Jay Vermillion v. Anonymous M.D. 2

• Court: Indiana Court of Appeals
• Decided: May 29, 2024
• Docket: 23A-CT-02322
• Status: Published

Opinion

FILED May 29 2024, 9:13 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Jay F. Vermillion, Appellant-Respondent

v.

Anonymous M.D. 2, Appellee-Petitioner

May 29, 2024 Court of Appeals Case No. 23A-CT-2322 Appeal from the Madison Circuit Court The Honorable Angela Warner Sims, Judge Trial Court Cause No. 48C01-2302-CT-23

Opinion by Judge Riley Judges Brown and Foley concur.

Court of Appeals of Indiana | Opinion 23A-CT-2322 | May 29, 2024 Page 1 of 9 Riley, Judge.

STATEMENT OF THE CASE [1] Appellant-Plaintiff, Jay F. Vermillion (Vermillion), appeals the trial court’s

dismissal of his medical malpractice claim against Appellee-Defendant,

Anonymous M.D. 2. 1

[2] We affirm.

ISSUE [3] Vermillion presents this court with one issue on appeal, which we restate as:

Whether the trial court abused its discretion when it dismissed Vermillion’s

medical malpractice claim brought against Anonymous M.D. 2 after Vermillion

voluntarily withdrew his claim.

FACTS AND PROCEDURAL HISTORY [4] On June 9, 2021, Vermillion filed a Proposed Complaint with the Indiana

Department of Insurance (IDOI), alleging a claim of medical malpractice

against Anonymous M.D. 2 and other named defendants 2 for rendering

medical care or treatment that was “constitutionally deficient and below the

appropriate standard of care” and which resulted in “intangible damages” so as

1 Under the mandate of the Indiana Medical Malpractice Act, specifically Indiana Code section 34-18-8-7, the identity of the defendants in a medical malpractice case not yet decided by the medical review panel must remain confidential. 2 Only Anonymous M.D. 2 is involved in the proceedings before this court.

Court of Appeals of Indiana | Opinion 23A-CT-2322 | May 29, 2024 Page 2 of 9 to require compensation. (Appellee’s App. Vol. II, p. 2). On August 2, 2021,

counsel for Anonymous M.D. 2 sent a letter informing Vermillion that he

intended to move forward with composing a medical review panel and

proposed a candidate to serve in the capacity of Panel Chairman. Included in

the letter was Anonymous M.D. 2’s first set of interrogatories and requests for

production of documents. On August 10, 2021, Vermillion responded that he

had decided against bringing any state law claim of medical malpractice against

any of the named defendants, stating that he had only filed the Proposed

Complaint to “toll the statute of limitations and satisfy the statutory condition

prerequisite to commencing a medical malpractice action.” (Appellee’s App.

Vol. II, p. 36). Vermillion clarified that “I have not brought, and have

subsequently decided against bringing, any state law claims of medical

malpractice against any of the named defendants.” (Appellee’s App. Vol. II, p.

37). In response to Vermillion’s statement that he had decided against bringing

any state law claims of medical malpractice against the named defendants,

Anonymous M.D. 2 provided Vermillion with a withdrawal of claim form

consistent with his representations. Because he did not receive a response,

Anonymous M.D. 2 sent Vermillion another letter on December 10, 2021,

which again included the withdrawal of claim form and another copy of the

first set of discovery requests. Vermillion did not return the withdrawal of

claim form nor did he answer the discovery requests.

[5] On February 1, 2023, counsel for Anonymous M.D. 2 filed a petition for

preliminary determination and motion to compel discovery with the trial court

Court of Appeals of Indiana | Opinion 23A-CT-2322 | May 29, 2024 Page 3 of 9 pursuant to Indiana Code section 34-18-11-1. On February 14, 2023,

Vermillion filed his response, again admitting that he was unsure as to whether

he wanted to pursue the medical malpractice claim against Anonymous M.D. 2

and again noting that he had merely filed the Proposed Complaint to toll the

statute of limitations. On March 8, 2023, the trial court granted Anonymous

M.D. 2’s motion to compel. Vermillion never responded to the discovery

request.

[6] On March 24, 2023, Vermillion filed a withdrawal of claim with the IDOI, in

which he stated, in pertinent part, that

The purpose of said Proposed Complaint was to simply toll the statute of limitations and satisfy the statutory condition precedent to commencing a medical malpractice action, should he decide to pursue such claim against [Anonymous M.D. 2].

