Richard Bojko v. Anonymous Physician ( 2024 )

FILED
IN THE May 09 2024, 10:01 am
Indiana Supreme Court CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
Supreme Court Case No. 23S-CT-343
Richard Bojko, Patricia Gadzala, Katie Greenberg, Vernita
Johnson-Macklin, Kurt Claussen, and Rachael Richardson,
Appellants
–v–
Anonymous Physician and Anonymous Medical Practice,
Appellees
and
Amy Beard, Commissioner of the Indiana Department of
Insurance, and G. Anthony Bertig, as Chairman of the
Medical Review Panels,
Third-Party Respondents
Argued: January 25, 2024 | Decided: May 9, 2024
Interlocutory Appeal from the Lake Superior Court
No. 45D02-2207-CT-637
The Honorable Calvin D. Hawkins, Judge
On Petition to Transfer from the Indiana Court of Appeals
No. 23A-CT-185
Opinion by Chief Justice Rush
Justices Massa, Slaughter, Goff, and Molter concur.
Rush, Chief Justice.
The Medical Malpractice Act was enacted in 1975, making Indiana one
of the first states to legislatively respond to severe spikes in malpractice
insurance premiums for healthcare professionals that risked a reduction of
services available to the public. Nearly fifty years later, the act remains in
force. It grants authority over medical malpractice actions first to a
medical review panel, which must render an opinion on a proposed
complaint before a claimant can sue a healthcare provider in court. During
this review-panel process, trial courts have limited authority to intervene
and grant relief. Today, we determine whether that authority includes
redacting or otherwise excluding evidence a party submits to a medical
review panel as well as what constitutes such evidence.
Here, six patients of a deceased physician filed medical malpractice
actions against his estate and his practice alleging the physician breached
the standard of care. In support of those allegations, the patients
submitted materials to medical review panels, including medical records,
narrative statements, testimony from other doctors, and a wrongful death
complaint the physician’s wife had filed in a separate malpractice action.
The respondents then filed a petition with the trial court, seeking
redaction of the wife’s complaint, as well as any mention of its contents in
the patients’ submissions. The trial court granted that petition.
We reverse. In examining the relevant statutes, we conclude that trial
courts have no authority to act as gatekeeper of the evidence a party
submits to a medical review panel. And because we conclude that the
third-party complaint here is evidence, we hold that the court lacked the
authority to order the patients to redact their submissions.
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Facts and Procedural History
Between November 2017 and January 2020, Anonymous Physician, 1 an
ear-nose-and-throat doctor, performed medical procedures on Richard
Bojko, Patricia Gadzala, Katie Greenberg, Vernita Johnson-Macklin,
Rachael Richardson, and Kurt Claussen (collectively “Patients”) as part of
their ongoing medical treatment and care. Anonymous Physician died in
February 2020. And in 2021, Patients filed medical malpractice actions
against the doctor’s estate and his practice (collectively “Physicians”).
Patients each filed a proposed complaint with the Indiana Department of
Insurance (DOI) alleging that the care and treatment Anonymous
Physician provided, while acting in the scope of his employment, fell
below the standard of care and caused injury.
Later, after medical review panels were formed for each patient,
Patients tendered evidentiary submissions for the panels’ consideration.
Each submission opened by alleging that Anonymous Physician was
“mentally ill,” “abusing drugs and/or alcohol,” or “motivated by naked
greed while caring for and treating” each patient. And Patients asserted
that Anonymous Physician “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 support of these allegations, the
submissions included medical records, testimony from other doctors, and
narrative statements about Patients’ medical treatment.
Each submission also included a wrongful death complaint that
Anonymous Physician’s wife, herself a doctor, filed with the DOI against
a hospital following her husband’s death. That third-party complaint
alleged Anonymous Physician “suffered from chronic alcohol and drug
abuse” and was released from a hospital’s emergency department on the
1When a plaintiff simultaneously files a complaint with the trial court and a proposed
complaint with the Department of Insurance, the complaint filed in court may not contain any
information that would allow a third party to identify the defendant. Ind. Code § 34-18-8-
7(a)(1).
