Monday, November 07, 2016
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s)) [Updated] [Plus! links now corrected]
For publication opinions today (2):
In Stephen W. Robertson, Commissioner, Indiana Department of Insurance, as Admin. of the Indiana Patient's Compensation Fund v. Anonymous Clinic, et al., a 28-page opinion, Judge Bradford writes:
Beginning in 2012, patients around the country began suffering meningitis after being injected with preservative-free methylprednisolone acetate (“MPA”), a steroid purchased from New England Compounding Pharmacy, Inc., a/k/a the New England Compounding Center (“NECC”). It was soon discovered that some lots of MPA had become contaminated with fungus. This consolidated appeal concerns claims brought by injured patients (or those suing on their behalf) (collectively, “the Plaintiffs”) against Anonymous Clinic in St. Joseph County and Orthopedic and Sports Medicine Center of Northern Indiana (“OSMC”) and affiliated entities in Elkhart County (collectively, “the Defendants”). Plaintiffs contend that the Defendants were negligent in choosing to administer preservative-free MPA and in failing to properly evaluate NECC before using it as a supplier. Some of the Plaintiffs brought suit without using the procedures laid out in the Indiana Medical Malpractice Act (“the MMA”), and Defendants moved either for dismissal or summary judgment on the basis that Plaintiffs’ claims were claims of medical malpractice.ILB Note: Appellant was represented by Geoffrey Slaughter, now on the Supreme Court.
Stephen W. Robertson, acting in his capacity as Commissioner of Indiana Department of Insurance, which administers the Indiana Patient’s Compensation Fund (“the PCF”) intervened, arguing that Plaintiffs’ claims were of general negligence and therefore not subject to the provisions of the MMA. The trial courts ultimately agreed with Defendants and Plaintiffs (who had reversed their initial position) that Plaintiffs’ claims were governed by the MMA. In this consolidated appeal, the PCF contends that the trial courts erred in concluding that Plaintiffs’ claims are claims of medical malpractice. Plaintiffs, Defendants, and Amici Curiae (health-care providers facing similar claims in other cases), contend that Plaintiffs’ claims are subject to the MMA as they involve actions informed by the exercise of professional medical judgment. Because we conclude that Plaintiffs’ claims are subject to the MMA, we affirm the judgments of the trial courts and remand for further proceedings consistent with this opinion. * * *
There is really only one issue before the court in this case, whether alleged negligence by a medical provider in selecting a certain drug from a particular supplier are claims subject to the MMA or sound in general negligence. Indiana law stands for the proposition that if allegations cannot be understood by laypersons without resort to expert testimony, the claims are governed by the MMA. We conclude the claims in this case, i.e., that Defendants were allegedly negligent in choosing to purchase and administer preservative-free MPA and in choosing NECC without proper vetting, are allegations that claim negligence in decisions that were made using professional expertise. Because we conclude that Plaintiffs’ claims are governed by the provisions of the MMA, we affirm the judgment of the trial courts and remand for further proceedings consistent with this opinion.
[Updated at 1:26 pm] A reader has just sent the ILB a note beginning "oops...someone didn't check the docket when putting names at the top of the opinion" and pointing to a May 20, 2016 Order granting a motion: "Geoffrey G. Slaughter, counsel for Appellant, has filed a Motion for Leave to Withdraw Appearance."
In Jordan Jacobs v. State of Indiana , a 28-page opinion, 2-1 opinion, Judge Bradford writes:
On September 2, 2015, eighteen-year-old Appellant-Defendant Jordan Jacobs was arrested after he was found to be in possession of a handgun without having a license for said handgun. Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged Jacobs with Class A misdemeanor carrying a handgun without a license. Following a bench trial, Jacobs was found guilty as charged. Jacobs challenges his conviction on appeal, arguing that the trial court abused its discretion in admitting the handgun into evidence at trial. We affirm. * * *NFP civil decisions today (2):
Jacobs contends that the trial court abused its discretion in admitting the handgun into evidence at trial because the handgun was recovered in violation of Jacob’s rights under the Fourth Amendment and Article I, Section 11. * * *
Having concluded that the handgun in question was not recovered in violation of either the Fourth Amendment or Article I, Section 11, we conclude that the trial court did not abuse its discretion in admitting the handgun into evidence. The judgment of the trial court is affirmed.
Altice, J., concurs.
Crone, J., dissents with opinion. [which begins, on p. 21] In reversing a criminal defendant’s conviction almost a century ago, the Indiana Supreme Court stated, “‘Refusal to receive evidence when illegally seized tends to discourage the practice and thereby protects the innocent as well as the guilty from obnoxious and disgraceful invasions of their right to privacy and retains the Fourth Amendment and similar state constitutional provisions unimpaired.’” Evans v. State, 198 Ind. 487, 490, 154 N.E. 280, 281 (1926) (quoting CORNELIUS ON SEARCH AND SEIZURE at 56). In this case, Jacobs is undeniably guilty of carrying a handgun without a license. But in holding that the police did not invade his right to privacy by ordering him to the ground and handcuffing him based on a tenuous suspicion of truancy, the majority has impaired the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution for innocent Hoosiers who wish to exercise their constitutional right to walk away from approaching officers who have no valid reason to detain them. See Gaddie v. State, 10 N.E.3d 1249, 1254 (Ind. 2014) (“A person approached by police ‘need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so ….’”) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).
Kenneth A. Stocker v. Russel D. Sundholm, Ann M. Clark, David A. Vaughn, Travis M. Sims, and John C. Houston (mem. dec.)
In the Matter of D.C., C.C., and I.S., Children in Need of Services, S.P., Mother, and J.C., Father v. Ind. Dept. of Child Services, and Child Advocates, Inc. (mem. dec.)
NFP criminal decisions today (5):
Theodore T. Schwartz v. State of Indiana (mem. dec.)
Lisa M. Morehouse v. State of Indiana (mem. dec.)
Posted by Marcia Oddi on November 7, 2016 11:35 AM
Posted to Ind. App.Ct. Decisions