Apr 17 2015, 9:28 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Kevin W. Vanderground Gregory A. Crisman Church, Church, Hittle & Antrim Carly A. Brandenburg Eichhorn & Eichhorn, LLP Rick C. Gikas Hammond, Indiana Merrillville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Angelique Lockett and Lanetra April 17, 2015 Lockett, Court of Appeals Case No. 45A05-1407-CT-340 Appellants-Plaintiffs, Appeal from the Lake Superior Court v. The Honorable William E. Davis, Judge Cause No. 45D05-1109-CT-175 Planned Parenthood of Indiana, Inc., and Cathy McGee, Appellees-Defendants
Bailey, Judge.
Case Summary [1] Angelique Lockett (“Angelique”) and her mother Lanetra Lockett (“Lanetra”)
(collectively, “the Locketts”) appeal the trial court’s grant of summary
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 1 of 20 judgment in favor of Planned Parenthood of Indiana, Inc. 1 (“Planned
Parenthood”) after Angelique, then a minor, intentionally misrepresented
herself to be eighteen-years-old and obtained an abortion at a Planned
Parenthood clinic without Lanetra’s consent. We affirm the trial court’s grant
of Planned Parenthood’s motion for summary judgment because the Locketts
failed to present their claims first to a medical review panel, as required by the
Medical Malpractice Act2 (“the MMA”), and thus the trial court lacked subject
matter jurisdiction over the claims. However, to the extent that the trial court’s
order appears to have dismissed the Locketts’ claims against defendant Cathy
McGee (“McGee”),3 we reverse and remand with instructions to correct the
order.
Issues [2] The Locketts present three issues on appeal, which we consolidate and restate
as the following one: whether the trial court erred in granting Planned
Parenthood’s motion for summary judgment where the Locketts’ claims against
a health care provider based on an alleged failure to obtain informed consent
were not presented first to a medical review panel.
1 Now Planned Parenthood of Indiana and Kentucky, Inc. 2 Ind. Code § 34-18. 3 McGee is not a party to this appeal.
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 2 of 20 [3] We also address sua sponte the status of the Locketts’ claims against McGee.
Facts and Procedural History [4] In early 2010, then seventeen-year-old Angelique suspected she was pregnant
and informed her boyfriend’s mother, McGee. Present during the conversation
with McGee was Raven Francis (“Francis”), the girlfriend of another of
McGee’s sons. Although unsure if she was even pregnant, Angelique discussed
with McGee and Francis the possibility of obtaining an abortion at Planned
Parenthood. Francis, who was eighteen-years-old at the time, offered to loan
Angelique her Indiana State-issued identification card (“ID”) so that Angelique
could represent herself to Planned Parenthood as old enough to consent to
medical treatment. Francis’s boyfriend opined that Angelique and Francis
resembled each other, even though Angelique weighed twenty pounds less and
stood four inches shorter than the weight and height listed on Francis’s ID.
Angelique was skeptical that the ruse would work, but borrowed Francis’s ID.
[5] On January 22, 2010, unbeknownst to Lanetra, McGee took Angelique to
Planned Parenthood’s Merrillville office. Angelique stated that “the whole
purpose of going there was first to see if I was pregnant.” (App. 59.) Upon
arrival, Angelique represented herself to the office staff as eighteen-year-old
Francis, and McGee, using her own name, posed as Angelique’s mother.
Angelique presented Francis’s ID to the office staff, who looked at it and made
a copy. The employee who accepted the ID attested that she checked the ID,
“saw no reason to doubt the identity that the patient had presented” and
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 3 of 20 “observed that the patient’s identification showed her age to be 18.” (App. 73.)
Angelique and McGee were then given forms to fill out, some of which McGee
filled out on Angelique’s behalf. Angelique also filled out forms, including at
least one on which she began to sign her actual name beginning with the letter
“A,” but adjusted to reflect the name “Raven Francis.”
[6] During the visit, Angelique underwent an ultrasound and blood and urine tests.
