ABC Radiology, P.C. v. Gearhart

69 N.E.3d 545

ABC RADIOLOGY, P.C., Jane Doe, John Doe, Anonymous Medical Associates, Inc., Sherry Patrick, Appellants-Defendants,

v.Cathy GEARHART, Appellee-Plaintiff

Court of Appeals Case No. 49A05-1602-CT-446

Court of Appeals of Indiana.

February 7, 2017

Attorneys for Appellants : Danny E. Glass, Andrew E. Skinner, Evansville, Indiana, Clay A. Edwards, Chad J. Bradford, Louisville, Kentucky, Lonnie D. Johnson, Michelle R. Adams, Stacy F. Thompson, Bloomington, Indiana, Rick L. Weil, Indianapolis, Indiana

Attorney for Appellee : Nicholas C. Deets, Indianapolis, Indiana.

Altice, Judge.

Case Summary

[1] Cathy Gearhart's husband, Kent, died from renal cell cancer on January 14, 2015. After filing her proposed complaint for damages with the Indiana Department of Insurance, Gearhart, individually and as personal representative of Kent's estate, filed the instant action against various defendants. As amended, the complaint alleges two counts based on claims of negligence and one count seeking declaratory judgment. Count I is a medical malpractice claim against ABC Radiology, P.C. (ABC), John Doe, M.D. (Dr. Doe), Anonymous Medical Associates, Inc. (AMA), and Jane Doe, ACNP (Nurse Doe). Count II is a common-law negligence claim against Sherry Patrick and her employer, AMA. Count III (incorrectly denominated as a second Count II in the amended complaint) is a claim for declaratory judgment against the Indiana Patients Compensation Fund/Indiana Department of Insurance (the Fund), AMA, Patrick, and AMA's medical malpractice and general liability insurers.¹ Count III seeks a determination of whether the claim in Count II is subject to the Indiana Medical Malpractice Act (the Act), which insurance policies provide coverage for this claim, and whether the Fund has a duty to make payments for any damages awarded for Count II.

[2] Gearhart filed the complaint in the Marion Superior Court. Thereafter, the defendants named in Counts I and II (Defendants) jointly filed a motion requesting that the trial court sever Counts I and II from Count III and transfer venue of Counts I and II to Vanderburgh County, where the alleged negligence occurred and Defendants are located.² Defendants argued further that Count III was improperly joined.

[3] Gearhart responded that Marion County was a county of preferred venue because a necessary defendant to the action—the Fund—is a governmental organization with its principal office located there. See Ind. Trial Rule 75(A)(5). Gearhart argued also that all three counts were properly joined pursuant to Ind. Trial Rule 20 because they arise out of the same transaction or occurrence and have common questions of law and fact. Following a hearing, the trial court denied the motion. Defendants bring this interlocutory appeal, arguing that Gearhart's joinder of the underlying negligence claims with the declaratory judgment claim was improper and deprived Defendants of their right to trial in a preferred venue county. Thus, we are asked to determine whether the trial court abused its discretion in denying Defendants' motion to sever Counts I and II from Count III and transfer venue for those counts to Vanderburgh County.

[4] We affirm.³

Facts & Procedural History

[5] When Kent was diagnosed with renal cell cancer in July 2009, Dr. Doe—a urologist associated with AMA—became his treating physician. Dr. Doe removed Kent's right kidney shortly after the diagnosis. Thereafter, Kent continued to see Dr. Doe or another member of the practice for routine followup about every six months.

[6] On September 13, 2013, Dr. Doe ordered a routine CT scan of Kent's chest, abdomen, and pelvis. A radiologist employed by ABC interpreted the scans and reported that there was a 2.6 cm mass in the left kidney. The radiologist recommended further evaluation of the mass. There was no follow-up by Dr. Doe or AMA regarding this report, and Kent was not made aware of the results. Kent saw Nurse Doe, a nurse practitioner with AMA, in March 2014 for another routine follow-up with no mention of the abnormalities seen in the September 2013 scans.

[7] On September 23, 2014, Kent saw another nurse practitioner with AMA for complaints of bright red urine. This nurse noted the findings from the September 2013 scans and immediately ordered follow-up CT scans. These scans revealed that the mass on Kent's left kidney had grown. The cancer had also spread to several lymph nodes and his liver. Following a PET/CT scan on October 1, 2014, Kent was diagnosed with terminal renal cell cancer to which he succumbed on January 16, 2015.

