Mary Clem, as Personal Representative of the Estate of Robert E. Clem, Jr., and Mary Clem, individually v. Richard K. Freeman, M.D., and St. Vincent Medical Group, Inc. (mem. dec.)

MEMORANDUM DECISION FILED
09/12/2017, 10:25 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Thomas W. Vander Luitgaren Laura K. Bindford
Emily M. Gettum Courtney David Mills
Greenwood, Indiana Riley Bennett Egloff LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mary Clem, as Personal September 12, 2017
Representative of the Estate of Court of Appeals Case No.
Robert E. Clem, Jr., deceased, 29A02-1703-PL-714
and Mary Clem, individually, Appeal from the Hamilton Circuit
Appellants-Plaintiffs, Court
The Honorable Paul A. Felix,
v. Judge
Trial Court Cause No.
Richard K. Freeman, M.D., and 29C01-1612-PL-11284
St. Vincent Medical Group, Inc.,
Appellees-Defendants.
Bradford, Judge.
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Case Summary
[1] Appellants-Plaintiffs Mary Clem, as personal representative of the Estate of
Robert E. Clem, Jr., deceased, and Mary Clem individually (collectively
“Clem”) filed a medical malpractice case against Appellees-Defendants Richard
K. Freeman, M.D. (“Dr. Freeman”), and St. Vincent Medical Group (“St.
Vincent”) in Marion County, Indiana, on August 23, 2016. On October 31,
2016, Dr. Freeman and St. Vincent filed a motion for change of venue, seeking
to change venue to Hamilton County. On November 9, 2016, Marion County
Superior Court granted Dr. Freeman and St. Vincent’s motion for change of
venue pursuant to Indiana Trial Rule 75.
[2] Clem did not file the re-filing fee with the Marion County clerk within the
twenty-day time period as prescribed by Trial Rule 75. On December 13, 2016,
thirty-four days after the court granted the motion for change of venue, Clem’s
counsel delivered a re-filing check to the Marion County. On December 14,
2016, Dr. Freeman and St. Vincent filed a motion to dismiss without prejudice
and for attorney’s fees relying on Trial Rule 75(B) alleging that Clem failed to
timely pay the re-filing fee. On December 20, 2016, Clem filed her response in
opposition to the motion to dismiss and motion for extension of time to pay the
re-filing fee pursuant to Trial Rule 6(B).
[3] On February 13, 2017, the Hamilton County trial court held a pre-trial hearing
during which the parties stipulated to the court ruling on the previously-filed
motion to dismiss. On March 16, 2017, the trial court dismissed Clem’s
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complaint without prejudice pursuant to Rule 75(B)(3). Because we find that
there were circumstances amounting to excusable neglect, we reverse the trial
court.
Facts and Procedural History
[4] In March of 2012, an otherwise healthy fifty-nine-year-old Robert E. Clem, Jr.,
was diagnosed with cancer of the left tonsil. Shortly thereafter, Robert E. Clem
(“Robert”) underwent a PET scan, which showed a focus of metastatic disease
in the right anterior fourth rib. Robert was referred to cardio thoracic surgeon
Dr. Freeman for resection of the diseased rib. On April 13, 2012, Dr. Freeman
resected a section of Robert’s rib and sent it to pathology. The results from the
pathology were negative for metastasis.
[5] Six months later, an imaging requested by another doctor treating Robert
revealed that Dr. Freeman had resected the wrong rib, the third right anterior
rib. Once it was discovered that the wrong rib had been resected, Robert E.
Clem had to endure a second surgery to resect the correct rib. At that time,
Robert had undergone several long months of chemotherapy and radiation
treatment. The fourth anterior rib, successfully resected by another surgeon,
was found to be malignant. Robert was later diagnosed with bone cancer.
[6] On November 6, 2013, Robert filed his proposed complaint with the Indiana
Department of Insurance alleging that medical malpractice occurred on April
12, 2012. As a result of Dr. Freeman and St. Vincent’s treatment of Robert, he
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endured additional surgery and other negative consequences that impacted his
family. Unfortunately, Robert passed away on February 16, 2015.