The tests confirmed that Angelique was in fact pregnant and in her first
trimester. After undergoing counseling outside of McGee’s presence,
Angelique forged the name “Raven Francis” on a form consenting to an
abortion and acknowledging that she had received the statutorily-prescribed
information regarding the procedure and abortion alternatives. McGee paid in
advance for the procedure. Angelique did not tell anyone at Planned
Parenthood that she was actually Angelique Lockett or that McGee was not her
mother.
[7] After a six day waiting period, Angelique returned to Planned Parenthood on
January 28, 2010, again represented herself as Raven Francis, and an abortion
was provided. McGee was not present at the beginning of the appointment, but
arrived later. Lanetra, who was not aware that her daughter was pregnant and
considering an abortion, did not consent to the procedure.
[8] On August 30, 2011, Angelique, now an adult, and Lanetra filed a complaint
against Planned Parenthood and McGee, alleging that Angelique and Lanetra
were harmed when Planned Parenthood’s physician performed an abortion on
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 4 of 20 Angelique without Lanetra’s consent. Angelique and Lanetra specifically
alleged against Planned Parenthood the following two claims: strict liability for
failing to comply with Indiana Code chapter 16-34-2 (concerning requirements
for legal abortions, informed consent procedures, parental consent, and
criminal penalties for noncompliant physicians) and negligence for breaching
duties imposed by Indiana Code chapter 16-34-2. Angelique also brought
against both Planned Parenthood and McGee claims for assault, battery, and
negligent infliction of emotional distress.
[9] On December 5, 2013, Planned Parenthood filed a motion for summary
judgment, in which it argued that immunity provisions in the Health Care
Consent Act4 relieved Planned Parenthood of liability and that the Locketts
should be equitably estopped from pursuing their claims due to Angelique’s
misrepresentations. After the Locketts filed their response on May 28, 2014,
Planned Parenthood filed a reply brief on June 5, 2014 in which it also argued
that Indiana’s statutes governing abortion, including Indiana Code chapter 16-
34-2, do not create a private right of action for individuals such as the Locketts.
[10] On June 13, 2014, the trial court held a hearing on Planned Parenthood’s
motion for summary judgment. The court also heard argument on the
Locketts’ motion to strike portions of affidavits designated by Planned
Parenthood in support of its summary judgment motion.
4 See I.C. § 16-36-1-10(a).
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 5 of 20 [11] On June 20, 2014, the trial court entered an order granting the Locketts’ motion
to strike certain evidence. The court also found: “There is no genuine issue that
the Statute I.C. § 16-34-2-4 [governing parental consent for abortions performed
on minors] does not confer on the Plaintiff a private right of action, which
would allow her to bring a civil suit against the Defendants.” (App. 1.) The
trial court then granted Planned Parenthood’s motion for summary judgment.
The court also dismissed the Locketts’ complaint in its entirety and entered
“Judgment for Defendants.”
[12] The Locketts now appeal the trial court’s grant of summary judgment in favor
of Planned Parenthood.
Discussion and Decision Standard of Review [13] Indiana Trial Rule 56 governs motions for summary judgment. Trial Rule
56(C) provides that a trial court shall grant summary judgment for the movant
“if the designated evidentiary matter shows that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter
of law.” When we review a grant or denial of a motion for summary judgment,
our standard of review is the same as for the trial court. Asklar v. Gilb, 9 N.E.3d
165, 167 (Ind. 2014). The moving party must show there are no genuine issues
of material fact and that the party is entitled to judgment as a matter of law. Id.
Summary judgment is improper if the moving party fails to carry its burden, but
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 6 of 20 if it does, then the non-movant must present evidence establishing the existence
of a genuine issue of material fact. Id.
[14] When we decide whether summary judgment was properly granted or denied,
we consider only the evidence the parties specifically designated to the trial
court. T.R. 56(C), (H). We construe all facts and all reasonable inferences
established by the designated evidence in favor of the non-moving party.
