Appeal from the Lake Superior Court. The Honorable William E. Davis, Judge. Cause No. 45D05-1109-CT-175.
ATTORNEY FOR APPELLANT: Kevin W. Vanderground, Church, Church, Hittle & Antrim; Rick C. Gikas, Merrillville, Indiana.
ATTORNEY FOR APPELLEE: Gregory A. Crisman, Carly A. Brandenburg, Eichhorn & Eichhorn, LLP, Hammond, Indiana.
Bailey, Judge. Robb, J., and Brown, J., concur.
¶1 Angelique Lockett (" Angelique" ) and her mother Lanetra Lockett (" Lanetra" ) (collectively, " the Locketts" ) appeal the trial court's grant of summary judgment in favor of Planned Parenthood of Indiana, Inc. (" Planned Parenthood" ) after Angelique, then a minor, intentionally misrepresented herself to be eighteen-years-old and obtained an abortion at a Planned Parenthood clinic without Lanetra's consent. We affirm the trial court's grant of Planned Parenthood's motion for summary judgment because the Locketts failed to present their claims first to a medical review panel, as required by the Medical Malpractice Act (" the MMA" ), and thus the trial court lacked subject matter jurisdiction over the claims. However, to the extent that the trial court's order appears to have dismissed the Locketts' claims against defendant Cathy McGee (" McGee" ), we reverse and remand with instructions to correct the order.
¶2 The Locketts present three issues on appeal, which we consolidate and restate as the following one: whether the trial court erred in granting Planned Parenthood's motion for summary judgment where the Locketts' claims against a health care provider based on an alleged failure to obtain informed consent were not presented first to a medical review panel.
¶3 We also address sua sponte the status of the Locketts' claims against McGee.
Facts and Procedural History
¶4 In early 2010, then seventeen-year-old Angelique suspected she was pregnant and informed her boyfriend's mother, McGee. Present during the conversation with McGee was Raven Francis (" Francis" ), the girlfriend of another of McGee's sons. Although unsure if she was even pregnant, Angelique discussed with McGee and Francis the possibility of obtaining an abortion at Planned Parenthood. Francis, who was eighteen-years-old at the time, offered to loan Angelique her Indiana State-issued identification card (" ID" ) so that Angelique could represent herself to Planned Parenthood as old enough to consent to medical treatment. Francis's boyfriend opined that Angelique and Francis resembled each other, even though Angelique weighed twenty pounds less and stood four inches shorter than the weight and height listed on Francis's ID. Angelique was skeptical that the ruse would work, but borrowed Francis's ID.
¶5 On January 22, 2010, unbeknownst to Lanetra, McGee took Angelique to Planned Parenthood's Merrillville office. Angelique stated that " the whole purpose of going there was first to see if I was pregnant." (App. 59.) Upon arrival, Angelique represented herself to the office staff as eighteen-year-old Francis, and McGee, using her own name, posed as Angelique's mother. Angelique presented Francis's ID to the office staff, who looked at it and made a copy. The employee who accepted the ID attested that she checked the ID, " saw no reason to doubt the identity that the patient had presented" and " observed that the patient's identification showed her age to be 18." (App. 73.) Angelique and McGee were then given forms to fill out, some of which McGee filled out on Angelique's behalf. Angelique also filled out forms, including at least one on which she began to sign her actual name beginning with the letter " A," but adjusted to reflect the name " Raven Francis."
¶6 During the visit, Angelique underwent an ultrasound and blood and urine tests. The tests confirmed that Angelique was in fact pregnant and in her first trimester. After undergoing counseling outside of McGee's presence, Angelique forged the name " Raven Francis" on a form consenting to an abortion and acknowledging that she had received the statutorily-prescribed information regarding the procedure and abortion alternatives. McGee paid in advance for the procedure. Angelique did not tell anyone at Planned Parenthood that she was actually Angelique Lockett or that McGee was not her mother.
¶7 After a six day waiting period, Angelique returned to Planned Parenthood on January 28, 2010, again represented herself as Raven Francis, and an abortion was provided. McGee was not present at the beginning of the appointment, but arrived later. Lanetra, who was not aware that her daughter was pregnant and considering an abortion, did not consent to the procedure.
¶8 On August 30, 2011, Angelique, now an adult, and Lanetra filed a complaint against Planned Parenthood and McGee, alleging that Angelique and Lanetra were harmed when Planned Parenthood's physician performed an abortion on Angelique without Lanetra's consent. Angelique and Lanetra specifically alleged against Planned Parenthood the following two claims: strict liability for failing to comply with Indiana Code chapter 16-34-2 (concerning requirements for legal abortions, informed consent procedures, parental consent, and criminal penalties for noncompliant physicians) and negligence for breaching duties imposed by Indiana Code chapter 16-34-2. Angelique also brought against both Planned Parenthood and McGee claims for assault, battery, and negligent infliction of emotional distress.
¶9 On December 5, 2013, Planned Parenthood filed a motion for summary judgment, in which it argued that immunity provisions in the Health Care Consent Act relieved Planned Parenthood of liability and that the Locketts should be equitably estopped from pursuing their claims due to Angelique's misrepresentations. After the Locketts filed their response on May 28, 2014, Planned Parenthood filed a reply brief on June 5, 2014 in which it also argued that Indiana's statutes governing abortion, including Indiana Code chapter 16-34-2, do not create a private right of action for individuals such as the Locketts.
¶10 On June 13, 2014, the trial court held a hearing on Planned Parenthood's motion for summary judgment. The court also heard argument on the Locketts' motion to strike portions of affidavits designated by ...