Interlocutory Appeal from the Delaware Circuit Court. The Honorable Marianne L. Vorhees, Judge. Cause No. 18C01-1001-CT-2.
ATTORNEYS FOR APPELLANT, BALL MEMORIAL HOSPITAL: Edward L. Murphy, Jr., William A. Ramsey, Murphy Ice LLP, Fort Wayne, Indiana.
ATTORNEY FOR APPELLEE, L. GAIL FAIR: Laura J. Conyers, Findling Park & Associates, P.C., Indianapolis, 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.
Bradford, Judge. Najam, J., and Mathias, J., concur.
[¶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 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 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 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.
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 ...