Fort Wayne Indiana Personal Injury Lawyer and Attorney Blog

Plaintiff Fails to Follow Medical Malpractice Act and Case is Thrown Out

By Jack H. FarnbauchJuly 12, 2018

In December 2010, Carrie Etta McGoffney and her daughter, Kelly, filed a proposed medical malpractice complaint with the Indiana Department of Insurance against Anonymous Skilled Nursing Facility. McGoffney’s estate filed a second amended proposed complaint in August 2015, and Sally Zweig agreed to serve as chair of the medical review panel.

Kelly McGoffney then began striking numerous nominations to the panel, telling Zweig her nominations were “horrible” and that she would not have suggested Zweig to serve as chair had McGoffney known who she would nominate. She then threatened to report the nursing facility’s counsel to the Indiana Supreme Court Disciplinary Commission for filing “frivolous motions” and “trying to delay the process.”

Zweig eventually resigned, and the facility moved for the trial court to sanction McGoffney for failure to comply with the Indiana Medical Malpractice Act. The facility presented nearly two dozen exhibits highlighting McGoffney’s conduct during the panel selection process, and the Marion Superior Court found that conduct to be “unreasonable and inappropriate.”

Later, the court ordered the estate to pay $3,282 in attorney’s fees and costs to the facility, and ordered both parties to agree to a new panel chair. McGoffney was told that if she did not comply, she would be subject to additional sanctions. But McGoffney soldered on with her strange behavior.

The parties then agreed to a new panel chair, but a week later, McGoffney sent an email claiming she never agreed to authorize the chair who had been selected. The facility once again filed a motion against McGoffney, this time for dismissal of her complaint for failure to comply with the Medical Malpractice Act, and the trial court agreed. Specifically, the court found McGoffney had not paid the attorney fees and had continued to unnecessarily delay the proceedings.

McGoffney’s estate appealed the trial court’s decision in the Indiana Court of Appeals. The Appeals Court were unanimous in deciding that  McGoffney’s conduct was not only ‘dilatory and disobedient, but … intentional and contumacious,’” the Court wrote in their decision. The initial court filing was in 2010 and six years later McGoffney could not come to an agreement on a medical review panel chairman. 

Read the Court of Appeals decision.