Since that time, however, [Vermillion], in a 1983 Civil Rights action, has brought deliberate indifference claims against [Anonymous M.D. 2].

As such, [Vermillion] has subsequently concluded that a State law claim of medical malpractice is not currently necessary.

ACCORDINGLY, [Vermillion] hereby withdraws his proposed State law medical malpractice claim against proposed defendant [Anonymous M.D. 2].

(Appellee’s App. Vol. II, p. 74). Vermillion additionally filed a motion with the

trial court to dismiss Anonymous M.D. 2’s petition for preliminary

determination of law and motion to compel discovery. In his motion, he Court of Appeals of Indiana | Opinion 23A-CT-2322 | May 29, 2024 Page 4 of 9 informed the trial court that “on March, 24, 2023, [Vermillion] notified the

IDOI of his decision to withdraw his proposed claim against [Anonymous

M.D. 2]” and therefore, “the proposed case or controversy against [Anonymous

M.D. 2] before the IDOI no longer exists.” (Appellee’s App. Vol. II, pp. 77,

78).

[7] On June 22, 2023, the trial court conducted a telephonic conference, at which

Vermillion did not appear. Thereafter, on June 28, 2023, the trial court entered

an Order of dismissal, “directing the [IDOI] to show [Vermillion’s] claim [] as

hereby DISMISSED. Furthermore, based upon the verified representations of

[Vermillion] that he did not intend to file any claim for medical malpractice

against [Anonymous M.D. 2], the Commissioner of the [IDOI] is hereby

ordered to EXPUNGE any record of claim [] as to [Anonymous M.D. 2].”

(Appellee’s App. Vol. II, p. 80).

[8] On July 28, 2023, Vermillion filed a motion to correct error, denying that his

motion of March 24, 2023 was a request to dismiss his claim. On August 28,

2023, the trial court denied Vermillion’s motion, concluding that its Order “is

consistent with [Vermillion’s] voluntary dismissal of his underlying claim”

before the IDOI. (Appellee’s App. Vol. II, p. 92).

[9] Vermillion now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [10] Following Anonymous M.D. 2’s motion for preliminary determination of law

and motion to compel and the trial court’s subsequent Order of dismissal, Court of Appeals of Indiana | Opinion 23A-CT-2322 | May 29, 2024 Page 5 of 9 Vermillion on appeal disputes the trial court’s authority to dismiss his medical

malpractice claim and requests this court to reverse the trial court’s Order.

Decisions as to whether to dismiss a proposed complaint under the Medical

Malpractice Act are reviewed for an abuse of discretion. Mooney v. Anonymous

M.D. 4, 991 N.E.2d 565, 575-76 (Ind. Ct. App. 2013). 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 576.

[11] Because the Trial Rules do not address voluntary dismissals by a plaintiff of a

proceeding before a medical review panel, the common law governs. Hodge v.

Johnson, 852 N.E.2d 650, 652 (Ind. Ct. App. 2006); Ilagan v. McAbee, 634

N.E.2d 827, 829 (Ind. Ct. App. 1994). Under the common law, a plaintiff has a

right to dismiss an action at any time before the verdict. Hodge, 852 N.E.2d at

652. Where an action is voluntarily dismissed without prejudice the situation is

as though no action had been brought. Id. An open and voluntary

renunciation by a plaintiff of his suit, a retraxit, operates as a dismissal with

prejudice. Id.

[12] In Ilagan, McAbee filed a proposed complaint with the IDOI alleging Dr.

Ilagan had committed malpractice. Ilagan, 634 N.E.2d at 828. Thereafter,

McAbee filed, “with prejudice,” a “dismissal of proposed complaint” with the

IDOI. Id. He then withdrew his dismissal and filed an amended complaint

identical to the first. Id. The trial court denied Dr. Ilagan’s motion for a

preliminary determination of law and ruled that McAbee had not voluntarily Court of Appeals of Indiana | Opinion 23A-CT-2322 | May 29, 2024 Page 6 of 9 dismissed his complaint. Id. McAbee—like Vermillion in the instant case—

argued his dismissal was ineffective because he did not obtain a judicial order of

dismissal by filing the notice in a court of competent jurisdiction as required by

Indiana Trial Rule 41(A). Id. In reversing, we held that the Trial Rules do not

apply to a proceeding before a medical review panel because it is administrative

in nature. Id. As such, we concluded that “the common law should govern

voluntary dismissals by a plaintiff proceeding before a medical review panel:

