John H. Mooney, as Special Administrator of the Estate of Joseph S. Mooney v. Anonymous M.D. 4, Anonymous M.D. 5, and Anonymous Hospital

FOR PUBLICATION
Jun 12 2013, 9:06 am

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:

LANCE D. CLINE EDNA M. KOCH
JILL M. BRACKEN-EMERSON MARILYN A. YOUNG
Cline Farrell Christie & Lee, P.C. Indianapolis, Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

JOHN H. MOONEY, AS SPECIAL )
ADMINISTRATOR OF THE ESTATE OF )
JOSEPH S. MOONEY, DECEASED, )
)
Appellant-Plaintiff, )
)
vs. ) No. 32A04-1208-CT-414
)
ANONYMOUS M.D. 4, ANONYMOUS M.D. 5, )
and ANONYMOUS HOSPITAL, )
)
Appellees-Defendants below, )
)

APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Stephenie LeMay-Luken, Judge
Cause No. 32D05-1202-CT-23

June 12, 2013

OPINION - FOR PUBLICATION

NAJAM, Judge
 STATEMENT OF THE CASE

John H. Mooney, as Special Administrator of the Estate of Joseph S. Mooney,

Deceased (“Mooney”), appeals the trial court’s order dismissing his proposed complaint

for damages, with prejudice, with respect to defendants Anonymous Hospital,

Anonymous M.D. 4, and Anonymous M.D. 5 (collectively “the family care physicians”)

in this medical malpractice action. Mooney presents two issues for our review:

1. Whether the trial court abused its discretion when it dismissed
Mooney’s proposed complaint for damages pursuant to Indiana
Code Section 34-18-10-14.

2. Whether the trial court had jurisdiction to dismiss Mooney’s
proposed complaint for damages pursuant to Trial Rule 41(E).

We reverse.

FACTS AND PROCEDURAL HISTORY

On November 30, 2007, Mooney filed his proposed complaint for damages with

the Indiana Department of Insurance alleging that the family care physicians and

Anonymous M.D. 1, Anonymous M.D. 2, Anonymous M.D. 3, and Anonymous Group,

LLC (collectively “the cardiologists”)1 committed medical malpractice that caused

Joseph’s injuries and his ultimate death. In December 2007 and January 2008, the

cardiologists and family care physicians, respectively, submitted written discovery

requests to Mooney. On January 23, 2008, Mooney’s counsel, Lance Cline, wrote to

counsel for the family care physicians, Marilyn Young, indicating that “it would take

several months for [Mooney] to respond to discovery requests.” Appellant’s App. at 126.

In fact, Mooney’s responses were not submitted until approximately two years later.
1
The trial court did not dismiss Mooney’s proposed complaint for damages with respect to the
cardiologists. However, the trial court’s order is a final judgment pursuant to Trial Rule 54(B).
2
 In the meantime, in July 2009, the parties agreed that Robert Strohmeyer would

serve as chairperson of the medical review panel (“the Panel”). And in August 2009,

Strohmeyer wrote the parties a letter stating:

Thank you for asking me to serve as panel chairman. I would be pleased to
serve. I will not strictly enforce the time deadlines for making panel
nominations[2] unless I hear from you to the contrary. I understand that in
some cases the parties desire to complete early discovery before making
nominations. Nominations are normally due within fifteen (15) days after
selection of the panel chairman. Please make any strike of a nominee in a
timely fashion or request additional time to consider the nominee if
additional time is needed.

Once the panel is formed and the submission schedule is set, please
make written request[s] for additional time to complete a submission if
additional time is needed. The parties’ submissions should be sent to me,
and I will send the submissions to the panelists when all of the submissions
have been completed. I look forward to receiving your nominations or a
request for striking panels if you desire to go directly to striking panels.

Id. at 141 (emphasis added).

On March 26, 2010, counsel for cardiologists, Peter Pogue, wrote to the other

attorneys stating that he would “like to begin panel formation in this matter.” Id. at 143.

And on April 8, Cline responded in relevant part as follows:

I have a substantial amount of discovery that I want to conduct in this case
before submitting evidence to a Medical Review Panel. Because of my
current calendar and because I know it is going to probably be difficult to
juggle the calendars of three attorneys and several different physicians to
cooperatively schedule depositions in this case, I suspect that it is going to
be many months before the depositions that I need to take will be
concluded in this case.

Because I am reasonably certain that it is going to take many months
to complete necessary discovery in this case, I am reluctant to begin the
Panel formation process at this time. I acknowledge the right of your client

2
Under the Medical Malpractice Act, the parties first choose a chairman of the medical review
panel and then they choose two members to serve on the panel, and those two members choose the third
member.
3
 to request formation of a Medical Review Panel at this time. Consequently,
I do not believe that I have a formal basis to object to that request.
However, I would like to recommend that we cooperate with each other and
postpone the formation of the Panel for a period of time. In the alternative,
I have no objection to proceeding with the selection of a Panel chairperson
at this time, but I will ask any Panel chairperson selected to either delay
selection of the physician members of the Panel until the defendants’
depositions are completed or to grant reasonable extensions of the 180[-
]day rule so that the defendants’ depositions can be completed, and my
clients can have ample time to get written reports from expert witnesses and
reasonably prepare their submissions.