[8] Gearhart filed her proposed complaint for damages with the Indiana Department of Insurance, alleging the medical malpractice of Dr. Doe, Nurse Doe, AMA, and ABC. Thereafter, on August 5, 2015, Dr. Doe was deposed by Gearhart's counsel. Dr. Doe testified that he did not follow-up on the September 2013 radiology report because Sherry Patrick, an administrative staff member, made a data entry error upon receiving the report. As a result, the report was not forwarded to Dr. Doe or put on his list of items that needed follow-up. Dr. Doe testified that the error was purely clerical/administrative and did not involve the exercise of medical skill or judgment.

[9] On September 11, 2015, Gearhart filed her complaint for damages and for declaratory judgment in the Marion Superior Court. The complaint was amended the following month and alleged three counts as set out above. Counts I and II were for damages resulting from the negligence of Defendants—medical malpractice and common law negligence, respectively alleged. Count III sought a declaratory judgment determining whether the claim in Count II, involving the data entry error, was subject to the Act. In this regard, Gearhart pointed to Preferred Prof ess ional Ins. Co. v. West , 23 N.E.3d 716 (Ind. Ct. App. 2014), trans. denied , for the proposition that clerical or administrative errors that do not involve the exercise of medical judgment or skill by the medical provider are matters of common-law negligence not subject to the Act.

[10] On November 19, 2015, Defendants filed their joint motion in which they asked the trial court to either dismiss Counts I and II or sever them from Count III and transfer venue of Counts I and II to Vanderburgh County. After Gearhart filed a response to the motion, the trial court scheduled the matter for oral argument on January 27, 2016. The trial court denied the motion on February 4, 2016, and Defendants now appeal. This is an interlocutory appeal as of right. Ind. Appellate Rule 14(A)(8).

Standard of Review

[11] This case boils down to a determination of whether the declaratory judgment claim involving the Fund in Count III was properly joined with the tort claims in Counts I and II against Defendants. Determinations regarding joinder rest within the trial court's discretion and will be reversed on appeal only for an abuse of that discretion. United of Omaha v. Hieber , 653 N.E.2d 83, 87 (Ind. Ct. App. 1995), trans. denied .

Discussion & Decision

[12] Defendants argue that misjoinder of the tort counts with the declaratory judgment count impermissibly deprived Defendants of their right to trial in a preferred venue county. They ask that we order the tort claims severed from the declaratory judgment claim and transferred to Vanderburgh County, leaving only the declaratory judgment action in Marion County.

[13] T.R. 20(A)(2) provides for permissive joinder of defendants as follows:

All persons may be joined in one [1] action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of, or arising out of, the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.

T.R. 20(A) also provides:

A ... defendant need not be interested in ... defending against all the relief demanded. Judgment may be given ... against one or more defendants according to their respective liabilities. Unwilling plaintiffs who could join under this rule may be joined by a plaintiff as defendants, and the defendant may make any persons who could be joined under this rule parties by alleging their interest therein with a prayer that their rights in the controversy be determined, along with any counterclaim or cross-claim against them, if any, as if they had been originally joined as parties.

The purpose of T.R. 20(A) is to promote trial convenience, expedite claims, and avoid multiple lawsuits. Hieber , 653 N.E.2d at 87 (citing McCoy v. Like , 511 N.E.2d 501, 503 (Ind. Ct. App. 1987), trans. denied ). To accomplish these goals, Indiana courts give T.R. 20(A) the broadest possible reading. Id . This is especially true in light of the fact that T.R. 20(B) and Ind. Trial Rule 42(B) allow for separate trials after all parties have been joined. Hieber , 653 N.E.2d at 87.

[14] To join defendants under T.R. 20(A), three requisites must be met. First, a right of relief must be asserted against the defendants jointly, severally, or in the alternative. Russell v. Bowman, Heintz, Boscia & Vician, P.C., 744 N.E.2d 467, 472 (Ind. Ct. App. 2001), trans. denied .

[15] Second, and most importantly, the claims must have arisen out of the same transaction, occurrence, or series of transactions or occurrences. Id . In this regard, we apply the logical relationship test (also applied in the context of compulsory counterclaims under Trial Rule 13(A) ): "all logically related events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence." Russell, 744 N.E.2d at 472. In the related context of T.R. 13(A) we have explained:

The phrase "transaction or occurrence" should be broadly defined so as to effectuate the rule's intended purpose of avoiding multiple lawsuits between the same parties arising from the same event or events. Two causes of action arise from the same transaction

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