Asklar, 9 N.E.3d at 167. “As a reviewing court, we are not limited to reviewing
the trial court’s reasons for granting or denying summary judgment but rather
may affirm a grant of summary judgment upon any theory supported by the
evidence.” Keaton & Keaton v. Keaton, 842 N.E.2d 816, 821 (Ind. 2006).
Claims against Planned Parenthood [15] On appeal, the Locketts challenge the trial court’s grant of summary judgment
in favor of Planned Parenthood. Mindful that we may affirm a grant of
summary judgment “upon any theory supported by the evidence,” id., we
examine first whether the trial court had subject matter jurisdiction over the
Locketts’ claims against Planned Parenthood.
Subject Matter Jurisdiction [16] Subject-matter jurisdiction is the power of a court to hear and decide a
particular class of cases. Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288
(Ind. Ct. App. 2006), trans. denied. To resolve the issue of subject-matter
jurisdiction, we must determine that the claim involved falls within the general
scope of authority conferred on a court by the Indiana Constitution or by
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 7 of 20 statute. Id. Subject-matter jurisdiction cannot be waived and may be raised by
the parties or the court at any time, including on appeal. Id.
[17] Indiana Code section 34-18-8-4 provides that, with limited exceptions, “an
action against a health care provider may not be commenced in a court in
Indiana before: (1) the claimant’s proposed complaint has been presented to a
medical review panel . . . and (2) an opinion is given by the panel.” Therefore,
the MMA “grants subject-matter jurisdiction over medical malpractice actions
first to the medical review panel, and then to the trial court.” Putnam Cnty.
Hosp. v. Sells, 619 N.E.2d 968, 970 (Ind. Ct. App. 1993). “‘Until the panel
issues its opinion, the trial court has no jurisdiction to hear and adjudicate the
claim.’” Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App.
2014) (quoting Stafford v. Szymanowski, 13 N.E.3d 890, 897 (Ind. Ct. App.
2014)).
[18] The MMA defines “malpractice” as “a tort or breach of contract based on
health care or professional services that were provided, or that should have been
provided, by a health care provider, to a patient.” I.C. § 34-18-2-18. Under the
MMA, a “tort” is “a legal wrong, breach of duty, or negligent or unlawful act
or omission proximately causing injury or damage to another.” I.C. § 34-18-2-
28. “Health care” is defined as “an act or treatment performed or furnished, or
that should have been performed or furnished, by a health care provider for, to,
or on behalf of a patient during the patient’s medical care, treatment, or
confinement.” I.C. § 34-18-2-13. A “health care provider” includes “a
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 8 of 20 corporation . . . licensed or legally authorized by this state to provide health
care or professional services as a . . . hospital. . . .” I.C. § 34-18-2-14(1).
[19] Under the MMA, a “patient” means “an individual who receives or should
have received health care from a health care provider, under a contract, express
or implied[.]” I.C. § 34-18-2-22. A patient also “includes a person having a
claim of any kind, whether derivative or otherwise, as a result of alleged
malpractice on the part of a health care provider.” I.C. § 34-18-2-22. The
statute further provides that “[d]erivative claims include the claim of a parent or
parents . . . including claims for loss of services, loss of consortium, expenses,
and other similar claims.” I.C. § 34-18-2-22.
[20] Neither the fact that the alleged misconduct occurs in a healthcare facility or
that the injured party was a patient of the facility or provider are dispositive as
to whether the claim sounds in medical malpractice. Madison Ctr., Inc. v.
R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006), trans. denied. The MMA
indisputably concerns itself with the behavior or practices of a physician acting
in his or her professional capacity as a provider of medical services, but does
not apply to acts or omissions of a health care provider unrelated to or outside
the provider’s role as a health care professional. Collins v. Thakkar, 552 N.E.2d
507, 510 (Ind. Ct. App. 1990), trans. denied. Furthermore, the language of the
MMA, “read with due regard to the subject matter, suggests actions undertaken
in the interest of or for the benefit of the patient’s health, i.e. conduct engaged
in by a physician which is curative or salutary in nature or effect.” Id. It thus
excludes from its scope “conduct of a provider unrelated to the promotion of a
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 9 of 20 patient’s health or the provider’s exercise of professional expertise, skill or
judgment.” Id. “It is therefore the substance of a claim, not its caption, which
determines whether compliance with the [MMA] is necessary.” Van Sice v.