I am not trying to unreasonably delay the resolution of this case. I
am only trying to protect my clients and prevent a situation from occurring
where my clients, due to scheduling difficulties, are not given enough time
to complete the discovery that they are entitled to obtain in this case before
having to submit written evidence to a Medical Review Panel because of
the 180[-]day rule. I would like to propose that we agree, in advance, to
some reasonable framework for allowing reasonable and adequate
discovery in the case. I will await further word from you and Marilyn or
Edna on my proposal and concerns.

Id. at 144-45 (emphases added).

On April 16, Young wrote to Cline and Pogue and reminded them that they had

already appointed Strohmeyer to serve as chairperson, but that “[t]his case has been

moving so slowly that no one has nominated to the panel.” Id. at 146. Young continued,

With respect to [Cline]’s suggestion of a reasonable frame-work to allow
discovery, I note that it took over two years to obtain answers to our written
discovery requests. Although I certainly understand how busy attorneys
can be, I would prefer to move this case along a little more quickly.
Therefore, I suggest we begin formation of the medical review panel and
agree to a reasonable extension of the 180-day deadline if necessary.

Id. (emphasis added).

Thereafter, on January 12, 2011, Young sent a second set of written discovery

requests to Mooney. In particular, Young sought the name(s) of the pharmacy or

pharmacies where Joseph had filled prescription medications from 1995 until his death in
4
2005 and copies of any pharmacy records. Mooney’s responses to those discovery

requests were not timely, and Young wrote several letters to Cline seeking those

responses. Cline advised Young that Joseph’s family was having difficulty coming up

with the requested information.

In the meantime, on January 13, 2011, Cline wrote to Young and Pogue regarding

possible dates for deposing their clients. Cline indicated that he preferred to depose

Pogue’s clients, the cardiologists, first, and he offered sixteen dates in March for those

depositions. Young responded the next day and indicated that she would be available on

four of the offered dates. Pogue never responded to Cline’s letter.3

On April 8, Young wrote a letter to Cline stating as follows:

We would like to get this case moving forward. We have begun formation
of the medical review panel, with Bob Strohmeyer having been selected as
panel chairman. With respect to the composition of the medical review
panel, we request that at least one of the panelists be a family practitioner
who has experience in an immediate care setting. It appears that at least
one cardiologist should be on the panel. If a cardiologist and family
physician are selected as the first two panelists, perhaps they can decide
whether the third panelist should be a family practitioner or a cardiologist.
Please let me know your thoughts regarding composition of the medical
review panel. By copy of this letter to Peter Pogue, we ask for his input as
well.

***

By letter dated January 13, 2011, you indicated that you wanted to
complete some depositions, and you provided dates in March. By letter
dated January 14, 2011, I responded with my availability, but I have heard
nothing further. If you intend to take depositions, please provide additional
dates because the dates that were previously provided have all passed.

3
In his brief on appeal, Cline states that his paralegal routinely followed up written requests for
deposition dates with phone calls to Pogue’s office, to no avail. Young does not dispute Cline’s averment
on this point.
5
Id. at 157. And on April 13, Strohmeyer sent an email to Cline, Young, and Pogue and

stated that “[u]nless [he] receive[d] an objection to Marilyn’s proposal by April 22,

2011,” he would prepare the striking panels. Id. at 160. On April 21, Cline sent an email

to Strohmeyer, Young, and Pogue stating as follows:

I agree that we need to keep this case moving forward. My client has
answered several sets of written discovery. I need to schedule and take
multiple depos[itions] in this case, at least 5 and possibly more, before
being in a position to obtain written opinions from expert witnesses that I
will need before I can write a submission brief for my client. I will send
out a letter to defense counsel tomorrow (if I have a secretary here—she is
in the hospital at the present time) requesting dates for the depos[itions].
Based upon past experience in other cases, it is probably going to take
many months to get the depos[itions] concluded. That will be due to the
busy schedules of everyone involved and the attempt made to accommodate
everyone’s calendar. I will need at least 2 months after the last depo[sition]
is concluded to obtain the necessary written reports from expert witnesses
and probably another month or two after that to get a submission brief
written.

I have no objection to beginning the process to select the physician
members of the panel at this time. I just don’t want to get painted into a
corner at a later time with the argument that the panel has been formed for
180 days and we have no panel opinion which is almost certainly going to
be the case if the panel gets fully formed in the near future. I would
appreciate an acknowledgement from you and defense counsel that it may
become necessary to extend (not waive) the 180[-]day rule for this case in
the future depending on what happens. Without that acknowledgement, it
is my position that we should delay the selection of the physician members
of the panel until the necessary depos[itions] have been taken on the case.
We could then promptly form the panel and have a realistic chance of
getting a panel opinion within 180 days of the panel formation. I simply
want to avoid having the very unrealistic 180[-]day rule being used to
prevent my client from having the time needed to fully present his claim to
a medical review panel.

I fully acknowledge that my calendar is always very full and that it
takes me a long time to get many things done on a case. However, delays
in getting things done on a case are typically not my exclusive domain. For
example, I requested depos[itions] in this case in January. I have no record
in my file of being given any dates for the depos[itions] by Mr. Pogue,
6
 counsel for the physicians whose depos[itions] were requested. That is
fine. I am sure that Peter is every bit as busy as I am. We just need to work
together and not try to use the impractical 180[-]day rule to obtain a tactical
advantage in the case.