Indiana Supreme Court | Case No. 23S-CT-343 | May 9, 2024 Page 3 of 12
night he died, even though he “was visibly intoxicated, showed signs of
delusional ideation, mental illness, grave disability, and was aggressive
and dangerous, among other things.”
After Patients tendered their evidentiary submissions, Physicians filed
a petition with the trial court under Indiana Code section 34-18-10-14.
Physicians asked the court to issue a mandate requiring Patients to
“redact any and all references from their submissions to alleged drug or
alcohol abuse or mental illness.” They maintained that such material “is
not ‘evidence,’ but mere allegations devoid of evidentiary support.” After
a hearing, the trial court granted the petition and directed Patients to
redact from their submissions “any and all references to” Anonymous
Physician’s wife’s complaint as well as “any and all references to
allegations of drug and/or alcohol abuse or mental health issues.”
Patients pursued an interlocutory appeal, and the Court of Appeals
accepted jurisdiction and affirmed the trial court. Bojko v. Anonymous
Physician, 215 N.E.3d 376, 378 (Ind. Ct. App. 2023). Patients then
petitioned for transfer, which we granted, vacating the Court of Appeals’
opinion. Ind. Appellate Rule 58(A).
Standard of Review
This appeal requires us to determine whether trial courts have the
statutory authority to issue a mandate requiring a party to redact their
evidentiary submission to a medical review panel and whether the third-
party complaint here qualifies as evidence. Resolving these issues turns on
statutory interpretation—a question of law subject to de novo review.
Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 375 (Ind. 2022).
Discussion and Decision
The Medical Malpractice Act (MMA) grants preliminary authority over
medical malpractice actions to a medical review panel, which must render
an opinion on a proposed complaint before a claimant can sue a health-
care provider in court. Ind. Code § 34-18-8-4. Despite this procedural
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prerequisite, one of the MMA’s primary goals is “to foster prompt
litigation.” Ellenwine v. Fairley, 846 N.E.2d 657, 664 (Ind. 2006). To facilitate
that goal, the statutes governing the review panels impose strict deadlines
and prescribe an “informal” process that imposes “little to no risk on the
participants.” McKeen v. Turner, 61 N.E.3d 1251, 1261 (Ind. Ct. App. 2016),
adopted by 71 N.E.3d 833 (Ind. 2017); see also Griffith v. Jones, 602 N.E.2d
107, 111 (Ind. 1992).
Indeed, during this process, the MMA provides only three ways a trial
court can grant relief before the panel issues its opinion. A court can
dismiss a case if no action has been taken for at least two years. See I.C. §
34-18-8-8. A court can “preliminarily determine an affirmative defense or
issue of law or fact that may be preliminarily determined under the
Indiana Rules of Procedure” or “compel discovery in accordance with the
Indiana Rules of Procedure.” I.C. § 34-18-11-1(a). And, relevant here, a
court can issue a mandate or impose sanctions on a “party, attorney, or
panelist who fails to act as required by” the chapter governing medical
review panels “without good cause shown.” I.C. § 34-18-10-14.
The questions here are whether, under Section 34-18-10-14, a trial court
has the authority to redact or otherwise exclude evidence a party submits
to a medical review panel, and whether the third-party complaint is
evidence the panels can consider. By law, parties are required to
“promptly” submit “evidence in written form” for the panel to consider in
reaching its opinion. I.C. § 34-18-10-17(a). And that “evidence may consist
of medical charts, x-rays, lab tests, excerpts of treatises, depositions of
witnesses including parties, and any other form of evidence allowable by
the medical review panel.” Id. § -17(b). Though we have previously held
that trial courts cannot dictate what evidence a panel “may consider in
reaching its opinion” under Section 34-18-11-1, Griffith, 602 N.E.2d at 111,
we have yet to determine whether courts also lack that authority under
Section 34-18-10-14.
Physicians contend that Section 34-18-10-14 allows a trial court to order
a party to redact “non-evidence” from submissions to the medical review
panel and that Anonymous Physician’s wife’s wrongful death complaint
is not “evidence” under Section 34-18-10-17. Patients disagree, asserting
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that Section 34-18-10-14 “does not permit a trial court to serve as a
gatekeeper for materials submitted to a medical review panel.” And they
contend that the third-party complaint falls within “any other form of
evidence allowable by the medical review panel.” I.C. § 34-18-10-17(b).