[7] The Medical Review Panel convened on two occasions, March 28, 2016 and
May 11, 2016, before issuing its written and signed opinion. On June 9, 2016,
almost three years after Robert filed his proposed complaint, Clem received the
Medical Review Panel’s unanimous opinion finding that Dr. Freeman and St.
Vincent committed medical malpractice by failing to comply with the
appropriate standard of care when treating Robert and that their conduct
caused some resultant damages. The panel also found that St. Vincent did not
commit malpractice.
[8] On August 23, 2016, Clem filed a complaint in Marion County. On October
17, 2016, the same day that Dr. Freeman and St. Vincent’s answer was due
with their automatic extension, counsel for Dr. Freeman and St. Vincent
contacted Clem’s counsel by phone asking if Clem objected to Dr. Freeman and
St. Vincent’s second request for extension of time to file an answer. Clem’s
counsel did not object.
[9] On October 31, 2016, Dr. Freeman and St. Vincent filed their verified motion
for change of venue. The motion was based on the facts that Dr. Freeman
resided in Hamilton County and St. Vincent had its principal place of business
there. Dr. Freeman and St. Vincent requested that the case be transferred to
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Hamilton County pursuant to Trial Rule 75(B)(1). Clem did not object to the
motion for change of venue.1
[10] On November 9, 2016, the Marion County trial court granted the motion for
change of venue and directed the case to be transferred from Marion County to
Hamilton County. On December 14, 2016, Dr. Freeman and St. Vincent filed a
motion to dismiss without prejudice and for attorney fees pursuant to Indiana
Trial Rule 75(B)(3). On December 20, 2016, Clem filed her response in
opposition to defendants’ motion to dismiss and a request for extension of time
to pay re-filing fee pursuant to Indiana Trial Rule 6(B). On December 29, 2016,
Dr. Freeman and St. Vincent filed their reply brief in support of the motion to
dismiss without prejudice and for attorney fees. On December 29, 2016, Clem
filed her reply in opposition to defendants’ response in opposition to
defendants’ response in support of motion to dismiss.
[11] On January 19, 2017, Clem filed her praecipe for telephonic pre-trial conference
in Hamilton Circuit Court 1. On February 13, 2017, the parties conducted a
telephonic pre-trial conference before Judge Paul Felix of Hamilton County
Circuit 1. During the telephonic conference, the parties stipulated to the
Hamilton County Circuit Court ruling on the previously-filed motion to
dismiss. Judge Felix was provided with all of the relevant materials and it was
1
Clem concedes in her brief that venue in Hamilton County is proper.
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decided that the parties would file a notice with the Hamilton County Circuit
Court, attach their previously-filed documents from Marion County as exhibits,
and submit proposed orders.
[12] On February 14, 2017, Clem filed her notice of re-filing of plaintiff’s responses
in opposition to defendants’ motion to dismiss. On February 16, 2017, Dr.
Freeman and St. Vincent filed their notice of filings regarding defendants’
motion to dismiss without prejudice and for attorney fees filed on December 14,
2016. On March 16, 2017, the trial court, after reviewing the parties’ respective
briefs, entered its order dismissing Clem’s complaint without prejudice pursuant
to Trial Rule 75(B)(3).
Discussion and Decision
[13] The re-filing deadline in this case was missed due to an unfortunate calendaring
mistake that occurred within Clem’s counsel’s firm. There was a failure to flag
the deadline. Under the unique circumstances of this case, we conclude that
the trial court abused its discretion when it imposed the harshest possible
sanction in dismissing Clem’s lawsuit for a simple technicality like a late re-
filing fee. Given the underlying facts of this case, dismissal is inconsistent with
“Indiana’s oft-stated policy of having cases decided on their merits whenever
possible.” Deutsche Bank Nat. Trust Co. v. Harris, 985 N.E.2d 804, 815 (Ind. Ct.
App. 2013); see also Clark Cnty. State Bank v. Bennett, 336 N.E.2d 663, 667 (Ind.
Ct. App. 1975). Although we acknowledge and do not condone the failure of
Clem’s counsel to pay the re-filing fee within the allotted period, we
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nevertheless find that there were circumstances amounting to excusable neglect
in this case.
[14] The judgment of the trial court is reversed.
May, J., and Barnes, J., concur.
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