Id. at 159-60 (emphasis added).

In response, on April 22, Strohmeyer wrote the following email to Cline, Young,

and Pogue:

Counsel:

As you may know, it is my preference that selection of the panel be
delayed until the parties have completed (or have nearly completed) all
discovery to avoid the significant delays which occur in presenting the
evidence to the panel when the parties have many months of discovery to
complete, expert reports to obtain, etc. I like to move these matters along,
but I must allow the parties sufficient time to complete discovery and
collect the facts they desire to present to the panel. I.C. [§] 34-18-10-3(c).
Depositions of the health care providers are important components of the
evidence panels consider. If we move forward with panel selection now, it
will be with the understanding that I will not prepare a submission schedule
until the required discovery has been completed and time is afforded for the
parties to share the evidence developed with their clients and experts. I
have to leave it to the parties to diligently schedule and complete the
discovery. If everyone agrees with this procedure (or is at least willing to
live with it), I’ll send striking panels composed of family practitioner[s]
with experience in immediate care and cardiologists as requested by
Marilyn.

Id. at 159 (emphasis added). Cline responded by email to Strohmeyer, Young, and Pogue

that he agreed with Strohmeyer’s proposal. Neither Young nor Pogue responded to

Strohmeyer’s email.

On April 25, Cline wrote a letter to Young and Pogue offering thirteen dates in

May, June, and August for taking the depositions of Pogue’s clients.4 Cline also stated,

“My calendar is pretty wide open for the month of November at the present time.” Id. at
4
There is no dispute that Cline wanted to take the cardiologists’ depositions before taking the
family care physicians’ depositions for strategic reasons.
7
164. Young responded and identified her availability, but Pogue never responded to

Cline’s letter.

On October 21, 2011, Strohmeyer wrote a letter to Cline, Young, and Pogue that

read as follows:

The panel has now been formed with Bernadette E. Aghaji, M.D., serving
as the third panelist. I understand that there was discovery underway when
we began panel selection. I’m assuming that the discovery has been
completed. Therefore, I’ve prepared a submission schedule. If the
discovery has not been completed, please contact me and I’ll withdraw the
submission schedule until the parties have completed discovery. The
submission schedule is as follows:

Plaintiff’s submission due December 5, 2011

Defendants’ submissions due January 13, 2012

Plaintiff’s reply (if any) due February 3, 2012

Please contact me if this schedule is not acceptable. The panel opinion is
due by April 16, 2012.

Id. at 172 (emphasis added). On October 24, Cline wrote a letter to Strohmeyer that read

as follows:

I have received your October 21, 2011[,] letter on the above case which sets
submission deadlines for the parties for the above case. You have set
plaintiff’s submission deadline of December 5, 2011. It is not going to be
possible for me to meet a December 5, 2011 submission deadline in this
case. I have a minimum of five depositions of defendants that need to be
taken in the case. I wrote to defense counsel on January 13, 2011[,] and
again on April 25, 2011[,] to attempt to get those depositions scheduled.
As of the date that I write this letter to you, none of those depositions have
been scheduled by defense counsel. Although I did receive a letter from
Marilyn Young indicating certain dates she could be available for the
deposition, I have heard nothing from Peter Pogue. Consequently, I cannot
take the blame for the fact that those depositions have not yet been taken.

8
 I am writing to Marilyn and Peter again on this date to attempt to get
the depositions of their clients scheduled. Enclosed is a copy of that letter.
I will keep you apprised of the scheduling of any of those depositions.

I believe that submission schedules for this case should not be
scheduled until the depositions of the defendants have been completed.
Once those depositions are completed, then I should be able to have my
client’s submission completed, trial schedule permitting, within about three
months of the date of the completion of the last deposition. I will need that
three[-]month period of time to obtain copies of the depositions, submit
them to one or more expert witnesses for review, obtain written reports
from the expert witnesses for use in my client’s submission of evidence,
and write my client’s submission.

Id. at 173 (emphases added).

In his letter of October 24 to Young and Pogue, Cline offered fourteen dates in

December 2011 and January 2012 for taking the defendants’ depositions. Cline

explained that due to a “very crowded trial calendar” after January, he would likely not

be available thereafter until June 2012. Id. at 175. Cline also stated, “Because this is my

third attempt to get the depositions of the defendant health care providers scheduled in

this case, I am hopeful that we can get all five depositions scheduled on the above dates.

I will appreciate your cooperation in getting those depositions promptly scheduled.” Id.

at 175-76.

On October 31, Young wrote to Cline as follows:

I am in receipt of your letter of October 24, 2011[,] regarding depositions.
Since you want to take the depositions of [the cardiologists] prior to the
depositions of [the family care physicians], I don’t think I can provide you
with dates for my clients until we hear about the dates for [the
cardiologists]. Once I receive notice from Peter regarding dates for his
clients, I will speak to [the family care physicians] and find out about their
availability.

9
Id. at 177. Young did not state any objection to Cline’s request to Strohmeyer that the

submission schedule be postponed until discovery was completed.