We agree with Patients. In reaching that conclusion, we outline the
scope of a trial court’s authority under Section 34-18-10-14 and conclude
that it does not give trial courts the authority to redact or otherwise
exclude evidence submitted to a medical review panel. We then hold that
the third-party complaint could be considered evidence subject to the
panels’ discretion. As a result, the trial court had no authority to order the
redaction of Patients’ submissions. We therefore reverse.
I. Trial courts have authority to grant relief under
Section 34-18-10-14 only if there is a failure to act
as required by statute.
To determine whether the trial court erred in requiring Patients to
redact their evidentiary submissions to the medical review panel, we must
first determine the scope of a court’s authority under Section 34-18-10-14.
That statute provides, “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.” I.C. § 34-18-10-14. Thus, a
condition precedent for relief is that a party, attorney, or panelist has
failed to act as required by Indiana Code chapter 34-18-10. And so, to
determine the scope of a court’s authority under Section 34-18-10-14, we
examine those requirements and relevant case law.
Chapter 34-18-10 confers statutory requirements on parties. For
example, in selecting the panel chair, parties must comply with specified
procedures if “no agreement on a panel chairman can be reached.” I.C. §
34-18-10-4. Parties are also prohibited from communicating “with any
member of the panel, except as authorized by law, before” the panel
submits its opinion. Id. § -18. And parties must “promptly” submit
“evidence in written form” for the panel’s consideration. Id. § -17(a). Based
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on this requirement, our Court of Appeals has routinely held that trial
courts have the authority to issue a mandate or impose sanctions when a
party fails to follow an evidentiary submission schedule. See, e.g., Quillen
v. Anonymous Hosp., 121 N.E.3d 581, 586–87 (Ind. Ct. App. 2019), trans.
denied; Adams v. Chavez, 874 N.E.2d 1038, 1043–44 (Ind. Ct. App. 2007)
(collecting cases), aff’d on reh’g, 877 N.E.2d 1246 (Ind. Ct. App. 2007).
As for the medical review panel, Chapter 34-18-10 imposes
considerably more requirements. The panel includes one attorney and
three healthcare providers, and the attorney must serve as chair and act in
only an advisory capacity. I.C. § 34-18-10-3(a), (b). The chair is required to
“expedite the selection of the other panel members, convene the panel,
and expedite the panel’s review of the proposed complaint.” Id. § -3(c).
The chair also has other duties, including advising the panel on legal
questions that arise, preparing the expert opinion, establishing a schedule
for the parties’ submission of evidence, and ensuring each panel member
can review the evidence. Id. §§ -3(c), -17(d), -19. And the panel must
comply with strict deadlines. It must generally issue its expert opinion
within 180 days after the last panel member’s selection, id. § -13(a), and
within 30 days after the panel has reviewed “all evidence and after any
examination of the panel by counsel representing either party,” id. § -
22(b). Consistent with these requirements, Section 34-18-10-14 “supports
the inherent power of the trial court to direct the activities of the panel, to
the extent it is requiring them to carry out their statutory duties.” Doe
Corp. v. Honoré, 950 N.E.2d 722, 728 (Ind. Ct. App. 2011).
Though there is little case law addressing this inherent power, we find
Sherrow v. GYN, Limited, 745 N.E.2d 880 (Ind. Ct. App. 2001), instructive.
There, the defendants’ evidentiary submission to the medical review panel
included legal arguments and case quotations. Id. at 881–82, 885. The
plaintiff, relying on Section 34-18-10-14, argued that the trial court could
redact the legal arguments because the panel chair “improperly delegated
to the parties his statutory duty to advise the panel as to legal questions
raised during the review.” Id. at 884. Our Court of Appeals agreed,
recognizing that, by statute, the chair “shall advise the panel relative to
any legal question involved in the review proceeding.” Id. at 885 (quoting
I.C. § 34-18-10-19). And thus, because the plaintiff’s claim hinged on the
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chair’s failure “to carry out a statutory duty,” that claim fell “within the
purview” of Section 34-18-10-14. Id. at 884.