Sentany, 595 N.E.2d 264, 266 (Ind. Ct. App. 1992).
[21] Here, there is no question that Planned Parenthood qualifies as a “health care
provider” under the MMA. Health care providers include hospitals, I.C. § 34-
18-2-14(1), and the MMA defines a “hospital” as “a public or private institution
licensed under IC 16-21-2.” I.C. § 34-18-2-16. Abortion clinics, such as
Planned Parenthood’s Merrillville office, are licensed under Indiana Code
section 16-21-2. See I.C. § 16-21-2-1.
[22] Angelique presented at Planned Parenthood, a health care provider, seeking
health care services: specifically, a pregnancy test, ultrasound, and ultimately an
abortion procedure performed by a physician at a licensed clinic. Under
Indiana law, legal abortions occur for reasons and in circumstances
determinable only in “the professional, medical judgment of the pregnant
woman’s physician.” I.C. §§ 16-34-2-1(a)(1)-(3). Thus, the abortion provided
to Angelique at a licensed clinic by a licensed physician falls squarely within the
MMA’s definition of “health care.” See I.C. § 34-18-2-13.5
5 We find the case at hand clearly distinguishable from Collins, 552 N.E.2d 507, in which a panel of this Court confronted the applicability of the MMA to a case involving abortion. As succinctly summarized in Boruff v. Jesseph, “[i]n Collins, the plaintiff alleged the defendant physician was her lover, and that he had committed a battery against her by deliberately, wrongfully, and painfully aborting their fetus immediately after performing a pelvic exam on the plaintiff and lying to her that she was not pregnant.” 576 N.E.2d 1297, 1298 (Ind. Ct. App. 1991). The Collins court held that the MMA did not apply to such “wanton and
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 10 of 20 [23] As an individual who sought health care from a health care provider, Angelique
unquestionably qualifies as a “patient” under the MMA. See I.C. § 34-18-2-22.
Although Lanetra did not directly receive health care from Planned
Parenthood, as Angelique’s mother, she also qualifies as a patient to the extent
that she has “a claim of any kind, whether derivative or otherwise, as a result of
alleged malpractice on the part of a health care provider.” I.C. § 34-18-2-22.
[24] Turning to the substance of the Locketts’ claims, they allege five theories of
recovery all arising out of the same act. As succinctly explained in their brief,
“the act that is complained of” is Planned Parenthood’s “failure to obtain
voluntary and informed consent before performing an abortion” and that this
failure was “the direct cause of the injuries suffered by both Lanetra and
Angelique Lockett.” (Appellant’s Br. 17.) More specifically, the alleged wrong
is that Planned Parenthood’s patient intake procedures were inadequate to
detect Angelique’s intentional misrepresentations about her identity, age, and
ability to consent to medical treatment. Because Angelique was in fact a minor,
and Lanetra did not provide her consent, the Locketts allege that Planned
Parenthood failed to obtain informed consent before providing health care to
Angelique and that the failure led to both Angelique’s and Lanetra’s injuries.
gratuitous” conduct undertaken “without the patient’s consent and despite her protests[,]” reasoning that “[i]n no way can it logically be said that the legislature intended such behavior to constitute the rendition of health care or professional services.” Collins, 552 N.E.2d at 511. No such wanton and gratuitous conduct is at issue here, where Angelique presented at a licensed clinic as a patient seeking professional health care services.
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 11 of 20 [25] The duty to obtain informed consent “arises from the relationship between the
doctor and patient, and is imposed as a matter of law as are most legal duties.”