However, on February 9, 2012, the family care physicians filed with the trial court

their “Motion for Preliminary Determination of Law to Compel Discovery or in the

Alternative to Dismiss Complaint for Failure to Comply with the Indiana Rules of Trial

Procedure Pursuant to Trial Rule 41(E) and Indiana Code 34-18-11-1 et seq.” and brief in

support of that motion. Id. at 10. In their prayer for relief, the family care physicians

asked the trial court “to order Plaintiff to answer their Second Set of Discovery Requests

[which were propounded in January 2011] and to provide signed authorizations for the

release of pharmacy/prescription information, or in the alternative, that this cause of

action be dismissed with prejudice[.]” Id. at 15. Neither the Motion nor the brief in

support thereof mentioned Cline’s failure to obtain depositions to date. The trial court

granted the motion to compel discovery and ordered Cline to “answer Defendants’

Second Set of Discovery Requests and provide signed authorizations for release of

pharmacy/prescription information within 30 days of the date of this order [February 27,

2012].” Id. at 47-48. On March 20, Cline filed Mooney’s Notice of Compliance with

Court’s Order Regarding Discovery, advising the trial court that he had provided Young

with the appropriate discovery responses.

Then, on April 16, 2012, Young wrote Strohmeyer a letter stating as follows:

According to my file, the medical review panel process in this case was
stayed 18 days due to our Motion for Preliminary Determination of Law to
compel Plaintiff to respond to discovery. Therefore, the 180 days would
run May 3, 2012.

10
 The events at issue in this case occurred in 2005, and the Proposed
Complaint was filed on November 30, 2007. Plaintiff did not respond to
initial discovery for over two years. The medical review panel was formed
six months ago, and Plaintiff has taken no action on this case. Please be
advised that we do not agree to waive, or extend, the 180-day deadline.

Id. at 181 (emphasis added).

On April 19, Cline responded with a letter to Strohmeyer:

I have received and am responding to Marilyn Young’s April 16,
2012[,] letter to you on the above case. In that letter, Marilyn stated that
“we do not agree to waive, or extend, the 180-day deadline” in the case
based upon the misrepresentation that “plaintiff has taken no action on this
case.” I was disappointed to see such a knowing misrepresentation made to
you by Marilyn. Please allow me to inform you, and remind Marilyn, of
what has actually been occurring.

After you were selected as panel chairperson for the case but before
any of the physician members of the medical review panel had been
selected, I wrote to defense counsel, including Marilyn Young, and advised
counsel that I was concerned about full formation of the medical review
panel until we had time to conduct further discovery in the case. My
concern was about the 180[-]day rule. . . .

Marilyn Young wrote to fellow counsel on April 16, 2010[,] in
response to my letter and stated that:

With respect to Lance’s suggestion of a reasonable frame-
work to allow discovery, I note that it took over two years to
obtain answers to our written discovery request. Although I
certainly understand how busy attorneys can be, I would
prefer to move this case along a little more quickly.
Therefore, I suggest that we begin formation of the medical
review panel and agree to a reasonable extension of the 180-
day deadline if necessary.

Contrary to her April 16, 2012[,] letter to you in which she stated
that she does not agree to waive or extend the 180[-]day deadline, she had
previously agreed to do so, if necessary. Extending the 180[-]day deadlines
in this case has become necessary, because I have not received adequate
cooperation from the defendants in getting their own clients scheduled for
needed depositions in this case.

11
 ***

Neither defense counsel objected to any portion of your April 22,
2011[,] e-mail which informed everyone that submissions of evidence
would not be due until sometime after necessary discovery was completed
in the case. As I am explaining to you in this letter, that discovery has not
been completed through no fault of the plaintiff.

***

Since I first wrote to Marilyn and Peter requesting depositions of
their clients in January, 2011, the onus, burden, and responsibility has been
as much upon them as it has been upon me to get the depositions scheduled.
I cannot get that task accomplished without their full cooperation.

For Marilyn to tell you in her April 16, 2012[,] letter that “plaintiff
has taken no action on this case” is simply not true. . . .

I have written to Peter and Marilyn again today, for the fourth time,
to attempt to get the depositions of the defendant physicians scheduled in
this case. Unfortunately, at the present time, due to my vacation and trial
schedule and other pending commitments, I am not clearly available to take
depositions in this case until September of this year. If two[-]week trials
that I have scheduled in July and August settle, then I will have many
available dates in July and August to take the depositions.

Under the circumstances that exist, a reasonable extension of the
180[-]day deadline for the case is certainly necessary. A long time ago,
Marilyn agreed to necessary extensions of the 180[-]day deadline. Because
her own conduct has, in part, contributed to the fact that depositions of the
defendant physicians have not yet been taken in the case, her present refusal
to agree to an extension of the 180[-]day deadline is both hypocritical and
unfair under the circumstances that exist.

I hope and presume that you will recognize the need for an
extension of the 180[-]day deadline until a reasonable amount of time after
the last defendant’s deposition is taken . . . . I propose that submission
deadlines for the case not be scheduled until the last defendant’s deposition
is taken.