The above statutes and case law interpreting them dictate the scope of a
trial court’s authority under Section 34-18-10-14 as limited to an alleged
failure to act as required by a statute within that chapter. With this
framework in hand, we now determine whether trial courts have the
authority under Section 34-18-10-14 to mandate a party redact evidence
submitted to a medical review panel and whether the third-party
complaint here is evidence under Section 34-18-10-17.
II. The trial court exceeded its statutory authority by
ordering Patients to redact their evidentiary
submissions.
The panel chair has the authority to “establish a reasonable schedule for
submission of evidence to the medical review panel.” I.C. § 34-18-10-3(c).
And parties must then timely submit “evidence” for the panel’s
consideration. Id. § -17(a). Physicians argue Patients disregarded that
requirement not because their submissions were untimely, but because
Anonymous Physician’s wife’s complaint and related allegations “are not
evidence.” Patients disagree, asserting that “a physician-spouse’s
indication that her husband suffers from mental illness and chronic
substance abuse necessarily constitutes ‘evidence.’” Despite this
disagreement, all parties acknowledge that Indiana’s Rules of Evidence do
not apply to the review-panel process. See Johnson v. St. Vincent Hosp., Inc.,
404 N.E.2d 585, 596 (Ind. 1980), overruled on other grounds by In re Stephens,
867 N.E.2d 148 (Ind. 2007). And so, to assess the party’s competing
arguments, we first turn to the text of Section 34-18-10-17.
The plain, unambiguous language of Section 34-18-10-17 does not
provide trial courts with the authority to redact or otherwise exclude
evidence a party submits to the medical review panel. The statute requires
parties to “promptly” submit “evidence in written form to be considered
by the medical review panel.” I.C. § 34-18-10-17(a). And that “evidence
may consist of medical charts, x-rays, lab tests, excerpts of treatises,
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depositions of witnesses including parties, and any other form of evidence
allowable by the medical review panel.” Id. § -17(b). But before
considering any evidence, each member must “take an oath in writing”
stating in relevant part that they will “truly consider the evidence
submitted by the parties” and render their “opinion without bias, based
upon the evidence submitted by the parties.” Id. § -17(e). And the chair
“shall ensure” each member “has the opportunity to review every item of
evidence submitted by the parties.” Id. § -17(d).
So although parties must “promptly” submit evidence, the statute does
not restrict the type of evidence that may be submitted other than it be
“allowable” by the panel. And the chairperson, who is an attorney,
provides guidance to the other panel members on any questions related to
the evidentiary submission. See I.C. §§ 34-18-10-3(b), -19. In these ways,
the MMA gives the panel alone the role of reviewing submitted evidence
and determining how it affects their opinion. Thus, a trial court cannot act
as gatekeeper of this evidence. See Chen v. Kirkpatrick, 738 N.E.2d 727, 730
(Ind. Ct. App. 2000) (relying on Griffith, 602 N.E.2d at 111); see also In re
Med. Rev. Panel for Brock, 274 So. 3d 1275, 1278–79 (La. Ct. App. 2019)
(interpreting Louisiana’s corollary to Section 34-18-10-17, which was
modeled after and is identical to Indiana’s statute, and concluding “this
provision grants the medical review panel the authority to determine the
evidence it will consider”). As a result, trial courts have no authority
under Section 34-18-10-14 to redact or otherwise exclude a party’s
evidentiary submission to a medical review panel.
This conclusion brings us to Physicians’ contention that the court
nevertheless had the authority to redact Patients’ submissions because the
third-party complaint is not evidence under Section 34-18-10-17. We
disagree.
