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Snyder v. Prompt Medical Transportation, Inc.

Court of Appeals of Indiana

July 25, 2019

Steve Snyder, as Personal Representative of the Estate of Kimberly Snyder, Deceased, Appellant-Plaintiff,
v.
Prompt Medical Transportation, Inc.; Humana Insurance Company; and St. Joseph Regional Medical Center, Appellees-Defendants

          Appeal from the St. Joseph County Superior Court The Honorable Jenny Pitts Manier, Judge Trial Court Cause No. 71D05-1311-CT-303

          Attorneys for Appellant Jeffrey J. Stesiak Jerome W. McKeever James P. Barth Pfeifer, Morgan & Stesiak South Bend, Indiana

          Attorneys for Appellee Prompt Medical Transportation, Inc. Sharon L. Stanzione Alan M. Kus Johnson & Bell, P.C. Crown Point, Indiana

          Attorney for Appellee St. Joseph Regional Medical Center Robert J. Palmer May Oberfell Lorber Mishawaka, Indiana

          Attorneys for Appellee Humana Insurance Company Kirstin B. Ives Falkenberg Ives LLP Chicago, Illinois Michael P. Misch Anderson Agostino & Keller, P.C. South Bend, Indiana

          Baker, Judge.

         [¶1] In 2013, Kimberly Snyder, a critically ill patient in need of a lung transplant, was transported by ambulance from Indiana to Pennsylvania. Along the way, the ambulance crew got lost, and the lengthened trip caused the crew to run out of Kimberly's sedation medication. She ultimately contracted pneumonia and died a week later.

         [¶2] Her husband, Steve Snyder, as personal representative of her estate (the Estate), filed a lawsuit against St. Joseph Regional Medical Center (SJRMC), Prompt Medical Transportation, Inc. (Prompt), and Humana Insurance Company (Humana), alleging that their respective negligence resulted in Kimberly's wrongful death. A medical review panel unanimously found that Kimberly's death was not caused by the actions of SJRMC and Prompt.

         [¶3] The trial court dismissed the Estate's claims against Humana and granted summary judgment in favor of Prompt and SJRMC. We affirm, finding as follows: (1) the trial court did not err by striking the affidavits of the Estate's untimely disclosed expert witnesses; (2) there is no genuine issue of material fact with respect to the element of causation; and (3) the Estate's claims against Humana are preempted by federal law governing Medicare Part C.

         Facts

         Underlying Incident

         [¶4] On January 22, 2013, Kimberly was a cystic fibrosis patient at SJRMC; she needed a lung transplant and SJRMC determined that she should be transferred to a Pittsburgh hospital for the transplant. Kimberly was insured under a Medicare Advantage plan issued by Humana, which denied coverage for air transportation to Pittsburgh. Therefore, SJRMC arranged for Prompt to transport her by ambulance to the University of Pittsburgh Medical Center (UPMC) for the transplant.

         [¶5] On January 23, 2013, Prompt employees arrived at SJRMC to pick up Kimberly, who had been sedated, intubated, and put on a ventilator in preparation for the trip. Throughout the journey, Prompt continued Kimberly's sedation, regularly checked her vital signs, and monitored the performance of her ventilator.

         [¶6] Upon arrival to the Pittsburgh area, Prompt's employees got lost because there was no hospital at the address they had been given. They called UPMC for directions but the hospital staff was unable to give directions from the ambulance's location. The crew then called 911 for directions to UPMC; the 911 operator was able to provide directions and they got back on track. Traffic was very slow due to rush hour. When the ambulance finally arrived at what the crew believed was the correct hospital, they learned that, in fact, they were at the wrong Pittsburgh hospital. What should have been a 334-mile trip had turned into a 370- to 395-mile trip.

         [¶7] During the lengthy ambulance transport, Kimberly's condition had worsened significantly. She was not receiving enough oxygen and began gagging on her breathing tube; there is some evidence that they ran out of her sedation medication. When Prompt arrived at the wrong hospital, a physician on site evaluated Kimberly and decided to admit her to the intensive care unit (ICU) at that location. The ICU physician discovered a clot clogging Kimberly's breathing tube and removed the clot; Kimberly then returned to stable condition. The ICU staff told Prompt that they would arrange for Kimberly's transfer to UPMC. Kimberly eventually contracted pneumonia and died one week later, on January 30, 2013.

         The Litigation

         [¶8] On November 26, 2013, the Estate filed a complaint for wrongful death against Prompt. In its response, Prompt named SJRMC and Humana as nonparties who may have contributed to the Estate's damages. On May 12, 2014, the Estate filed an amended complaint adding SJRMC and Humana as defendants. The trial court stayed the litigation while a medical review panel considered the Estate's claims against Prompt and SJRMC.[1] On September 14, 2016, the medical review panel unanimously found that SJRMC complied with the applicable standard of care and was not a factor in the resultant damages. With respect to Prompt, one panel member opined that Prompt breached the standard of care, but the panel concluded unanimously that Prompt was not a factor in the resultant damages.

