Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
                                                                  FILED
                                                                Sep 25 2012, 9:01 am
collateral estoppel, or the law of the case.
                                                                       CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court




 ATTORNEYS FOR APPELLANT:                             ATTORNEYS FOR APPELLEES
                                                      MARY AND RONALD MCDANIEL:
 NORRIS CUNNINGHAM
 KATHRYN ELIAS CORDELL                                NATHANIEL LEE
 Hall, Render, Killian, Heath & Lyman, P.C.           LAURA R. CROWLEY
 Indianapolis, Indiana                                Fee & Fairman
                                                      Indianapolis, Indiana




                                 IN THE
                       COURT OF APPEALS OF INDIANA

 MATT B. HELMEN, M.D.,                                )
                                                      )
          Appellant,                                  )
                                                      )
              vs.                                     )
                                                      )
 MARY and RONALD MCDANIEL,                            )
 Individually and as Administrators of                )        No. 49A02-1204-CT-327
 the Estate of Christopher L. McDaniel,               )
 Deceased,                                            )
                                                      )
          and,                                        )
                                                      )
 PHILLIP LAM, M.D.,                                   )
                                                      )
          Appellees.                                  )


                        APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable John F. Hanley, Judge
                              Cause No. 49D11-1201-CT-001872


                                          September 25, 2012
              MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

       Matt B. Helmen, M.D., (“Dr. Helmen”), appeals the trial court’s denial of his

Motion for Change of Venue in the medical malpractice action filed against him by Mary

and Ronald McDaniel, (“the McDaniels”), individually and as administrators of the estate

of their deceased son, Christopher McDaniel (“McDaniel”). The sole issue for our

review is whether the trial court erred in denying Helmen’s motion.

       We affirm.

                            Facts and Procedural History

       Dr. Helmen, who practices internal medicine in Marion and Hamilton Counties,

began treating McDaniel after McDaniel was admitted to St. Vincent Hospital in

Indianapolis in July 2006. In August 2006, Dr. Helmen began treating McDaniel on an

outpatient basis for multiple medical issues, including diabetes and low potassium. Dr.

Helmen’s last contact with McDaniel was in April 2007.

       On May 15, 2007, McDaniel presented himself with a low potassium level at

Fayette Memorial Hospital in Connersville where Dr. Philip Lam (“Dr. Lam”) examined

him. Dr. Lam telephoned Dr. Helmen to advise him of McDaniel’s condition. Dr. Lam

and Dr. Helmen discussed the need to treat McDaniel’s low potassium with supplemental

potassium. Dr. Lam did not ask Dr. Helmen to accept transfer of McDaniel for treatment

in Indianapolis or to participate in his care. Dr. Helmen expected McDaniel would be




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treated for low potassium and instructed to follow up with Dr. Helmen. After speaking

with Dr. Helmen, Dr. Lam discharged McDaniel from the hospital.

       Later that day, McDaniel presented himself with lower extremity pain, shortness

of breath, and abdominal pain at Reid Hospital in Richmond where Dr. Christine Farris

examined him. Dr. Farris contacted Dr. Helmen to advise him that McDaniel was in dire

condition. She did not ask Dr. Helmen to accept transfer of McDaniel or participate in

his care. McDaniel subsequently passed away that day at the hospital.

       In April 2009, the McDaniels filed a proposed complaint with the Indiana

Department of Insurance against Dr. Helmen, Dr. Lam, Fayette Memorial Hospital, and

Reid Hospital. In October 2011, the Medical Review Panel (“the Panel”) concluded its

review of the matter and issued a unanimous opinion that the evidence did not support the

conclusion that Dr. Helmen, Fayette Memorial Hospital, and Reid Hospital failed to meet

the appropriate standard of care. The Panel’s decision also stated that the evidence

supported the conclusion that Dr. Lam failed to meet the appropriate standard of care.

       In January 2012, the McDaniels filed their Complaint for Damages against Drs.

Helmen and Lam in Marion County. The Complaint alleged that Dr. Helmen was

consulted by telephone while McDaniel was at Reid Hospital and that Dr. Helmen did not

recommend transfer to St. Vincent Hospital in Indianapolis for further treatment.

According to the Complaint, Dr. Helmen failed to properly and timely assess McDaniel

and take appropriate action and that as a direct result of this medical malpractice,

McDaniel perished.




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       Two months later, Dr. Helmen filed a motion for change of venue asking the trial

court to transfer the case to Hamilton County because Marion County was not a county of

preferred venue. The trial court denied the motion without a hearing. Dr. Helmen

appeals the denial.

                                 Discussion and Decision

       Dr. Helmen’s sole argument is that the trial court erred in denying his motion for

change of venue and refusing to transfer the case to Hamilton County pursuant to Indiana

Trial Rules 12(B)(3), 75, and 76. The trial court’s decision on a motion such as this is an

interlocutory order subject to review under an abuse of discretion standard. Beckwith v.

Satellite T.V. Center, Inc., 699 N.E.2d 319, 321 (Ind. Ct. App. 1998). An abuse of

discretion occurs if the trial court’s decision is clearly against the logic and effect of the

facts and circumstances before the court, or if the court has misinterpreted the law. Id.

       Pursuant to Indiana Trial Rule 75(A), a case may be commenced in any court in

any county in Indiana. However, upon the filing of an appropriate motion, the trial court

must transfer the case to the county selected by the party which first files such motion if

1) the court where the action was originally filed is not a “preferred venue” as defined by

Trial Rule 75, and 2) the county selected by the party which filed the motion is a county

of preferred venue. Shelton v. Wick, 715 N.E.2d 890, 893 (Ind. Ct. App. 1999), trans.

denied. If the action has been commenced in a county of preferred venue, no transfer will

be granted. Id.

       Here, Dr. Helmen argues that Marion County is not a county of preferred venue

under Trial Rule 75(A)(4). According to this section, a county of preferred venue lies in:


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         the county where either the principal office of a defendant organization is
         located or the office or agency of a defendant organization or individual to
         which the claim relates or out of which the claim arose is located, if one or
         more such organizations or individuals are included as defendants in the
         complaint.

T.R. 75(A)(4) (emphasis added).

         Rules of statutory construction are applicable to the interpretation of trial rules.

Carter-McMahon v. McMahon, 815 N.E.2d 170, 175 (Ind. Ct. App. 2004).                     If the

language of the rule is clear and unambiguous, it is not subject to judicial interpretation.

Dreyer & Reinbold, Inc. v. AutoXchange.com. Inc., 771 N.E.2d 764, 767 (Ind. Ct. App.

2002), trans. denied. Here, a clear reading of T.R. 75(A)(4) reveals that a county of

preferred venue lies where “the office . . . of a defendant . . .individual to which the claim

relates . . . is located . . . .” Because McDaniel has alleged that Dr. Helmen was

consulted by telephone while McDaniel was at Reid Hospital and did not recommend

transferring McDaniel to St. Vincent Hospital in Indianapolis for further treatment, the

claim relates to Dr. Helmen. Further, because Dr. Helmen’s office is located in Marion

County, Marion County is a county of preferred venue pursuant to Trial Rule 75(A)(4).

Accordingly, the trial court did not err in denying Dr. Helmen’s motion for change of

venue.

         Affirmed.

VAIDIK, J., and BARNES, J., concur.




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