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Rumell v. Osolo Emergency Medical Services, Inc.

Court of Appeals of Indiana

December 13, 2017

Betty J. Rumell, as Personal Representative of the Estate of Margo Sue Rumell, Deceased, Appellant-Plaintiff,
v.
Osolo Emergency Medical Services, Inc., Todd Byrket, Julie Calloway, and Kim Bryan, Appellees-Defendants

         Appeal from the Elkhart Superior Court The Honorable Stephen R. Bowers, Judge Trial Court Cause No. 20D02-1510-CT-158

          Attorneys for Appellant Bradford R. Shively Jonathan R. Slabaugh Elkhart, Indiana.

          Attorneys for Appellees Paul T. Fulkerson Jarryd F. Anglin Indianapolis, Indiana.

          Altice, Judge.

         Case Summary

         [¶1] Betty J. Rumell, as Personal Representative of the Estate of Margo Sue Rumell, (the Estate) appeals from the trial court's order granting summary judgment in favor of Osolo Emergency Medical Services, Inc. (Osolo EMS), Todd Byrket, Julie Calloway, and Kim Bryan (collectively, the Defendants). The Estate argues that the trial court erroneously determined that the Estate's medical malpractice claim was barred by the applicable two-year statute of limitations.

         [¶2] We affirm.

         Facts & Procedural History

         [¶3] On July 19, 2013, Margo Rumell (the Decedent) experienced a medical episode while boating with a friend on Simonton Lake in Elkhart. The Decedent was taken ashore and emergency responders were summoned. Osolo EMS received the call and dispatched Byrket, an emergency medical technician, and Calloway and Bryan, both paramedics, to provide medical assistance to the Decedent.[1]Upon arrival, it was determined that the Decedent was not breathing and did not have a pulse. Resuscitation efforts commenced, which included the placement of an airway device by Byrket, after which it was noted that the Decedent had "breath sounds present and equal." Appellant's Appendix Vol. 3 at 28. Resuscitation efforts continued, but ultimately proved to be unsuccessful.

         [¶4] An autopsy was performed the following day by Dr. Blair Chrenka. As pertinent here, Dr. Chrenka noted that an endotracheal tube was present and that "the tip [wa]s reflected toward the left side of the patient and pointed upwards." Id. at 40. She also noted that the Decedent's "GI tract [wa]s remarkable for a gas-inflated stomach." Id. at 41. Dr. Chrenka stated in the "Coroner's Report (Verdict)" that the Decedent's cause of death was "[c]ardiomegaly complicated by moderate coronary artery disease; placement of esophageal endotracheal tube."[2] Id. at 37.

         [¶5] On July 9, 2015, the Estate filed a Proposed Complaint for Damages with the Indiana Department of Insurance (IDOI), alleging the Defendants committed medical malpractice that resulted in the Decedent's death. On July 22, 2015, the IDOI sent former counsel for the Estate a letter stating that a review of the records of the Indiana Patient's Compensation Fund (PCF) "indicates" that the Defendants were "Not Covered", i.e., were not qualified health care providers under the Indiana Medical Malpractice Act (MMA). Id. at 59. The IDOI also sent a letter to each of the Defendants informing them of the same.

         [¶6] After receiving the July 22 letter, the Estate's former attorney contacted the IDOI on multiple occasions, seeking clarification of the qualified status of the Defendants for purposes of the MMA. During these subsequent telephone discussions, the IDOI informed her that it "lacked definitive proof" as to whether the Defendants were qualified health care providers under the MMA, explaining that its determination of the Defendants' non-qualified status as set forth in the July 22 letter was "based solely on a review of whether the Defendants were individually listed" in the PCF's records. Id. at 94, 110. According to the IDOI, the "purpose" of the July 22 letters "was to advise them of the filing of the Proposed Complaint and of the IDOI's preliminary indication that the Defendants were not qualified under the [MMA]." Id. at 95.

         [¶7] The IDOI also explained to the Estate's former attorney that there were a number of reasons why a qualified health care provider would not be listed in the PCF's records and that the preliminary indication could be modified if it was subsequently determined that the Defendants were qualified health care providers. The IDOI further explained that "[i]n many cases, " after a health care provider receives the letter indicating they are not qualified under the MMA, "the health care provider . . . will provide additional information or documentation that demonstrates that the preliminary indication of nonqualified status should be modified to reflect that the health care provider is, in fact, qualified under the [MMA]." Id. at 96.

         [¶8] In September 2015, the IDOI's records still indicated that the Defendants had not submitted affidavits or any other documentation concerning their nonqualified status under the MMA as initially indicated in the July 22 letter. The Estate's former attorney contacted the attorney for the Defendants, who stated that "the Defendants were under no obligation to submit an affidavit or other documentation to the IDOI" and that the Estate's medical malpractice claim was barred by the statute of limitations. Id. at 111.

         [¶9] On October 8, 2015, after the Estate's former counsel again contacted the IDOI, the IDOI sent a second letter that mirrors the July 22 letter, except for the date. A week later, on October 15, 2015, the Estate filed a Complaint for Damages in the Elkhart Superior Court, alleging that the Defendants committed medical malpractice that resulted in the wrongful death of the Decedent. On November 10, 2015, the Defendants filed a motion to dismiss with prejudice. The Estate filed an Amended Complaint on December 4, 2015, and as a result, the trial court dismissed the Defendants' motion to dismiss as moot. On January 12, 2016, the Defendants filed a second motion to dismiss, arguing that the Estate's claim was barred by the two-year professional services statute of limitations.

         [¶10] Prior to a hearing on the motion to dismiss, the Estate filed a motion to convert the motion to dismiss into a motion for summary judgment because the Defendants relied upon matters outside the pleadings. On March 1, 2016, the trial court granted the Estate's request and set a schedule for discovery and briefing with regard to the now-converted motion for summary judgment. On January 25, 2017, the trial court held a hearing on the motion for summary judgment and took the matter under advisement. On March 7, 2017, the trial court entered its order granting summary judgment in favor of the Defendants, concluding that the Estate's claim was barred by the two-year professional services statute of limitations. In making this determination, the trial court found that the statute of limitations recommenced when the Estate received the letter from the IDOI on July 22, 2015. The Estate now appeals. Additional facts will be provided as necessary.

         Discussion & Decision

         [¶11] The Estate argues that the trial court improperly granted summary judgment in favor of the Defendants. We review summary judgment de novo, applying the same standard as the trial court: "Drawing all reasonable inferences in favor of . . . the non-moving parties, summary judgment is appropriate 'if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C)). "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required ...


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