                                                                                  FILED
                                                                             Oct 19 2018, 8:36 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Robert G. Zeigler                                           Robert W. York
      Erin E. Meyers                                              Robert W. York & Associates
      Zeigler, Cohen & Koch                                       Indianapolis, Indiana
      Indianapolis, Indiana                                       Christopher C. White
                                                                  Addie L. Jones
                                                                  Lewis Brisbois Bisgaard & Smith,
                                                                  LLP
                                                                  Dallas, Texas



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Community Hospitals of                                      October 19, 2018
      Indiana, Inc.,                                              Court of Appeals Case No.
      Appellant-Defendant,                                        18A-PL-69
                                                                  Appeal from the Marion Superior
              v.                                                  Court
                                                                  The Honorable James B. Osborn,
      Aspen Insurance UK Limited                                  Judge
      and Hiscox, LTD,                                            Trial Court Cause No.
      Appellees-Plaintiffs                                        49D14-1204-PL-16336




      May, Judge.


[1]   Community Hospitals of Indiana, Inc. (“Community”) appeals the grant of

      partial summary judgment in favor of Aspen Insurance UK Limited (“Aspen”)

      and Hiscox, Ltd (“Hiscox”) (collectively, “Insurance Companies”) in which the

      Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018                              Page 1 of 18
      trial court determined the Insurance Companies’ claims fell outside the

      procedural and substantive provisions of the Indiana Medical Malpractice Act

      (“IMMA”). Because it determined the IMMA did not apply, the trial court

      concluded Community could not claim certain affirmative defenses available

      only under the IMMA.


[2]   Community presents three issues for our review, one of which we find

      dispositive: whether Insurance Companies are estopped from denying the

      IMMA applies to their claims. We reverse and remand.



                              Facts and Procedural History                              1




[3]   On May 7, 2010, David Downey, 2 a truck driver for Celadon Trucking

      Services, Inc. (“Celadon”), was involved in a multi-vehicle accident in Texas

      that resulted in the death of one driver and serious injury to that driver’s wife,

      who was in the passenger seat of the car. The deceased’s children, as well as his

      wife and estate, sued Celadon, and the parties settled out of court in Texas.

      Celadon, which is located in Indiana, is insured by Insurance Companies, and

      Insurance Companies paid the victims’ damages on behalf of Celadon.


[4]   Prior to the accident, Celadon and Community, which is also located in

      Indiana, contracted for qualified Community employees to complete physical



      1
        We held oral argument on this matter on July 31, 2018, in the Indiana Court of Appeals courtroom. We
      thank counsel for their able advocacy.
      2
          Downey passed away from unrelated causes in 2012.


      Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018                           Page 2 of 18
      examinations of Celadon truck drivers based on Department of Transportation

      (“DOT”) requirements. Under the agreement, a qualified Community

      employee would determine whether a driver was medically able to drive, and

      then Community would communicate general information about that decision

      and any medical concerns observed to Celadon. The Community employee

      assigned to examine Downey was a nurse practitioner (“the NP”).


[5]   On February 17, 2010, the NP conducted Downey’s annual DOT examination.

      She noted Downey suffered from various medical conditions, and she suspected

      he also had sleep apnea. The NP certified Downey to operate a commercial

      motor vehicle for six months but instructed Downey to undergo a sleep study

      and send the results to the NP. On February 22, Downey completed the sleep

      study and was diagnosed with severe obstructive sleep apnea (“OSA”) and

      prescribed a continuous positive airway pressure (“CPAP”) machine. The NP

      attempted to call Downey the same day, but she could not hear him when she

      reached him via telephone. The NP did not attempt to call Downey again, and

      Downey did not report his diagnosis to the NP. On April 16, 2010, Downey’s

      cardiologist sent Community a fax with the sleep study results and Downey’s

      prescription for the CPAP machine. On April 19, the NP declared Downey

      was safe to drive a commercial motor vehicle. 3




      3
       It is unclear from the record why the NP was recertifying Downey in April, as she had just certified him to
      operate a commercial motor vehicle in February.

      Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018                               Page 3 of 18
[6]   The accident in this case occurred May 17, 2010, when Downey drove his truck

      into a line of stopped cars. At the scene of the accident, Downey prepared a

      written statement admitting he was distracted by a wrecked truck on the side of

      the road and did not see the line of stopped cars until it was too late. (See

      Appellant’s App. Vol. II at 151) (Downey’s account of the accident as part of

      his December 16, 2010, deposition). The victims of the accident sued Celadon

      and received a judgment of approximately $3 million. Aspen and Hiscox are

      Celadon’s insurance companies.


