                                                                         FILED
                                                                     Mar 27 2019, 9:56 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Theodore L. Stacy                                          ANONYMOUS HOSPITAL
Valparaiso, Indiana                                        Michael A. Sarafin
                                                           Johnson & Bell, P.C.
                                                           Crown Point, Indiana
                                                           ATTORNEY FOR APPELLEE
                                                           ANONYMOUS PHYSICIAN A
                                                           Robert F. Parker
                                                           Burke Costanza & Carberry LLP
                                                           Merrillville, Indiana
                                                           ATTORNEYS FOR APPELLEE
                                                           ANONYMOUS PHYSICIAN B
                                                           Michael E. O’Neill
                                                           Jessica L. Mullen
                                                           O’Neill McFadden & Willett
                                                           LLP
                                                           Schererville, Indiana
                                                           ATTORNEYS FOR APPELLEE
                                                           ANONYMOUS PHYSICIAN C
                                                           Sharon L. Stanzione
                                                           Alan M. Kus
                                                           Johnson & Bell, P.C.
                                                           Crown Point, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA



Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019                           Page 1 of 12
      Rosemary Quillen, as Personal                              March 27, 2019
      Representative of Patricia Cook,                           Court of Appeals Case No.
      Deceased,                                                  18A-CT-2743
      Appellant-Respondent,                                      Appeal from the Porter Superior
                                                                 Court
              v.                                                 The Honorable Roger V. Bradford,
                                                                 Special Judge
      Anonymous Hospital and                                     Trial Court Cause No.
      Anonymous Physicians A, B,                                 64D02-1710-CT-9381
      and C,
      Appellees-Petitioners



      Baker, Judge.


[1]   Rosemary Quillen, as personal representative of Patricia Cook, appeals the trial

      court’s order dismissing her proposed medical malpractice complaints against

      Anonymous Hospital (the Hospital) and Anonymous Physicians A, B, and C

      (collectively, the Physicians). Quillen argues that the chair of the Medical

      Review Panel (the Panel) did not establish a permissible schedule for

      submission of evidence; that even if the schedule was permissible, she showed

      good cause for her failure to comply; and that even if she did not have good

      cause for her failure to comply with the schedule, the sanction of dismissal is

      inappropriate. Finding no error, we affirm.


                                                      Facts
[2]   Cook was admitted to the Hospital on November 3, 2014; while there, she was

      treated by the Physicians. She died on November 5, 2014.


      Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019                     Page 2 of 12
[3]   On January 15, 2016, Quillen filed a proposed complaint with the Indiana

      Department of Insurance alleging that Cook’s death was the result of medical

      malpractice committed by the Hospital and the Physicians. The parties agreed

      on the identity of the person who would chair the Panel and eventually agreed

      on the members who would serve on the Panel.


[4]   On May 18, 2017, the Panel was certified. That same day, the Panel Chair set

      the following schedule by which the parties were to tender their respective

      Panel submissions to him.


          • August 1, 2017: Quillen’s submission due to Panel Chair and other
            parties.
          • October 1, 2017: submissions of the Hospital and Physicians due to
            Panel Chair and other parties.
          • Quillen would have ten days after receiving those submissions to make a
            rebuttal submission.

      Because the Panel Chair realized that the parties might object to materials

      submitted by each other, resulting in certain materials being omitted from the

      final submission, he informed the parties that he would not provide their

      materials to the Panel until the contents were final. Quillen did not object to

      the schedule or the Panel Chair’s plan to withhold the submissions from the

      Panel until the materials were finalized.


[5]   August 1, 2017, came and went with no submission provided by Quillen. On

      September 11, 2017, counsel for Dr. A sent an email to the Panel Chair and all

      other attorneys advising that Quillen’s submission had not yet been tendered

      and that no extension of time had been requested or granted. Counsel for the

      Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019       Page 3 of 12
      Hospital and the Physicians agreed to an extension of time permitting Quillen

      to submit her materials by September 25, 2017. Quillen did not object or

      otherwise respond in any way to these communications.


[6]   The Panel Chair and the parties were mindful of a statutory deadline requiring

      the Panel to issue its expert opinion within 180 days of the selection of the last

      panel member. While the 180-day deadline could have been waived by the

      Hospital and the Physicians, they did not intend to waive it, and without their

      agreement, the Panel Chair had no authority to extend this deadline. In this

      case, that deadline would run on November 14, 2017.


