Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT: STEPHEN GERALD GRAY Hall Render Killian Heath & Lyman, P.C. Indianapolis, Indiana

ATTORNEY FOR APPELLEES: ANGELA M. SMITH Indianapolis, Indiana

FILED
Jun 11 2010, 10:10 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA

CLERK

LARZ A. ELLIOTT, Appellant-Respondent, vs. RUSH MEMORIAL HOSPITAL, CARRIE TRESSLER, R.N., PHILIP KINGMA, M.D., Appellees-Petitioners.

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No. 70A01-0911-CV-553

APPEAL FROM THE RUSH CIRCUIT COURT The Honorable J. Steven Cox, Special Judge Cause No. 70C01-0902-MI-36

June 11, 2010

OPINION - FOR PUBLICATION

BARNES, Judge

Case Summary Larz Elliott appeals the dismissal of his proposed medical malpractice complaint against Rush Memorial Hospital, Carrie Tressler, and Dr. Philip Kingma (collectively "the Defendants"). We affirm. Issues The restated issues before us are: I. whether the claims of Elliotts proposed complaint fall within the scope of the Medical Malpractice Act ("the Act"); and whether the Defendants are statutorily immune from any civil liability to Elliott as a matter of law. Facts The facts as alleged in Elliotts proposed complaint are that on April 26, 2006, Rush County Sheriffs Deputy Terry Drake transported Elliott to Rush Memorial Hospital. Deputy Drake represented that he had a court order authorizing the taking of a blood sample from Elliott. After a blood sample was taken, Deputy Drake requested that a urine sample also be obtained, and represented that this likewise was authorized by court order. After Elliott was unable to produce a urine sample through natural urination, Dr. Kingma ordered Tressler, a nurse, to obtain urine from Elliott by catheterization. Elliott was secured to a hospital bed by handcuffs and had his pants forcibly removed. 2

II.

Tressler then inserted a fifteen-inch catheter through Elliotts penis and into his bladder and obtained the urine sample. Elliott was not examined by any doctor before the catheterization occurred, no medical history of him was taken, the risks of the procedure were not discussed with him, and he was not given any follow-up instructions. There is no claim that the catheterization itself was done negligently. On February 8, 2008, Elliott filed a proposed medical malpractice complaint with the State Department of Insurance against the Defendants. The proposed complaint alleged battery and negligence with respect to the forced catheterization. There is no indication in the record that Elliott has filed a separate ordinary civil complaint against the Defendants.1 On February 6, 2009, the Defendants filed with the trial court a motion for preliminary determination of law and to dismiss Elliotts proposed complaint. On October 29, 2009, the trial court dismissed Elliotts proposed complaint.2 It concluded that Elliott had not stated claims that required evaluation by a Medical Review Panel under the Act, and additionally that the Defendants were immune from any liability under Indiana Code Section 9-30-6-6. Elliott now appeals. Analysis

Elliott is pursuing a separate lawsuit against Deputy Drake and the Rush County Sheriffs Department in federal court. See Elliott v. Sheriff of Rush County, -- F. Supp. 2d --, No. 1:08-CV-0480-RLY-JMS (S.D. Ind. Feb. 22, 2010). This opinion contains more detailed factual development than we have yet in the case before us; we are limiting our discussion and analysis in this case solely to the facts as alleged in Elliotts proposed complaint. For this reason, we also have denied the Defendants motion to file a supplemental appendix containing evidence presented before the district court, but not before the trial court here.
1

Although the Defendants contend that the trial court dismissed Elliotts complaint with prejudice, the trial courts order does not state that the dismissal was with prejudice.
2

3

At the outset, we observe that this case is different from many that this court has addressed, wherein a plaintiff has filed an ordinary civil complaint against a health care provider and the health care provider has moved to dismiss the complaint , claiming the plaintiff must first file a proposed complaint with the Indiana Department of Insurance in compliance with the Act. See, e.g., Peters v. Cummins Mental Health, Inc., 790 N.E.2d 572 (Ind. Ct. App. 2003), trans. denied. Presumably, plaintiffs generally want to avoid the Acts restrictions on ability to bring suit and its limitations on damages. Here, however, it is Elliott as a potential plaintiff, not the health care provider defendants, who is appealing the trial courts determination that his claims of battery and negligence fall outside the Act. Ordinarily, a medical malpractice action in Indiana must be commenced by first filing a proposed complaint with the Department of Insurance and cannot proceed until the proposed complaint is reviewed by a Medical Review Panel. See Ind. Code

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