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ABC Radiology, P.C. v. Gearhart

Court of Appeals of Indiana

February 7, 2017

ABC Radiology, P.C., Jane Doe, John Doe, Anonymous Medical Associates, Inc., Sherry Patrick, Appellants-Defendants,
v.
Cathy Gearhart, Appellee-Plaintiff

         Appeal from the Marion Superior Court Trial Court Cause No. 49D07-1509-CT-30343 The Honorable Michael D. Keele, Judge

          Attorneys for Appellants Danny E. Glass Andrew E. Skinner Evansville, Indiana Clay A. Edwards Chad J. Bradford Louisville, Kentucky Lonnie D. Johnson Michelle R. Adams Stacy F. Thompson Bloomington, Indiana Rick L. Weil Indianapolis, Indiana

          Attorney for Appellee Nicholas C. Deets Indianapolis, Indiana

          Altice, Judge.

         Case Summary

         [¶1] Cathy Gearhart's husband, Kent, died from renal cell cancer on January 14, 2015. After filing her proposed complaint for damages with the Indiana Department of Insurance, Gearhart, individually and as personal representative of Kent's estate, filed the instant action against various defendants. As amended, the complaint alleges two counts based on claims of negligence and one count seeking declaratory judgment. Count I is a medical malpractice claim against ABC Radiology, P.C. (ABC), John Doe, M.D. (Dr. Doe), Anonymous Medical Associates, Inc. (AMA), and Jane Doe, ACNP (Nurse Doe). Count II is a common-law negligence claim against Sherry Patrick and her employer, AMA. Count III (incorrectly denominated as a second Count II in the amended complaint) is a claim for declaratory judgment against the Indiana Patients Compensation Fund/Indiana Department of Insurance (the Fund), AMA, Patrick, and AMA's medical malpractice and general liability insurers.[1] Count III seeks a determination of whether the claim in Count II is subject to the Indiana Medical Malpractice Act (the Act), which insurance policies provide coverage for this claim, and whether the Fund has a duty to make payments for any damages awarded for Count II.

         [¶2] Gearhart filed the complaint in the Marion Superior Court. Thereafter, the defendants named in Counts I and II (Defendants) jointly filed a motion requesting that the trial court sever Counts I and II from Count III and transfer venue of Counts I and II to Vanderburgh County, where the alleged negligence occurred and Defendants are located.[2] Defendants argued further that Count III was improperly joined.

         [¶3] Gearhart responded that Marion County was a county of preferred venue because a necessary defendant to the action - the Fund - is a governmental organization with its principal office located there. See Ind. Trial Rule 75(A)(5). Gearhart argued also that all three counts were properly joined pursuant to Ind. Trial Rule 20 because they arise out of the same transaction or occurrence and have common questions of law and fact. Following a hearing, the trial court denied the motion. Defendants bring this interlocutory appeal, arguing that Gearhart's joinder of the underlying negligence claims with the declaratory judgment claim was improper and deprived Defendants of their right to trial in a preferred venue county. Thus, we are asked to determine whether the trial court abused its discretion in denying Defendants' motion to sever Counts I and II from Count III and transfer venue for those counts to Vanderburgh County.

         [¶4] We affirm.[3]

         Facts & Procedural History

         [¶5] When Kent was diagnosed with renal cell cancer in July 2009, Dr. Doe - a urologist associated with AMA - became his treating physician. Dr. Doe removed Kent's right kidney shortly after the diagnosis. Thereafter, Kent continued to see Dr. Doe or another member of the practice for routine follow-up about every six months.

         [¶6] On September 13, 2013, Dr. Doe ordered a routine CT scan of Kent's chest, abdomen, and pelvis. A radiologist employed by ABC interpreted the scans and reported that there was a 2.6 cm mass in the left kidney. The radiologist recommended further evaluation of the mass. There was no follow-up by Dr. Doe or AMA regarding this report, and Kent was not made aware of the results. Kent saw Nurse Doe, a nurse practitioner with AMA, in March 2014 for another routine follow-up with no mention of the abnormalities seen in the September 2013 scans.

         [¶7] On September 23, 2014, Kent saw another nurse practitioner with AMA for complaints of bright red urine. This nurse noted the findings from the September 2013 scans and immediately ordered follow-up CT scans. These scans revealed that the mass on Kent's left kidney had grown. The cancer had also spread to several lymph nodes and his liver. Following a PET/CT scan on October 1, 2014, Kent was diagnosed with terminal renal cell cancer to which he succumbed on January 16, 2015.

         [¶8] Gearhart filed her proposed complaint for damages with the Indiana Department of Insurance, alleging the medical malpractice of Dr. Doe, Nurse Doe, AMA, and ABC. Thereafter, on August 5, 2015, Dr. Doe was deposed by Gearhart's counsel. Dr. Doe testified that he did not follow-up on the September 2013 radiology report because Sherry Patrick, an administrative staff member, made a data entry error upon receiving the report. As a result, the report was not forwarded to Dr. Doe or put on his list of items that needed follow-up. Dr. Doe testified that the error was purely clerical/administrative and did not involve the exercise of medical skill or judgment.

         [¶9] On September 11, 2015, Gearhart filed her complaint for damages and for declaratory judgment in the Marion Superior Court. The complaint was amended the following month and alleged three counts as set out above. Counts I and II were for damages resulting from the negligence of Defendants - medical malpractice and common law negligence, respectively alleged. Count III sought a declaratory judgment determining whether the claim in Count II, involving the data entry error, was subject to the Act. In this regard, Gearhart pointed to Preferred Prof's Ins. Co. v. West, 23 N.E.3d 716 (Ind.Ct.App. 2014), trans. denied, for the proposition that clerical or administrative errors that do not involve the exercise of medical judgment or skill by the medical provider are matters of common-law negligence not subject to the Act.

         [¶10] On November 19, 2015, Defendants filed their joint motion in which they asked the trial court to either dismiss Counts I and II or sever them from Count III and transfer venue of Counts I and II to Vanderburgh County. After Gearhart filed a response to the motion, the trial court scheduled the matter for oral argument on January 27, 2016. The trial court denied the motion on February ...


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