Court of Appeals of Indiana | Memorandum Decision 19A-MI-664 | October 16, 2019 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Eric A Frey

Frey Law Firm

Terre Haute, Indiana

John P. Nichols

Anderson & Nichols

Terre Haute, Indiana

ATTORNEY FOR APPELLEES 

ANONYMOUS M.D. AND 

ANONYMOUS LONG-TERM 

HOSPITAL

Robert C. Brandt

Riley Bennett Egloff LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE 

ANONYMOUS SKILLED NURSING 

AND REHABILITATION FACILITY

Melinda R. Shapiro

Laura C. Bonadies

SmithAmundensen LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE 

ANONYMOUS HOSPITAL

Edna M. Koch 

Jennifer A. Padgett

Zeigler Cohen & Koch 

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Memorandum Decision 19A-MI-664 | October 16, 2019 Page 2 of 16

John Shotts II,

Appellant-Plaintiff, 

v. 

Anonymous Skilled Nursing and 

Rehabilitation Facility, 

Anonymous Hospital, 

Anonymous M.D., Anonymous 

Long-Term Hospital, 

Appellees-Defendants 

October 16, 2019

Court of Appeals Case No.

19A-MI-664 

Appeal from the Marion Superior 

Court

The Honorable Marc Rothenberg, 

Judge

Trial Court Cause No.

49D07-1709-MI-36931 

May, Judge.

[1] John Shotts II appeals the trial court’s preliminary determination of law 

dismissing his medical malpractice claims with prejudice. He raises one issue 

on appeal, which we restate as whether the trial court abused its discretion in 

dismissing Schotts claims for failure to timely submit evidence to the medical 

review panel. We affirm. 

Facts and Procedural History

[2] Shotts was admitted to Anonymous Hospital in April 2015 and alleges the 

hospital negligently treated him. He was transferred from the hospital to 
Court of Appeals of Indiana | Memorandum Decision 19A-MI-664 | October 16, 2019 Page 3 of 16

Anonymous Skilled Nursing and Rehabilitation Facility, where he alleges 

Anonymous M.D. negligently prescribed medication for him. He was 

subsequently moved to Anonymous Long-Term Hospital, where he alleges the 

staff continued to give him the negligently prescribed medication. Shotts asserts

that, as a result, he suffers from permanent foot drop1 and kidney problems.

[3] On March 28, 2016, Shotts filed a proposed complaint with the Indiana 

Department of Insurance (“IDOI”) against Anonymous Skilled Nursing and 

Rehabilitation Facility, Anonymous Hospital, Anonymous M.D., and 

Anonymous Long-Term Hospital (collectively, “Defendants”). On April 5, 

2016, the IDOI sent a letter to Shotts’ attorney notifying him that the 

Defendants were qualified health care providers under the Medical Malpractice 

Act (“Act”), Indiana Code Article 34-18, such that Shotts’ claims against the 

Defendants were subject to the terms and procedures of the Act and eligible for 

compensation from the Patient’s Compensation Fund.

[4] On September 29, 2017, Anonymous Skilled Nursing and Rehabilitation 

Facility filed a Petition for Preliminary Determination/Motion to Compel on 

the basis that Shotts had failed to respond to discovery or to the medical review 

panel chairman’s request for Shotts’ panel nomination or request for a striking 

panel. After Shotts responded to discovery and requested a striking panel, 

1 For clarity, we note “foot drop” is the inability to lift the front part of the foot, which causes the toes to drag 

along the ground while walking. Foot Drop: Causes, Symptoms, and Treatment, WebMD,

https://www.webmd.com/a-to-z-guides/foot-drop-causes-symptoms-treatments (last visited September 24, 

2019).
Court of Appeals of Indiana | Memorandum Decision 19A-MI-664 | October 16, 2019 Page 4 of 16

Anonymous Skilled Nursing and Rehabilitation Facility withdrew its motion to 

compel.

[5] On February 23, 2018, Richard Kraege, the medical review panel chairman,

sent via e-mail a letter notifying counsel of record and the IDOI that the 

medical review panel would be considered formed as of that date and furnishing 

a schedule for the submission of evidence. Pursuant to Indiana Code Section 

34-18-10-13, the medical review panel had until August 22, 2018, to give its 

expert opinion.

