FILED Jul 28 2025, 8:32 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Dewight Allen, Appellant-Plaintiff
v.
Anonymous Physician, Anonymous Provider 1, and Anonymous Provider 2, Appellees-Defendants
July 28, 2025 Court of Appeals Case No. 24A-CT-2260 Appeal from the Allen Superior Court The Honorable Craig J. Bobay, Judge Trial Court Cause No. 02D02-2202-CT-63
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 1 of 20 Opinion by Chief Judge Altice Judge Tavitas concurs. Judge Brown dissents with separate opinion.
Altice, Chief Judge.
Case Summary [1] Dewight Allen received medical care from Anonymous Providers 1 and 2 and
Anonymous Physician 1 (collectively, Providers) and subsequently submitted a
proposed complaint for medical malpractice with the Indiana Department of
Insurance (DOI) and filed a complaint in the trial court. After Providers failed
to timely make an evidentiary submission to the medical review panel (the
Panel), Allen filed in the trial court a petition for a preliminary determination of
law (Petition), seeking a default judgment as a sanction for Providers’ alleged
violations of Indiana’s Medical Malpractice Act (MMA). Allen appeals the trial
court’s denial of his Petition and asserts that the denial was an abuse of
discretion.
[2] We affirm.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 2 of 20 Facts & Procedural History [3] On June 1, 2020 and thereafter, Allen received medical care and treatment from
Providers. On February 7, 2022, he submitted a claim for medical malpractice
with the DOI and, the next day, filed a complaint in the trial court. 1
[4] On May 3, 2022, Allen requested the formation of a medical review panel.
Utilizing a striking process, the parties selected Matthew Shipman as Panel
Chairperson on July 22, 2022. On July 28, Shipman wrote to counsel for both
parties and provided them with the procedures to follow for submissions.
[5] On October 26, 2023, Shipman notified the parties by letter and email that the
Panel had been formed and that the DOI commissioner had certified it.
Shipman set the following submission schedule: December 1, 2023 for Allen,
January 1, 2024 for Providers, February 1 for Allen’s rebuttal, and March 1 for
Providers’ replies if any. Shipman advised that “if the above dates are
inappropriate” to reach out to him. Appendix at 56. Allen timely tendered his
submission to Shipman on December 1, 2023. Providers did not file a
submission on January 1, 2024, or request an extension of time.
[6] On March 26, 2024, Providers’ counsel emailed Allen’s counsel about an
upcoming joint status report due to the trial court, suggesting that the joint
report state:
1 The trial court proceeding was stayed pending the completion of the Panel process.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 3 of 20 The parties continue to work on the selection of the medical review panel and the preparation of their evidence of the medical review panel’s deliberation. The parties propose that a new status conference be scheduled for a date six to nine months from now.
Id. at 66 (emphasis added). Allen’s counsel responded minutes later reminding
that “the panel has been formed since 10/25/23” and that Allen had “served
[his] submission on 12/1/23 per the deadline established.” Id. The next day,
the parties filed the following joint status report with the court:
Plaintiff has made his submission to the medical review panel; Defendants are in the process of completing their submission to the medical review panel. The parties would anticipate the panel rendering its opinion in this matter before the end of 2024.
Id. at 67 (emphasis added).
[7] On April 19, 2024, Shipman emailed counsel for both parties that “the
suggested submission schedule is now far past due and we are yet to receive
[Providers’] submission.” Id. at 68. Shipman requested it by May 1, 2024.
[8] On May 20, 2024, Shipman sent a letter and corresponding email to counsel for
both parties:
Our file reflects that [Providers’] submission was due January 1, 2024, and then a second notice was sent requesting the submission by May 1, 2024. To date, we haven’t received same. Let’s set one final date of June 14, 2024 for [Providers] to provide their submission.
If the above date is unreasonable, we need to know immediately.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 4 of 20 Id. at 69.
[9] That same day, May 20, Allen filed his Petition seeking a preliminary
determination of law pursuant to Ind. Code § 34-18-11-1, 2 requesting a default
judgment against Providers for their failure to timely tender their submission to
the Panel. Allen argued that Providers’ submission was more than five months
overdue from the original January 1, 2024 deadline, “is currently three weeks
overdue from the most recent extension granted by [Shipman],” and was
“without explanation or excuse[] and far past the [MMA’s] 180-day deadline
for the [] Panel to issue its opinion.” 3 Id. at 34.