Id. at 184-85. Accordingly, that same day Cline wrote a letter to Young and Pogue

offering twenty-five possible dates for the depositions. Cline also stated that he might be

12
available in July or August if two cases scheduled for trial ended up settling. Cline then

reminded Pogue that Cline wanted to depose Pogue’s clients first. And Cline reiterated

that he “never heard back from [Pogue] in response to my three previous letters” trying to

get depositions scheduled. Id. at 186.

On April 24, Young responded with a letter to Strohmeyer:

Contrary to comments made by [Cline] in his letter of April 19, 2012, I
have never knowingly misrepresented the status of this case to anyone.
According to my file, the medical review panel was formed on October 21,
2011. According to [Cline]’s letter, he sent a letter about depositions on
October 24, 2011, but did nothing further to try to get the depositions
scheduled. Therefore, nothing has been accomplished since the formation
of the medical review panel.

Plaintiff contends that I am responsible for part of the delay, but
Plaintiff is incorrect. I responded to the letters sent by the Plaintiff about
depositions; however, when Plaintiff asked for depositions, he also
indicated that he wanted to take the depositions of the cardiologists prior to
the depositions of my clients. I cannot force the Co-Defendant to provide
dates, nor can I force the Plaintiff to proceed with a Notice of Deposition as
provided by the Trial Rules. My clients are being held hostage by two
other attorneys who will not take action. [Cline] also contends that I am as
responsible as he for the delay. Plaintiff has a duty to prosecute his case;
Defendant has no corresponding duty, and I am not responsible for the
delay in this case.

When I agreed to extend the 180[-]day deadline, if necessary, I did
not intend “if necessary” to mean that Plaintiff would be able to determine
the timing of the depositions or delay the process for a couple of years. No
attorney could reasonably interpret my statement in that manner. I
specifically indicated that I would not agree to waive the 180[-]day
deadline because I did not want the process to be drawn out without any
time constraints.

Health care providers are only required to maintain medical records
for seven years and pharmacies for five years. In addition, as time passes,
memories fade, and witnesses may become unavailable. The facts of this
case are already nearly seven years old, and Plaintiff now indicates that he
cannot schedule depositions until September at the earliest. He has also
indicated that he will need many more months to take the depositions and
13
 complete Plaintiff’s Submission. The inordinate delays in this case are
prejudicial to my clients; I cannot agree to any further delays. Please be
advised that if Plaintiff’s Submission is not submitted by the 180[-]day
deadline (May 3, 2012), I intend to file a Motion for Preliminary
Determination of Law and seek relief from the Court.

Id. at 188-89 (emphasis original).

Thereafter, on May 25, the family care physicians filed their “Motion for

Preliminary Determination of Law to Dismiss Plaintiff’s Proposed Complaint Pursuant to

I.C. § 34-18-11-1, I.C. § 34-18-10-13(a), and I.C. § 34-18-10-14 and Trial Rule 41(E) for

Plaintiff’s Failure to Comply with the Indiana Malpractice Act, Failure of Plaintiff to

Prosecute the Case, and Failure to Comply with the 180-Day Statutory Deadline” and

brief in support thereof. Mooney filed a brief in opposition to that motion. Following a

hearing, the trial court entered the following order on July 19, 2012:

And the Court, having read the Motion, having heard oral argument,
and being duly advised, now finds that the Plaintiff has failed to prosecute
his case, and has failed to show good cause for failing to file his medical
review panel submission within the statutory 180-day deadline and comply
with the provisions of the Indiana Medical Malpractice Act, and[,]
therefore, the Motion for Preliminary Determination of Law should be
granted.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
Plaintiff’s Proposed Complaint, pending before the Indiana Department of
Insurance, is hereby dismissed, with prejudice, in its entirety, as to
Defendants [Anonymous Hospital, Anonymous M.D. 4, and Anonymous
M.D. 5].

Id. at 8-9. The trial court amended that order on July 23, adding, “there being no just

cause for delay, such judgment shall be a final judgment in this proceeding.” Id. at 6.

This appeal ensued.

14
 DISCUSSION AND DECISION

Issue One: Compliance with Indiana’s Medical Malpractice Act

Mooney first contends that the trial court abused its discretion when it dismissed

his proposed complaint for damages based upon his alleged failure to comply with

Indiana’s Medical Malpractice Act (“the Act”). Whether a plaintiff should be sanctioned

for his failure to submit evidence to the medical review panel in a timely manner is a

question of law and fact that may be preliminarily determined by the trial court in the

exercise of its discretion after a hearing. Galindo v. Christensen, 569 N.E.2d 702, 705

(Ind. Ct. App. 1991). In other words, decisions as to whether to dismiss a proposed

complaint under the Act are reviewed for an abuse of discretion. Beemer v. Elskens, 677

N.E.2d 1117, 1119 (Ind. Ct. App. 1997), trans. denied. An abuse of discretion exists

when the trial court’s decision is clearly against the logic and effect of the facts and

circumstances before it or the reasonable, probable, and actual deductions to be drawn

therefrom. Id. at 1120.

