CCS Entry Extends Summary Judgment Deadline; Jernagan v. Indiana University Health

As we all know, Indiana has strict deadlines when it comes to summary judgment, and they are strictly enforced. But this case shows that the Court of Appeals will not elevate form over substance on this deadline.

Dr. Ritter performed spinal surgery on Jernagan at the IU Health North campus. The anesthesiologist was Dr. Miller, who was a partner with Anesthesia Consultants of Indianapolis. During the surgery, Jernagan experienced a sudden drop in blood pressure from excessive blood loss, causing a cardiac arrest. He was admitted to the ICU as a result.

Jernagan filed a proposed medical malpractice complaint against Dr. Ritter and IU Health. That complaint identified the wrong anesthesiologist. The review panel issued an opinion favoring Dr. Ritter and IU Health but did not address the conduct of any
anesthesiologist.

Jernagan filed a complaint against Dr. Ritter and IU Health and did not name an anesthesiologist. The claims against Dr. Ritter were dismissed, and IU Health moved for summary judgment. The trial court denied that motion, and the parties continued
discovery.

After more discovery, IU Health filed a second motion for summary judgment, arguing that it was not responsible for Dr. Miller’s conduct because he was an independent contractor. Jernagan requested and was granted two enlargements of time until April
7, 2019. During a March 22 telephonic conference, the parties informed the trial court that they had agreed to extend Jernagan’s response date to May 8. This was reflected on the CCS as follows:

Parties by counsel. Parties have stipulated to extending deadline on response to the pending [m]otion for [s]ummary [j]udgment to May 8, 2019. The [c]ourt has scheduled hearing on the pending [m]otion for [s]ummary [j]udgment on May 21, 2019 at 11:00 a.m. The [c]ourt also schedules the [f]inal [p]re-[t]rial [c]onference on February 24, 2020 at 11 a.m. and the
[j]ury [t]rial to begin on March 17, 2020 at 9:00 a.m. Defendant’s [c]ounsel will circulate an order on the [s]ummary [j]udgment [d]eadline and [t]rial [d]ate to submit to the [c]ourt. SEND NOTICE.

Jernagan filed his response on May 8, and IU Health moved to strike the response as untimely because Jernagan did not file a motion requesting that extension. The trial court denied that motion but granted IU Health’s motion for summary judgment.
Jernagan appealed.

The Court first dealt with IU Health’s cross-appeal, which dealt with the timeliness of Jernagan’s response. But while the Court recognized that Indiana had a “bright-line rule” requiring that a party file a motion to extend the time to respond to a motion for
summary judgment, it found that this situation satisfied the rule.

Without further specifying the appropriate format of the request, we note that a verbal request was made as memorialized in the CCS entry of March 22, 2019, indicating that “Parties have stipulated to extending deadline on response to the pending [m]otion for [s]ummary [j]udgment to May 8, 2019.” In the entry, “Defendant’s [c]ounsel” was ordered to circulate an
order including the new summary judgment deadline. We agree with the trial court’s analysis that “[t]he directive to the Defendant to circulate the [o]rder was meant to separately express the [o]rder stated in the CCS entry.” Accordingly, … we conclude that Jernagan’s response was timely and will not be stricken. Any other result under these circumstances would
elevate form over substance, which we decline to do.

The Court then went to the substance of IU Health’s motion for summary judgment—whether Dr. Miller was an independent contractor. It noted that “the realities of modern hospital care raise a serious question regarding the responsibility of a hospital when a physician who is an independent contractor renders presumed negligent health care.”

The Indiana Supreme Court had previously adopted Restatement (Second) of Torts section 429 to determine apparent agency in the hospital setting, which “focus[es] on the reasonableness of the patient’s belief that the hospital or its employees were
rendering health care.”

IU Health argued that Jernagan should have known that Dr. Miller was an independent contractor because Dr. Miller’s business card was provided to Jernagan at check-in. But the Court found that this was not enough to put Jernagan on notice of Dr. Miller’s status.

We cannot conclude that a sole business card, handed without more to an undoubtedly already anxious surgical patient at check-in, conclusively affirms that Dr. Miller was not an employee of IU Health or that the practice group is his employer. The record reflects that Dr. Miller himself rejected the label of employee, and pointed out that he was a partner in the practice group. As such, the business card merely indicates an affinity relationship but does not more closely specify or define that relationship.

Thus, the Court found a genuine issue of fact regarding whether Jernagan knew that Dr. Miller was an independent contractor. The trial court’s decision granting summary judgment was reversed.

Lessons:
1. Indiana law requires that a non-movant be granted an extension of time to respond to a motion for summary judgment before the response deadline passes.
2. A request for an extension of time to respond to a motion for summary judgment can be verbal.
3. If a CCS entry shows that a verbal motion for an extension of time to respond to a motion for summary judgment was granted, then no further action is necessary for that extension to apply.

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