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Wednesday, May 27, 2015

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 7 NFP memorandum decisions)

For publication opinions today (5):

In Kathy L. Siner, Deceased, and John T. Siner, prior Enduring Power of Attorney and Medical Representative of the Deceased v. Kindred Hospital Limited Partnership, et al., a 19-page, 2-1 opinion, Judge Bradford writes:

In 2013, Appellants-Plaintiffs Kathy and John Siner (collectively “the Siners”) brought a medical malpractice suit against Appellee-Defendant Kindred Hospital and its employees Appellees-Defendants Dennis Nicely and David Uhrin (collectively “Kindred”) as well as Appellee-Defendant Dr. Mohammed Majid. The Siners alleged that Kindred and Dr. Majid (collectively the “Defendants”) were negligent in their medical treatment of the Siners’ mother, Geraldine Siner, resulting in her injury. The Siners filed their complaint after a medical review panel determined, in 2012, that the Defendants were negligent and that their negligence may have caused injury to Geraldine. The trial court granted separate motions for summary judgment in favor of Dr. Majid and Kindred, finding that the Siners had failed to designate evidence which created an issue of material fact with regards to whether Defendants’ allegedly negligent conduct proximately caused injury to Geraldine. We affirm the trial court’s grant of summary judgment with regards to Dr. Majid and reverse with regards to Kindred. * * *

[T]he medical panel’s decision was inconclusive regarding causation, so the burden was on the Siners to offer evidence sufficient to create a material issue of fact on causation. As such, the Defendants were under no duty to offer such evidence and the existence of Dr. Krueger’s affidavit, valid or not, is irrelevant to our decision. See Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 393 (Ind. Ct. App. 2010) (A medical review panel’s opinion stating that it cannot determine from the evidence whether a defendant’s conduct caused the injury to patient affirmatively negates the causation element and shifts to the patient the burden of demonstrating the existence of a genuine issue of material fact as to causation). * * *

[T]he medical panel opinion is not sufficient to support a verdict under the Noblesville Casting standard. “A court must grant summary judgment…against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Briggs, 631 N.E.2d at 963. Therefore, the medical panel opinion did not create an issue of material fact regarding causation sufficient to preclude Dr. Majid’s motion for summary judgment. * * *

Vaidik, C.J., concurs.
Kirsch, J., concurs in part and dissents in part with opinion. [That begins, at p. 17] I fully concur in the decision to reverse the trial court’s grant of summary judgment with regard to the Kindred defendants, but I respectfully dissent form the decision to affirm the grant of summary judgment for Dr. Majid. * * *

To me, the fact that Dr. Krueger issued a different opinion several months after the process is immaterial. The expert medical opinion arising from the Medical Review process remains that Dr. Majid “failed to comply with the appropriate standard of care, and that [his] conduct may have been a factor of some resultant damages, but not the death of the patient.”

The second basis from my dissent rises from the fact that the Medical Review process was created by our General Assembly. That process is mandated in nearly all legal proceedings alleging medical malpractice. The process includes a number of mandated procedural and evidentiary safeguards to protect the rights of all parties to the proceeding. That process should not be impeached or undermined months after it is concluded by an affidavit from a member of the panel issued without those procedural safeguards.
[ILB: The opinion includes a significant footnote [3] at pp. 9-10 that begins: "We note that the Defendants have cited to the cases Colaw v. Nicholson, 450 N.E.2d 1023, 1030 (Ind. Ct. App. 1983) and Topp v. Leffers, 838 N.E.2d 1027, 1033-1034 (Ind. Ct. App. 2005). These cases reiterate the standard provided in Noblesville Casting. However, the court in Colaw misquotes Noblesville Casting, and that misquotation is subsequently repeated in Topp and cited in Kindred’s appellate brief.]

In Tommy Lampley v. State of Indiana , a 7-page opinion, Judge Pyle concludes:
Lampley argues that “the record is barren of any evidence that [he] engaged in unlawful conduct . . . .” (Lampley’s Br. 6). We disagree. As we previously observed, Lampley admitted at the evidentiary hearing that he smoked marijuana in celebration of leaving the Department of Correction, resulting in his positive urine screen at work release. Though Lampley was not arrested, the State does not have to show that he was convicted of a new crime. * * *

Lampley’s confession to smoking marijuana is sufficient evidence to support revocation of his probation, and we find no abuse of discretion with the trial court’s order. See, e.g., Smith v. State, 504 N.E.2d 333, 334 (Ind. Ct. App. 1987) (probation revocation affirmed where defendant confessed to new crime).