[10] In his Petition, Allen highlighted MMA provision I.C. § 34-18-0.5-1, providing,
in part, that “[t]he general assembly emphasizes, to the parties, the courts, and
the medical review panels, that adhering to the timelines set forth in this article
is of extreme importance in ensuring the fairness of the medical malpractice
act.” Allen also cited to the provision concerning sanctions:
2 The statute provides, in part:
A court having jurisdiction over the subject matter and the parties to a proposed complaint filed with the commissioner under this article may, upon the filing of a copy of the proposed complaint and a written motion under this chapter, do one or both of the following: (1) preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure; or (2) compel discovery in accordance with the Indiana Rules of Procedure. I.C. § 34-18-11-1(a). 3 Pursuant to I.C. § 34-18-10-13(A), the Panel opinion was due 180 days after the formation of the Panel on April 23, 2024.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 5 of 20 A party, attorney, or panelist who fails to act as required by this chapter without good cause shown is subject to mandate or appropriate sanctions upon application to the court designated in the proposed complaint as having jurisdiction.
I.C. § 34-18-10-14 (emphasis added). Allen pointed out that caselaw has
established that dismissal of the underlying proceedings is a permissible
sanction for a plaintiff’s failure to submit evidence as scheduled and that “such
sanctions against Plaintiffs [] support the availability of an equally strong
sanction against dilatory Defendants in the form of a Default Judgment.”
Appendix at 31. Allen argued that Providers’ “blatant misconduct and disregard
of statutory deadlines . . . and [Providers’] own reassurances and commitments
justifies the entry of a default judgment on the issue of liability” as a sanction.
Id. at 34.
[11] Four days later, on May 24, Providers tendered their submission to the Panel.
[12] On June 4, Providers filed a verified motion in opposition to Allen’s Petition.
After first noting the complexity of Allen’s medical negligence case, counsel for
Providers acknowledged that, up until March 26, he was “under the
misunderstanding” that the Panel had yet to be selected. Id. at 72. Counsel
represented that, upon correction of this inaccuracy, he began preparing
Providers’ submission, advising the court that he was also drafting at least five
other submissions around this same time. Id. at 73. Providers argued that the
facts demonstrated that the delay in their submission was not intentional, that
no prejudice resulted to Allen, and that default judgments are disfavored under
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 6 of 20 Indiana law, suggesting that “the best, fairest, and most proper path forward”
would be denial of Allen’s Petition and release of this matter back to the Panel. 4
Id. at 74.
[13] A hearing was held on Allen’s Petition on June 27, 2024. Allen’s counsel
argued that Allen had lost time, was prejudiced, and that the appropriate
sanction was a default judgment against Providers just as appellate cases have
upheld the dismissal of a plaintiff’s case for failure to follow MMA timelines.
[14] Initially, counsel for Providers argued that “this deadline passed without much
management from [Shipman],” who he suggested was not a seasoned panel
chairperson – a circumstance he argued was “created by [] Allen” because,
rather than agreeing to a chairperson, Allen chose to pursue a striking panel.
Transcript at 13. Providers’ counsel later acknowledged to the court his
“misunderstanding” and erroneous belief that “we were still waiting for panel
formation and for [Allen]’s submission.” Id. at 16. The court observed, “I don’t
know what was going on with your practice in this case, but this is unlike you,”
later pressing counsel “[h]ow did that happen?” Id. at 12, 16. Counsel
responded:
There was no question about it. Sometimes mail comes in and the way that we have our intake set up is that it gets scanned, it
4 Allen filed a twenty-page reply, attaching over sixty pages of exhibits – largely compilations of medical malpractice lawsuit data from prior years concerning average time between complaint and issued opinion and between formation of panel and opinion. The trial court struck Allen’s reply as defective for not being in compliance with page length limitations provided in local rules.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 7 of 20 gets preserved, and then it gets circulated to us. I don’t know if [it]had to do with the holidays. I don’t know, Your Honor. But what I do know is that once I realized that, I put the submission [] on the front burner. . . . What I would say is that I professionally and personally regret that this case was delayed and admit most of that, almost of all of it, sits on my desk. What I humbly submit to this Court is that the circumstances of this case and this timeline does not warrant a default judgment[.]
Id. at 16-17. Providers’ counsel pointed out that their submission was tendered
twenty-three days after the May 1 deadline, courts are given significant
discretion in what is an appropriate sanction under a given set of circumstances,
and “there are no cases in which a defendant has been defaulted as a sanction
under timeliness.” Id. at 13.