In Ramsey v. Moore, 959 N.E.2d 246, 250 (Ind. 2010), our supreme court

provided “a brief background” of the provisions of the Act relevant to this appeal:

Before a party brings a medical malpractice action in an Indiana court, the
[Act] requires that the proposed complaint be presented to a medical review
panel and that the panel render an opinion.[] Ind. Code § 34-18-8-4 (2008).
The chairman of the medical review panel has various powers, such as
establishing a reasonable schedule for the parties’ submission of evidence.
Id. § 34-18-10-3(c). Furthermore, the [Act] states that “[t]he evidence in
written form to be considered by the medical review panel shall be
promptly submitted by the respective parties.” Id. § 34-18-10-17(a).

When a plaintiff fails to adhere to the submission schedule, a
defendant may seek recourse in a trial court while a complaint is pending
before a medical review panel. In these instances, two additional
15
 provisions of the [Act] become pertinent. See Galindo v. Christensen, 569
N.E.2d 702, 704-05 (Ind. Ct. App. 1991). First, a defendant may request
the appropriate trial court to “preliminarily determine an . . . issue of law or
fact.” I.C. § 34-18-11-1(a)(1). Second, a plaintiff “who fails to act as
required by this chapter without good cause shown is subject to mandate or
appropriate sanctions upon application to” the trial court. Id. § 34–18–10–
14.

Thus, a defendant may file a motion with the trial court for a
preliminary determination on the plaintiff’s failure to adhere to the
submission schedule, and the defendant may request the sanction of
dismissal. See Galindo, 569 N.E.2d at 705. The court may dismiss the
complaint pending before the medical review panel if the plaintiff fails to
show good cause for not adhering to the submission deadline. See Beemer
v. Elskens, 677 N.E.2d 1117, 1119 (Ind. Ct. App. 1997), trans. denied.

(Emphases added). Indiana Code Section 34-18-10-14 “does not permit relief when a

party has failed to prosecute its case within a specified time period.” Adams v. Chavez,

874 N.E.2d 1038, 1042 (Ind. Ct. App. 2007). Instead, a trial court can grant relief under

Indiana Code Section 34-18-10-14 only when two conditions have been met: 1) a party,

attorney, or panelist has failed to act as required by Indiana Code Chapter 34-18-10 and

2) good cause has not been shown for the failure to act. Id. at 1042-43.

Further, as we observed in Beemer:

Dismissals are generally viewed in disfavor and considered extreme
remedies which should be granted only under limited circumstances. . . .
The sanction of dismissal or default is obviously more drastic and severe
than other available sanctions. Because the law favors the disposition of
cases on their merits, the imposition of these sanctions is appropriate only
under limited circumstances or in extreme situations.

677 N.E.2d at 1119. In exercising discretion as to what sanctions should be imposed

when a party fails to comply with the Medical Malpractice Act, the trial court should

consider whether the breach of duty was intentional or contumacious and whether

prejudice resulted. Rivers v. Methodist Hosp., Inc., 654 N.E.2d 811, 815 (Ind. Ct. App.
16
1995). A plaintiff’s failure to prosecute, alone, is not a sufficient basis for relief under

Indiana Code Section 34-18-10-14. Adams, 874 N.E.2d at 1043.

Here, in their Motion for Preliminary Determination, the family care physicians

sought dismissal of Mooney’s proposed complaint

due to the Plaintiff’s failure to file his medical review panel submission
pursuant to the schedule set out by the Medical Review Panel Chairman,
failure to comply with the [Act], and failure to timely and diligently
prosecute this cause of action and so that the Medical Review Panel could
render its opinion within one hundred and eighty [sic] (180[-]) day statutory
time limit.

Appellant’s App. at 73. And the family care physicians alleged that they were prejudiced

by the delays in this case in that:

Health care providers are required to maintain medical records for only
seven years and pharmacies for five years. If additional relevant medical
care providers are discovered in this case, the medical records will likely
have been destroyed. In addition, as time passes, memories fade and
witnesses may become unavailable. The facts in this case are already
nearly seven years old, and the Plaintiff has indicated that he cannot
schedule depositions until September 2012, at the earliest. He also has
indicated that, after the depositions, he will require an additional,
substantial amount of time to complete the Plaintiff’s submission. The
delays in this case are not contemplated by the [Act] and are prejudicial to
the Defendants.

Id. at 77.

First, the undisputed evidence shows that there was no submission schedule in

place at the time of the family care physicians’ motion for preliminary determination. In

particular, Strohmeyer’s April 22, 2011, email to the parties provided in relevant part that

Strohmeyer would “not prepare a submission schedule until the required discovery has

been completed and time is afforded for the parties to share the evidence developed with

17
their clients and experts.” Appellant’s App. at 159. And in an October 21, 2011, letter to

Cline, Young, and Pogue, Strohmeyer wrote:

The panel has now been formed with Bernadette E. Aghaji, M.D., serving
as the third panelist. I understand that there was discovery underway when
we began panel selection. I’m assuming that the discovery has been
completed. Therefore, I’ve prepared a submission schedule. If the
discovery has not been completed, please contact me and I’ll withdraw the
submission schedule until the parties have completed discovery.

Id. at 172 (emphasis added). Following that letter, Cline promptly wrote to Strohmeyer

and stated that: discovery had not yet been completed and that he still needed to schedule

five depositions; he could not meet the December 5, 2011, submission deadline; and “the

submission schedules for this case should not be scheduled until the depositions of the

defendants have been completed.” Id. at 173.

