, "An unsworn statement or uncertified exhibit does not qualify for consideration in a summary judgment action," citing McMahan v. Snap On Tool Corp. (1985), Ind.App., 478 N.E.2d 116, 122, n. 4 ; Freson v. Combs (1982), Ind.App., 433 N.E.2d 55, 59 ; and Pomerenke v. National Life and Accident Insurance Co. (1968), 143 Ind.App. 472, 474 , 241 N.E.2d 890 , 892. The Court of Appeals also refers us to Ind. Trial Rule 30(F).

This is a hard case and one would feel much more comfortable if appellant's physicians' statements had been properly entered in evidence. However, I cannot justify ignoring the well-established rules because we wish they had been followed.

I believe the Court of Appeals reached the correct decision in this case. I would deny transfer.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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