[15] Counsel for Allen argued that the MMA’s timelines are routinely not met by
defendant healthcare providers and urged, “We’ve gotta (sic) have help from
the Courts if we’re going to hold the defendants to this 180-day timeframe,
because they take the position as they do here, well what are you going to do to
us. You can’t default us.” Id. at 20. When the trial court inquired of Allen
whether he was seeking any other sanction besides default, counsel replied that
“there is no alternative relief that gives our time back” or properly enforces the
timeframe provided for by the MMA. Id. at 21. The trial court took the matter
under advisement.
[16] On July 11, 2024, the trial court issued an order denying Allen’s Petition. The
trial court recognized that Providers tendered their submission to the Panel
almost five months after the original deadline set by Shipman and seven months
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 8 of 20 after the Panel was formed, but found Providers’ counsel was “credible” in his
explanation for the delay – i.e. that he was under “a misunderstanding” up until
March 26, 2024 that the Panel had not yet been formed. Appendix at 15. The
court observed that, after becoming aware of the Panel’s formation, counsel for
Providers submitted the evidentiary submission to the Panel within two
months, and within the final time extension granted by Shipman. The court
concluded that, given “the misunderstanding as well as efforts taken after its
correction,” good cause existed for the delay. Id. at16. The court continued
that, even if it did not find that good cause existed,
an appropriate sanction or mandate falls within the Court’s discretion. . . . Here, the facts and circumstances of the delay, as well as the fact that the evidentiary submission has actually now been filed, do not justify imposing the extreme sanction of default judgment[.] 5
Id. at 17. 6 The court “strongly encourage[d]” Shipman to expedite the
remaining portions of the Panel process. Id.
[17] On July 19, Allen filed a motion for final judgment asking that the July 11 order
be a final judgment with no just reason for delay pursuant to Ind. Trial Rule
5 The court noted that, at the hearing, Allen’s counsel expressly confirmed that Allen was not asking for any other sanction, such as a monetary award of attorney fees. 6 The trial court also determined, “As to the constitutionality issues raised in Plaintiff’s reply, the brief was stricken under Allen County Local Civil Rules[.] However, Allen’s argument in this regard is unconvincing.” Id.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 9 of 20 54(B), which motion the trial court granted over Providers’ opposition. Allen
now appeals.
Discussion & Decision [18] Allen asserts that the trial court had “a statutory duty to default [Providers] as a
sanction for dilatory conduct pursuant to the MMA.” Appellant’s Brief at 15. As
Allen points out, in 2017, our legislature amended the MMA to add I.C. § 34-
18-0.5-1, pertaining to the importance of adhering to MMA timelines. It
provides:
The general assembly emphasizes, to the parties, the courts, and the medical review panels, that adhering to the timelines set forth in this article is of extreme importance in ensuring the fairness of the medical malpractice act. Absent a mutual written agreement between the parties for a continuance, all parties subject to this article, and all persons charged with implementing this article, including courts and medical review panels, shall carefully follow the timelines in the article. No party may be dilatory in the selection of the panel, the exchange of discoverable evidence, or in any other matter necessary to bring a case to finality, and the courts and medical review panels shall enforce the timelines set forth in this article so as to carry out the intent of the general assembly.
[19] I.C. § 34-18-10-14 provides the statutory authority for sanctions under the
MMA and provides, in relevant part, that a party or attorney who fails to act as
required without good cause shown “is subject to mandate or appropriate
sanctions.” One of the ways one can fail to perform under the MMA is by
failing to promptly submit its written evidence to the Panel for consideration.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 10 of 20 See I.C. § 34-18-10-17 (requiring that “[t]he evidence in written form to be
considered by the [Panel] shall be promptly submitted by the respective
parties”).
[20] Although this case involves Allen’s request for imposition of sanctions upon
Providers, we find the standard of review we have applied in reviewing
sanctions imposed upon a patient-plaintiff to be equally applicable:
Whether a plaintiff should be sanctioned for his failure to submit evidence to the [Panel] in a timely manner is a question of law and fact that may be preliminarily determined by the trial court in the exercise of its discretion after a hearing. Galindo v. Christensen, 569 N.E.2d 702, 705 (Ind. Ct. App. 1991). In other words, decisions as to whether to dismiss a proposed complaint under the [MMA] are reviewed for an abuse of discretion. Beemer v. Elskens, 677 N.E.2d 1117, 1119 (Ind. Ct. App. 1997), trans. denied. An abuse of discretion exists when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it or the reasonable, probable, and actual deductions to be drawn therefrom. Id. at 1120. 7
Mooney v. Anonymous M.D. 4, 991 N.E.2d 565, 575-76 (Ind. Ct. App. 2013),
trans. denied (emphasis added).