[7]   Quillen failed to submit her materials by September 25, 2017. On October 3,

      2017, Dr. A turned to the trial court, filing a motion for preliminary

      determination and to dismiss the proposed complaint; the other Physicians and

      the Hospital eventually filed similar motions.


[8]   On October 11, 2017, Quillen tendered her submission to the Panel Chair and

      the other parties. And on November 6, 2017, Quillen filed her responses to the

      motions to dismiss, alleging for the first time two reasons why she had failed to

      comply with the submission schedule. First, she argued that the schedule set by

      the Panel Chair exceeded his authority under the Medical Malpractice Act and,

      consequently, she could not be sanctioned for her failure to comply with it.

      Second, she asserted that she had shown good cause for her failure to comply,

      blaming the failure to meet the schedule on family matters that had occupied

      counsel’s attention at some point for an unknown length of time.


      Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019        Page 4 of 12
[9]    After a number of inconsistent orders were entered by the trial court, on

       November 28, 2017, the trial court vacated all prior orders related to all pending

       motions1 and set the matter for a hearing on the motions to dismiss. That

       hearing ultimately took place on September 17, 2018, and on October 5, 2018,

       the trial court entered an order summarily granting the motions to dismiss.

       Quillen now appeals.


                                      Discussion and Decision
[10]   Quillen argues that the trial court erred by dismissing her proposed complaint.

       A trial court’s choice of sanctions upon a failure to comply with the Medical

       Malpractice Act (MMA) is a matter committed to the trial court’s discretion.

       Reck v. Knight, 993 N.E.2d 627, 631 (Ind. Ct. App. 2013). We will affirm if

       there is any evidence supporting the trial court’s decision and will reverse only

       if the decision is clearly against the logic and effect of the facts and

       circumstances or if the trial court misinterpreted the law. Id. We apply a de

       novo standard of review to matters of statutory interpretation. Howard Reg’l

       Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011).




       1
        To the extent that Quillen raises arguments related to these prior inconsistent orders, we note that the orders
       were vacated and are therefore moot. Consequently, we decline to address these arguments.

       Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019                                 Page 5 of 12
                                      I. Medical Malpractice Act            2




[11]   Before a party brings a medical malpractice action in a trial court, the MMA

       requires that the proposed complaint be presented to a medical review panel

       and that the panel render an opinion. Ind. Code § 34-18-8-4. Once the panel is

       formed, “[t]he panel shall give its expert opinion within one hundred eighty

       (180) days after the selection of the last member of the initial panel.” I.C. § 34-

       18-10-13(a). “Implicit in these provisions is the corresponding duty upon the

       parties to comply with the schedule, if one is set by the chair, and upon the

       parties and the panel to comply with the 180 day limit; an available remedy for

       any breach is court-ordered sanctions.” Galindo v. Christensen, 569 N.E.2d 702,

       705 (Ind. Ct. App. 1991).


[12]   The panel “consists of an attorney and three (3) health care providers.” I.C. §

       34-18-10-3(a). The attorney “shall act as chairman of the panel in an advisory

       capacity but may not vote.” Id. at -3(b). The MMA provides the chair of the

       panel with various powers, including the power to “establish a reasonable

       schedule for submission of evidence to the medical review panel,” though that

       schedule “must allow sufficient time for the parties to make full and adequate

       presentation of related facts and authorities.” Id. at -3(c). This Court has

       explained that “[n]ecessarily, the initial burden falls upon the party submitting

       the proposed complaint. . . . Only when the complainant’s evidence is




       2
           It is undisputed that the MMA applies to this case.


       Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019        Page 6 of 12
       submitted is the defendant in the proposed complaint compelled to come

       forward with evidence in response to the complainant’s evidence.” Galindo, 569

       N.E.2d at 705-06.


