Betty J. Rumell, as Personal Representative of the Estate of Margo Sue Rumell, Deceased, Appellant-Plaintiff,
Osolo Emergency Medical Services, Inc., Todd Byrket, Julie Calloway, and Kim Bryan, Appellees-Defendants
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
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.
& Procedural History
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.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.
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." Id. at 37.
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
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.
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.
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.
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.
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
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 ...