[7]   On April 16, 2012, Aspen filed a proposed complaint with the Indiana

      Department of Insurance (“IDOI”) against Community, alleging


              [11.] . . . Community was negligent in failing to notify Celadon
              on April 16, 2010, or shortly thereafter, that Downey was
              suffering from a medical condition which precluded his ability to
              drive under FMCSA regulations. Had such results been
              conveyed, Celadon would have removed Downey from the
              operation of his vehicle and placed him on a safety hold pending
              successful treatment of his sleep apnea.


              12. The failure to [sic] Community to exercise ordinary care
              proximately caused, in whole or in part, the injuries sustained [by
              the accident victims], as well as the other minor bodily injury
              claimants, which caused, in whole or in part, Celadon to incur
              over $3 million to resolve their claims.


      (Id. at 41.) Aspen indicated in its proposed complaint to the IDOI that

      Community’s “physicians, nurse practitioners, nurses, wellness specialists, and

      administrative support/medical assistants . . . qualif[ied] as health care


      Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018           Page 4 of 18
      providers under the Indiana Medical Malpractice Act.” (Id. at 23-4.) Aspen

      contemporaneously filed an action in Marion County Superior Court asserting

      the same facts and alleging Community 4 committed negligence and breach of

      contract. In the complaint before the Marion County Superior Court, Aspen

      indicated Community’s “physicians, nurse practitioners, nurses, wellness

      specialists, and administrative support/medical assistants . . . qualif[ied] as

      health care providers under the Indiana Medical Malpractice Act.” (Id. at 16.)


[8]   Insurance Companies 5 filed an amended proposed complaint with the IDOI on

      May 25, 2012, and in that amended complaint stated the Community

      employees allegedly involved were health care providers under the IMMA.

      Insurance Companies filed an amended complaint with the Marion County

      Superior Court on May 30, 2012, and they again noted the Community

      employees in question were health care providers under the IMMA.


[9]   On April 29, 2015, the trial court, sua sponte, scheduled an Indiana Trial Rule

      41(E) hearing due to inactivity in the Marion County case. On May 6, 2015 the

      Insurance Companies filed an agreed motion to remove the Trial Rule 41(E)

      hearing from the docket stating Insurance Companies were “seeking damages

      for negligence and breach of contract arising from medical services or medically

      related services provided by [Community].” (Id. at 166.) In the motion, the




      4
          At this time, Community was referred to only as “ABC Hospital.” (Appellant’s App Vol. II. at 15.)
      5
          Aspen added Hiscox as a plaintiff on May 25, 2012.


      Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018                               Page 5 of 18
       Insurance Companies also explained they were awaiting the medical review

       panel’s decision. The trial court cancelled the hearing. The same process

       occurred on October 13, 2015, and September 14, 2016.


[10]   On October 21, 2016, the medical review panel of the IDOI issued its decision

       on the Insurance Companies’ complaint, concluding the “conduct complained

       of was not a factor in the resultant damages.” (Br. of Appellant at 9) (citing

       Appellant’s App. Vol II at 154). 6 On January 17, 2017, the Insurance

       Companies filed a second amended complaint in the Marion County case,

       noting “[a]ll procedural requirements of Indiana Code section 34-18-8-4 have

       been completed and the Medical Review Panel has provided its Opinion.”

       (Appellant’s App. Vol. II at 44.) The Insurance Companies alleged:


                On or about April 16, 2010, a facsimile was sent to and received
                by [Community] which contained Downey’s February 22, 2010
                sleep study. At that point, based on the nurse practitioner’s
                understanding of applicable DOT and/or FMCSA regulations, in
                conjunction with the results of the sleep study which diagnosed
                Downey as having uncontrolled sleep apnea, Downey would
                have been disqualified from operating a commercial motor
                vehicle. The results of the facsimile and accompanying sleep
                study were never conveyed to Celadon by [Community], and
                [Community] did not pull Downey’s certification to drive or tell
                him he could not operate his vehicle until he [was] successfully
                treated for sleep apnea. As found by the Medical Review Panel,
                [Community] failed to comply with the appropriate standard of



       6
         Neither party cites to the decision from the medical review panel, and it seems that decision is not part of
       the record presented to us. This citation is to Community’s response to the Insurance Companies’ motion for
       summary judgment, which was filed on October 11, 2017.