7 As persuasive authority, we recognize Casada v. Anonymous Physician, et al., No. 24A-CT-593 (Ind. Ct. App. Aug. 12, 2024) (mem.), where, like Allen, a medical malpractice plaintiff sought a preliminary determination of law and default judgment against the medical providers for failure to timely provide their submission to the Panel. The plaintiff appealed the trial court’s denial of his request for a default judgment, and, applying an abuse of discretion review, we affirmed. Our Supreme Court denied transfer in January 2025.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 11 of 20 [21] We have recognized that, in exercising discretion as to what sanctions, if any,
should be imposed when a party fails to comply with the MMA, “the trial court
should consider whether the breach of duty was intentional or contumacious
and whether prejudice resulted.” Id. at 576 (citing Rivers v. Methodist Hosp., Inc.,
654 N.E.2d 811, 815 (Ind. Ct. App. 1995)). We further observe that Allen is
seeking a default judgment against Providers and, default judgments are
generally disfavored under Indiana law. See, e.g., Coslett v. Weddle Bros. Const.
Co., 798 N.E.2d 859, 862 (Ind. 2003) (recognizing disfavor of default judgments
and preference for disposition of cases on their merits); Beemer, 677 N.E.2d at
1119 (recognizing that “dismissal or default is obviously more drastic and
severe than other available sanctions” and “the imposition of these sanctions is
appropriate only under limited circumstances or in extreme situations”).
[22] Here, Providers maintain that their failure to timely tender their submission to
the Panel was the result of counsel’s “inaccurate belief” that the Panel had not
yet been formed. Appellees’ Brief at 6. Although Providers’ counsel was not able
to provide a definitive explanation at the hearing as to how or why this
“misunderstanding” occurred, other than speculating it may have been due to
holidays or an internal mail system issue, he took responsibility for the error,
expressed regret, and stated that he thereafter “put the submission [] on the
front burner.” Transcript at 16. In its order, the trial court found that counsel’s
explanation for the delay was “credible.” Appendix at 15. Allen argues that “it is
beyond the scope of credibility” to accept that Providers inadvertently failed to
appropriately calendar the submission schedule and “neglected to verify the
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 12 of 20 schedule after service of Allen’s submission.” Appellant’s Brief at 16, 19.
However, exercising its discretion, the trial court thought otherwise and was
persuaded that Providers’ failure to timely tender their submission was not the
result of intentional conduct and did not warrant the extreme sanction of
default. In so doing, the court noted that Providers did in fact tender their
submission to the Panel on May 24, twenty-three days after the May 1 deadline
and before reaching the end of Shipman’s most recent extension to June 14,
2024.
[23] We are not unsympathetic to Allen’s frustration with Providers’ untimeliness in
this case. Indeed, even after being advised on March 26, 2024 by Allen’s
counsel that the Panel had been formed months prior, and that Allen had
already provided his submission, Providers’ counsel still never communicated
regarding status, either to Allen or to Shipman, such that the extended May 1
date came and went with no update. Some degree of communication likely
would have gone a long way to improve matters. That said, we cannot say on
the specific record before us that the trial court’s decision to decline Allen’s
request to enter the extreme sanction of a default judgment against Providers
was an abuse of discretion. 8
8 Allen also argues that portions of the MMA as applied violate Article 1, Sections 12 and 23 of the Indiana Constitution by delaying plaintiffs/patients’ access to the court system due to defendants’ untimely submissions to the Panel and inequitably imposing sanctions for failure to comply with MMA timelines upon plaintiffs but not against defendants. Allen’s constitutional claims are not properly before us as he raised them to the trial court for the first time in his reply to Providers’ opposition to his Petition, and the trial court struck that reply as not in compliance with local rule. Allen does not assert that such was error.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 13 of 20 [24] Judgment affirmed.
Tavitas, J., concurs.
Brown, J., dissents with separate opinion.
ATTORNEYS FOR APPELLANT Michael E. Simmons Hannah K. Brady Indianapolis, Indiana
ATTORNEY FOR APPELLEES Benjamin D. Ice Fort Wayne, Indiana
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 14 of 20 Brown, Judge, dissenting.