[13]   In a recent amendment to the MMA, the General Assembly highlighted the

       importance of dates and deadlines established by or pursuant to the MMA:


               The general assembly emphasizes, to the parties, the courts, and
               the medical review panels, that adhering to the timelines set forth
               in this article is of extreme importance in ensuring the fairness of
               the medical malpractice act. Absent a mutual written agreement
               between the parties for a continuance, all parties subject to this
               article, and all persons charged with implementing this article,
               including courts and medical review panels, shall carefully follow
               the timelines in this article. No party may be dilatory in the
               selection of the panel, the exchange of discoverable evidence, or
               in any other matter necessary to bring a case to finality, and the
               courts and medical review panels shall enforce the timelines set
               forth in this article so as to carry out the intent of the general
               assembly.


       I.C. § 34-18-0.5-1.


              II. Failure to Comply With Submission Schedule
                            A. Was the Schedule Permissible?
[14]   Quillen first argues that the submission schedule created by the Panel Chair was

       not permissible under the MMA. Essentially, she contends that because the

       Panel Chair directed the parties to submit their materials to the Chair only,

       rather than to the physician members of the Panel, the schedule was not a


       Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019         Page 7 of 12
       schedule for submitting evidence to the Panel as contemplated by Indiana Code

       section 34-18-10-3(c). Instead, she maintains that this schedule amounted to a

       directive compelling the exchange of discovery, which is not one of the powers

       given to the Panel Chair by the MMA.


[15]   We cannot agree. Initially, we note that we agree with Dr. A that the Panel

       Chair “is not a mere conduit through which evidence passes to the physician

       members of the panel.” Appellee Dr. A’s Br. p. 19. Instead, he is, by statute, a

       member of the Panel. I.C. § 34-18-10-3(a). Indeed, one of the primary duties of

       the Panel Chair is to expedite the Panel’s review of the proposed complaint, id.

       at -3(c), meaning that the chair’s administrative role is central to his function as

       a panel member. Therefore, any distinction made between the Chair and the

       medical members of the Panel is a distinction without a difference.3


[16]   Moreover, in our view, the schedule created by the Panel Chair was an

       eminently reasonable and efficient one. By waiting to submit the materials to

       the other Panel members until the evidence was finalized, the Panel Chair was




       3
         Quillen directs our attention to Horn v. Jara, 63 N.E.3d 1 (Ind. Ct. App. 2016), trans. denied. In that case, the
       plaintiffs submitted a proposed complaint to the chair of the medical review panel but not to the panel
       members themselves. We found that “the panel members did not receive and were not able to consider the
       proposed complaint, and any allegations contained within the proposed complaint were not presented to the
       medical review panel.” Id. at 4. Horn is inapposite to the instant matter, as it concerns whether each
       individual panel member had actual knowledge of the plaintiffs’ allegations. Here, we must simply
       determine whether a submission of evidence to the Panel includes submission of evidence to the Chair—a
       statutory member of the Panel—only. Horn does not require us to answer that question in the negative.

       Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019                                    Page 8 of 12
       able to avoid confusion and ensure that the Panel members did not spend time

       reviewing materials that would ultimately be objected to and removed. 4


[17]   Quillen also argues that the sequenced submission schedule created by the

       Panel Chair, which required her to submit her materials before the Physicians

       and the Hospital submitted theirs, was impermissible under the MMA. We

       disagree. As noted above, it has long been established that the initial duty to

       comply with a submission schedule falls on the complainant. E.g., Galindo, 569

       N.E.2d at 705-06. Only after the complainant’s evidence has been submitted is

       the defendant required to submit its own evidence in response. Id.


[18]   Finally, we note that Quillen had sixteen months from the filing of her

       proposed complaint to the certification of the Panel on May 18, 2017. She then

       had over two more months, until August 1, 2017, to submit her materials.

       When she failed to meet that deadline, the other parties afforded her one last

       extension of approximately six weeks, until September 25, 2017, to submit her

       materials. At no point during any of this time did Quillen object, raise a

       concern, or suggest that her attorney had pressing family matters rendering

       compliance impossible. Instead, she was silent and took no action until the

       other parties moved to dismiss her proposed complaint. Quillen had a great




       4
         Quillen argues that the materials to be submitted constituted confidential attorney work product, but we fail
       to see how this is the case. She was required to submit the materials supporting her proposed malpractice
       claim—as in every case involving a medical review panel—and those materials are necessarily also provided
       to opposing counsel. There is no support for Quillen’s claim that the Panel Chair required her to submit “the
       mental impressions and theories of her attorney” to opposing counsel. Reply Br. p. 10.

       Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019                                 Page 9 of 12
       deal of time to assemble her materials, but she failed to do so and failed to

       object on any grounds. Under these circumstances, we can only find that she is

       not entitled to relief.


                                             B. Good Cause
[19]   Next, Quillen maintains that even if the schedule created by the Panel Chair

       was permissible under the MMA, she showed good cause for her failure to

       abide by it. Specifically, she alleges that her attorney had family matters that

       prevented him from giving his full attention to the case:


               [Quillen’s] attorney was also out of state for about a month
               readying a house to move his mother who was nearly 90, a
               process made necessary by a sibling stealing the majority of his
               mother’s assets (now subject to criminal prosecution). Both the
               housing question and the prosecution involved a substantial
               amount of the undersigned’s time.


       Appellant’s Br. p. 17.


[20]   Quillen did not highlight these personal matters at any point during the months

       after the Panel was certified. In fact, her response to the motions to dismiss was

       the first time she mentioned it. Moreover, she offers no details about her

       attorney’s situation, such as when it occurred, how long the period of

       inattention lasted, or why her attorney was unable even to send an email to

       opposing counsel and the Panel Chair telling them about the situation.


[21]   Although the trial court’s order contains no findings, it must have found that

       Quillen failed to show good cause for her untimely submission of materials to

       Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019         Page 10 of 12
       the Panel. Based on this record, we see no reason to second-guess that

       conclusion.


                                                   C. Remedy
[22]   Finally, Quillen argues that even if sanctions were warranted, dismissal was

       improper, though she does not expand on this argument or suggest an

       alternative sanction.5


[23]   It is well settled that the MMA provides the trial court with the authority to

       impose appropriate sanctions, including dismissal of a proposed complaint,

       upon a party who, without good cause shown, fails to comply with the MMA.

       I.C. § 34-18-10-14; see also Reck, 993 N.E.2d at 634-35 (affirming dismissal of a

       proposed complaint based on plaintiff’s failure to comply with established

       submission schedule); Galindo, 569 N.E.2d at 706 (noting that under the MMA,

       “[d]ismissal is a sanction which a trial court has the inherent authority to order

       in its discretion”). In deciding what sanctions to impose, the trial court “may

       appropriately consider, among other things, whether the failure was intentional




       5
         Quillen does suggest that, because there was still approximately one month remaining in the 180-day
       timeframe when she finally tendered her submission, the opposing parties still had time to provide their
       submissions and the Panel then theoretically had time to issue its opinion. Even if that were technically
       possible—though we note our skepticism—and the opposing parties could have done so, there is nothing in
       the MMA that required them to do so. As contemplated by the MMA, they instead filed a petition with the
       trial court for a preliminary determination of whether Quillen had violated the MMA and, if it was found
       that she had, requesting the sanction of dismissal. That there was still a month left means neither that the
       opposing parties did not have the option of seeking relief in the trial court nor that the trial court was
       prohibited from providing it.

       Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019                               Page 11 of 12
       or contumacious and whether prejudice resulted.” Gleason v. Bush, 689 N.E.2d

       480, 483 (Ind. Ct. App. 1997).


[24]   As noted above, the General Assembly has emphasized that adherence to the

       MMA timelines is of “extreme importance.” I.C. § 34-18-0.5-1. All parties,

       including trial courts and medical review panels, must “carefully follow the

       timelines,” no party “may be dilatory in . . . the exchange of discoverable

       evidence,” and “the courts and medical review panels shall enforce the timelines

       set forth in this article . . . .” Id. (emphasis added).


[25]   It is apparent, therefore, that the general rule is that the MMA timelines—

       including submission schedules created by the medical review panel—must be

       carefully and strictly followed. And in this specific case, Quillen had months to

       comply, object, or request an extension. She neither communicated with the

       Panel Chair or opposing counsel nor submitted her materials until months after

       the initial deadline had passed—and only once the opposing parties had moved

       to dismiss her proposed complaint. Under these circumstances, we find no

       error regarding the trial court’s determination that dismissal was the appropriate

       sanction.


[26]   The judgment of the trial court is affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-2743 | March 27, 2019      Page 12 of 12