As a rule, in the absence of statute or court rule, the question as to taking a

voluntary dismissal or nonsuit, or discontinuing an action is controlled by the

common law as announced or modified by legal decisions.” Id. at 829. Since

“[u]nder the common law a plaintiff had a right to dismiss his action at any

time before verdict,” we held that McAbee’s clear intent to dismiss Dr. Ilagan

from the proceedings before the medical review panel operated as a common

law retraxit because the dismissal unequivocally stated McAbee’s intent to

dismiss Dr. Ilagan with prejudice. Id. at 829.

[13] Similarly in Hodge, while relying on Ilagan, we affirmed the trial court’s ruling

that Hodge had voluntarily dismissed her medical malpractice complaint after

she expressed her clear intent “to dismiss [her] complaint that was filed on

November 8, 2022” in a letter to the IDOI. Hodge, 852 N.E.2d at 653. We

found that “[t]his renunciation of her suit served as a voluntary dismissal of her

cause.” Id.

[14] Vermillion’s citation to and reliance upon Adams v. Chavez, 874 N.E.2d 1038,

1043 (Ind. Ct. App. 2007) is not persuasive, as Adams was decided in light of Court of Appeals of Indiana | Opinion 23A-CT-2322 | May 29, 2024 Page 7 of 9 the involuntary dismissal procedure of Indiana Trial Rule 41(E) as applied

within the boundaries of the Medical Malpractice Act after the defendant filed a

motion to dismiss for failure to prosecute. See I.C. § 34-18-8-8 (the

Commissioner, on the Commissioner’s own motion or on the motion of a

party, can “file a motion in Marion county circuit court to dismiss the case

under Rule 41(E) of the Indiana Rules of Trial Procedure” if action has not

been taken on the case for at least two years).

[15] Vermillion, here, expressed the same intent as the one found to be

determinative in Ilagan and Hodge when he filed a withdrawal of claim with the

IDOI, in which he unequivocally stated that “a State law claim of medical

malpractice is not currently necessary,” and therefore he “withdr[e]w[] his

proposed State law medical malpractice claim against proposed defendant

[Anonymous M.D. 2].” (Appellee’s App. Vol. II, p. 74). In addition, he

notified the trial court by filing a motion to dismiss Anonymous M.D. 2’s

petition for preliminary determination of law and motion to compel discovery,

in which he stated that “on March, 24, 2023, [Vermillion] notified the IDOI of

his decision to withdraw his proposed claim against [Anonymous M.D. 2]” and

therefore, “the proposed case or controversy against [Anonymous M.D. 2]

before the IDOI no longer exists.” (Appellee’s App. Vol. II, pp. 77, 78). As

Vermillion unambiguously and voluntarily intended to dismiss his proceedings

Court of Appeals of Indiana | Opinion 23A-CT-2322 | May 29, 2024 Page 8 of 9 before the medical malpractice panel, the trial court properly issued its Order of

dismissal. 3

CONCLUSION [16] Based on the foregoing, we conclude that Vermillion voluntarily dismissed his

medical malpractice proceeding and, therefore, the trial court did not abuse its

discretion by issuing its Order of dismissal.

[17] Affirmed.

Brown, J. and Foley, J. concur

APPELLANT PRO SE Jay F. Vermillion Pendleton, Indiana

ATTORNEYS FOR APPELLEE Chad J. Bradford John F. Shockley O’Bryan Brown & Toner, PLLC Indianapolis, Indiana

3 The Order of dismissal does not indicate whether the dismissal is with or without prejudice. However, either disposition reaches the same result. A dismissal with prejudice is one on the merits and “is conclusive of the rights of the parties and is res judicata as to any questions which might have been litigated.” Ilagan, 634 N.E.2d at 829. A dismissal without prejudice renders the complaint as though it had never been brought; however, any second complaint will be subject to the statute of limitations under the medical malpractice statute. Id. Absent information of the specific date on which the perceived act of medical malpractice occurred, we note that Vermillion filed his original Proposed Complaint on June 9, 2021; therefore, it is clear that the two-year statute of limitations of the medical malpractice act will bar Vermillion’s second complaint. See I.C. § 34-18-7-1.

Court of Appeals of Indiana | Opinion 23A-CT-2322 | May 29, 2024 Page 9 of 9