       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018                               Page 6 of 18
               care with respect to the receipt and/or review of relevant health
               care information.


       (Id. at 48.) Again, the Insurance Companies indicated the relevant Community

       employees qualified as health care providers under the IMMA. The Insurance

       Companies contended Community was negligent in not communicating to

       Celadon regarding Downey’s condition and, had they done so, Downey would

       not have caused the accident in Texas. Further, the Insurance Companies

       asserted a claim in breach of contract regarding the contract between Celadon

       and Community.


[11]   On March 13, 2017, Community filed a response to the Insurance Companies’

       second amended complaint. In its answer, Community certified it was a

       qualified health care provider “entitled to all rights, privileges, limitations,

       liability caps, defenses and immunities provided for [by the IMMA].” (Id. at

       70.) Community further asserted: “Claims of negligence and causation raised

       in [Plaintiffs’] Proposed Complaint before the Indiana Department of Insurance

       and considered by the Medical Review Panel are the sole claims upon which

       the subject matter jurisdiction have been granted . . .Additionally, any claim for

       breach of contract is subsumed under the malpractice.” (Id. at 70-1) (internal

       citations omitted) (errors in original). Finally, Community argued, as a defense

       to Insurance Companies’ negligence and breach of contract claims: “Plaintiffs

       are estopped to deny that the limitations of the Medical Malpractice Act,

       including the liability cap, apply to the plaintiff insurance companies.” (Id. at

       71.)

       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018          Page 7 of 18
[12]   On September 11, 2017, the Insurance Companies filed a motion for summary

       judgment. The Insurance Companies’ motion for summary judgment asked the

       trial court to declare, as a matter of law, that Community’s affirmative defenses

       regarding the applicability of the IMMA were unavailable. In their brief in

       support of their motion for summary judgment, the Insurance Companies

       stated:


                 At its core, Plaintiffs allege that a non-medical employee of
                 Community Hospital negligently failed to provide a facsimile
                 transmission to a nurse practitioner so that she could take
                 appropriate action and pull the DOT driving certification for
                 David Downey, a Celadon driver diagnosed with sleep apnea.
                 The administrative failure of Community Hospital’s staff to relay
                 the information about the driver’s sleep apnea diagnosis to a
                 medical provider who could take appropriate action or to
                 Celadon was not a medical determination or exercise of medical
                 judgment and thus, this Court should grant summary judgment
                 on all of Defendant’s affirmative defenses related to the
                 applicability of Indiana’s Medical Malpractice Act.


       (Id. at 77.)


[13]   On October 11, 2017, Community filed a response to the Insurance Companies’

       motion for summary judgment, arguing the Insurance Companies were

       estopped from denying the applicability of the IMMA based on the doctrine of

       judicial estoppel; the Insurance Companies had forfeited their right to challenge

       the applicability of the IMMA because the Insurance Companies frequently

       asserted the IMMA governed of the issues before the court; and the IMMA

       applied to the Insurance Companies’ claims “because the acts or omission at

       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018        Page 8 of 18
       issue are based on the provider’s behavior or practices while acting in its

       professional capacity as a provider of medical services.” (Id. at 160.) The trial

       court held a hearing on the Insurance Companies’ motion for summary

       judgment on November 13, 2017. On January 1, 2018, the trial court entered

       an order granting the Insurance Companies’ motion for summary judgment,

       concluding:


                [T]here is no genuine issue as to any material facts that the
                claims for negligence and breach of contract made by [Insurance
                Companies] against [Community] in [Insurance Companies’]
                January 20, 2017 Second Amended Complaint, fall outside the
                procedural and substantive provisions of the [IMMA], and that
                judgment should be entered for [Insurance Companies] and
                against [Community] on all of [Community’s] affirmative
                defenses seeking to invoke the procedural and substantive
                provisions of the [IMMA].


       (Id. at 13-14.) The trial court also stated, “there is no just reason for delay and

       the Court expressly directs entry of judgment as to less than all the issues,

       claims or parties, as hereinabove set forth.” 7 (Id. at 14.)



                                    Discussion and Decision
[14]   We review summary judgment de novo, applying the same standard as the trial

       court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all




       7
        This language certifies the order for appeal pursuant to Indiana Trial Rule 54(B), despite the fact it does not
       dispose of all claims between the parties.

