                                                                 Mar 02 2015, 9:54 am




ATTORNEYS FOR APPELLANT BALL                         ATTORNEY FOR APPELLEE L. GAIL
MEMORIAL HOSPITAL                                    FAIR
Edward L. Murphy, Jr.                                Laura J. Conyers
William A. Ramsey                                    Findling Park & Associates, P.C.
Murphy Ice LLP                                       Indianapolis, Indiana
Fort Wayne, Indiana
                                                     ATTORNEY FOR APPELLEES IZZET
                                                     YAZGAN, M.D., AND MERIDIAN
                                                     SERVICES CORPORATION
                                                     Michael D. Conner
                                                     Spitzer Herriman Stephenson Holderead
                                                     Conner & Persinger, LLP
                                                     Marion, Indiana
                                                     ATTORNEY FOR AMICUS CURIAE
                                                     INDIANA TRIAL LAWYERS
                                                     ASSOCIATION
                                                     Jerry Garau
                                                     Garau Germano Hanley & Pennington, P.C.
                                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Ball Memorial Hospital, Inc.,                             March 2, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          18A02-1405-CT-316
        v.                                                Interlocutory Appeal from the
                                                          Delaware Circuit Court

L. Gail Fair, as Personal                                 The Honorable Marianne L.
                                                          Vorhees, Judge
Representative of the Estate of
Suwanna Dickey, Deceased,                                 Cause No. 18C01-1001-CT-2




Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015                   Page 1 of 19
      Appellee-Plaintiff,

              v.

      Izzet Yazgan, M.D., and
      Meridian Services Corporation,
      Appellees-Defendants.




      Bradford, Judge.



                                           Case Summary
[1]   Suwanna Dickey was receiving treatment for mental health issues when she

      became acutely psychotic and was admitted to Appellant-Defendant Ball

      Memorial Hospital. While at Ball Memorial, Appellees-Defendants Dr. Izzet

      Yazgan and Meridian Services Corporation provided medical care and

      psychological services to Dickey. Initially, Dr. Yazgan prescribed Dickey

      Geodon and later switched to risperidone (a/k/a Risperdal). At approximately

      12:30 p.m. on April 12, 2008, Dickey died.


[2]   In September of 2009, Appellee-Plaintiff L. Gail Fair, as personal representative

      of Dickey’s estate, filed a proposed complaint with the Indiana Department of

      Insurance. The proposed complaint named Ball Memorial, Dr. Yazgan,

      Meridian Services, and others as defendants. The proposed complaint alleged

      that Ball Memorial’s, Dr. Yazgan’s, and Meridian Services’ treatment of

      Dickey fell below the applicable standard of care. A medical review panel (“the


      Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015   Page 2 of 19
      Panel”) evaluated the evidence and arguments of the parties and unanimously

      decided that none of the defendants named in the proposed complaint breached

      the standard of care.


[3]   In January of 2010, Fair filed her complaint in Delaware Circuit Court.

      (Appellant’s App. 7). All defendants filed motions for summary judgment, and

      in response, Fair designated an affidavit from Dr. Celestine M. DeTrana, who

      offered opinions criticizing Ball Memorial pharmacists. Fair also deposed Dr.

      Yazgan, whose testimony arguably suggested that Ball Memorial’s pharmacist

      breached the standard of care. Afterwards, Dr. DeTrana was deposed and

      testified that the pharmacist breached the standard of care.


[4]   Ball Memorial moved for summary judgment, contending that Fair should not

      be able to pursue a medical malpractice claim against its pharmacist because

      such a claim was not made to the panel. Fair responded, contending that her

      failure to mention the pharmacist before the Panel should not preclude her from

      making the argument now. Dr. Yazgan and Meridian Services argued that,

      even if Fair is prevented from making a claim regarding the pharmacist, they

      should be able to raise such a claim as a defense. The trial court ruled that Fair

      would be able to pursue a claim against Ball Memorial’s pharmacist, and Ball

      Memorial now appeals. Because we conclude that (1) Fair may pursue a

      medical malpractice claim against the pharmacist, (2) Dr. Yazgan and Meridian

      Services may raise the pharmacist’s alleged negligence as a defense, and (3) Ball

      Memorial’s claim that its liability is limited to vicarious liability for the possible



      Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015      Page 3 of 19
      negligence of Dr. Yazgan and Meridian Services is not ripe for adjudication, we

      affirm.



