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Verhalen v. Forum Health Management11/3/2000
Toyia Alexander Verhalen ("Verhalen"), individually and as natural tutrix of her minor children, appeals the trial court's judgment granting an exception of no cause of action filed by The Medical Protective Company of Fort Wayne, Indiana ("MPC"). For the reasons stated herein, we affirm.
Facts
On December 12, 1988, Verhalen's husband, David Verhalen ("David"), was admitted by Dr. Fred M. Roberson ("Dr. Roberson") to Riverside Community Hospital ("Riverside") for treatment of varicella pneumonia. After being admitted, David's condition deteriorated, and on December 13th he was transferred to Riverside's intensive care unit where he was placed on a ventilator to assist his breathing. On the night of December 17th, David, who was unrestrained, disconnected the ventilator tube, setting off the nurse's alarm. The nursing staff rushed to David's bed and attempted to intubate him and reconnect his ventilator. The nurses also summoned Dr. Spyrie Mays ("Dr. Mays"), who also attempted to intubate David, but to no avail. At 12:49 a.m. on December 18, 1988, David was pronounced dead.
In December 1989, Verhalen filed a timely Petition for Damages against Riverside for the wrongful death of David contending that its employees were negligent in treating him and that their negligence caused his death. Also in December 1989, Verhalen filed a request for a Medical Review Panel against Dr. Mays, who was insured by MPC. The Medical Review Panel did not convene until February 1995, and according to Verhalen, stated that Dr. Roberson's negligence was the primary cause of David's death. Verhalen claims this was the first information she had that Dr. Roberson's negligence contributed to her husband's death. In May 1995, Verhalen filed a First Supplemental and Amended Petition naming as additional defendants, Dr. Mays, Dr. Roberson, and Southwest Medical Center. In her Second Supplemental and Amended Petition, filed in May 1998, Verhalen named as an additional defendant Paradigm Insurance Company, Riverside's insurer. Finally, in Verhalen's Third Supplemental and Amended Petition, filed on June 23, 1998, almost ten years after the death of David, she named MPC, who provided medical malpractice insurance for Dr. Roberson at the time of the incident at issue in this case.
MPC brought its Motion for Summary Judgment and/or Peremptory Exceptions of Prescription and No Cause of Action in the trial court, raising primarily the argument that its "claims made" policy of insurance for Dr. Roberson did not provide coverage in this instance and it was, therefore, entitled to judgment as a matter of law. The trial court granted MPC's exception of no cause of action, finding MPC did not provide coverage for any acts of medical malpractice that may have been committed by Dr. Roberson because MPC did not receive notice of the claim until May 1995, some four years after the claims made policy coverage ended. This appeal ensued.
Discussion
In her first assignment of error, Verhalen argues that the trial court erred in granting MPC's exception of no cause of action because, in considering such an exception, a court must accept the facts alleged in the petition as true. Related to that assignment of error, which she brings only in the alternative, is Verhalen's third assignment of error, wherein she urges that the trial court erred in its finding that there was no coverage under the MPC policy issued to Dr. Roberson. Although Verhalen's first assignment of error would appear to be legally correct, as the following reasons will show, neither assignment has merit.
MPC brought before the trial court its Motion for Summary Judgment and/or Exceptions of Prescription and
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