dissenting.
I respectfully dissent. In Johnson v. St. Vincent Hospital, Inc. (1980), Ind., 404 N.E.2d 585, the supreme court upheld the constitutionality of the Indiana Malpractice Act. In so doing, the court discussed the function of the medical review panel and said:
The statute contemplates that the panel will function in an informal and reasonable manner. It is guided by a trained lawyer who presumptively will not deny to each party a reasonable opportunity to present its evidence and authorities. The scope of the panel's function is limited. It does not conduct a hearing or a trial and does not render a decision or judgment. There is, therefore, no reason to mandate that the statute relegate burdens of proof or production and to otherwise specify procedures applicable in hearings and trials. The panel is conducting a rational inquiry into the extent and source of the patient's injuries for the purpose of forming its expert opinion. The absence from the statute of specific procedures is reasonable in light of this limited purpose and function and does not raise a serious constitutional question on the ground of vagueness or indefiniteness.
404 N.E.2d at 596.
I.C. 27-12-10-8 provides that "(The chairman [of the medical review panel] 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." It is 1.C. 27-12-10-13 that sets the time limit for opinions and under section (b) "(Df the panel has not given an opinion within the time allowed under subsection (a) [180 days], the panel shall submit a report to the commissioner, stating the reasons for delay." Therefore, the panel would have the option of allowing more time for the plaintiff to submit evidence before the defendant doctor intervenes by a motion for preliminary determination. It certainly is not mandatory for the panel to render its opinion within the 180 day time limit.
*1198The majority cites Ground v. Methodist Hosp. of Indiana (1992), Ind.App., 576 N.E.2d 611, which says that I.C. 27-12-10-143 "is an administrative parallel to Trial Rule 41(E)-it affords relief when a party or panel member is dilatory or fails to comply" with the requirements of the Malpractice Act. The evidence in this case shows that the plaintiff was not "dilatory" but had made a showing of good cause as to why dismissal was not appropriate or proper. Dismissal of plaintiff's complaint does not seem like a parallel remedy to dismissing a panel member for not making his or her decision within 180 days.
The statute then limits the trial court to intervene for the purpose of making a preliminary determination to two functions: (1) the court can preliminarily determine either affirmative defenses or issues of law or fact; or (2) it may compel discovery in accordance with Indiana Trial Rules of Procedure. Dismissal, then, is a sanction which the trial court has the inherent authority to order in its discretion. Galindo v. Christensen (1991), Ind.App., 569 N.E.2d 702, 706 holds that:
As in the violation of a discovery order, appropriate considerations for the trial court in exercising its discretion as to the appropriate sanction is whether the breach of duty was intentional or contumacious and whether prejudice resulted.
Galindo instructs us that prior to imposing sanctions a hearing must be held on the question of the propriety of a sanction as well as the appropriate sanction.
There is no evidence in the record in support of the moving party's burden of establishing the propriety of the sanction as well as the appropriate sanction. There is no evidence that the failure of the plaintiff to timely submit its evidence prejudiced the defendant doctor in any way.
Justice Krahulik wrote in the case of Griffith v. Jones (1992), Ind., 602 N.E.2d 107, 110, as follows:
In view of the fact that the legislature clearly intended for the medical review panel to function in an informal manner in rendering its expert medical opinion, we believe that the legislature did not simultaneously intend to empower trial courts to dictate to the medical review panel concerning either the content of the panel's opinion or the manner in which the panel arrives at is opinion, or the matters that the panel may consider in arriving at its opinion. In other words, the grant of power to the trial court to preliminarily determine matters is to be narrowly construed. {emphasis added).
I would set aside the dismissal of plaintiff's complaint as an abuse of the trial court's authority because the record was devoid of evidence that dismissal was an appropriate sanction, there was inadequate evidence that the breach of duty was intentional, and there was no evidence of prejudice to the defendant doctor.
. A party, attorney, or panelist who fails to act as , required by this chapter without good cause shown is subject to mandate or appropriate sanctions upon application to the court designated in the proposed complaint as having jurisdiction.