It is undisputed that neither Young nor Pogue responded in any way to either

Strohmeyer’s October 21 letter or Cline’s follow-up letter. Accordingly, given

Strohmeyer’s clear and unequivocal statement in his October 21 letter that he would

withdraw the submission schedule if he were advised that discovery had not yet been

completed, the submission schedule was withdrawn upon Strohmeyer’s receipt of Cline’s

follow-up letter. Indiana Code Section 34-18-10-3 provides that the panel chairman

“may establish a reasonable schedule for submission of evidence to the medical review

panel but must allow sufficient time for the parties to make full and adequate presentation

of related facts and authorities.” Thus, Strohmeyer was acting within his authority in

providing more time for discovery, and neither Young nor Pogue expressed any

disagreement with his decision to withdraw the submission schedule. As this court has

observed, “implicit in the panel’s duty to render an opinion [within 180 days of the
18
selection of the last member of the panel i]s the parties’ duty to submit evidence

according to the schedule set by the panel.” Gleason v. Bush, 664 N.E.2d 1183, 1186-87

(Ind. Ct. App. 1996) (“Gleason I”) (emphasis added). Because there was no schedule

established in this case, there is no evidence that Mooney failed to comply with a

submission schedule.

Moreover, to the extent the family care physicians contend that Mooney failed to

comply with the Act when the Panel did not issue its opinion within 180 days of its

formation, that contention is untenable. Young had agreed, at the outset, to extend the

180-day deadline “if necessary.” Appellant’s App. at 146. In her brief on appeal, Young

asserts that that statement “presumed diligence by Mooney.” Brief of Appellees at 25

(emphasis original). Young maintains that she did not agree to “allow Mooney an

indefinite extension of time, during which he was not required to take any action.” Id. at

26. But Young had not qualified her agreement in those terms, and the context of the

correspondence among the parties shows otherwise. Again, Strohmeyer had consistently

stated that he would not set a submission schedule until discovery was completed,

without objection from Young. And in October 2011, Strohmeyer explicitly stated that

while Cline’s submission was due on December 5, 2011, “[i]f the discovery has not been

completed, please contact me and I’ll withdraw the submission schedule until the parties

have completed discovery.” Appellant’s App. at 172. Cline promptly wrote to

Strohmeyer, advising him that discovery had not been completed and asking him to

withdraw the submission schedule, and Young, again, made no objection. Given

Young’s explicit agreement to extend the 180-day deadline, if necessary, together with

19
her acquiescence in Strohmeyer’s decision to postpone the setting of a submission

schedule until discovery was completed, Young’s eleventh hour objection was not well

founded.5

Further, while the Act provides that the panel shall issue its opinion within 180

days of the formation of the panel, that deadline is neither a statute of limitation nor the

functional equivalent of a statute of limitation. See Gleason v. Bush, 689 N.E.2d 480,

482 (Ind. Ct. App. 1997) (“Gleason II”). The Act anticipates that a panel might not

always be able to meet the deadline, and Indiana Code Section 34-18-10-13(b) provides

that under that circumstance “the panel shall submit a report to the commissioner, stating

the reasons for the delay.” And, in Gleason II, this court held that a panel’s failure to

issue an opinion within the 180-day deadline “does not automatically trigger the

imposition of sanctions on either parties or panel members.” Id. at 483.

Finally, while Young consistently expressed her desire to Strohmeyer, Cline, and

Pogue that she wanted to move the case along more quickly, again, she did not complain

about the lack of a submission schedule, which is the panel chairman’s obligation to set.

While Cline could have written more letters, made more phone calls, or filed a motion to

compel in an effort to get Pogue to schedule his clients’ depositions sooner,6 we cannot

say that he sat idly by and did nothing, as Young characterizes his conduct. The record

of correspondence shows that, from January 2011 through April 2012, Cline issued four

5
That is not to say that Young had a duty to move the proceedings along. But because
Strohmeyer repeatedly advised the parties of his intentions to wait to set a submission schedule until
discovery was completed and expressly asked the parties to let him know if they objected to that plan,
Young cannot now complain.
6
In an affidavit he submitted to the trial court, Cline explained that he had not threatened a
motion to compel against Pogue out of professional courtesy.
20
written requests to Pogue offering dozens of possible dates for the defendants’

depositions, but Pogue did not respond. And Cline promptly responded to each letter sent

by Strohmeyer and Young. Moreover, again, dismissals are generally viewed in disfavor

and considered extreme remedies, which should be granted only under limited

circumstances. Beemer, 677 N.E.2d at 1119.

Indeed, every case cited by the family care physicians in their brief on appeal in

support of their contention on this issue is clearly distinguishable from the instant case.

In particular, in each of the cited cases, the plaintiff failed to comply with the submission

schedule set by the panel chairperson, without exception. See, e.g., Gleason, 689 N.E.2d

at 482; Galindo, 569 N.E.2d at 704. Here, where Strohmeyer did not set a submission

schedule and the parties acquiesced in the delay in setting a schedule for the express

purpose of completing discovery, there is no basis to find that Cline violated his duty to

submit evidence to the Panel on behalf of his client. Further, the evidence shows that the

parties agreed to extend the 180-day deadline for the Panel’s opinion. Accordingly, we

hold that the trial court’s order dismissing Mooney’s complaint as to the family care

physicians for failure to comply with the Act is against the logic and effect of the facts

and circumstances before it or the reasonable, probable, and actual deductions to be

drawn therefrom.7 Mooney’s proposed complaint for damages is hereby reinstated with

respect to the family care physicians.

