                                                                     Jul 08 2015, 10:27 am




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Morris L. Klapper                                           George M. Plews
Indianapolis, Indiana                                       Tonya J. Bond
                                                            Josh S. Tatum
                                                            Plews Shadley Racher & Braun, LLP
                                                            Indianapolis, Indiana

                                                            Lara D. Engelking
                                                            Engelking Law Group, LLC
                                                            Carmel, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Virginia Tramill, Miah Gant,                               July 8, 2015
Marquel Cheaney and Jeremiah                               Court of Appeals Case No.
Tramill, the Mother and                                    49A02-1408-CT-528
Children                                                   Appeal from the Marion Superior
of Sara Tramill, Deceased,                                 Court
                                                           Cause No. 49D13-1308-CT-32116
Appellant-Defendant,                                       The Honorable Timothy Oakes,
                                                           Judge
        v.

Anonymous Healthcare
Provider,
Appellee-Plaintiff.




Barnes, Judge.




Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015                       Page 1 of 15
                                               Case Summary
[1]   Virginia Tramill, Miah Gant, Marquel Cheaney, and Jeremiah Tramill

      (collectively, “the Appellants”) appeal the trial court’s denial of their motion for

      declaratory judgment in a proposed medical malpractice action against

      Anonymous Healthcare Provider (“the Facility”). On cross-appeal, the Facility

      appeals various trial court orders related to medical review panel proceedings.

      We affirm in part and reverse in part.


                                                       Issues
[2]   The Appellants raise one issue, which we restate as:

              I.       whether the trial court properly denied their request for
                       declaratory judgment.
      On cross-appeal, the Facility raises one issue, which we restate as:

              II.      whether we have authority to consider the trial court’s rulings
                       on various motions related to the medical review panel
                       proceedings.

                                                       Facts
[3]   On November 23, 2009, Sara Tramill, the daughter and mother of the

      Appellants, was in the care of the Facility following a stroke and died. A

      private autopsy was performed by Dr. E. Allen Griggs to determine the cause of

      Sara’s death. Dr. Griggs determined that the cause of death was respiratory

      arrest due to “[a]spiration of blood and mucous into tracheo-bronchial tree and

      lungs[.]” Appellee’s App. p. 101.

      Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015             Page 2 of 15
[4]   In January 2011, the Appellants filed a proposed medical malpractice

      complaint alleging that the Facility negligently caused Sara’s death. The

      Facility retained Dr. John Pless as an expert. Dr. Pless prepared a lengthy

      affidavit, which was critical of Dr. Griggs’s autopsy and opined in part “that

      Dr. Griggs has not presented a clear and balanced autopsy report . . . . It is also

      my opinion that the reports have been specifically crafted by Dr. Griggs to meet

      the needs of the Plaintiff’s theory in this lawsuit.” Id. at 68-69.


[5]   Attorney Don Morton was selected as the medical review panel chairman, and

      three doctors were selected to serve as the other panelists. It was later

      determined that, because the third panelist, Dr. Hawley, a forensic pathologist,

      was a close business associate of Dr. Pless, a new panelist would be selected to

      replace him.


[6]   On September 6, 2013, correspondence from an attorney on behalf of Dr.

      Griggs advised the Facility’s attorney of a potential defamation case against Dr.

      Pless based on portions of Dr. Pless’s affidavit. On September 20, 2013, the

      Facility sought a preliminary determination of law requesting the ability to

      submit Dr. Pless’s affidavit to the medical review panel with absolute

      immunity. The Appellants filed a cross-motion for preliminary determination

      of law on the issue of panel selection, specifically whether Dr. Hawley’s

      replacement was required to be a forensic pathologist.




      Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015      Page 3 of 15
[7]   On November 25, 2013, the trial court issued an order addressing all of the

      parties’ outstanding motions. 1 As to the issue of Dr. Pless’s immunity and the

      specialty of the third panelist the trial court ordered:

              4.       [The Facility’s] Supplemental Motion for Preliminary
              Determination of Law Seeking Authorization To Submit Expert
              Affidavit Testimony to the Medical Review Panel and for Other Uses
              in Pending Litigation with Absolute Immunity is DENIED AS
              PREMATURE but the parties and their witnesses are reminded that
              civility in their respective professions is a precursor to credibility.
              Further, lack of civility can not only lend to loss of credibility, but
              worse. The Court is left with the impression that these witnesses have
              strayed outside their professional lines and beyond the control of their
              counsel. It needs to stop.
              5.      [The Appellants’] Cross Motion for Preliminary Determination
              of Law Regarding Panel Selection (specialist), dated October 15, 2013,
              is DENIED, but with the instruction to the panel chairman to follow
              the statutes and requisite framework in the selection of the medical
              review panel. The Court leaves it to the respective counsel to provide
              any guidance to the chairman of the medical review panel, Donald
              Morton.
      Id. at 312.


