Cooperation Among Counsel During the Medical Review Panel Process

As any attorney who practices in the area of medical malpractice in Indiana likely knows, cooperation and straightforward communication among counsel during the medical review panel process is critical. The Indiana Court of Appeals in John H. Mooney, As Special Administrator of the Estate of Joseph S. Mooney v. Anonymous M.D. recently confirmed this when it reinstated a proposed complaint despite the fact that the Plaintiff's attorney had taken several years to complete discovery. In short, the Plaintiff's attorney attempted to delay the setting of the submission schedule until he was able to complete depositions and have expert opinions prepared. Plaintiff's counsel routinely advised defense counsel and the panel chair of his desire to conduct depositions prior to completing his submission. Although the defense counsel initially agreed to waive the 180 day deadline to receive a panel opinion, after a significant amount of time had passed, defense counsel later sought to have the proposed complaint dismissed based upon the Plaintiff's failure to adhere to the submission schedule, the Indiana Malpractice Act, and to diligently prosecute his claim pursuant to Trial Rule 42(E). The trial court ordered that the proposed complaint be dismissed based upon the Plaintiff's failure to provide his submission to the Medical Review Panel in a timely manner and adhere to the 180 deadline.

However, on appeal, the Court reversed and noted that the 180 day deadline is not a statute of limitations and further that the parties had agreed to waive or extend the deadline. Further, the Court appeared persuaded by the fact that the Plaintiff had not provided his submission because he desired to take depositions beforehand and had not received dates to conduct the depositions from counsel for a separate defendant. The Plaintiff's counsel also indicated that he had not filed a motion to compel out of "professional courtesy" as he only assumed that counsel's calendar was as busy as his own. The Court's holding also warns not to use the deadlines as a tactical advantage when the Plaintiff has a legitimate basis for the delay (such as not being able to schedule depositions) and has routinely participated in the medical review panel process.

The structure of the opinion and the dicta contained in Mooney is a reminder that it is critical to cooperate and communicate with counsel during the medical review panel process. Although there are often cases where the dismissal of a proposed complaint for failure to adhere to the 180 day deadline or otherwise prosecute the case is warranted, the holding in Mooney should remind attorneys that Indiana courts typically prefer such cases to be resolved on their merits.