Culbertson v. Mernitz, 602 N.E.2d 98, 101 (Ind. 1992) (citation and quotation
marks omitted). In obtaining informed consent, a physician must comply with
the standard of a reasonably prudent physician. Id. at 104. Complete lack of
informed consent to a harmful touching in the medical context traditionally was
viewed as a battery claim. Spar v. Cha, 907 N.E.2d 974, 979 (Ind. 2009). See
also Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007) (“Failure to
obtain informed consent in the medical context may result in a battery.”).
More recently, unless there is a complete lack of consent, the theory is
considered a specific form of negligence for breach of the required standard of
professional conduct. Spar, 907 N.E.2d at 979. Regardless of the caption, it is
now well-settled in Indiana law that,“[i]n the course of rendering professional
services to a patient, a physician’s acts of negligence, including acts which
constitute a breach of the duties to disclose information and obtain informed
consent, are malpractice.” Boruff, 576 N.E.2d at 1299. Furthermore, we
observe that cases in which patients have alleged a lack of informed consent,
but in which the applicability of the MMA is not specifically raised as an issue,
generally have proceeded under the MMA. See, e.g., Spar, 907 N.E.2d 974;
Mullins, 865 N.E.2d 608; Culbertson v. Mernitz, 602 N.E.2d 98 (Ind. 1992);
Cacdac v. West, 705 N.E.2d 506 (Ind. Ct. App. 1999), trans. dismissed; Auler v.
Van Natta, 686 N.E.2d 172 (Ind. Ct. App. 1997), trans. denied.
[26] With this background in mind, we examine each of the Locketts’ claims in turn.
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 12 of 20 Assault & Battery
[27] Assault “is effectuated when one acts intending to cause a harmful or offensive
contact with the person of the other or an imminent apprehension of such
contact.” Cullison v. Medley, 570 N.E.2d 27, 30 (Ind. 1991) (citing Restatement
(Second) of Torts § 21 (1965)). An actor is subject to liability for battery if “(a)
he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and (b)
a harmful contact with the person of the other directly or indirectly results.’”
Mullins, 865 N.E.2d at 610 (quoting Restatement (Second) of Torts § 13 (1965)).
In short, “assault creates an apprehension of imminent harmful or offensive
contact, while battery is the intentional harmful or offensive contact.” Knight v.
Ind. Ins. Co., 871 N.E.2d 357, 362 (Ind. Ct. App. 2007).
[28] The Locketts allege that Planned Parenthood’s physician assaulted and battered
Angelique when he performed an abortion at a licensed clinic without first
obtaining consent. These claims fall squarely within the purview of the MMA.
See Van Sice, 595 N.E.2d at 267 (finding that plaintiff’s complaint, even though
captioned as battery, alleged a failure to obtain informed consent and thus fell
within the scope of the MMA).
Negligent Infliction of Emotional Distress
[29] The right to seek damages for emotional distress in actions for negligence, often
referred to as actions for negligent infliction of emotional distress, is carefully
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 13 of 20 circumscribed under Indiana jurisprudence. Spangler v. Bechtel, 958 N.E.2d 458,
466 (Ind. 2011). As our supreme court has explained:
[A]ctions seeking damages for emotional distress resulting from the negligence of another are permitted in two situations: where the plaintiff has (1) witnessed or come to the scene soon thereafter the death or severe injury of certain classes of relatives (i.e., the bystander rule), or (2) suffered a direct impact (i.e., the modified impact rule). Id. (citations omitted).
[30] Angelique’s negligent infliction of emotional distress claim is based on a direct
impact theory, in which she seeks to recover for emotional trauma sustained as
the result of a direct impact, that is, the abortion. To recover from Planned
Parenthood on this claim, Planned Parenthood’s negligence must be the
proximate cause of the direct impact Angelique sustained. See id. at 466
(explaining that the modified impact rule arises when the defendant owes a
legal duty to the plaintiff or a third-party and the direct impact to the plaintiff is
proximately caused by the defendant’s breach of that duty).