[8]   Because the other panel members did not timely select a replacement for Dr.

      Hawley, Chairman Morton selected Dr. Joseph Prahlow, a forensic pathologist,

      to replace Dr. Hawley. Although Chairman Morton informed the parties that




      1
        Several other issues arose between the parties for which they sought guidance from the trial court. Because
      those issues are not relevant to this appeal, we do not address them. The Facility’s voluminous appendix
      contains many duplicative and irrelevant documents and emails concerning those issues. We remind counsel
      that the purpose of an appendix is to present us with “only those parts of the record on appeal that are
      necessary for the Court to decide the issues presented.” Ind. Appellate Rule 50(A)(1).



      Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015                           Page 4 of 15
       they would only be permitted to strike Dr. Prahlow for cause, the Appellants

       challenged Dr. Prahlow without cause.


[9]    The parties sought guidance from the court regarding the Appellants’ ability to

       challenge Dr. Prahlow’s selection. On January 3, 2014, the trial court issued an

       order requiring Chairman Morton to comply with the Medical Malpractice Act

       (“the Act”) in his selection of the third panelist. Based on this order, Chairman

       Morton reversed his earlier decision and allowed the Appellants to challenge

       Dr. Prahlow’s selection. The Facility then challenged this decision in the trial

       court. On January 16, 2014, the trial court issued an order reiterating its

       instruction that Chairman Morton comply with the Act. The trial court also

       stated, “Further, the Court Orders the panel process proceed unobstructed

       without any further relief being sought from this Court.” Id. at 8.


[10]   On February 28, 2014, Chairman Morton selected Dr. Azita Chehresa, who

       apparently is not a forensic pathologist, as the third panelist. The parties

       continued to file motions with the trial court and, on March 3, 2014, the trial

       court issued an order on all outstanding motions on the issue of panel selection.

       The trial court denied the Facility’s request to reinstate Dr. Prahlow and

       explained that it was leaving the decision as to how the panel selection process

       shall proceed in Chairman Morton’s hands. In March 2014, while the selection

       process was still unresolved, Chairman Morton retired from the practice of law

       and resigned as the chairman of the panel.




       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015    Page 5 of 15
[11]   On April 17, 2014, the Appellants filed a “Motion for Declaratory Judgment on

       Construction of Certain Statutes under the Indiana Medical Malpractice Act.”

       Appellants’ App. p. 141. The Facility objected to the motion on the basis the

       Declaratory Judgment Act did not apply. On May 2, 2014, the trial court

       summarily denied the Appellants’ motion for declaratory judgment. On May 5,

       2014, the Appellants renewed their motion for declaratory judgment, which the

       trial court denied. On May 27, the Appellants filed a motion to correct error,

       which the trial court denied after a hearing. The Appellants and the Facility

       now appeal.


                                                        Analysis
                                              I. Declaratory Judgment

[12]   The Appellants assert that the trial court should have granted their motion for

       declaratory judgment and determined the proper method for selecting the third

       panelist. 2 The Uniform Declaratory Judgment Act is intended to furnish an

       adequate and complete remedy where none before had existed. Hood’s Gardens,

       Inc. v. Young, 976 N.E.2d 80, 84 (Ind. Ct. App. 2012); Ind. Code §§ 34-14-1-1,

       34-14-1-2. “The test to determine the propriety of declaratory relief is whether




       2
         The Facility filed a motion to dismiss the Appellants’ appeal, which the motions panel denied. In its Cross-
       Appellant’s Reply Brief, the Facility raises the issue of the propriety of the Appellants seeking declaratory
       relief in a medical malpractice action. “The law is well settled that grounds for error may only be framed in
       an appellant’s initial brief and if addressed for the first time in the reply brief, they are waived.” Monroe Guar.
       Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005). Because the Facility did not raise this issue in its
       Cross-Appellant’s Brief, this issue is waived.



       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015                                Page 6 of 15
       the issuance of a declaratory judgment will effectively solve the problem

       involved, whether it will serve a useful purpose, and whether or not another

       remedy is more effective or efficient.” Id. “The determinative factor of this test

       is whether the declaratory action will result in a just and more expeditious and

       economical determination of the entire controversy.” Id.


