Jones v. Wasserman , 656 N.E.2d 1195 ( 1995 )

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Leonard C. Jones appeals the dismissal of his proposed medical malpractice complaint before the Indiana Department of Insurance. We affirm.

ISSUE

Whether the trial court abused its discretion in dismissing the proposed medical malpractice complaint against Dr. Wasser-man.

FACTS

On October 26, 1992, Jones filed a proposed complaint with the Indiana Department of Insurance in accordance with the Indiana Malpractice Act, Ind.Code 27-12-8-1 et seq. The complaint alleged that Dr. Anto-lio G. Wasserman was negligent in treating Jones for injuries sustained in a work-related accident on October 27, 1990.

On April 4, 1994, the formation of a medical review panel was completed. On that date, the panel chairman notified the parties that Jones' evidence should be submitted to the panel by June 3, 1994, with evidence from Dr. Wasserman due July 1, 1994 and the panel opinion being "due on or before October 3, 1994." (R. 10). This schedule was set in order for the panel to render an expert opinion within the 180 day time limit set by I.C. 27-12-10-18(a). On July 19, 1994, the chairman wrote to Jones' counsel indicating the panel had not received Jones' submission and had heard no explanation regarding the failure to comply with the deadline. The chairman set a new deadline for receipt of Jones' evidence: August 5, 1995; Dr. Was-serman would then have until September 2, 1994, to submit his evidence. The review panel never received an evidentiary submission from Jones; nor did the panel receive any communication from Jones explaining his inability to comply with either deadline or seeking an extension.

On September 2, 1994, Dr. Wasserman filed a motion for preliminary determination of law requesting the dismissal of Jones' proposed complaint with prejudice. The motion alleged that Jones had prevented the panel from complying with the provision of the Medical Malpractice Act which requires a panel to render its opinion within 180 days of panel formation. After a hearing, the trial court ordered Jones' complaint dismissed.

DECISION

Jones contends the trial court abused its discretion by dismissing the complaint. As authority, he refers us to Associates Financial Serv., Etc. v. Knapp (1981), Ind.App., 422 N.E.2d 1261, and Breedlove v. Breedlove (1981), Ind.App., 421 N.E.2d 739. As Dr. Wasserman responds, neither case involves a medical malpractice matter governed by the procedural requirements of IC. 27-12-10-18(2), but rather both involve discovery disputes.

According to the record, a trilogy of authority was presented to the trial court describing the ability of the court to dismiss a malpractice complaint for failure to submit evidence as directed by the review panel. In the first case, Galindo v. Christensen (1991), Ind.App., 569 N.E.2d 702, Judge Shields addressed a challenge to the court's discretion to dismiss on these grounds.

... the [Medical Malpractice] Act specifically provides the trial court has the authority to impose appropriate sanctions upon a party who fails to act as required by the Act without good cause shown.

The Act authorizes the panel chair to establish a reasonable schedule for submission of evidence to the medical review panel, ... and, in addition, mandates the panel to render its opinion within 180 days of the selection of the complete panel. 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 sance-tions.

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 to come forward with evidence in response to the complainant's complaint....

Further, dismissal is a sanction which the trial court has the inherent authority to order in its discretion.

Id. at 705-706 (statutory citations omitted). Before imposing the dismissal sanction, however, a hearing is required in order "that the party against whom sanctions are sought specifically is permitted the opportunity to show good cause for the party's failure to act in accordance with the party's duty." Id. at 706.

In the second case, Ground v. Methodist Hosp. of Indiana (1992), Ind.App., 576 N.E.2d 611, trans. denied, we noted that the provision now at I.C. 2712-10-14¹ "is an administrative parallel to Trial Rule 41(E)-* it affords relief when a party or panel member is dilatory or fails to comply" with the requirements of the Malpractice Act,. We affirmed the trial court's dismissal for faflure to submit evidence to the panel in order that the panel could render its decision within the 180 day time limit set by statute.

The third case cited to the trial court is Blackden v. Kaufman (1993), Ind.App., 611 N.E.2d 663, trans. denied, wherein we also 'affirmed the trial court's dismissal with prejudice for failure to timely file a medical submission with the medical review panel. As does Jones, the Blackdens argued that dismissal was an inappropriate sanction in their case. We referred to both Galindo and Ground as holding dismissal to be an appropriate sanction and imposition of the sanction being "entrusted to the sound discretion of the trial court." Id. at 666. Further, we observed that onee the trial court had held a hearing and determined to impose the sanetion of dismissal "for noncompliance with reasonable procedural requirements, it is incumbent upon the plaintiff to demonstrate why the trial court should have been required to rule differently as a matter of law." Id.

We conclude, as we did in Blackden, that Jones has merely put forth his view of the facts ² but has not demonstrated abuse. Because dismissal was a remedy which was within the trial court's authority, the trial court did not abuse its discretion in employing this remedy for Jones' failure to comply with the evidentiary schedule set up by the medical review panel.

We affirm.

ROBERTSON, J., coneurs. RILEY, J., dissents with separate opinion.

1 . LC. 27-12-10-14 provides:

A party, attorney, or panelist who fails to act as required by this chapter without good cause shown is subject to mandate or appropriate sanctions upon application to the court designated in the proposed complaint as having jurisdiction.

2 . Jones' counsel averred in his response to the motion for preliminary determination that: 1) he had not scheduled a deposition with Jones' treating physician until after the deadline for his evidentiary submission had passed, and 2) not until he had received a copy of the treating physician's deposition "did he realize that the Plaintiff's own treating physician had rendered an opinion that Dr. Wasserman had not committed malpractice." (R. 46). Thus, on September 29, 1994, when he filed the response, counsel was still "diligently seeking to employ expert witnesses." (R. 47).

The trial court could well have concluded that either investigation before filing the complaint or investigatory efforts during the subsequent twenty-one months could have averted this dilemma.