February 1, 2018

Is This Medical Provider a “Qualified Health Care Provider?”; Rumell v. Osolo Emergency Med. Servs., Inc.

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Most medical malpractice claims must go through the medical review panel process before being litigated in court. But not all. For example, the review panel rules only apply to “qualified health care providers,” and it may not be obvious at first whether someone meets this description or not. This case provides a lesson on what a plaintiff’s attorney should do in this situation.

On July 19, 2013, Margo Rumell experienced a medical episode, and emergency personnel were summoned. Osolo EMS received the call and dispatched an EMT (Byrket), and two paramedics (Calloway and Bryan). When they arrived, the emergency personnel tried resuscitating Rumell, including placing an airway device in her, but those attempts were ultimately unsuccessful.

An autopsy noted the presence and placement of the endotracheal tube, found that the stomach was inflated with gas, and identified the placement of the tube as a cause of death.

The Estate filed a proposed complaint with the IDOI against Osolo and the three emergency personnel. On July 22, 2015, the IDOI sent counsel for the Estate a letter stating that a review of the records of the PCF “indicates” that the Defendants were “Not Covered”, i.e., were not qualified health care providers. The IDOI also sent a letter to each of the Defendants informing them of the same.

After receiving this letter, the Estate’s counsel contacted the IDOI on multiple occasions, seeking clarification of the qualified status of the Defendants. During those discussions, the IDOI indicated that it lacked definitive proof of that status, and that the initial determination was based solely on whether the defendants were listed in the PCF’s records. The IDOI stated that the purpose of the July 22 letter was just to notify them of the preliminary determination, and that many times a health care provider will provide proof that the preliminary indication is wrong.

The defendants did not do that in this case. So in September 2015, the Estate’s counsel asked the defendants’ attorney if they would be providing this proof to the IDOI. Defense counsel said that they had no obligation to do so, and that the Estate’s claim was now barred by the statute of limitations.

On October 8, 2015, the IDOI sent another letter that was identical to the July 22 letter in all but the date. The Estate then filed a complaint for damages on October 15.

The defendants moved for summary judgment, arguing that the Estate’s claims were barred by the statute of limitations, and the trial court agreed. It concluded that the statute of limitations was tolled when the proposed complaint was filed with the IDOI, but that it recommenced when the Estate received the July 22 letter. The Estate then appealed.

On appeal, the Court noted that the IDOI is the proper forum for resolving questions regarding whether a medical provider is qualified under the Medical Malpractice Act. And filing a proposed complaint with the IDOI tolls the statute of limitations “until the parties are informed that the provider has not qualified under” that Act. The dispute in this case centered on the legal significance of the IDOI’s July 22 letter, and the Court compared and contrasted the letter sent in this case with those sent in three other cases.

The first case was Shenefield v. Barrette, in which the IDOI sent a letter to the plaintiffs’ attorney and the defendant informing them that the defendant had “failed to file ‘proof of financial responsibility and payment of the required surcharge at the time of the alleged malpractice,’” and thus, the defendant “was not a qualified health care provider under the [MMA].” The plaintiff’s lawyer called the defense counsel and was informed that he actually was covered by medical malpractice insurance. But when proof of that insurance did not come, the plaintiff filed a complaint. The Court found that the plaintiff’s claims were time-barred because the IDOI’s letter conclusively determined that the defendant was not a qualified health care provider.

Next, in Lusk v. Swanson the plaintiff filed a proposed complaint and the IDOI sent a letter to the defendant informing him that he had not complied with the terms of the Act, so he was not a qualified health care provider under the Act. The plaintiff’s attorney received a copy of this letter, too. A second letter was sent by the IDOI two weeks later, which said that a medical review panel could be formed if the Act applied. The Court found that even if the second letter confused the issue, this just meant that the plaintiff’s attorney “had an affirmative duty to inquire.” Ultimately, the Court found that the first letter recommenced the statute of limitations period.

Finally, in Burns v. Hatchett the plaintiff’s attorney contacted the IDOI determine whether the defendant was a qualified health care provider under the Act. The IDOI said that it had no record of malpractice insurance coverage for the defendant. Plaintiff’s counsel then contacted the defendant, asking him to have his malpractice insurer contact his office. The insurer assured the plaintiff that the defendant was qualified under the Act. After the plaintiff filed a proposed complaint, the IDOI said that the defendant was not qualified. And by the time the plaintiff filed in court, the statute of limitations had run.

The Estate attempted to distinguish these three cases, by arguing that the language in the IDOI’s letter in this case was not conclusory, like the language of the letters in these other cases. But the Court found no support for the proposition “that the statute of limitations ceases to run … where there is a possibility of a subsequent modification of the IDOI’s initial determination.”

Here, the July 22 letter made clear that based upon a review of the PCF’s records, the Defendants were not qualified health care providers. The Estate’s former attorney followed up with the IDOI. The information she received from the IDOI, although indicating that the status of the Defendants could be changed, did not in any way contradict the information concerning the Defendants’ status that was provided to the Estate in the July 22 letter. As in Shenefield, Burns, and Lusk, the July 22 letter from the IDOI that informed the Estate of the status of the Defendants recommenced the running of the statute of limitations.

The question therefore, is what a plaintiff should do if filing a proposed complaint close to the statute of limitations deadline? The defendants argued that plaintiffs should file in both the IDOI and in court. The Estate maintained that this kind of “dual filing” is contrary to law. And while the Court noted that its cases had “not endorsed dual filing, they have nevertheless indicated that it is a means by which a medical malpractice plaintiff may avoid the preclusive effect of a statute of limitations.” It further noted that an anonymous filing would avoid breaking the Act’s confidentiality requirements.

Judge Baker filed a concurring opinion, which agreed with the panel’s reasoning and result.

But I am wholly dissatisfied with this outcome. In my opinion, this outcome will encourage obstreperous legal gamesmanship on the part of defendants to medical malpractice claims.

Given the reality of the gamesmanship inherent in the setup of this legal field, however, I think it incumbent upon attorneys representing medical malpractice plaintiffs to follow the majority’s advice. If the IDOI indicates a possibility that a defendant is not a qualified healthcare provider under the MMA, the best practice for the plaintiff’s attorney is to immediately file a complaint with a trial court before the statute of limitations expires. Should it later become apparent that the defendant is, in fact, a qualified healthcare provider, then the litigation can be stayed during proceedings at the IDOI. But to work around uncooperative defendants and outrace an expiring statute of limitations, the lawsuit should be filed while the rest of it is figured out.

It seems like this is wise advice for plaintiff’s counsel in medical malpractice cases to follow.

Lessons:

  1. The statute of limitations on a medical malpractice claim is tolled when a proposed complaint is filed with the IDOI.
  2. The IDOI is the proper forum for resolving questions regarding whether a medical provider is qualified under the Medical Malpractice Act.
  3. If the IDOI sends a letter indicating that the defendant is not qualified, then the statute of limitations recommences.
  4. Plaintiffs who file a proposed complaint near the statute of limitations deadline should “dual file” by (1) filing an anonymous complaint in the trial court and (2) seeking to have the court proceedings stayed during the proceedings with the IDOI.