Dewight Allen received medical care from Anonymous Providers 1 and 2 and Anonymous Physician 1 (“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). The trial court denied the Petition, and Allen appealed.
The Court of Appeals of Indiana stated in its July 28, 2025 Opinion: “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. 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”).”
“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 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.”
“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.”
A dissenting judge stated: “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.”
Source Allen v. Anonymous Physician, Opinion 24A-CT-2260.
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