         [¶9] On October 3, 2016, the trial court granted the Estate's request to reinstate the court case. In October and November 2016, respectively, Prompt and SJRMC filed motions for summary judgment. As part of its responses to these motions, the Estate attached the affidavit of Dr. Joseph Pilewski, who was one of Kimberly's treating physicians in Pittsburgh, to rebut the opinion of the medical review panel. In December 2016, Humana filed a motion to dismiss, arguing that the Estate's state law claim was preempted by the Medicare Advantage preemption provision and that Humana was entitled to official immunity.

         [¶10] On May 4, 2017, the trial court summarily granted Humana's motion to dismiss and summarily denied the motions for summary judgment. The Estate, Prompt, and SJRMC sought to have the order certified for interlocutory appeal, but this Court denied those requests.

         [¶11] The parties began preparing for a trial. On September 26, 2017, the trial court entered a pretrial order that included a number of case management deadlines but did not include any expert disclosure deadlines. On February 7, 2018, Prompt filed a motion asking that expert disclosure deadlines be put in place. The next day, the trial court entered an order setting the Estate's expert disclosure deadline for April 12, 2018, and the defendants' expert disclosure deadline for June 12, 2018. On April 12, 2018, the Estate disclosed Dr. Pilewski as its only trial expert.

         [¶12] In the meantime, SJRMC and Prompt had filed a joint motion to continue the trial; the Estate opposed the request. After hearing argument, on May 3, 2018, the trial court vacated the trial date, vacated the September 2017 pretrial order, and reset the trial for April 2019. The order made no mention of the expert disclosure deadlines. SJRMC and Prompt disclosed their respective trial experts by the June 12 deadline.

         [¶13] In August 2018, Prompt and SJRMC both filed renewed motions for summary judgment.[2] The Estate opposed both motions. In its response briefs, the Estate included affidavits of experts that had not previously been disclosed to Prompt and SJRMC. Prompt moved to strike those affidavits. On November 15, 2018, the trial court granted the motion to strike, noting that "[n]o request from relief from the Court's February 8, 2018 Order was filed by any party. That Order remains in effect." Appellant's App. Vol. II p. 20. Therefore, Dr. Pilewski's affidavit was the Estate's only remaining expert evidence in opposition to summary judgment.

         [¶14] The Estate filed a motion to reconsider the order granting the motion to strike the affidavits. The trial court denied, reasoning as follows:

The Court's September 26, 2017 Pre-Trial Entry Order did not contain deadlines for the disclosure of experts. . . . [That order is] this Court's standard scheduling order. This Court has used this template for over twenty (20) years and "borrowed" it wholesale from the judge previously occupying this office who, herself, used that template for years. Plaintiff's counsel is familiar with the template. Among its features is that . . . it does not set expert disclosure deadlines. The Court will set expert disclosure deadlines if asked. . . . By entering its separate order of February 8, 2018, the Court established the manner in which expert disclosures-and any request to [modify] expert disclosure deadlines-would be addressed by the Court: by way of separate order.
Moreover, the April 18, 2018 [fn 2] hearing on Defendants' Joint Motion to Continue makes clear that Plaintiff had one expert (whom Defendant's counsel referred to at least twice at that hearing as "Plaintiff's one expert"), without any suggestion from Plaintiff that he intended to retain additional experts. . . . Plaintiff argued repeatedly about the need to get the matter tried, noting that the case had been pending for a number of years. One would not have concluded, listening to the arguments at that hearing, that Plaintiff sought what would likely be further delay of a trial by the addition of more experts.
[fn 2] It is noted that as of the date of this hearing, Plaintiff's expert disclosure deadline had passed and the Court had not entered its May 3, 2018 Order which . . . Plaintiff argues vacated the expert disclosure deadline. Thus, as of the April 18, 2018 hearing, Plaintiff had no reason to believe he would be in a position to name additional experts and made no request of the Court that he be granted leave to do so.
. . . If Plaintiff sought . . . to bolster Dr. Pilewski's testimony, and if Plaintiff believed the Court's orders provided him yet with the time to disclose experts, one would have expected Plaintiff to disclose those experts in the manner that is typically done, not by first designating their affidavits in his Opposition to the Renewed [Summary Judgment] Motion[s].

Appellant's App. Vol. II p. 24-26 (emphasis original).

         [¶15] After briefing and argument was complete, on December 6, 2018, the trial court granted summary judgment in favor of SJRMC and Prompt. In pertinent part, as to Prompt, the trial court found that Dr. Pilewski's deposition testimony was inadmissible with respect to the issue of causation because it was speculative and unreliable. It also found that the deposition testimony negated the existence of the necessary foundation to support the opinions offered in his affidavit, rendering that evidence also inadmissible. The trial court focused on the following exchanges:

Exchange 1
Dr. Pilewski testified to a period of instability experienced by Kimberly [] as a result of the sedative, the Versed, wearing off. . . . Counsel, bringing Dr. Pilewski back to the question of whether any period of instability on the ventilator had "any effect or cause that led to her death," draws the following response from Dr. Pilewski: "Can I say that period of instability made her pneumonia worse? No. I can ...

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