                                                                   FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
                                                                 May 30 2012, 8:44 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law                               CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
of the case.                                                                 tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

THEODORE L. STACY                                    JANET A. MCSHARAR
Valparaiso, Indiana                                  STEPHEN E. ARTHUR
                                                     ALBERT BARCLAY WONG
                                                     Harrison & Moberly, LLP
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

THE ESTATE OF ROSE GRAVES,                           )
                                                     )
        Appellant-Plaintiff,                         )
                                                     )
               vs.                                   )     No. 45A03-1112-CT-560
                                                     )
ANONYMOUS NURSING HOME,                              )
                                                     )
        Appellee-Defendant.                          )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Diane Kavadias Schneider, Judge
                               Cause No. 45D01-0811-CT-87


                                            May 30, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       The Estate of Rose Graves (“Estate”) appeals the trial court’s grant of a motion to

dismiss its complaint against Anonymous Nursing Home (“Nursing Home”). We affirm.

                                           Issue

       The Estate raises one issue, which we restate as whether the trial court properly

dismissed the Estate’s complaint against the Nursing Home.

                                           Facts

       On November 3, 2008, the Estate filed a proposed medical malpractice complaint

against the Nursing Home with the Indiana Department of Insurance (“IDOI”). The

Estate also filed an identical complaint against the Nursing Home in Lake Superior Court

on November 10, 2008.

       On November 12, 2008, the IDOI determined that the Nursing Home was not a

qualified provider under the Indiana Medical Malpractice Act (“Act”). Thus, the action

proceeded in the trial court. On November 20, 2008, the Nursing Home served the Estate

with interrogatories and requests for production in that action.

       On June 11, 2009, the IDOI reversed its earlier determination and found that the

Nursing Home was, in fact, a qualified provider under the Act. The Nursing Home then

filed a motion to stay the trial court proceedings, and the trial court granted the motion on

July 10, 2009. The trial court stayed the proceedings “until a medical review panel issues

its opinion except for actions pursued under Ind. Code § 34-18-8-8 or Ind. Code § 34-18-

11.” Appellee’s App. p. 19.



                                             2
       In April 2011, the Nursing Home filed a motion for preliminary determination. In

support of its motion, the Nursing Home argued that the Estate had failed to respond to

its November 2008 discovery request and that it was entitled to dismissal of the trial court

action and the proposed complaint before the IDOI pursuant to Indiana Trial Rule 41(E),

Indiana Code Section 34-18-10-14, and Indiana Code Section 34-18-11-1(a)(1). In April

2011, the Estate responded by stating that it anticipated responding to the discovery

within the next thirty to sixty days and requesting a case management conference with the

trial court “in order to obtain a trial date and cut off dates of this case so that the case may

proceed on its merits.” Appellant’s App. p. 45. The Estate also filed a supplemental

response on June 8, 2011. The Estate argued that the Nursing Home had failed to comply

with Indiana Trial Rule 26(F) and that it had responded to the discovery requests on May

31, 2011. The Nursing Home filed a reply and argued that it had complied with Indiana

Trial Rule 26(F) and that the Estate’s discovery responses were “wholly inadequate so as

to constitute no response,” and “woefully late.” Id. at 49-50. The Nursing Home also

alleged that the Estate had “not served discovery upon [the Nursing Home] nor begun the

medical review panel formation process.” Id. at 50.

       At a hearing on the matter, the Estate’s counsel admitted that “[t]here’s never been

a panel chairman named.” Tr. p. 8. When questioned by the trial court as to why the

medical review panel process had not proceeded, the Estate’s counsel said, “I don’t

know.” Id. at 11. The trial court granted the Nursing Home’s motion for preliminary

determination and dismissed the Estate’s action. The trial court found that “[n]o actions

were taken to create a Medical Review Panel pursuant to the Indiana Medical

                                               3
Malpractice Act,” that the discovery responses were extremely late, and the discovery

responses were inadequate. Appellant’s App. p. 13. The trial court concluded that the

Nursing Home had followed Indiana Trial Rule 26(F), that “there has been no showing of

good cause for the delay in implementing the medical review panel process,” and that

“there has been no showing of good cause for the failure to properly respond to

discovery.” Id. at 15. The Estate now appeals.

                                        Analysis

       The issue is whether the trial court properly dismissed the Estate’s claim against

the Nursing Home. We review the dismissal of a proposed complaint under the Medical

Malpractice Act for an abuse of discretion. Adams v. Chavez, 874 N.E.2d 1038, 1043

(Ind. Ct. App. 2007), decision clarified on reh’g, 877 N.E.2d 1246 (Ind. Ct. App. 2007).

An abuse of discretion exists where the trial court’s decision is clearly against the logic

and effect of the facts and circumstances before it or the reasonable, probable, and actual

deductions to be drawn therefrom. Id.