In Lamont Wilford v. State of Indiana , a 19-page opinion, Judge Bailey writes:
Wilford presents one issue for review: whether the trial court abused its discretion in admitting into evidence the handgun and photographs of the gun discovered during a vehicle inventory search. * * *

“In determining the reasonableness of an inventory search, courts must examine all the facts and circumstances of a case.” Id. Here, the police initiated a traffic stop of an unsafe car, which was in the sole possession of a driver with suspended privileges who did not own the vehicle. As a result of the driver’s arrest for the driving-related offense, the car would be left unattended for an unknown period of time. The officer testified that, based on the totality of the circumstances, police procedure provided for impoundment in that situation. Under these circumstances, we hold that Officer Raisovich’s decision to impound the vehicle was reasonable. * * *

Based on our review of the facts and circumstances of this case, it was reasonable under the Fourth Amendment for the police to impound the car Wilford was driving and inventory the contents before towing. Accordingly, the trial court did not abuse its discretion in admitting the gun and photographs of the gun into evidence. * * *

For the same reasons the search in this case was reasonable under the Fourth Amendment, the officer’s decision to impound and conduct an inventory search of the car Wilford was driving was reasonable under Article 1, Section 11 of the Indiana Constitution.

In Nickole Nichols v. State of Indiana , a 9-page opinion, Judge Pyle writes:
Appellant/Defendant, Nickole Nichols (“Nichols”), appeals her conviction, after a bench trial, for Class A misdemeanor prostitution.1 Nichols was arrested for prostitution after she agreed to have sex in exchange for money with an undercover detective outside of a strip club. At trial, she filed an Indiana Trial Rule 41(B) motion to dismiss the charge after the State presented its case-in-chief, raising the affirmative defense of entrapment and arguing that the State had not presented sufficient to rebut the defense. In support of this argument, she noted that the undercover detective had solicited the criminal activity. The trial court denied the motion, finding that, while there was evidence that the detective had induced Nichols’ behavior, there was also evidence that she was pre-disposed to prostitution and, therefore, the detective did not entrap her. On appeal, Nichols disputes the trial court’s denial of the motion and argues again that she was entrapped into committing prostitution. Because we find that the undercover detective presented Nichols with a mere opportunity to commit prostitution, but did not otherwise induce the offense, we conclude that there was no entrapment. In addition, there was sufficient evidence to support Nichols’ conviction. We affirm.
In Somchanh Amphonephong v. State of Indiana , a 16-page opinion, Judge Pyle writes:
Following a jury trial, Somchanh Amphonephong was convicted of three counts of child molesting, one as a Class A felony and two as Class C felonies. At sentencing, Amphonephong informed the trial court that he wanted to appeal his convictions. The trial court told Amphonephong that it would appoint appellate counsel, but it failed to do so. Eighteen months later, Amphonephong filed a petition seeking permission to file a belated notice of appeal. The trial court, acknowledging that it had failed to appoint appellate counsel, granted Amphonephong’s petition.

On appeal, Amphonephong challenges only his Class C felony child molesting conviction as charged in Count III, arguing that there is insufficient evidence to support the conviction. The State cross appeals the trial court’s order granting Amphonephong permission to file a belated notice of appeal. The State acknowledges that Amphonephong was not at fault for the failure to timely file a notice of appeal but contends that we should reverse the trial court’s order and remand for a hearing on Amphonephong’s petition because: (1) the trial court did not make an express finding that Amphonephong was not at fault and was diligent in his attempt to file the belated appeal; and (2) Amphonephong failed to specifically allege that he was diligent.

Concluding that the trial court did not abuse its discretion by allowing Amphonephong to file a belated notice of appeal and that there is sufficient evidence to support Amphonephong’s Class C felony child molesting conviction as charged in Count III, we affirm.

NFP civil decisions today (4):

Sophia L. Masters v. Ryan E. Masters (mem. dec.)

Shellie S. Gryniewicz f/k/a Shellie S. Shih v. Daniel Shih (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: P.N., A.N. v. Ind. Dept. of Child Services (mem. dec.)

J. Richard Presser, Rachel E. Presser, Kevin Kelley, Richard Sanderson, Rosemary Sanderson, Thomas Reis and Mary Reis v. North Indiana Annual Conference of the United Methodist Church, et al (mem. dec

NFP criminal decisions today (3):

Darrel Warren v. State of Indiana (mem. dec.)

Dominic Lowe v. State of Indiana (mem. dec.)

Dominique Hamler v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 27, 2015 01:12 PM
Posted to Ind. App.Ct. Decisions