[13]   To say that the parties have filed repetitive motions regarding the selection of

       the third panelist is an understatement. Notwithstanding these motions, the

       composition of the medical review panel remains unresolved more than four

       years after the filing of the proposed complaint. Accordingly, because

       declaratory relief is appropriate, if not necessary, to resolve the parties’ dispute

       regarding the selection of the third panelist and to facilitate the medical review

       panel process, the trial court should have granted the Appellants’ motion. 3 See

       Preferred Prof’l Ins. Co. v. W., 23 N.E.3d 716, 725 (Ind. Ct. App. 2014) trans.

       denied (concluding that separate declaratory judgment action associated with a

       proposed medical malpractice complaint was permissible and appropriate

       where it narrowed the issues and determined the path of the case); I.C. § 34-14-

       1-12 (“The purpose of this chapter is to settle and to afford relief from

       uncertainty and insecurity with respect to rights, status and other legal relations;

       and is to be liberally construed and administered.”).




       3
           It is our goal to provide clarity moving forward, not to revisit decisions made by Chairman Morton.


       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015                            Page 7 of 15
                                                      A. Specialist

[14]   The parties disagree whether the third panelist must be a forensic pathologist.

       The Appellants assert there is no statutory requirement that the third panelist be

       a forensic pathologist. In support of their argument, the Appellants rely on

       Indiana Code Section 34-18-10-5, which provides:

                Except for health care providers who are health facility administrators,
                all health care providers in Indiana, whether in the teaching profession
                or otherwise, who hold a license to practice in their profession shall be
                available for selection as members of the medical review panel. Health
                facility administrators may not be members of the medical review
                panel.
       In response, the Facility contends that the Act does not prohibit the parties from

       agreeing to a particular specialty and that the parties stipulated the third panelist

       would be a forensic pathologist. In support of this assertion, the Facility cites a

       portion of a July 2012 email from the Appellants’ attorney stating, “we have no

       objection to the third panelist being a pathologist.” 4 Appellee’s App. p. 299.


[15]   “Stipulations have been defined as agreements between counsel respecting

       business before the court.” Truman v. Truman, 642 N.E.2d 230, 235 (Ind. Ct.

       App. 1994). The email language establishes only that the Appellants would not

       object to the third panelist being a forensic pathologist. It does not establish

       that counsel agreed the third panelist would be a forensic pathologist and is not

       a stipulation. Thus, although the Appellants may have waived any objection to




       4
         For this quote, the Appellees cite a pleading filed with the trial court quoting the email. The Facility did
       not provide us with the actual email upon which it relies.

       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015                              Page 8 of 15
       the third panelist being a forensic pathologist, the quoted language does not

       require that the third panelist be a forensic pathologist.


[16]   The Facility also argues that a forensic pathologist should be selected to

       evaluate the dispute between Dr. Griggs and Dr. Pless. Although a forensic

       pathologist might be helpful in resolving the dispute, the medical review panel

       functions in an informal manner to render its expert medical opinion. See

       Griffith v. Jones, 602 N.E.2d 107, 110 (Ind. 1992). In so doing, the panel “may

       consult with other medical authorities (including other physicians) and reports

       by other health care providers.” Sherrow v. GYN, Ltd., 745 N.E.2d 880, 884-85

       (Ind. Ct. App. 2001) (citing I.C. § 34-18-10-21). Contrary to the Facility’s

       assertions, the selection of a forensic pathologist is not the only means for

       resolving the contradictory conclusions reached by Dr. Griggs and Dr. Pless.

       Thus, neither the agreement of the parties nor the nature of the dispute between

       the parties’ respective experts requires that the third panelist be a forensic

       pathologist.


                            B. Challenges to Chairman Morton’s Selection

[17]   The parties also challenge the procedure for selecting the third panelist

       following Dr. Hawley’s removal. Generally, a medical review panel consists of

       one attorney and three health care providers. I.C. § 34-18-10-3(a). The

       attorney member acts as the chairman of the panel in an advisory capacity and

       does not vote. I.C. § 34-18-10-3(b). The chairman “shall expedite the selection

       of the other panel members, convene the panel, and expedite the panel’s review

       of the proposed complaint.” I.C. § 34-18-10-3(c). The parties shall select a
       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015      Page 9 of 15
       chairman by agreement or, if no agreement can be reached, they may request

       the clerk of our supreme court to draw a random list of five qualified attorneys

       and strike names alternatively until one name remains. I.C. § 34-18-10-4.