[31] Here, the negligence complained of is Planned Parenthood’s inadequate patient
screening procedures, the result of which was the provision of a medical
procedure to Angelique without informed consent. Again, Angelique’s claim
for negligent infliction of emotional distress arising out of a medical procedure
performed without informed consent sounds in medical malpractice and is
subject to the MMA.
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 14 of 20 Statutory Claims
[32] The Locketts’ first two counts, brought by both Angelique and Lanetra, are
premised on alleged violations of Indiana Code chapter 16-34-2. Though more
broadly pleaded, this case implicates two specific sections of the chapter: the
informed consent and parental consent requirements. 6 Section 16-34-2-1.1
provides that a physician may only perform an abortion with the “voluntary
and informed consent of the pregnant woman upon whom the abortion is to be
performed[,]” and specifies an exhaustive list of procedures that must be
followed before a physician is considered to have obtained voluntary and
informed consent. See I.C. § 16-34-2-1.1(a)(1)-(4). Section 16-34-2-4 provides
that “[n]o physician shall perform an abortion on an unemancipated pregnant
woman less than eighteen (18) years of age without first having obtained the
written consent of one (1) of the parents or the legal guardian of the minor
pregnant woman.” I.C. § 16-34-2-4(a). However, a minor who objects to the
parental consent requirement or whose parent or legal guardian refuses to
consent may petition the juvenile court for a waiver of the requirement by
following the statutory procedures. I.C. § 16-34-2-4(b). A physician may also
petition for a waiver in certain circumstances. I.C. § 16-34-2-4(c). The juvenile
court shall waive the parental consent requirement “if the court finds that the
minor is mature enough to make the abortion decision independently or that an
6 In their brief, the Locketts approach their statutory claims even more narrowly, focusing only on section 16- 34-2-4.
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 15 of 20 abortion would be in the minor’s best interests.” I.C. § 16-34-2-4(d). Parental
consent requirements generally reflect a legislative judgment that, “[a]s
immature minors often lack the ability to make fully informed choices that take
account of both immediate and long-range consequences, . . . parental
consultation often is desirable and in the best interest of the minor.” Bellotti v.
Baird, 443 U.S. 622, 640 (1979) (Bellotti II). Informed consent is the basis of
parental consent requirements.
[33] We think it is clear that the statute supplements the common law with respect
to a physician’s duty to obtain informed consent when providing an abortion.
The statute provides that “consent to an abortion is voluntary and informed
only if” the specific statutory conditions are met, I.C. § 16-34-2-1.1(a) (emphasis
added), and, in the case of unemancipated minors, parental consent or a
judicial waiver is obtained. The physician still has a duty to obtain informed
consent, but for this particular health care service, the legislature has expressly
established a standard of care to which a physician must adhere.
[34] Although the statute provides the standard of care, the statute has not altered
the basic nature of the Locketts’ alleged wrong: that Planned Parenthood
provided health care to Angelique without first obtaining the patient’s informed
consent. Angelique’s injuries flow directly from an alleged failure to follow the
statute’s informed consent and parental consent provisions before providing her
an abortion. Lanetra also claims injury arising from Planned Parenthood’s
failure to obtain her consent before providing care to Angelique; as such,
Lanetra’s claims are derivative of Angelique’s claims. See I.C. § 34-18-2-22.
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 16 of 20 [35] When the act complained of is a negligent failure to obtain informed consent in
the course of rendering professional services to a patient, the act sounds in
malpractice. See Boruff, 576 N.E.2d at 1299. And where the claims allege
medical malpractice, the Locketts cannot ignore the MMA’s procedural dictates
and side-step our legislature’s grant of subject matter jurisdiction to the medical
review board simply by framing their claims as violations of Indiana Code
chapter 16-34-2.
