REBECCA STAFFORD, Individually and as Surviving Parent of DRAYDEN POWELL, Deceased, and DRAYDEN POWELL, Deceased, Appellants-Plaintiffs,
JAMES E. SZYMANOWSKI, M.D. and GYN, LTD., INC., Appellees-Defendants, And JOSEPH B. CLEMENTE, M.D., Appellee-Defendant
APPEAL FROM THE WAYNE SUPERIOR COURT. The Honorable Gregory A. Horn, Judge. Cause No. 89D02-1209-CT-33.
ATTORNEYS FOR APPELLANTS: MICHAEL E. SIMMONS, ANDREW P. WIRICK, Hume Smith Geddes Green & Simmons, LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES: SUSAN E. CLINE, EDWARD J. FUJAWA, Lewis Wagner, LLP, Indianapolis, Indiana.
RILEY, Judge. ROBB, J. and BRADFORD, J. concur.
STATEMENT OF THE CASE
Appellants-Plaintiffs, Rebecca Stafford, Individually and as Surviving Parent of Drayden Powell, Deceased (Stafford) and Drayden Powell, Deceased (Drayden) (Collectively, Appellants), appeal the trial court's summary judgment in favor of Appellees-Defendants, Joseph B. Clemente, M.D. (Dr. Clemente); James E. Szymanowski, M.D. (Dr. Szymanowski); and GYN, Ltd., Inc. (GYN) (Collectively, Appellees) with respect to Appellants' medical malpractice claim.
Appellants raise three issues on appeal, which we restate as:
(1) Whether the trial court properly concluded that the testimony of Appellants' expert witness did not create a genuine issue of material fact as to the liability of Dr. Szymanowski;
(2) Whether the trial court properly concluded that the alleged negligence of a physician qualified under the Indiana Medical Malpractice Act cannot be imputed upon the corporate Appellee, GYN, under a theory of vicarious liability; and
(3) Whether the trial court properly concluded that no recovery can be had for the 2007 death of a child not born alive under the Child Wrongful Death Statute.
FACTS AND PROCEDURAL HISTORY
Stafford became pregnant with her third child in 2007. She received prenatal medical care from Appellees from approximately March of 2007 until Drayden was stillborn on November 6, 2007. Stafford alleges that Drayden's death in utero and stillbirth resulted from Appellees' negligence and medical malpractice at a time when Drayden was a viable fetus, and specifically from certain medical acts and omissions which occurred between October 6, 2007 and November 6, 2007.
On June 2, 2009, Stafford filed a Proposed Complaint for Medical Malpractice with the Indiana Department of Insurance. On October 23, 2009, an amended complaint was filed, adding Drayden, a child not born alive, as a party, and submitted to the Medical Review Panel (Panel) pursuant to Ind. Code § 34-18-10-1. On May 30, 2012, the Panel issued its expert opinion, concluding " that the evidence does not support the conclusion that the [Appellees] failed to meet the ...