       Before addressing the Estate’s arguments, we note the relationship between a trial

court action and a proposed complaint before the IDOI under the Act. “Before a party

brings a medical malpractice action in an Indiana court, the [Act] requires that the

proposed complaint be presented to a medical review panel and that the panel render an

opinion.” Ramsey v. Moore, 959 N.E.2d 246, 250 (Ind. 2012) (citing Ind. Code § 34-18-

8-4). “[A] claimant may commence an action in court for malpractice at the same time

the claimant’s proposed complaint is being considered by a medical review panel.” I.C. §

34-18-8-7(a). However, the claimant is prohibited from pursuing the trial court action

                                            4
until the medical review panel has rendered its opinion, and the trial “court is prohibited

from taking any action except setting a date for trial, an action under IC 34-18-8-8 . . . , or

an action under IC 34-18-11. . . .” Id.

       Indiana Code Section 34-18-8-8 allows the IDOI commissioner, on a party’s

motion or the commissioner’s own initiative, to file an action in Marion County Circuit

court to dismiss the action under Indiana Trial Rule 41(E) if action has not been taken in

the IDOI proceeding for at least two years. Indiana Code Chapter 34-18-11 allows a trial

court to: (1) preliminarily determine an affirmative defense or issue of law or fact that

may be preliminarily determined under the Indiana Rules of Procedure; or (2) compel

discovery in accordance with the Indiana Rules of Procedure. I.C. § 34-18-11-1(a).

Additionally, if a party fails to act as required by Indiana Code Chapter 34-18-10

“without good cause shown,” the party “is subject to mandate or appropriate sanctions

upon application to the court designated in the proposed complaint as having

jurisdiction.” I.C. § 34-18-10-14. For example, “a defendant may file a motion with the

trial court for a preliminary determination on the plaintiff’s failure to adhere to the

submission schedule, and the defendant may request the sanction of dismissal.” Ramsey,

959 N.E.2d at 250.

       The Estate argues that the trial court abused its discretion by dismissing the action

because: (1) the discovery at issue was sought in the trial court action but the trial court

action had been stayed since June 2009; and (2) Indiana Trial Rule 41(E) does not apply




                                              5
to a medical malpractice action pending before the IDOI.1 However, the Estate did not

present these arguments to the trial court.2 Rather, the Estate has raised these arguments

for the first time on appeal. Generally, a party may not raise an issue on appeal that was

not raised to the trial court. McGill v. Ling, 801 N.E.2d 678, 687 (Ind. Ct. App. 2004),

trans. denied.

        The trial court properly stayed the trial court action in July 2009 after the IDOI

determined that the Nursing Home was in fact a Qualified Provider under the Act. When

the Nursing Home filed its motion for preliminary determination in April 2011, arguing

that the Estate had failed to respond to the discovery responses from the trial court action,

the Estate responded that it needed additional time to respond to the discovery and asked

for a case management conference with the trial court “in order to obtain a trial date and

cut off dates of this case so that the case may proceed on its merits.” Appellant’s App. p.

45. The Estate later filed a supplemental response, indicating that it had responded to the

discovery and that the Nursing Home had failed to comply with Indiana Trial Rule 26(F).

At the hearing, the Estate again did not make any argument that discovery in the trial

court action was improper or that Indiana Trial Rule 41(E) was inapplicable. The Estate

1
 In Adams v. Chavez, 874 N.E.2d 1038, 1043 (Ind. Ct. App. 2007), clarified on rehearing, 877 N.E.2d
1246 (Ind. Ct. App. 2007), we recognized significant differences between Indiana Code Section 34-18-
10-14 and Indiana Trial Rule 41(E) and determined that failure to prosecute alone was not a sufficient
basis for relief under Indiana Code Section 34-18-10-14. Cf. Rivers v. Methodist Hospitals, 654 N.E.2d
811 (Ind. Ct. App. 1985) (affirming the dismissal of a medical malpractice action due to failure to
prosecute, failure to participate in discovery, and failure to participate in the panel formation). We need
not explore the differences between Adams, Rivers, and the current statutory scheme because the Estate
did not make this argument to the trial court.
2
  In its reply brief, the Estate argues that it did not waive its arguments because the issue of the stay was
raised. Although the stay was mentioned during the trial court proceedings, the Estate never argued to the
trial court that discovery in the trial court action was improper or that Indiana Trial Rule 41(E) was
inapplicable.
                                                     6
waived these arguments by failing to present them to the trial court. As a result, we

cannot say that the trial court abused its discretion by dismissing the Estate’s action

against the Nursing Home.

                                       Conclusion

       The Estate waived its appellate arguments by failing to present them to the trial

court. We affirm the trial court’s dismissal of the Estate’s medical malpractice action.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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