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Tramill v. Anonymous Healthcare Provider

Court of Appeals of Indiana

July 8, 2015

Virginia Tramill, Miah Gant, Marquel Cheaney and Jeremiah Tramill, the Mother and Children of Sara Tramill, Deceased, Appellant-Defendant,
v.
Anonymous Healthcare Provider, Appellee-Plaintiff

Appeal from the Marion Superior Court. Cause No. 49D13-1308-CT-32116. The Honorable Timothy Oakes, Judge.

ATTORNEY FOR APPELLANT: Morris L. Klapper, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: George M. Plews, Tonya J. Bond, Josh S. Tatum, Plews Shadley Racher & Braun, LLP, Indianapolis, Indiana; Lara D. Engelking, Engelking Law Group, LLC, Carmel, Indiana.

Barnes, Judge. Riley, J., and Bailey, J., concur.

OPINION

Page 554

Barnes, Judge.

Case Summary

[¶1] Virginia Tramill, Miah Gant, Marquel Cheaney, and Jeremiah Tramill (collectively, " the Appellants" ) appeal the trial court's denial of their motion for declaratory judgment in a proposed medical malpractice action against Anonymous Healthcare Provider (" the Facility" ). On cross-appeal, the Facility appeals various trial court orders related to medical review

Page 555

panel proceedings. We affirm in part and reverse in part.

Issues

[¶2] The Appellants raise one issue, which we restate as:

I. whether the trial court properly denied their request for declaratory judgment.

On cross-appeal, the Facility raises one issue, which we restate as:

II. whether we have authority to consider the trial court's rulings on various motions related to the medical review panel proceedings.

Facts

[¶3] On November 23, 2009, Sara Tramill, the daughter and mother of the Appellants, was in the care of the Facility following a stroke and died. A private autopsy was performed by Dr. E. Allen Griggs to determine the cause of Sara's death. Dr. Griggs determined that the cause of death was respiratory arrest due to " [a]spiration of blood and mucous into tracheo-bronchial tree and lungs[.]" Appellee's App. p. 101.

[¶4] In January 2011, the Appellants filed a proposed medical malpractice complaint alleging that the Facility negligently caused Sara's death. The Facility retained Dr. John Pless as an expert. Dr. Pless prepared a lengthy affidavit, which was critical of Dr. Griggs's autopsy and opined in part " that Dr. Griggs has not presented a clear and balanced autopsy report . . . . It is also my opinion that the reports have been specifically crafted by Dr. Griggs to meet the needs of the Plaintiff's theory in this lawsuit." Id. at 68-69.

[¶5] Attorney Don Morton was selected as the medical review panel chairman, and three doctors were selected to serve as the other panelists. It was later determined that, because the third panelist, Dr. Hawley, a forensic pathologist, was a close business associate of Dr. Pless, a new panelist would be selected to replace him.

[¶6] On September 6, 2013, correspondence from an attorney on behalf of Dr. Griggs advised the Facility's attorney of a potential defamation case against Dr. Pless based on portions of Dr. Pless's affidavit. On September 20, 2013, the Facility sought a preliminary determination of law requesting the ability to submit Dr. Pless's affidavit to the medical review panel with absolute immunity. The Appellants filed a cross-motion for preliminary determination of law on the issue of panel selection, specifically whether Dr. Hawley's replacement was required to be a forensic pathologist.

[¶7] On November 25, 2013, the trial court issued an order addressing all of the parties' outstanding motions.[1] As to the issue of Dr. Pless's immunity and the specialty of the third panelist the trial court ordered:

4. [The Facility's] Supplemental Motion for Preliminary Determination of Law Seeking Authorization To Submit Expert Affidavit Testimony to the Medical Review Panel and for Other Uses in Pending Litigation with Absolute Immunity is DENIED AS PREMATURE but the parties and their witnesses are reminded ...

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