                             Facts and Procedural History
[5]   In April of 2008, Dickey was receiving treatment for mental health issues when

      she became acutely psychotic. On April 4, 2008, Dickey’s family brought her to

      the Ball Memorial emergency department. (Appellant’s App. 141). While

      Dickey was at Ball Memorial, contractors Dr. Yazgan and Meridian Services

      provided medical care and psychological services to her. (Appellant’s App.

      167, 189-97). Records indicate that Dickey was given 20 mg of Geodon in the

      emergency room. (Appellant’s App. 142). In the morning on April 6, 2008,

      Dr. Yazgan issued a new order for a maintenance dose of 80 mg of Geodon

      twice per day. (Appellant’s App. 145). Dickey was admitted to Ball

      Memorial’s psychiatric unit on April 6, 2008. (Appellant’s App. 52). On April

      9, 2008, Dr. Yazgan discontinued Geodon and prescribed Dickey 3 mg of

      risperidone to be taken twice a day. (Appellant’s App. 150. At 3:24 a.m. on

      April 11, 2008, Dickey vomited. (Appellant’s App. 152). Dickey vomited

      again at 12:27 p.m. (Appellant’s App. 152). After seeing Dickey at

      approximately 1:00 p.m., Dr. Yazgan indicated that she should take 6 mg of

      risperidone at bedtime. (Appellant’s App. 153).


[6]   On the morning of April 12, 2008, Dickey “vomited [a] moderate amount [of]

      brown liquid” and was given a small amount of Gatorade. Appellant’s App. p.

      154. Dickey’s scheduled morning medications were not given due to her

      Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015   Page 4 of 19
      nausea. (Appellant’s App. 154-55). Dickey was wakened for lunch, ate some

      gelatin, and drank some apple juice. (Appellant’s App. 155). Although the

      details differ somewhat in the different accounts, Dickey began vomiting

      profusely around midday and soon suffered respiratory arrest. Attempts to

      resuscitate Dickey were unsuccessful, and the time of death was listed as 1:23

      p.m., April 12, 2008. (Appellant’s App. 155-56). An autopsy determined that

      the primary cause of death was cardiac arrhythmia related to dehydration,

      which dehydration was possibly related to vomiting or inadequate fluid intake.

      (Appellant’s App. 158).


[7]   On September 23, 2009, Fair, as personal representative of Dickey’s estate, filed

      a proposed complaint with the Indiana Department of Insurance. (Appellant’s

      App. 75). The proposed complaint named Ball Memorial, Dr. Yazgan,

      Meridian Services, and others as defendants. The proposed complaint alleged,

      in part, as follows:

              12. On and after April 6, 2008, Izzet Yazgan, M.D. and
              Meridian Services Corp. undertook the responsibility to provide
              counseling, medical and/or psychiatric services to Suwanna.
              13. The actions of Izzet Yazgan, M.D. and Meridian Services
              Corp. fell below the standard of care with regard to the treatment
              provided to Suwanna in that they:
                    a.      Failed to properly evaluate, diagnose and treat
                    Suwanna;
                    b.      Failed to properly advise Suwanna with regard to
                    her diagnosis and condition; and
                    c.      Failed to properly monitor and supervise Suwanna
                    while under their care.



      Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015   Page 5 of 19
              14. On and after April 6, 2008, Ball Memorial Hospital, Inc.
              … undertook the responsibility to provide counseling, medical
              and/or psychiatric services to Suwanna.
              15. The actions of Ball Memorial Hospital, Inc. … fell below
              the standard of care with regard to the treatment provided to
              Suwanna in that [it]:
                     a.     Failed to properly evaluate, diagnose and treat
                     Suwanna;
                     b.     Failed to properly advise Suwanna with regard to
                     her diagnosis and condition;
                     c.     Failed to properly monitor and supervise Suwanna
                     while under their care;
                     d.     The nurses and staff failed to properly administer
                     medications and [monitor] the effects of the medication;
                     and
                     e.     The nurses and staff failed to properly assess,
                     monitor and keep physicians advised of Suwanna’s
                     condition.
              16. On April 12, 2008, Suwanna died as a direct and
              proximate result of the conduct of the Defendants.