7
Because we hold that Mooney did not violate the Act, we need not address the family care
physicians’ contention that they were prejudiced by his conduct.
21
 Issue Two: Trial Rule 41(E)

Mooney next contends that the trial court lacked jurisdiction to dismiss his

proposed complaint for damages pursuant to Trial Rule 41(E), which provides:

Whenever there has been a failure to comply with these rules or when no
action has been taken in a civil case for a period of sixty [60] days, the
court, on motion of a party or on its own motion shall order a hearing for
the purpose of dismissing such case. The court shall enter an order of
dismissal at plaintiff’s costs if the plaintiff shall not show sufficient cause at
or before such hearing. Dismissal may be withheld or reinstatement of
dismissal may be made subject to the condition that the plaintiff comply
with these rules and diligently prosecute the action and upon such terms
that the court in its discretion determines to be necessary to assure such
diligent prosecution.

Mooney maintains that the trial court lacks jurisdiction to dismiss his proposed complaint

for damages under Trial Rule 41(E) because he neither failed to comply with a trial rule

nor failed to prosecute a civil case. We must agree.

As this court explained in Adams, 874 N.E.2d at 1041-42,

under the Medical Malpractice Act (“the Act”),[] there are three ways a trial
court can grant relief before the medical review panel has issued its
opinion. First, Indiana Code section 34-18-11-1(a) states that a trial court
has the power to “preliminarily determine an affirmative defense or issue of
law or fact that may be preliminarily determined under the Indiana Rules of
Procedure” and “compel discovery in accordance with the Indiana Rules of
Procedure.” This grant of authority is limited to “deciding issues of law or
fact that may be preliminarily determined under Trial Rule 12(D), and
compelling discovery pursuant to Trial Rules 26 through 37, inclusively.”
Griffith v. Jones, 602 N.E.2d 107, 110 (Ind. 1992).

Second, Indiana Code section 34-18-8-8 permits the Commissioner
[of the Indiana Department of Insurance], on the Commissioner’s own
motion or on the motion of a party, to “file a motion in Marion county
circuit court to dismiss the case under Rule 41(E) of the Indiana Rules of
Trial Procedure” if action has not been taken on the case for at least two
years.

22
 Finally, a trial court can grant relief under Indiana Code section 34-
18-10-14[.]

Accordingly, here, because a party, and not the Commissioner, moved to dismiss under

Trial Rule 41(E), the trial court was without jurisdiction to rule on that motion.

It is well settled that rules of statutory construction require us to construe strictly

those statutes which are in derogation of common law against limitations on a claimant’s

right to bring suit. Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104, 1107 (Ind. Ct.

App. 1999). Moreover, when the legislature enacts a statute in derogation of common

law, we presume that the legislature is aware of the common law, and does not intend to

make any change beyond what is declared in express terms or by unmistakable

implication. Id. Statutory procedures for bringing a medical malpractice action are in

derogation of common law, and as such, they are to be strictly construed against limiting

a claimant’s right to bring suit. Id. at 1107-08.

Still, the family care physicians contend that because the trial court ruled on their

motion to compel Mooney’s answers to the second set of discovery in February 2012,

had requested and received a status report from Cline, and “indicated that the court would

continue to monitor the proceedings,” the trial court “retained jurisdiction over the

underlying discovery and failure to prosecute issues.” Brief of Appellees at 31. But the

family care physicians do not support their assertion with citation to any authority.

Moreover, again, the Act is to be strictly construed, and it explicitly restricts a trial

court’s jurisdiction over a proposed complaint for damages to the three circumstances

discussed in Adams, none of which applies here. We hold that the trial court did not have

23
jurisdiction to dismiss Mooney’s proposed complaint for damages under Trial Rule

41(E).

Conclusion

Strohmeyer, the chairperson of the Panel in this matter, consistently advised the

parties that he did not intend to set a submission schedule until discovery was completed

in this case. When Strohmeyer advised the parties in October 2011 that he had set a

submission schedule on the assumption that discovery had been completed, he expressly

stated that he would withdraw that schedule if his assumption proved incorrect and

discovery had not yet been completed. Cline promptly so advised Strohmeyer, and the

submission schedule was, by Cline’s letter, withdrawn without objection from any other

party. Accordingly, in the absence of a submission schedule and with the chairman’s and

the parties’ understanding that the 180-day deadline would be extended until discovery

could be completed, Mooney did not violate the Act. The trial court abused its discretion

when it dismissed Mooney’s proposed complaint for damages under Indiana Code

Section 34-18-10-14. Further, the trial court did not have jurisdiction to dismiss

Mooney’s proposed complaint for damages under Trial Rule 41(E). Thus, we reverse

and reinstate Mooney’s proposed complaint for damages against the family care

physicians.

Reversed.

BAILEY, J., and BARNES, J., concur.

24