[1] I respectfully dissent from the majority’s decision to affirm the trial court’s
judgment denying Allen’s request for a default judgment. Counsel for
Providers did not meet his burden to show good cause for his repeated and
ongoing failure to provide a timely submission to the medical review panel and
default is an appropriate sanction.
[2] Ind. Code § 34-18-10-14 provides that a “party, attorney, or panelist who fails to
act as required by this chapter without good cause shown is subject to mandate
or appropriate sanctions upon application to the court designated in the
proposed complaint as having jurisdiction.” This Court has noted that
“[s]everal sections” of the MMA “require action,” and “the failure to take
action under any of these sections may be grounds for relief under [Ind. Code §]
34-18-10-14.” Adams v. Chavez, 874 N.E.2d 1038, 1043 (Ind. Ct. App. 2007)
clarified on reh’g, 877 N.E.2d 1246. One requirement is, if the chairperson
establishes a schedule for submission of evidence under Ind. Code § 34-18-10-
3(c), the parties must comply with that schedule. Galindo v. Christensen, 569
N.E.2d 702, 705 (Ind. Ct. App. 1991) (“Implicit in [Ind. Code § 34-18-10-3(c)]
is the corresponding duty upon the parties to comply with the schedule, if one is
set by the chair. . . .”).
[3] Although already set out in the majority opinion, the facts pertinent to what I
view to be Providers’ counsel’s inexcusable dilatory behavior and failure to act
bears repeating. On October 26, 2023, Panel Chairperson Shipman notified the
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 15 of 20 parties by both email and letter that the medical review panel had been formed
and certified, and submission deadlines were set. On December 1, 2023, Allen
timely filed his submission to the panel. On March 26, 2024, after Providers’
counsel emailed an erroneous proposed joint status entry to Allen’s counsel,
Providers’ counsel was immediately (within minutes) reminded that the panel
had been formed six months earlier and that Allen had timely filed his
submission per the deadline established. On April 19, 2024, Shipman emailed
counsel for both parties that the submission schedule was “far past due” with
still no submission by Providers, requesting communication from Providers as
to status, and setting another deadline of May 1, 2024. Appellant’s Appendix
Volume II at 68. The 180-day deadline for the panel to issue its opinion expired
on April 23, 2024. On May 20, 2024, Shipman sent a letter and corresponding
email setting a final submission date of June 14, 2024. As I count it, Providers’
counsel received at least five clear and unequivocal notices of his responsibility
to tender a submission on behalf of Providers, but it took Allen’s petition
seeking a preliminary determination of law requesting a default judgment to
finally grab counsel’s attention. Prior to this, Providers’ counsel not only
missed repeated and extended deadlines, but he also wholly failed to
communicate with Allen or Shipman regarding these failures or the status of the
case despite multiple requests and opportunities to do so.
[4] During the sanctions hearing, Providers’ counsel cited his “misunderstanding”
that the medical review panel had not yet been formed as an excuse for failure
to meet the original submission deadline. Transcript Volume II at 16.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 16 of 20 However, the record demonstrates that Providers’ counsel received notice of
both the panel formation and Allen’s timely submission, yet months went by
with still no submission by Providers. Providers’ counsel also tried to blame his
failure on Allen’s counsel for exercising his right to strike the original panel
chairperson and further pointed fingers at Shipman for not being a “seasoned”
chairperson and letting the panel’s opinion deadline pass “without much
management.” Id. at 13. I fail to see any correlation between those alleged
facts and counsel’s numerous failures that followed. Finally, Providers’ counsel
suggested that “the holidays” or his office’s mail scanning procedures could be
to blame, id. at 16, but none of this makes any sense in view of the timing of his
continuing dereliction of duties as well as the multiple direct email
communications he received regarding case status. Significantly, when pressed
by the trial court, Providers’ counsel admitted that he had no real explanation
for his behavior in delaying the case, admitting that “most” if not “all of” the
blame fell to him. Id. at 17.