[8]   Appellant’s App. pp. 77-78. Fair’s submission to the Panel included, inter alia,

      a detailed statement of facts regarding Dickey’s final days and specific

      allegations of negligence by various defendants. Fair alleged that Dr. Yazgan

      breached the standard of care by (1) prescribing the maximum therapeutic dose

      of Geodon without adequate investigation of prior medication history or known

      counterindications; (2) increasing the risperidone dosage too rapidly; (3) failing

      to realize that Dickey was likely suffering from nausea as a side-effect of her

      intake of Geodon and/or risperidone, and (4) failing to diagnose or treat

      Dickey’s underlying depression. (Appellant’s App. 160-61).




      Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015    Page 6 of 19
[9]    Fair alleged that other Meridian Services nurses breached the standard of care

       by (1) erroneously giving Dickey 80 mg of Geodon on April 8, 2008; (2)

       administering excessive dosages of risperidone without clarification of the

       medication orders and failing to appreciate that Dickey’s symptoms were

       caused be the excessive dosages; (3) failing to adequately perform an abdominal

       assessment on Dickey or check for dehydration; (4) failing to report abnormal

       laboratory results; and (5) perhaps not starting resuscitation efforts soon

       enough. (Appellant’s App. 160-64). Fair requested that the Panel render the

       opinion that “defendant, Ball Memorial Hospital, by and through its agents

       and/or employees, failed to comply with the applicable standards of care as

       charged in the plaintiff’s proposed complaint [and that] such malpractice was a

       factor in the damages suffered by Suwanna Dickey.” Appellant’s App. pp. 164-

       65. The Panel evaluated the evidence and arguments of the parties and

       rendered the unanimous opinion in May of 2012 that none of the proposed

       defendants breached the standard of care.


[10]   Meanwhile, in January of 2010, Fair filed her complaint in Delaware Circuit

       Court. (Appellant’s App. 7). Following the determination of the Panel, various

       defendants filed motions for summary judgment. (Appellant’s App. 18). As

       part of her response, Fair obtained and designated a September 9, 2012,

       affidavit from Dr. Celestine M. DeTrana, who offered opinions that the

       defendants breached the applicable standard of care. (Appellant’s App. pp. 86-

       88).




       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015   Page 7 of 19
[11]   Fair deposed Dr. Yazgan on November 27, 2012. Dr. Yazgan testified that

       neither Ball Memorial’s pharmacist nor any other member of the

       pharmaceutical staff contacted him to clarify his medication order for Dickey.

       (Appellant’s App. 234-35). On March 11, 2013, the trial court scheduled the

       matter for trial, to begin on June 16, 2014. (Appellant’s App. 25). On April 10,

       2013, Fair deposed Registered Nurse Ina Dick, who explained how the

       pharmacy handled Dickey’s risperidone prescription. (Appellant’s App. 263-

       64). Dr. DeTrana was deposed on May 14, 2013. Dr. DeTrana opined that the

       Ball Memorial pharmacist breached the standard of care in Dickey’s case for

       failing to clarify what Dr. DeTrana believed to be inappropriate dosages of

       Geodon and risperidone. Appellant’s App. p. 130.


[12]   On December 31, 2013, Ball Memorial moved for summary judgment and,

       alternatively, partial summary judgment, on the basis that, inter alia, Fair should

       not be able to pursue a claim that Ball Memorial’s pharmacist or pharmacy staff

       breached the duty of care because that argument had not been made to the

       Panel. (Appellant’s App. 59-72). Ball Memorial argued that (1) Fair designated

       no admissible expert testimony that any Ball Memorial employee breached the

       duty of care, (2) Fair could not pursue a claim based on negligence by the

       pharmacy staff, (3) Ball Memorial is not vicariously liable for any acts or

       omissions by Meridian Services or its employees, and (4) Ball Memorial is

       entitled to an order that any liability it could be found to incur would be

       vicarious and based on the alleged fault of Meridian Services.