The MMA does not define evidence but instructs, “A legal term or
word of art that is used in this article, if not otherwise defined, has the
meaning that is consistent with the common law.” I.C. § 34-18-2-2. Our
common law has defined evidence as “that which tends to produce
conviction in the mind as to the existence of a fact.” Taylor v. Fitzpatrick,
132 N.E.2d 919, 922 (Ind. 1956) (quotation omitted). And Black’s Law
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Dictionary similarly defines “evidence” as “[s]omething (including
testimony, documents, and tangible objects) that tends to prove or
disprove the existence of an alleged fact.” Evidence, Black's Law Dictionary
(11th ed. 2019). Thus, without a contrary directive from the Legislature,
we understand evidence under Section 34-18-10-17 as any material
submitted to a medical review panel that tends to produce conviction in
the mind as to the existence of an alleged fact. This understanding aligns
with Sherrow’s recognition that a “discussion of the legal standards
applicable in medical malpractice cases” is not evidence. 745 N.E.2d at
885. Indeed, legal argument does not tend to produce conviction in the
mind as to the existence of an alleged fact.
Applying that definition here, we hold that Anonymous Physician’s
wife’s complaint is evidence allowable by the panels. Patients alleged in
part that the doctor breached his standard of care “by failing to recuse
himself from treating” each patient if his “bizarre treatment and behavior
was due” to either substance abuse or mental health issues. And because
Patients submitted the wife’s complaint to establish the existence of these
alleged facts, it is evidence the panels can consider. But this conclusion
does not necessarily mean the complaint is reliable or relevant—it is each
medical review panel’s role to make those determinations in forming its
opinion. Unlike a trial court judge, whose discretion is constrained by the
Rules of Evidence, the MMA gives the medical review panel independent
discretion in deciding what evidence it deems “allowable.” I.C. § 34-18-10-
17(b).
Thus, the definition and application of what qualifies as “evidence”
under Section 34-18-10-17 are broad—a result that promotes the MMA’s
goals of efficient litigation and an informal review-panel process.
Imposing evidentiary restrictions not supported by the text of the MMA
could confine a plaintiff’s claim in the trial court, as they must first submit
evidence to the panel related to “the theories regarding breach sought to
be raised at trial.” McKeen, 61 N.E.3d at 1261. A restrictive view of
allowable evidence would also conflict with the informal and low-risk
nature of these proceedings. Such a view would likely increase litigation
during the review-panel process, making it difficult—if not impossible—
for panels to comply with statutory deadlines for issuing opinions. And
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this result would offend a recent amendment to the MMA in which the
Legislature “emphasize[d], to the parties, the courts, and the medical
review panels, that adhering to the [statutory] timelines . . . is of extreme
importance in ensuring the fairness of the medical malpractice act.” I.C. §
34-18-0.5-1.
In summary, trial courts have no authority under Section 34-18-10-14 to
act as gatekeeper of the evidence a party submits to the medical review
panel. And that evidence includes any material submitted by a party that
tends to produce conviction in the mind as to the existence of an alleged
fact. Because the challenged third-party complaint here falls within this
definition as evidence allowable by the panel, the trial court lacked the
authority to order Patients to redact their submissions.
Conclusion
For the reasons articulated above, we reverse the trial court’s order
granting Physicians’ petition and remand for proceedings consistent with
this opinion. 2
Massa, Slaughter, Goff, and Molter, JJ., concur.
2 We thank amici—Defense Trial Counsel of Indiana and the Indiana Trial Lawyers
Association—for their helpful briefs.
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ATTORNEYS FOR APPELLANTS
Gabriel A. Hawkins
Cohen & Malad, LLP
Indianapolis, Indiana
Barry D. Rooth
William A. Theodoros
Holly S.C. Wojcik
Theodoros & Rooth, P.C.
Merrillville, Indiana
ATTORNEYS FOR APPELLEES
James L. Hough
Stephen A. Tyler
Eichhorn & Eichhorn, LLP
Hammond, Indiana
Margaret M. Christensen
Dentons Bingham Greenebaum LLP
Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE DEFENSE TRIAL COUNSEL OF
INDIANA
Lucy R. Dollens
Quarles & Brady LLP
Indianapolis, Indiana
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana
ATTORNEYS FOR AMICUS CURIAE INDIANA TRIAL LAWYERS
ASSOCIATION
Sara A. Langer
Steven L. Langer
Langer & Langer
Valparaiso, Indiana
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