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Non-evidentiary allegations were properly struck from evidentiary submissions in a medical malpractice case, the Court of Appeals of Indiana has affirmed.
Six patients — Richard Bojko, Patricia Gadzala, Katie Greenberg, Vernita Johnson-Macklin, Kurt Claussen and Rachel Richardson — each received medical care from an anonymous physician and anonymous medical practice. In 2021, each of the six patients filed a proposed complaint against the physician and practice with the Indiana Department of Insurance.
The complaints alleged the physician’s care and treatment fell below the applicable standard of care and proximately caused injury. Specifically, the patients alleged the physician was “either: a) mentally ill; and/or; b) abusing drugs and/or alcohol; and or c) motivated by naked greed while caring for and treating the plaintiff and an untold number of other patients in his practice.”
“The upshot,” the complaints continued, “is that [the Physician] routinely recommended, performed, and billed for unnecessary and unindicated sinus and nose surgeries, or, alternatively, documented and billed for unnecessary and unindicated surgeries without actually performing them.”
In chapter four of the complaints, which were identical through the first four chapters, the plaintiffs alleged the physician’s wife admitted he was a chronic alcoholic and drug abuser and had signs of delusional ideation and mental illness. It also states the physician died in February 2020.
The physician and medical practice filed a petition with the Lake Superior Court pursuant to Indiana Code § 34-18-10-14. The petition named the plaintiffs as respondents while Department of insurance Commissioner Amy Beard and G. Anthony Bertig, chairman of the medical review panels, were named as third-party respondents.
The petition stated that the Medical Malpractice Act requires parties to submit evidence to the review panel, whereas the patients submitted their medical records making allegations. Thus, the petition requested an order mandating that the patients “redact any and all references from their submissions to alleged drug or alcohol abuse or mental illness.”
The patients objected to the petition and claimed the trial court lacked subject-matter jurisdiction to grant it.
But in December 2022, the trial court issued an order granting the petition after a hearing. The order also ordered applied to they physician’s wife.
On interlocutory appeal, the patients again argued the trial court lacked subject-matter jurisdiction to grant the petition. The appellate court disagreed.
Judge Terry Crone cited the court’s opinion in Sherrow v. GYN, 745 N.E.2d 880 (Ind. Ct. App. 2001), in which it explained that if parties were allowed to include legal arguments in their evidentiary submissions, then they would be lengthy legal memoranda.
“Thus, such non-evidentiary matters are ‘inappropriate in evidentiary submissions’ to a medical review panel,” Crone wrote, quoting Sherrow. “And the clear import of Indiana Code Section 34-18-10-14 is that a trial court may mandate compliance with Section 34-18-10-17 by striking such matters from a party’s evidentiary submission. Accordingly, we affirm the trial court’s mandate in this case.”
Judge Elaine Brown and Senior Judge Margret Robb concurred.
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