       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015       Page 8 of 19
[13]   On February 17, 2014, Fair responded to Ball Memorial’s motion for summary

       judgment, arguing that she should be able to pursue a claim against Ball

       Memorial’s pharmacist, claiming that (1) Indiana Supreme Court precedent and

       the Medical Malpractice Act allowed it, (2) she should be able to argue

       pharmacist negligence because she alleged in the proposed complaint that

       Dickey had been given an improper dose of risperidone, and (3) fairness

       dictated the she be able to pursue the claim because defendants raised it first.

       (Appellant’s App. 176-77).


[14]   On February 27, 2014, the trial court held a hearing, after which it entered

       partial summary judgment in Ball Memorial’s favor, concluding that there was

       no factual dispute that the nurses who treated Dickey were employees of

       Meridian Services, not Ball Memorial. (Appellant’s App. 37-38). The trial

       court, however, denied Ball Memorial’s summary judgment on the issue of

       whether Fair could pursue a claim against the pharmacist, found that genuine

       issues of material fact existed on the question of Ball Memorial’s liability for the

       acts of Meridian Services, and declined to address the question of whether Ball

       Memorial’s liability (if any) is limited to vicarious liability for the acts or

       omissions of Meridian Services. (Appellant’s App. 39).


[15]   Ball Memorial contends that (1) the trial court erred in denying it summary

       judgment because Fair may not pursue a claim based on the alleged negligence

       of the Ball Memorial pharmacist; (2) the trial court correctly concluded that the

       nurses whose care is at issue were not Ball Memorial employees; and (3)

       because Fair may not pursue any claims against any Ball Memorial employee,

       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015      Page 9 of 19
       Ball Memorial’s potential vicarious liability is therefore limited to that incurred

       by Meridian Services. Fair argues that (1) the trial court correctly denied Ball

       Memorial’s summary judgment motion and Fair should be able to present

       evidence tending to show negligence by Ball Memorial’s pharmacist and (2) the

       trial court correctly declined to rule on the question of whether Ball Memorial’s

       potential liability is limited to vicarious liability for acts committed by Meridian

       Services. Dr. Yazgan and Meridian Services argue that (1) because there is no

       statutory requirement that they present possible defenses to the Panel, they

       should not be precluded from presenting evidence regarding possible negligence

       on the part of Ball Memorial’s pharmacist even if we rule in favor of Ball

       Memorial on its summary judgment claim and (2) any order relating to

       vicarious liability should be consistent with their right to present their defenses.

       Amicus curiae Indiana Trial Lawyers Association (“the ITLA”) argues that the

       Indiana Supreme Court has held that a plaintiff’s action in the trial court is not

       restricted by arguments made to the Panel and that authority from this court to

       the contrary should not be followed.



                                  Discussion and Decision
                                              Standard of Review

[16]   When reviewing the grant or denial of a summary judgment motion, we apply

       the same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar &

       Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is

       appropriate only where the evidence shows there is no genuine issue of material


       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015   Page 10 of 19
       fact and the moving party is entitled to a judgment as a matter of law. Id.; Ind.

       Trial Rule 56(C). All facts and reasonable inferences drawn from those facts

       are construed in favor of the nonmoving party. Merchs. Nat’l Bank, 741 N.E.2d

       at 386. To prevail on a motion for summary judgment, a party must

       demonstrate that the undisputed material facts negate at least one element of

       the other party’s claim. Id. Once the moving party has met this burden with a

       prima facie showing, the burden shifts to the nonmoving party to establish that

       a genuine issue does in fact exist. Id. The party appealing the summary

       judgment bears the burden of persuading us that the trial court erred. Id.



                    I. Fair’s Claim Against the Pharmacist
[17]   Ball Memorial contends that the trial court erred in declining to enter summary

       judgment in its favor on the question of whether Fair may pursue claims of

       negligence by Ball Memorial’s pharmacist. Fair argues that she should be

       allowed to present evidence of pharmacist negligence because she presented

       evidence of the administration of excessive dosages of Geodon and risperidone

       to the Panel; this court’s opinion in K.D. v. Chambers, 951 N.E.2d 855, 857 (Ind.