[36] In sum, our examination of the complaint and designated facts reveals that,
regardless of the individual claim captions, the gravamen of the Locketts’
complaint against Planned Parenthood is that the Locketts suffered injury when
a health care provider, in the course of rendering professional services to a
patient, failed to obtain informed consent. Each of their claims sounds in
medical malpractice and fits squarely and firmly within the purview of the
MMA. Thus, the Locketts’ complaint should have been presented first to a
medical review panel.7 Because the Locketts failed to follow the procedural
dictates of the MMA, the trial court had no power to adjudicate the Locketts’
claims. Accordingly, the trial court did not err in granting summary judgment
in favor of Planned Parenthood and dismissing the Locketts’ claims against
Planned Parenthood.
7 Presentation to the medical review panel is not necessary where all defendants agree to proceed directly to court or the patient’s pleadings include a declaration that the patient seeks damages of fifteen thousand dollars or less. I.C. §§ 34-18-8-5 & 34-18-8-6(a). We see no such agreement in the record or damages limitation in the complaint.
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 17 of 20 Claims against McGee [37] We turn our attention now to the Locketts’ claims against McGee. In its order,
the trial court granted Planned Parenthood’s motion for summary judgment.
The court also purportedly dismissed the Locketts’ complaint in its entirety and
entered “Judgment for Defendants,” even though McGee may not have been
served.
[38] The Locketts’ statement of the case asserts that “McGee has never appeared
and no default was entered against her[.]” (Appellant’s Br. 1.) We note that
Trial Rule 55(B) requires that “[i]n all cases the party entitled to a judgment by
default shall apply to the court therefor;” however, it does not appear from the
record that the Locketts have moved for default judgment. Moreover, to the
Locketts’ point that McGee has not appeared, it is unclear whether the Locketts
have ever successfully served McGee. The Chronological Case Summary
(“CCS”) contains two entries on September 30, 2011, showing that service of
the summons and complaint was attempted on McGee by certified mail on
September 6, 2011 and returned on September 30, 2011. One entry states
“ACCEPTED,” while the other indicates “Unsuccessful – Unclaimed.” (App.
6.) Then, on August 16, 2012, the CCS contains an entry showing that the
Locketts attempted to serve by sheriff an alias summons and complaint.
According to an August 27, 2012 entry in the CCS, service by sheriff was
returned as “Unsuccessful – Moved” with the comment “BOARDED UP
ABANDONED PER SGT. L. SMITH ON 8/24/201[2].” (App. 6.)
Thereafter, the CCS contains no additional entries of attempted service on
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 18 of 20 McGee, but notes “returned mail addressed to Cathy McGee” on February 25,
2014 (App. 4), and “MAILE[D] PLEADINGS OF 6-20-14 RETURNED
UNABLE TO FORWARD ON CATH[Y] MCGEE RECEIVED 7-14-14” on
July 16, 2014. (App. 3.)
[39] The fact that McGee did not move for summary judgment does not preclude
the trial court from sua sponte granting summary judgment to McGee on any
issues raised by Planned Parenthood. See T.R. 56(B) (“When any party has
moved for summary judgment, the court may grant summary judgment for any
other party upon the issues raised by the motion although no motion for
summary judgment is filed by such party.”) Nevertheless, since it appears that
McGee has not been served, we think the court’s order granting “Judgment for
Defendants” and dismissing the complaint entirely was premature. Moreover,
although the claims the Locketts state against McGee are framed identically to
those brought against Planned Parenthood, McGee’s role in encouraging
Angelique’s misrepresentation to Planned Parenthood places McGee in a
substantially different position than Planned Parenthood. In this respect, we
believe the trial court’s order was also overly-broad. We accordingly remand
this case to the trial court to correct its order as to the claims against McGee
and for further proceedings.
Conclusion [40] The trial court did not err in entering summary judgment in favor of Planned
Parenthood on all of the Locketts’ malpractice claims brought against Planned
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 19 of 20 Parenthood. However, because the trial court’s order was premature and
overly-broad with respect to claims brought against defendant McGee, we
remand with instructions to correct the order and for further proceedings
consistent with this opinion.
[41] Affirmed in part, reversed in part, and remanded.
Robb, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015 Page 20 of 20