[18]   Regarding the selection of the other three panelists, “Each party to the action

       has the right to select one (1) health care provider, and upon selection, the two

       (2) health care providers thus selected shall select the third panelist.” I.C. § 34-

       18-10-6. “Within fifteen (15) days after their selection, the health care provider

       members shall select the third member within the time provided and notify the

       chairman and the parties. If the providers fail to make a selection, the chairman

       shall make the selection and notify both parties.” I.C. § 34-18-10-9.


[19]   A selected panel member may be challenged as follows:

               Within ten (10) days after the selection of a panel member, written
               challenge without cause may be made to the panel member. Upon
               challenge or excuse, the party whose appointee was challenged or
               dismissed shall select another panelist. If the challenged or dismissed
               panel member was selected by the other two (2) panel members, the
               panel members shall make a new selection. If two (2) such challenges
               are made and submitted, the chairman shall within ten (10) days
               appoint a panel consisting of three (3) qualified panelists and each side
               shall, within ten (10) days after the appointment, strike one (1)
               panelist. The party whose appointment was challenged shall strike
               last, and the remaining member shall serve.
       I.C. § 34-18-10-10.


[20]   Here, after Chairman Morton was selected, each party selected a panel member

       and those panel members selected Dr. Hawley as the third panelist. Upon Dr.

       Hawley’s removal from the panel because of his business relationship with Dr.


       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015         Page 10 of 15
       Pless, it was necessary to select his replacement. 5 Consistent with Indiana Code

       Section 34-18-10-6, Chairman Morton requested that the two party-selected

       panelists select Dr. Hawley’s replacement. The two remaining panelists did not

       timely name a replacement, leaving the selection to Chairman Morton. See I.C.

       § 34-18-10-9. At issue is whether, as the Appellants assert, the parties are

       permitted to challenge Chairman Morton’s selection pursuant to Indiana Code

       Section 34-18-10-10 or whether, as the Facility asserts, Chairman Morton’s

       selection is final because Indiana Code Section 34-18-10-10 does not provide a

       mechanism for challenging his selection.


[21]   “In applying a statute, our primary goal is to ascertain and give effect to the

       Legislature’s intent.” Crowel v. Marshall Cnty. Drainage Bd., 971 N.E.2d 638, 645

       (Ind. 2012). The best indicator of legislative intent is the statutory language. Id.

       at 646. Where the statute is clear and unambiguous, we apply it as drafted

       without resorting to the nuanced principles of statutory interpretation. Id.

       “Further, we will not read into the statute that which is not the expressed intent

       of the legislature.” N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002). “As

       such, it is just as important to recognize what the statute does not say as it is to

       recognize what it does say.” Id.




       5
         Indiana Code Section 34-18-10-12 allows for a panel member to be excused by the chairman for good cause
       but does not explain how that panelist should be replaced. Indiana Code Section 34-18-10-16(a) allows for
       the removal of a panelist by the chairman if the panelist is not fulfilling his or her duties. If a panelist is
       removed under Indiana Code Section 34-18-10-16, “a new member shall be selected under this chapter.” I.C.
       § 34-18-10-16(b). Neither of these sections resolves the issue before us today.

       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015                           Page 11 of 15
[22]   The Act requires the chairman to “expedite the selection of the other panel

       members” and to select the third panelist if the other two panel members fail to

       make a timely selection of a third panelist. I.C. §§ 34-18-10-3(c), 34-18-10-9.

       The Act explains how to replace a challenged party-selected panelist or a panel-

       member-selected panelist. I.C. § 34-18-10-10. The Act, however, is silent

       regarding the replacement of a chairman-selected panelist. See id. Thus, we

       conclude that the Legislature did not intend to allow challenges to a chairman-

       selected panelist.


[23]   This is for good reason. Unlike panelists who are selected by the parties or by

       the party-selected panelists, the chairman is not acting on behalf of a party.

       Moreover, it is clear that the Legislature intended the medical review panel

       process to proceed expeditiously. See, e.g., I.C. § 34-18-10-4(1) (explaining that

       the parties shall select a chairman within fifteen days after the request for the

       formation of the panel unless no agreement can be reached); I.C. § 34-18-10-9

       (requiring the parties to select a panelist within fifteen days after the selection of

       the chairman and requiring the parties’ panelists to select a third panelist within

       fifteen days); I.C. § 34-18-10-13 (requiring the panel to give its expert opinion

       within 180 days absent specific circumstances). Allowing parties to challenge a

       chairman-selected panelist would unnecessarily prolong the selection process

       only to end up with the same result—a panelist who was nominated by the

       chairman. The danger of unnecessary delay is evidenced by this case.