       Ct. App. 2011), trans. denied, disapproved on other grounds by Spangler v. Bechtel,

       958 N.E.2d 458, 466 n.5 (Ind. 2011), conflicts with the Indiana Supreme

       Court’s decision in Miller by Miller v. Mem’l Hosp. of S. Bend, Inc., 679 N.E.2d

       1329, 1331 (Ind. 1997), and the Indiana Rules of Trial Procedure; and K.D. is

       distinguishable in any event. The ITLA also argues that K.D. is not good law




       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015     Page 11 of 19
       but adds that the Panel’s opinion should not be limited to arguments made by

       non-expert claimants as a matter of policy.


                                                 Background
[18]   The Indiana Medical Malpractice Act (“the ACT”) governs medical

       malpractice claims against health care providers, with malpractice defined 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. “[A]n action against a health care provider

       may not be commenced in a court in Indiana before … the claimant’s proposed

       complaint has been presented to a medical review panel established under IC

       34-18-10 (or IC 27-12-10 before its repeal); and … an opinion is given by the

       panel.” Ind. Code § 34-18-8-4.


               (a) The evidence in written form to be considered by the medical
               review panel shall be promptly submitted by the respective
               parties.
               (b) The evidence may consist of medical charts, x-rays, lab tests,
               excerpts of treatises, depositions of witnesses including parties,
               and any other form of evidence allowable by the medical review
               panel.
               (c) Depositions of parties and witnesses may be taken before the
               convening of the panel.
               (d) The chairman shall ensure that before the panel gives its
               expert opinion under section 22 of this chapter, each panel
               member has the opportunity to review every item of evidence
               submitted by the parties.
               (e) Before considering any evidence or deliberating with other
               panel members, each member of the medical review panel shall


       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015   Page 12 of 19
        take an oath in writing on a form provided by the panel
        chairman, which must read as follows:
           “I (swear) (affirm) under penalties of perjury that I will well
           and truly consider the evidence submitted by the parties; that I
           will render my opinion without bias, based upon the evidence
           submitted by the parties, and that I have not and will not
           communicate with any party or representative of a party
           before rendering my opinion, except as authorized by law.”.

Ind. Code § 34-18-10-17.


        After reviewing all evidence and after any examination of the
        panel by counsel representing either party, the panel shall, within
        thirty (30) days, give one (1) or more of the following expert
        opinions, which must be in writing and signed by the panelists:
            (1) The evidence supports the conclusion that the defendant
            or defendants failed to comply with the appropriate standard
            of care as charged in the complaint.
            (2) The evidence does not support the conclusion that the
            defendant or defendants failed to meet the applicable standard
            of care as charged in the complaint.
            (3) There is a material issue of fact, not requiring expert
            opinion, bearing on liability for consideration by the court or
            jury.
            (4) The conduct complained of was or was not a factor of the
            resultant damages.

Ind. Code § 34-18-10-22. This issue boils down to whether Fair’s proposed

complaint was sufficient to preserve a claim against Ball Memorial’s

pharmacist, even though negligence by neither the pharmacist nor any member

of the pharmacist’s staff was specifically alleged in the proposed complaint.




Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015   Page 13 of 19
                                                     Analysis
[19]   Much of the discussion of this issue revolves around two cases, with Ball

       Memorial relying on this court’s holding in K.D., 951 N.E.2d at 855, while Fair

       and the ITLA argue that K.D. is in conflict with the Act and the Indiana

       Supreme Court’s opinion in Miller, 679 N.E.2d at 1329. Because we need not

       rely on K.D. to reach our conclusion on this issue, we leave the question of

       K.D.’s validity for another day.1


[20]   In Miller, Nicholas Miller and his parents brought suit against Dr. Herbert

       Schiller and Memorial Hospital of South Bend (“the Hospital”) for injuries

       sustained at or around the time of Nicholas’s June 7, 1982, birth. Id. at 1330.

