FOR
PUBLICATION
ATTORNEYS FOR APPELLANT
: ATTORNEYS
FOR APPELLEES:
EDWARD L. MURPHY,
JR. MARK A. GARVIN
DIANA
C. BAUER THOMAS N. O’MALLEY
Miller
Carson Boxberger & Murphy LLP Barnes & Thornburg
Fort Wayne, Indiana
Fort Wayne, Indiana
TAI-MIN CHEN, M.D., ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-0001-CV-34 ) SCOTT KIRKPATRICK and RENEE ) KIRKPATRICK, the next friends and parents of ) J.K., and ELIZABETH MONTGOMERY, the ) next friend and parent of S.M., ) ) Appellees-Plaintiffs. )
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
2. Is Dr. Chen’s appeal so utterly devoid of all
plausibility as to entitle the Kirkpatricks and Montgomery to an award of
appellate attorney fees?
We affirm.
Elizabeth Montgomery, the next friend
and parent of Sarah Montgomery, filed a proposed complaint with the Indiana
Department of Insurance, alleging that Dr. Chen and Lutheran Hospital were
negligent in the care and treatment of Sarah Montgomery while she was in the
neonatal intensive care unit at Lutheran Hospital. Scott and Renee Kirkpatrick,
the next friends and parents of Justin Kirkpatrick, also filed a proposed
complaint with the Indiana Department of Insurance, alleging that Dr. Chen and
Lutheran Hospital were negligent in their care and treatment of Justin while he
was in the neonatal intensive care unit at Lutheran
Hospital.
Montgomery and the Kirkpatricks each
submitted materials to the medical review panel chairman, John W. Whiteleather,
Jr. See footnote Included in each submission was a copy of a
February 10, 1999 report prepared by James A. Lemons, M.D. (the Lemons report)
and directed to Joan Wolf, Deputy Attorney General for the State of Indiana. Dr.
Lemons prepared the Lemons report in connection with a licensing proceeding
brought against Dr. Chen by the Indiana Attorney General’s
office.
Dr. Lemons is the Hugh McLandon Professor of
Pediatrics at the Indiana University School of Medicine and the Director of the
Neonatal-Perinatal Medicine section of Riley Children’s Hospital. At the request
of the Attorney General’s office, Dr. Lemons conducted an extensive, independent
review of the medical practices and procedures of Dr. Chen at Lutheran
Hospital’s neonatal intensive care unit over an extended period of time. During
such review, Dr. Lemons examined the medical records of Justin Kirkpatrick and
Sarah Montgomery, as well as those of six other children. He also considered
other materials before preparing the Lemons report. The Lemons report contains
Dr. Lemons’s opinion concerning the medical care rendered by Dr. Chen to the
eight infants, including Justin Kirkpatrick and Sarah Montgomery, and the
propriety of the medical practices and protocols employed by Dr. Chen and
Lutheran Hospital.
According to the Kirkpatricks and
Montgomery, the Lemons report details extensive serious deviations from the
accepted standard of care by Dr. Chen and Lutheran Hospital. They claim “that
the Lemons report provides compelling evidence that Lutheran Hospital was aware,
or should have been aware of the inadequate, dangerous and, at times, bizarre,
treatment provided by Dr. Chen, its Medical Director for the Neonatal Intensive
Care Unit.” Appellee’s Brief at 4.
The Kirkpatricks
also included in their medical review panel submission a September 30, 1997
letter from Robert White, M.D. that addressed the medical care and treatment
provided by Dr. Chen and Lutheran Hospital to Justin Kirkpatrick and another
infant.See footnote According to the Kirkpatricks, Dr. White
opined that Dr. Chen’s care fell below the applicable standard of care and, in
certain respects, the procedures and protocols of Lutheran Hospital also fell
below the accepted standard of care.
Dr. Chen
requested that Panel Chairman Whiteleather redact or remove the Lemons and White
reports from the Kirkpatrick and Montgomery submissions. Whiteleather denied
such requests, stating in pertinent part:
[I]t has been my belief that a
panel chairman has no authority to unilaterally determine what evidence may be
submitted to the entire panel. I have found neither statutory directive nor case
law to support such unilateral authority. Further, it seems to me that if the
legislature did not empower trial courts with such authority, certainly the
legislature wouldn’t, and didn’t, provide same to a panel chairman. That said,
the only body which appears to have jurisdiction to determine what evidence it
will consider or not, and what weight will be given, is the entire medical
review panel, or more specifically, the three voting members thereof.
Record
at 35.
Dr. Chen thereafter filed motions for a
preliminary determination with the Allen Superior Court. Lutheran Hospital
joined in the motions. After conducting a hearing, the trial court entered an
order denying the relief requested in the motions. The court essentially
determined that it lacked subject matter jurisdiction pursuant to Ind. Code §
34-18-11-1(a) or (b) and Griffith v. Jones, 602 N.E.2d 107 (Ind. 1993),
to grant the requests to redact or remove the Lemons report and the letter by
Dr. White. The court also concluded that, pursuant to IC § 34-18-10-17(b), only
the three voting members of the medical review panel have jurisdiction to
determine what evidence the panel will consider. The trial court denied each of
the parties’ requests for attorney fees.
(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.
(Emphasis supplied.) The italicized portions of the above statute make clear
both that (1) the medical review panel alone has the power to determine the
evidence it will consider in reaching its decision, and (2) the chairman, who
must “ensure that . . . each panel member has had the opportunity to review
every item of evidence submitted by the parties”, id., may not play the
role of gatekeeper.
It is well settled that trial
courts in this state also may not function as gatekeepers. IC § 34-18-11-1,
formerly Ind. Code § 16-9.5-9-10, provides in pertinent
part:
(a) A court having
jurisdiction over the subject matter and the parties to a proposed complaint
filed with the commissioner under this article may, upon the filing of a
proposed complaint and a written motion under this chapter, do one (1) or both
of the following:
(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.
(b) The court has no
jurisdiction to rule preliminarily upon any affirmative defense or issue of law
or fact reserved for written opinion by the medical review panel under IC
34-18-10-22(b)(1), IC 34-18-10-22(b)(2), and IC 34-18-10-22(b)(4).
In Griffith v. Jones, 602 N.E.2d at 111, our supreme court discussed
IC § 16-9.5-10-1, the predecessor statute, and unequivocally held that “the
trial courts of this State do not have jurisdiction to instruct the medical
review panel concerning . . . the evidence that it may consider in reaching its
opinion . . . .”
Based on the foregoing, we conclude that neither the medical
review panel chairman nor the trial court may act as a gatekeeper and remove
from consideration by the medical review panel materials submitted to it by the
parties. The trial court did not err in denying Dr. Chen and Lutheran Hospital’s
motions requesting that it strike or redact certain materials submitted to the
medical review panels on behalf of Montgomery and the Kirkpatricks.