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Indiana Court of Appeals Denies Injured Party the Right to Appeal Judgment in Durall v. Weinberger

February 21, 2014

The Court of Appeals of Indiana recently denied an injured party the opportunity to appeal a judgment against him in a medical malpractice case, Durall v. Weinberger.

doctor-patient-relationship-673854-m.jpgBeginning in 2001, Robert Durall sought treatment from Dr. Weinberger of the Merrillville Center for Advanced Surgery, LLC for sinus problems. He underwent several procedures on the advice of Dr. Weinberger, which did not correct his problem and which, Durrall later believed, may have been unnecessary. At some point, Weinberger fled the country as his practice collapsed. Durall then filed a proposed complaint with the Indiana Department of Insurance for medical malpractice against Dr. Weinberger, the Merrillville Center, and the Nose and Sinus Center, LLC. The Department's medical malpractice review panel concluded that the proposed defendants failed to meet the proper standard of care and there was a question of fact as to whether their actions may have harmed Durall.

Durall then filed a complaint in state court against Dr. Weinberger and the two corporations, claiming medical malpractice. The defendants filed a motion for summary judgment, asking the court to (1) limit the negligence claims solely to Dr. Weinberger; (2) bar Durall from recovering emotional damages caused by Dr. Weinberger's fleeing the country; and (3) dismiss Durall's claims as untimely. Finally a hearing was held in November 2012, and the court permitted Durall's claims to move forward, but limited his negligence claims to Dr. Weinberger and barred him from recovering emotional damages. Durall filed a motion to reconsider, and initially, in March 2013, the trial court issued an order certifying its November 2012 order for a discretionary interlocutory appeal. However, in April 2013, the trial court issued a stipulated order denying Durall's motion to reconsider and denying Durall the opportunity to file a discretionary interlocutory appeal. Durall then filed a request with the Court of Appeals to accept jurisdication of the discretionary interlocutory appeal.

The Court of Appeals looked at Indiana Appellate Rule 14(b), which governs discretionary interlocutory appeals. The rule states that a motion requesting certification must be filed within 30 days of the interlocutory order, unless the trial court permits a late motion. In this case, Durall never filed a motion requesting an interlocutory order, and his motion to reconsider said nothing about certifying an interlocutory appeal. Likewise, the court orders for March 2013 and April 2013 did not comply with Rule 14(b), in that neither order stated that there was good cause for belated certification, or even set forth the basis for certification. Therefore, Durall could not appeal the partial summary judgment motion against him. Instead, as he proceeds with his claim, he will be limited to only claims against Dr. Weinberger, and will be unable to pursue any emotional damages against him.

Consequently, Durall v. Weinberger is not the first major case against Dr. Weinberger. In June 2013, 282 of his former patients received $55 million in a settlement, while earlier, 60 former patients split an $11 million settlement. As a result of Dr. Weinberger's actions, the medical malpractice surcharge for all Indiana medical providers is expected to rise beginning April 1, due to the fact that the Insurance Patient Compensation Fund had only $77 million remaining following the payouts.

Miller & Falkner is an Indiana and Kentucky plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. If you need an Indiana personal injury attorney, contact us today for a free consultation.

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