       Dr. Schiller’s negligent actions were alleged to have taken place “‘on or about

       June 1, 1982’” while the Hospital’s negligent acts were alleged as occurring

       “‘on and after June 7, 1982[.]’” Id. After presenting the proposed complaint to,

       and obtaining an opinion from a medical review panel, the Millers filed suit in

       trial court. Id. After the Millers settled with Dr. Schiller, the Hospital moved

       for summary judgment, arguing, inter alia, that the injuries allegedly sustained

       by Nicholas due to the actions of Dr. Schiller and/or the Hospital were

       identical. Id. at 1331. When the Millers responded that their claims against the

       Hospital were only for its alleged post-natal negligence, while their claims

       against Dr. Schiller were for his pre-natal negligence, the Hospital countered



               1
               The parties also argue about the application to this case of this court’s decision in Stafford v.
       Szymanowski, 13 N.E.2d 890 (Ind. Ct. App. 2014), trans. pending. On February 5, 2015, the Indiana
       Supreme Court granted transfer in Stafford, and it therefore has no precedential value.

       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015                       Page 14 of 19
       that no distinction between pre- and post-natal negligence had been made the

       medical review panel. Id. After the trial court granted summary judgment to

       the Hospital, the Millers appealed. Id.


[21]   The Miller court first noted that there is no dispute that, if there are two separate

       acts of medical malpractice that cause distinct injuries, there may be two

       recoveries. Id. at 1332. The court then explained the general principles of

       notice pleading that are used in Indiana:


               The principles of notice pleading are utilized in Indiana. Our
               rules require that “all pleadings shall be so construed as to do
               substantial justice, lead to disposition on the merits, and avoid
               litigation of procedural points.” Ind. Trial Rule 8(F).
               Specifically, Indiana Trial Rule 8(A) requires only “(1) a short
               and plain statement of the claim showing that the pleader is
               entitled to relief, and (2) a demand for the relief to which the
               pleader deems entitled....” This rule “is designed to discourage
               battles over mere form of statement and to sweep away needless
               controversies that have occurred either to delay trial on the
               merits or to prevent a party from having a trial because of
               mistakes in statement.” 1 William F. Harvey, Indiana Practice,
               Rule 8(a) (2d ed. 1987). Our notice pleading rules do not require
               that the complaint state all the elements of a cause of action.
               State v. Rankin, 260 Ind. 228, 231, 294 N.E.2d 604, 606 (Ind.
               1973). A plaintiff “essentially need only plead the operative facts
               involved in the litigation.” Id. at 231, 294 N.E.2d at 606.

       Miller, 679 N.E.2d at 1332.

[22]   The Miller court reversed the trial court’s grant of summary judgment to the

       Hospital, concluding that the Millers’ proposed complaint was sufficient to

       preserve separate claims against Dr. Schiller and the Hospital. Id. The court

       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015   Page 15 of 19
       noted that the complaints filed by the Millers contained separate counts for

       each defendant and specified different dates for each defendant’s alleged acts of

       malpractice. Id. The court concluded that “[w]hile a medical malpractice

       plaintiff must, as a prerequisite to filing suit, present the proposed complaint for

       review and expert opinion by a medical review panel, there is no requirement

       for such plaintiff to fully explicate and provide the particulars or legal

       contentions regarding the claim.” Id.


[23]   The application of Miller to this case leads us to conclude that Fair may pursue

       a claim of negligence against Ball Memorial’s pharmacist in the trial court. As

       mentioned, the Miller court’s disposition was based on the principles of notice

       pleading, which do not require that a complaint state all of the elements of a

       cause of action or anything more than the “‘operative facts involved in the

       litigation.’” Miller, 679 N.E.2d at 1332 (quoting State v. Rankin, 260 Ind. 228,

       231, 294 N.E.2d 604, 606 (Ind. 1973)). Fair has satisfied Miller’s requirements.

       As previously mentioned, Fair’s proposed complaint alleged, inter alia, that Ball

       Memorial’s “nurses and staff failed to properly administer medications and

       [monitor] the effects of the medication[.]” Appellant’s App. p. 77 (emphasis

       added). It is not disputed that Ball Memorial’s pharmacist is a member of the

       hospital’s staff. Moreover, because “administer” may be defined as “to mete

       out [or] dispense[,]” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 27

       (Phillip Babcock Gove et al. eds., G.&C. Merriam Company 1964), Ball

       Memorial’s pharmacist was involved in the administration of the medications

       to Dickey. In other words, Ball Memorial was put on notice that the possible

       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015      Page 16 of 19
       negligence of any member of its staff involved in the administration of the

       medications was at issue, which includes the pharmacist. The trial court

       correctly denied Ball Memorial summary judgment on this point.



