Eutsey v. Corizon Inc et al

Filing 99

ORDER DENYING 63 Motion for Default Judgment; GRANTING 65 Motion to Set Aside Default; DENYING 69 Motion to Dismiss for Lack of Jurisdiction. Signed by Senior Judge James T Moody on 2/11/2013. (lyf)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROBIN EUTSEY, as the Personal
Representative of the Estate of
Patrick Whetstone,
Plaintiff,
v.
CORIZON, INC., et al.,
Defendants.

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No. 3:11 CV 327

OPINION and ORDER
This matter is before the court on the motions of defendant Kathryn Ehlert to set
aside a clerk’s entry of default (DE # 65) and to dismiss the claims against her for lack of
jurisdiction (DE # 69).
I.

BACKGROUND
Plaintiff Robin Eutsey filed the present lawsuit on behalf of her deceased son,

Patrick Whetstone, claiming that Whetstone was murdered by his cell-mate, Luis
Silveria, while incarcerated at the Wabash Valley Correctional Center. (DE # 1 at 2.)
Plaintiff alleges that defendant Kathryn Ehlert was a physician employed by defendant
Corizon, Inc., a corporation under contract with the State of Indiana to provide medical
and mental health treatment to inmates in the state’s prison system. (Id.) Though
plaintiff does not allege what specific actions Dr. Ehlert took with respect to
Whetstone’s death, the complaint generally avers that Corizon’s mental health staff:
was negligent in addressing Silveria’s mental illnesses, which caused Silveria to kill

Whetstone (Count I); and violated a constitutional duty to protect Whetstone from
violence at the hands of Silveria and was deliberately indifferent to Whetstone’s safety
(Count II).
II.

MOTION TO SET ASIDE ENTRY OF DEFAULT
The docket reveals that Dr. Ehlert’s answer was due by May 5, 2012 (DE # 58),

but she did not file by that date. Plaintiff moved for and received a clerk’s entry of
default against Dr. Ehlert on May 9, 2012. (DE # 61.) That same day, Dr. Ehlert filed her
answer. (DE # 62.) On May 10, 2012, Dr. Ehlert moved to have the entry of default set
aside. (DE # 21.)
A party seeking to vacate an entry of default pursuant to FEDERAL RULE OF CIVIL
PROCEDURE 55(c) prior to the entry of final judgment must show: “(1) good cause for the
default; (2) quick action to correct it; and (3) a meritorious defense to the complaint.”
Cracco v. Vitran Exp., Inc., 559 F.3d 625, 630 (7th Cir. 2009). The Seventh Circuit Court of
Appeals has employed a “lenient standard” in the application of RULE 55(c) and has
articulated a policy of favoring trial on the merits over default judgment. Id. at 631; see
also C.K.S. Eng’rs Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir. 1984)
(collecting cases).1

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The three-element test for determining whether a court should grant a motion
to set aside a clerk’s entry of default under RULE 55(c) is the same as the test for
determining whether a court should grant a motion to set aside a default judgment
under RULE 60(b), except that the court’s review of the latter type of motion is more
limited and stringent. Jones v. Phipps, 39 F.3d 158, 162 (7th Cir. 1994). The court has cited
to jurisprudence related to both rules in this order but has employed a lenient approach
given that the present motion is made under RULE 55(c).
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In this case, plaintiff does not contest Dr. Ehlert’s assertion that her attempts to
determine whether she was a “qualified health care provider” in the State of Indiana,
which she believed determined whether she could be sued in this lawsuit, constituted
“good cause” for her delay. The parties also do not dispute that Dr. Ehlert’s four-day
delay was a relatively short one, and that she took “quick action” to correct the
problem. Accordingly, the only disputed element of the Cracco test is whether Dr. Ehlert
has articulated a meritorious defense to plaintiff’s claims.
A defendant’s “actual likelihood of prevailing on his defenses is not the measure
of whether he has a meritorious defense . . . . A defense is meritorious if it is good at law
so as to give the factfinder some determination to make.” Bieganek v. Taylor, 801 F.2d
879, 882 (7th Cir. 1986). In this case, plaintiff focuses on Dr. Ehlert’s assertion that this
court lacks jurisdiction over plaintiff’s negligence claim. However, the court need not
delve into that topic at this stage. It is sufficient that Dr. Ehlert has averred that she
plans to prove that she met the applicable standards of care and did not cause or
contribute to plaintiff’s alleged injuries and damages. (DE # 66 at 7.) If Dr. Ehlert
successfully convinces a jury of these facts at trial, she will ultimately succeed on both
the negligence claim as well as the constitutional claim. Thus, Dr. Ehlert’s articulation of
her defense is sufficient for purposes of satisfying the third and final element of the
RULE 55-derived test for setting aside an entry of default. See Bieganek, 801 F.2d at 882.
Accordingly, the motion to set aside default is granted. (DE # 63.)

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III.