       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018                                  Page 9 of 18
       reasonable inferences in favor of the non-moving party, we will find summary

       judgment appropriate if the designated evidence shows there is no genuine issue

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

       of law. Id. A fact is material if its resolution would affect the outcome of the

       case, and an issue is genuine if a trier of fact is required to resolve the parties’

       differing accounts of the truth or if the undisputed material facts support

       conflicting reasonable inferences. Id.


[15]   The initial burden is on the summary judgment movant to demonstrate there is

       no genuine issue of fact as to a determinative issue, at which point the burden

       shifts to the non-movant to come forward with evidence showing there is an

       issue for the trier of fact. Id. While the non-moving party has the burden on

       appeal of persuading us summary judgment was erroneous, we carefully assess

       the trial court’s decision to ensure the non-movant was not improperly denied

       his day in court. Id. Summary judgment is not a summary trial, and it is not

       appropriate just because the non-movant appears unlikely to prevail at trial. Id.

       at 1003-04. We “consciously err[ ] on the side of letting marginal cases proceed

       to trial on the merits, rather than risk short-circuiting meritorious claims.” Id.

       at 1004.


[16]   We have previously outlined the purpose and general requirements of the

       IMMA:


               Our Supreme Court has explained that the [IMMA] was a
               legislative response to escalating problems in the malpractice
               insurance industry, with physicians being fearful of exposure to

       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018          Page 10 of 18
        malpractice claims and, further, being unable to obtain adequate
        malpractice insurance. Johnson v. St. Vincent Hospital, Inc., 273
        Ind. 374, 379-80, 404 N.E.2d 585, 589-90 (1980).


                                               *****


        The [IMMA] 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.” Ind. Code § 34-18-2-18. Health care is “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.” Ind. Code § 34-18-2-13. A “patient” is “an
        individual who receives or should have received health care from
        a health care provider, under a contract, express or implied, and
        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.” Ind. Code § 34-18-2-22. The [IMMA]
        does not necessarily apply to all cases where a health care
        provider is a party. [Midtown Cmty. Mental Health Ctr. v. Estate of
        Gahl by Gahl,] 540 N.E.2d [1259, 1260 (Ind. Ct. App. 1989),
        trans. denied.] The [IMMA] covers “curative or salutary conduct
        of a health care provider acting within his or her professional
        capacity,” i.e., it must be undertaken in the interest of or for the
        benefit of the patient’s health. Collins v. Thakkar, 552 N.E.2d 507,
        510 (Ind. Ct. App. 1990), trans. denied. The [IMMA] does not
        apply to conduct unrelated to the promotion of a patient’s health
        or the provider’s exercise of professional expertise, skill, or
        judgment. Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182,
        185 (Ind. 2011) (emphasis added); Doe by Roe v. Madison Center
        Hosp., 652 N.E.2d 101, 103 (Ind. Ct. App. 1995), trans. dismissed.


        When deciding whether a claim falls under the provisions of the
        [IMMA,] “we are guided by the substance of a claim to

Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018        Page 11 of 18
               determine the applicability of the Act.” Doe by Roe, 652 N.E.2d
               at 104. “[T]he test to determine whether a claim sounds in
               medical malpractice is ‘whether the claim is based on the
               provider’s behavior or practices while acting in his professional
               capacity as a provider of medical services.’” Madison Ctr., Inc. v.
               R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006) (quoting
               Collins, 552 N.E.2d at 511), trans. denied. We have observed that
               application of this test “has resulted in hairline distinctions
               between claims that sound in medical negligence and those that
               sound in ordinary negligence.” Anonymous Hospital [v. Doe], 996
               N.E.2d [329,] 333 [(Ind. Ct. App. 2013)] (citing Estate of O’Neal ex
               rel. Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr., 878 N.E.2d
               303, 311 (Ind. Ct. App. 2007))[, trans. denied]. Indeed, “‘[f]or
               more than thirty years, claimants and courts have wrestled with
               the question of what activities fall within the [IMMA.]’” Eads v.
               Cmty. Hosp., 932 N.E.2d 1239, 1244 (Ind. 2010) (quoting Judge
               Kirsch’s dissent).


       Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 727 (Ind. Ct. App. 2014), trans.

       denied. We have also noted, regarding the difference between medical and

       ordinary negligence claims:


               A case sounds in ordinary negligence [rather than medical
               negligence] where the factual issues are capable of resolution by a
               jury without application of the standard of care prevalent in the
               local medical community. By contrast, a claim falls under the
               [IMMA] where there is a causal connection between the conduct
               complained of and the nature of the patient-health care provider
               relationship.


       Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 2014).


[17]   Here, Insurance Companies filed their claims with the IDOI and their claims in

       the trial court contemporaneously. The Insurance Companies then successfully
       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018         Page 12 of 18
       petitioned the trial court to hold in abeyance the claims before the trial court

       until the Medical Review Board issued its opinion regarding the Insurance

       Companies’ claims under the IMMA. Four years later, after receiving an

       unfavorable opinion from the IMMA, the Insurance Companies argued before

       the trial court that the IMMA no longer applied to the claims before the trial

       court and that Community should be precluded from relying on their

       affirmative defenses related to the IMMA. The trial court agreed and granted

       the Insurance Companies summary judgment on the request that Community

       be precluded from using affirmative defenses they asserted under the IMMA.

       Community asserts the trial court erred when it granted summary judgment.

       We agree with Community.


[18]   We find our holding in West, 23 N.E.3d at 732, to be instructive. In West,

       Crystal West sustained significant permanent injuries after a co-worker,

       Michael, drove a vehicle into the elevated mechanical platform on which

       Crystal was standing. Crystal and her husband, William West, (“the Wests”)

       filed a complaint in St. Joseph County against certain healthcare providers of

       Michael, alleging the healthcare providers were negligent in treating Michael

       with narcotic pain medication for a cervical strain and releasing him to work.

       The Wests also filed a proposed claim under the IMMA with the IDOI.


[19]   The Wests alleged there was a breakdown in communication between a nurse

       and Michael, and between the same nurse and Michael’s doctor, who cleared

       Michael to return to work, not knowing he had been prescribed a narcotic pain

       reliever. The Wests then filed a motion for preliminary determination of law

       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018       Page 13 of 18
       with the St. Joseph County Court, asking the court to determine if the IMMA

       applied to their claims against Michael’s healthcare providers. The trial court

       denied the motion; however, in a footnote the trial court stated that, had it

       entered a preliminary determination of law, it “would have likely ruled that the

       proposed complaint sounds in medical malpractice and is covered by the

       [IMMA].” West, 23 N.E.3d at 720.


[20]   A month later, the Wests filed a complaint for declaratory judgment in Marion

       County. In that action, the Wests named the healthcare providers’ insurance

       companies, the IDOI, and the Patients’ Compensation Fund as defendants.

       The Wests asked the Marion County Court to determine if the IMMA applied

       to their claims against the healthcare providers in St. Joseph County, as the

       clarification of applicable law “would affect not only how and where the case

       would be litigated but also which insurance policies and coverage would be

       available to the Wests should they ultimately be successful in their claims.” Id.


[21]   After denying the insurance companies’ motion to dismiss under Indiana Trial

       Rule 12(B)(8), the trial court considered the issue of whether the IMMA applied

       to the Wests’ claims in St. Joseph County. Following briefing and an oral

       argument, the Marion County Court decided the Wests’ claims were founded in

       common law negligence, rather than the IMMA, because there were no factual

       disputes regarding the dosage of narcotic pain medication given to Michael,

       Michael’s treatment, or the appropriateness of the warnings Michael was given,

       which were all issues that could have been decided by a medical review panel.

       The Marion County Court also held the Wests did not fit the IMMA’s

       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018      Page 14 of 18
       definition of “patient” or “a person having a claim of any kind, derivative or

       otherwise.” Ind. Code § 34-18-2-22. The insurance companies appealed.


[22]   As is relevant to this action, the insurance companies argued on appeal that the

       Wests were estopped from claiming the IMMA did not apply to their claims

       because the Wests had filed a proposed claim before the IDOI. Our court

       rejected that argument, noting:


               [T]he Wests simultaneously filed a complaint in the St. Joseph
               Circuit Court and with the IDOI, and they promptly sought a
               preliminary determination of law approximately two months
               after the filing the St. Joseph action, asking that court to find that
               their claims were not governed by the [IMMA.] They have
               consistently and thoroughly pursued that position throughout
               years of proceedings in multiple courts. We do not find that the
               Wests’ decision to simultaneously file complaints in the St.
               Joseph Circuit Court and the IDOI, likely done to avoid any
               potential statute of limitations issues, is problematic or that it
               thereby prevented them from pursuing a determination that the
               [IMMA] did not apply to their claims.


