# Winbush v. Memorial Health System, Inc.

> Indiana Supreme Court · November 26, 1991 · 581 N.E.2d 1239

URL: https://www.frixlaw.com/law-library/cases/9730273

## Case

- **Full name:** John WINBUSH, Appellant (Plaintiff Below), v. MEMORIAL HEALTH SYSTEM, INC. D/B/A Memorial Hospital, Joseph Lee, M.D., South Bend Emergency Physicians, Inc., Individually and as Agents of Memorial Health System, Inc., D/B/A Memorial Hospital, and Jane Doe, R.N., Individually and as an Agent of Memorial Health System, Inc., D/B/A Memorial Hospital
- **Court:** Indiana Supreme Court
- **Decided:** November 26, 1991
- **Citations:** 581 N.E.2d 1239; 1991 Ind. LEXIS 224; 1991 WL 246834
- **Precedential status:** Published
- **Opinion:** Dissent by Givan
- **Judges:** Dickson, Shepard, Debruler, Krahulik, Givan
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9730273

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730273. Public record. Not legal advice.