MOTION TO DISMISS FOR LACK OF JURISDICTION
Dr. Ehlert asserts that this court lacks subject-matter jurisdiction because

plaintiff’s state law claim constitutes medical malpractice, meaning that under the
Indiana Medical Malpractice Act (the “Act”) plaintiff was required to submit a
proposed complaint to a state medical review board and obtain an opinion from a
medical review panel prior to filing suit. Plaintiff argues that its claim is one of simple
negligence, not medical malpractice.
The Act provides: “an action against a health care provider may not be
commenced in a court in Indiana before: (1) the claimant’s proposed complaint has been
presented to a medical review panel . . . ; and (2) an opinion is given by the panel.” IND.
CODE § 34–18–8–4. It is undisputed that Dr. Ehlert was a qualified health care provider
under the Act at the time relevant to this action. Further, it is undisputed that at the
time this action was commenced, a medical review panel had not yet been formed to
review plaintiff’s claim, and no panel opinion had been rendered. Thus, if the plaintiff’s
state law claim falls within the purview of the Act, this court currently lacks jurisdiction
to hear it, and it must be dismissed.
The Act defines malpractice as follows:
“Malpractice” means a tort or breach of contract based on health care or
professional services that were provided, or that should have been provided,
by a health care provider, to a patient.
IND. CODE § 34–18–2–18. Thus, medical malpractice is the breach of the duty owed by a
healthcare provider to its patient. Madison Ctr., Inc., v. R.R.K., et al., 853 N.E.2d 1286,

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1288 (Ind. Ct. App. 2007). The duty arises from the contractual relationship entered into
between the provider and the patient. Id. The Indiana Supreme Court has defined the
duty as an implied contract that the provider possesses the ordinary knowledge and
skill of its profession and will utilize such attributes in a reasonable, diligent, and
careful manner in undertaking the care and treatment of its patient. Webb v. Jarvis, 575
N.E.2d 992, 996 (Ind. 1991).
The fact that the alleged misconduct occurs in a facility that provides healthcare
does not, by itself, make the claim one for malpractice. Doe ex rel. Roe v. Madison Ctr.
Hosp., 652 N.E.2d 101, 104 (Ind. Ct. App. 1995). Nor does the fact that the injured party
was a patient at the facility or of the provider, create such a claim. Collins v. Thakkar, 552
N.E.2d 507, 511 (Ind. Ct. App. 1990). Instead, the test is whether the claim is based on
the provider’s behavior or practices while “acting in his professional capacity as a
provider of medical services.” Id. at 510.
In Madison Center, the Court of Appeals of Indiana examined a case similar to the
case at hand. In that case, an in-patient at a psychiatric hospital sued the hospital for
injuries inflicted by another patient. The hospital argued that the plaintiff’s claim
sounded in medical malpractice, and therefore the plaintiff was required to first submit
the claim to a state medical review board. In analyzing the claim, the Madison Center
court considered Webb, in which the Indiana Supreme Court held that a plaintiff’s claim
against a doctor who had prescribed medication to the plaintiff’s assailant sounded in
negligence. 575 N.E.2d at 995.

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Relying on Webb and other Indiana appellate court precedent, the Madison Center
court held that the hospital’s failure to properly medicate, restrain, or confine the
offending resident may have constituted malpractice as to that resident, but not to third
parties with whom the resident may have come into contact, such as the plaintiff. Id. at
1289. The court reasoned that the plaintiff’s injuries “did not arise from [the plaintiff’s]
medical treatment, but from his presence on the premises.” Id.
Similarly, in Midtown Community Mental Health Center v. Estate of Gahl, 540 N.E.2d
1259 (Ind. Ct. App. 1989), the Court of Appeals of Indiana held that a claim brought by
the estate of a probation officer killed by a patient of the mental health facility was not
subject to the Act’s requirements. The Midtown court stated that, “a breach of [a] duty
could constitute malpractice as to [the assailant], but not as to third parties with whom
[the assailant] might come into contact.” Id. at 1262. The court further reasoned that
“[t]he purpose of the Act is unrelated to the sort of liability a health care provider risks
when a patient commits a criminal act against a third party.” Id.
The court finds the reasoning of the Court of Appeals of Indiana in Madison
Center and Midtown persuasive. Dr. Ehlert’s alleged failure to properly medicate,
restrain, or confine Silveria may have constituted malpractice as to Silveria, but not to
third parties such as Whetstone. Any duty Dr. Ehlert owed to Whetstone to prevent his
being subject to attack by one of the other inmates did not arise from Whetstone’s
medical treatment, but from Whetstone’s presence on the premises. Accordingly,

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plaintiff’s state law claim is not subject to the provisions of the Act, this court does not
lack jurisdiction to hear the claim, and Dr. Ehlert’s motion to dismiss is denied.
Dr. Ehlert points out that the Court of Appeals of Indiana once reached a
different conclusion on whether claims alleging third-party injuries should be classified
as malpractice claims under the Act in Ogle v. St. John’s Hickey Memorial Hospital, 473
N.E.2d 1055 (Ind. Ct. App. 1985). However, Ogle predated the Indiana Supreme Court’s
decision in Webb, and a more recent Indiana Court of Appeals case on the subject,
Madison Center, chose to be guided by the Indiana Supreme Court’s decision in Webb
rather than Ogle, an isolated decision of a lower Indiana court. This court similarly
declines to follow Ogle.
IV.

CONCLUSION
For the foregoing reasons, Dr. Ehlert’s motion to set aside an entry of default is

GRANTED (DE # 65), meaning that plaintiff’s motion for default judgment must be
DENIED (DE # 63). However, Dr. Ehlert’s motion to dismiss for lack of jurisdiction is
DENIED (DE # 69).
SO ORDERED.
Date: February 11, 2013
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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