       West, 23 N.E.3d at 732.


[23]   Community argues West is distinguishable from the facts of the case before us

       because, while the Wests sought clarification from the beginning of all

       litigation, the Insurance Companies here waited until after the medical review

       panel rendered its decision contrary to the Insurance Companies’ interests

       before seeking clarification about whether the IMMA applied to the Insurance

       Companies’ claims. Further, Community contends, West is inapposite because

       despite the Insurance Companies’ reliance on its holding for the premise they

       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018          Page 15 of 18
       did not waive their ability to challenge the applicability of the IMMA, “the

       Insurance Companies consistently and repeatedly claimed to the trial court that

       the [IMMA] did apply[.]” (Br. of Appellant at 25) (emphasis in original). We

       agree.


[24]   Unlike in West, the Insurance Companies repeatedly delayed the proceedings in

       trial court while waiting for an opinion from the Medical Review Board. At no

       time did the Insurance Companies file a request for declaratory judgment or

       indicate in any way that they did not believe the case to be under the purview of

       the IMMA. 8 In fact, the Insurance Companies repeatedly represented that their

       claim fell under the IMMA by indicating the relevant Community employees

       were health care providers under the IMMA.


[25]   In Manley v. Sherer, 992 N.E.2d 670, 674 (Ind. 2013), our Indiana Supreme

       Court confronted an issue very similar to the one at issue here. In Manley, the

       Manleys filed a proposed complaint with the IDOI against Dr. Sherer, who

       provided care to Kimberly Zehr, the driver in an accident in which Mrs.

       Manley sustained injury. Dr. Sherer subsequently filed a motion for

       preliminary determination of law and for summary judgment with the trial




       8
         The Insurance Companies contend Community was well-aware of the Insurance Companies’ intent to
       challenge the applicability of the IMMA because the Insurance Companies “consistently alleged that they
       had been damaged in a sum not less than $3,250,000 - an amount clearly over the cap imposed by [IMMA].”
       (Br. of Appellees at 13.) However, as our Indiana Supreme Court noted in Eads, the amount of damages
       requested is of no consequence because “[t]o the extent there is a difference . . . to the caps on medical
       malpractice recovery or other procedural differences in medical malpractice cases, these are matters of law
       that the Hospital is equipped to evaluate itself.” Eads v. Cmty. Hosp., 932 N.E.2d 1239, 1247 (Ind. 2010).

       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018                            Page 16 of 18
       court, in which Dr. Sherer alleged the Manleys’ proposed complaint before the

       IDOI was untimely because it was filed four days after the two-year statute of

       limitations under the IMMA. In response, the Manleys contended that their

       claim fell under the doctrine of continuing wrong, such that the two-year statute

       of limitations imposed by the IMMA did not apply. Manley v. Sherer, 960

       N.E.2d 815, 821 (Ind. Ct. App. 2011), vacated by Manley v. Sherer, 992 N.E.2d

       670, 674 (Ind. 2013). Our Indiana Supreme Court rejected this argument,

       holding:


               We preliminarily reject the plaintiffs’ claim that their action
               against Dr. Sherer and his medical group is not governed by the
               Indiana Medical Malpractice Act. The plaintiffs have treated it
               otherwise by filing their proposed complaint with the
               Department of Insurance as required by the Act. They may not
               now contend that the Medical Malpractice Act and its time
               limitation do not apply to their claim.


       Manley, 992 N.E.2d at 674. The same is true here. The Insurance Companies

       cannot now, after receiving a decision from the medical review board that does

       not comport with their trial strategy, claim the IMMA does not apply because

       the issue is purely clerical.



                                                 Conclusion
[26]   The trial court erred when it granted summary judgment in favor of the

       Insurance Companies because, under Manley, they cannot proceed as if the

       IMMA applies to their claim and then disavow the IMMA when the Medical


       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018     Page 17 of 18
       Review Board renders an unfavorable decision. Like in West, the Insurance

       Companies should have, and had ample time to, file a motion for declaratory

       judgment early in the proceedings if they believed the IMMA did not apply.

       Accordingly, we reverse and remand for proceedings consistent with this

       opinion.


[27]   Reversed and remanded.


       Riley, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018   Page 18 of 18