[24]   For these reasons, we conclude that Indiana Code Section 34-18-10-10 does not

       apply to chairman-selected panelists. As it stands, Chairman Morton selected

       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015     Page 12 of 15
       Dr. Chehresa as the third panelist. We see no reason why this selection should

       not stand.


                                                 II. Cross-Appeal

[25]   On cross-appeal, the Facility challenges the trial court’s 2013 denial of its

       request for a preliminary determination of law regarding immunity for Dr. Pless

       in a potential defamation action based on statements in his affidavit. The

       Facility also challenges the trial court’s January 2014 and February 2014 orders

       denying its request to reinstate Dr. Prahlow.


[26]   Our authority to exercise appellate jurisdiction is generally limited to appeals

       from final judgments. Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012).

       Indiana Appellate Rule 2(H) defines final judgment and provides:

               Final Judgment. A judgment is a final judgment if:
               (1) it disposes of all claims as to all parties;
               (2) the trial court in writing expressly determines under Trial Rule
               54(B) or Trial Rule 56(C) that there is no just reason for delay and in
               writing expressly directs the entry of judgment (i) under Trial Rule
               54(B) as to fewer than all the claims or parties, or (ii) under Trial Rule
               56(C) as to fewer than all the issues, claims or parties;
               (3) it is deemed final under Trial Rule 60(C);
               (4) it is a ruling on either a mandatory or permissive Motion to Correct
               Error which was timely filed under Trial Rule 59 or Criminal Rule 16;
               or
               (5) it is otherwise deemed final by law.
[27]   The rulings challenged by the Facility did not dispose of all claims as to all

       parties. Regarding the request for a preliminary determination of law on the

       issue of Dr. Pless’s immunity, the trial court’s ruling does not resolve a claim

       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015           Page 13 of 15
       raised by any party. Instead, it is based on a potential defamation claim by Dr.

       Griggs against Dr. Pless, neither of whom is a party in the medical malpractice

       action between the Appellants and the Facility. Moreover the trial court’s

       denials of the Facility’s motion for preliminary determination of law and

       requests to reinstate Dr. Prahlow did not dispose of the larger medical

       malpractice case, which continued despite the trial court’s ruling. Thus, the

       rulings challenged by the Facility are not final judgments pursuant to Appellate

       Rule 2(H)(1). See Ramsey, 959 N.E.2d at 253 (dismissing an appeal of trial

       court’s order on a preliminary determination of law in a proposed medical

       malpractice complaint where the trial court’s order did not dispose of all claims

       as to all parties).


[28]   Further, the rulings challenged by the Facility were not made pursuant to

       Indiana Trial Rule 60(C), Trial Rule 59, and do not contain the “magic

       language” described in Appellate Rule 2(H)(2). Nor is there any indication that

       they are otherwise deemed final by law. Thus, the trial court’s rulings are not

       final judgments pursuant to Appellate Rule 2(H).


[29]   Finally, there is no indication that the Facility pursued a timely interlocutory

       appeal of the trial court’s orders pursuant to Appellate Rule 14. Thus, we do

       not have authority to review the issues raised by the Facility on cross-appeal. 6



       6
         “[T]he lack of appellate jurisdiction can be raised at any time, and if the parties do not question subject
       matter jurisdiction, the appellate court may consider the issue sua sponte.” Georgos v. Jackson, 790 N.E.2d
       448, 451 (Ind. 2003).



       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015                             Page 14 of 15
       See Schriber v. Anonymous, 848 N.E.2d 1061, 1065 (Ind. 2006) (“Not only is the

       trial court’s ruling not appealable because it is not a final judgment, it is

       likewise not eligible for interlocutory appeal because it has not been so certified

       by the trial court pursuant to Indiana Appellate Rule 14(B).”).


                                                   Conclusion
[30]   The trial court should have granted the Appellants’ motion for declaratory

       judgment to facilitate the medical review panel process in this case. Regarding

       the specialty of the third panelist, although the Appellants agreed not to object

       to the selection of a forensic pathologist, they did not agree that only a forensic

       pathologist could be selected. Regarding challenges to the third panelist,

       Indiana Code Section 34-18-10-10 does not provide a method for challenging a

       chairman’s selection. As for the Facility’s cross-appeal, we do not have

       authority to review the challenged rulings because they were not final

       judgments. We affirm in part and reverse in part.


[31]   Affirmed in part and reversed in part.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1408-CT-528 | July 8, 2015     Page 15 of 15