             II. Dr. Yazgan and Meridian Services’ Claim
                        Against the Pharmacist
[24]   While Dr. Yazgan and Meridian Services took no position on whether Fair

       may be allowed to pursue a claim against Ball Memorial’s pharmacist, they

       argue that the resolution of that question does not affect their right to raise his

       possible negligence as a defense, even though they did not raise the issue before

       the Panel. Ball Memorial agrees that a medical malpractice defendant has no

       responsibility to identify claims or defenses to a medical review panel. Because

       Fair does not dispute this, we need not address it further. However, because the

       merits may be addressed quickly, we choose to do so.


[25]   The Act places the burden on a medical malpractice plaintiff to bring claims

       before a medical review panel, see Ind. Code § 34-18-8-4(1), but no similar

       burden is placed on defendants to present defenses.

               Necessarily, the initial burden falls upon the party submitting the
               proposed complaint. Without evidence from the complainant in
               support of the proposed complaint the review panel is unable to
               “express its expert opinion as to whether or not the evidence
               supports the conclusion that the defendant or defendants acted or
               failed to act within the appropriate standards of care as charged
               in the complaint.” Only when the complainant’s evidence is
               submitted is the defendant in the proposed complaint compelled

       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015    Page 17 of 19
               to come forward with evidence in response to the complainant’s
               evidence.

       Galindo v. Christensen, 569 N.E.2d 702, 705-06 (Ind. Ct. App. 1991) (citation

       omitted). Because Dr. Yazgan and Meridian Services had no burden to place

       allegations of pharmacist negligence before the panel, they are not precluded

       from presenting such evidence in the trial court.



                   III. Ball Memorial’s Vicarious Liability
[26]   Ball Memorial contends that its potential liability in this case should be limited

       to vicarious liability for the alleged negligence of Dr. Yazgan or Meridian

       Services, which is limited by the Act to $250,000.00. Dr. Yazgan and Meridian

       Services take no position on this issue, other than to emphasize that any

       disposition should not affect their right to present their defense. Fair contends

       that the issue is not yet ripe for adjudication.


[27]   Indiana Code section 34-18-14-3(d) provides as follows:

               (d) If a health care provider qualified under this article (or IC 27-
               12 before its repeal) admits liability or is adjudicated liable solely
               by reason of the conduct of another health care provider who is
               an officer, agent, or employee of the health care provider acting
               in the course and scope of employment and qualified under this
               article (or IC 27-12 before its repeal), the total amount that shall
               be paid to the claimant on behalf of the officer, agent, or
               employee and the health care provider by the health care
               provider or its insurer is two hundred fifty thousand dollars
               ($250,000). The balance of an adjudicated amount to which the
               claimant is entitled shall be paid by other liable health care
               providers or the patient’s compensation fund, or both.
       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015      Page 18 of 19
[28]   Fair is correct that this question is not yet ripe for adjudication. Because the

       question of negligence by Ball Memorial’s pharmacist is still open, Ball

       Memorial is not entitled to an order limiting its potential liability to vicarious

       liability for the actions of Dr. Yazgan and Meridian Services.



                                                Conclusion
[29]   We conclude that the trial court correctly denied defendant Ball Memorial

       summary judgment on the question of whether plaintiff Fair may pursue a

       negligence claim against its pharmacist. Dr. Yazgan and Meridian Services

       may also raise potential negligence on the part of the Ball Memorial pharmacist

       as a defense. Because Fair has a claim of negligence against the Ball Memorial

       pharmacist, Ball Memorial is not entitled to an order limiting its liability

       pursuant to Indiana Code section 34-18-14-3(d) at this time.


[30]   We affirm the judgment of the trial court.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A02-1405-CT-316 | March 2, 2015   Page 19 of 19