[5] The majority relies on our memorandum decision in Casada v. Anonymous
Physician, et al., No. 24A-CT-593, 2024 WL 3756166 (Ind. Ct. App. Aug. 12,
2024), trans. denied, as persuasive authority for affirming the trial court. The
Casada panel affirmed the trial court’s denial of a medical malpractice plaintiff’s
petition for default judgment against a healthcare defendant for failure to
submit evidence to the medical review panel in a timely manner. However,
Casada is distinguishable in many respects to the current case as, unlike Allen,
the plaintiff in Casada also failed to provide a timely submission to the medical
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 17 of 20 review panel. Moreover, there was evidence that the plaintiff in Casada played
a role in additional delays that occurred due to his failure to provide readable
radiology records to the healthcare provider defendants. Finally, the plaintiff in
Casada made no allegation that the defendant’s delays caused him any
prejudice, and while recognizing that in the context of cases where
noncompliance with the MMA is alleged, it is not absolutely necessary to
establish prejudice, the Casada panel noted that the plaintiff’s “failure to allege
any prejudice, much less establish any, undercuts his claim of an abuse of
discretion by the trial court.” 2024 WL 3756166 at * 4. Here, Allen’s counsel
argued that Allen had lost a considerable amount of time and was prejudiced by
Providers’ repeated submission delays. In short, I find Casada distinguishable
and its reasoning inapposite to the instant case.
[6] As argued by Allen at the trial court level, the MMA’s timelines are routinely
not met by defendant healthcare providers, and medical malpractice plaintiffs
need help from the courts to ensure “the fairness of the medical malpractice
act” and its mandate that “all parties” “shall carefully follow the timelines in
this article” and that “[n]o party may be dilatory” as to the adherence to the
timelines set forth. Ind. Code § 34-18-0.5-1. The Indiana Supreme Court very
recently reiterated that one of the MMA’s primary goals is to “to foster prompt
litigation” and that the statutes governing the review panels impose strict
deadlines to “facilitate that goal.” Bojko v. Anonymous Physician, 232 N.E.3d
1155, 1158 (Ind. 2024). I agree with Allen that it is unfair that our courts are
quick to strictly hold plaintiffs accountable for their failures to adhere to
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 18 of 20 evidentiary submission schedules but are reluctant or unwilling to hold
defendant healthcare providers accountable for those same failures. See, e.g.,
Quillen v. Anonymous Hosp., 121 N.E.3d 581, 587 (Ind. Ct. App. 2019) (affirming
dismissal of plaintiff’s complaint and concluding that personal representative
failed to demonstrate good cause for the untimely submission of materials to
medical review panel; although personal representative alleged that her counsel
had family matters that prevented him from giving full attention to the case,
personal representative did not highlight those matters at any point after panel
was certified and only made such claims in response to motion to dismiss her
claims, and she failed to explain why counsel was unable to even send an email
to the panel or opposing counsel regarding the situation), trans. denied; Reck v.
Knight, 993 N.E.2d 627, 634-635 (Ind. Ct. App. 2013) (affirming dismissal of
plaintiff’s complaint and concluding that plaintiff failed to demonstrate good
cause for failing to timely file evidentiary submission with medical review
panel; plaintiff’s counsel did not file the submission by the deadline or request
an extension, he did not respond to the chairman’s letter requesting an
approximate date that he believed he would tender plaintiff’s submission, and
he did not reach out to defendants’ counsel requesting an extension), trans.
denied; Adams, 874 N.E.2d at 1044 (collecting cases sanctioning plaintiffs with
dismissal of claims for failure to comply with evidentiary submission schedule
set by medical review panel).
[7] The plaintiffs’ failure to act without good cause in the above-cited cases is no
different than Providers’ failure here, yet those plaintiffs were sanctioned with
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 19 of 20 dismissal of their claims. Indeed, in pleading his case against default to the trial
court, Providers’ counsel argued that “there are no cases in which a defendant
has been defaulted as a sanction under timeliness.” Transcript Volume II at 13.
Healthcare provider defendants will continue to thumb their noses at the
statutory requirements until and unless they are shown they will also be
sanctioned appropriately for such behavior. In this case, Providers’ counsel
made no showing of good cause for his failure to act as statutorily required.
Indeed, in declining to sanction Providers, it appears that the trial judge, who
had some familiarity with Providers’ counsel, may have confused credibility as
to counsel’s lack of intentionality with a showing of good cause. In any event,
in addition to the lack of evidence of good cause, I am not persuaded that
Providers’ counsel’s cavalier disregard for the statutory timelines and complete
lack of communication regarding case status can be legitimately accepted as
anything other than intentional or contumacious conduct. Accordingly, I
believe the trial court’s decision denying Allen’s request for a default judgment
is clearly against the logic and effect of the facts and circumstances before it or
the reasonable, probable, and actual deductions to be drawn therefrom.
[8] For the foregoing reasons, I would reverse and remand for the entry of a default
judgement on the issue of liability in favor of Allen.
Court of Appeals of Indiana | Opinioon 24A-CT-2260 | July 28, 2025 Page 20 of 20