[6] Shotts did not tender his evidentiary submission to the medical review panel by 

the deadline set forth in Kraege’s letter of February 23, 2018. On May 16, 

2018, Kraege sent a letter to Shotts’ counsel via e-mail inquiring when Shotts’ 

submission would be forthcoming. Kraege sent additional letters to Shotts’ 

counsel via e-mail on June 14, 2018; July 10, 2018; and August 23, 2018.

Shotts’ counsel did not respond to these e-mails until August 28, 2018, when

Angela Bullock, an attorney at the firm representing Shotts, e-mailed Kraege. 

Bullock acknowledged receipt of the letter of August 23, 2018, and stated: “We 

have had a change in staff and unfortunately that change has put me a little 

behind in getting the submission materials to you. I hope to get the materials to 

you within the next couple weeks and will keep you advised if that changes.” 

(Appellant App. Vol. II at 41.) On September 13, 2018, Bullock sent another email to Kraege inquiring about the format in which to send the submission. 

Bullock did not copy opposing counsel on either of these e-mails to Kraege. 
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Thus, opposing counsel was unaware of these communications and could not 

respond to or opine on them.

[7] On September 20, 2018, an attorney for Anonymous Long-Term Hospital and 

Anonymous M.D. e-mailed Kraege and Rosie Perez, Kraege’s Legal 

Administrator, seeking to confirm Shotts had not tendered his submission or 

requested additional time. In response, Perez forwarded the correspondence 

between Bullock and Kraege to all counsel of record because counsel for 

Defendants had not been copied on the original e-mails. Perez noted that 

Bullock intended to tender the Plaintiff’s submission on Monday, September 

24, 2018. Bullock replied to everyone included on Perez’s e-mail and said she 

was planning to mail the submission that night. Bullock tendered the 

submission on September 20, 2018.

[8] Also, on September 20, 2018, in the trial court, Anonymous Long-Term

Hospital and Anonymous M.D. moved for a Preliminary Determination of 

Law (“PDL”) seeking dismissal of Shotts’ case pending before the IDOI. All

the other defendants later joined the motion. Shotts responded to the PDL, 

Anonymous M.D. and Anonymous Long-Term Hospital filed a reply, and 

Shotts filed a supplemental affidavit in response.

[9] The Court held a hearing on January 17, 2019. At the hearing, Shotts’ counsel 

acknowledged his firm “dropped the ball” and said: “But we had a change in 

staff and once we realized we dropped the ball, we got on it right away. The 

only thing we didn’t do that we should have done is copy counsel when we 
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communicated with Mr. Kraege.” (Tr. Vol. II at 20.)2

 He also noted at the 

hearing that “from a practical standpoint, these cases are almost never decided 

in 180 days.” (Id. at 20-21.) When the trial court asked Shotts’ counsel why he 

should not dismiss Shotts’ claims, Shotts’ counsel replied:

I guess the good cause would be that as soon as we realized we 

had a problem, we attempted to remedy the situation and we did 

communicate with Mr. Kraege and he voiced no objection to the 

extension of time. So I guess in my opinion, that’s the good 

cause. 

(Id. at 22.)3

 On February 22, 2019, the trial court issued an order dismissing 

Shotts’ claims with prejudice. The trial court found Shotts failed to show good 

cause for the delay in his submission. 

Discussion and Decision

[10] Whether to sanction a party for failure to timely submit evidence to the medical 

review panel in accordance with the Act “is a question of law and fact that may 

be preliminarily determined by the trial court in the exercise of its discretion 

after a hearing.” Mooney v. Anonymous M.D. 4, 991 N.E.2d 565, 575 (Ind. Ct. 

2 While not explicitly stated in the record, we infer from briefing that the “change in staff” is the departure of 

a paralegal from the office of Shotts’ legal counsel.

3 Shotts’ counsel also argued at the trial court hearing that the issue was moot because, while late, Shotts did 

eventually file his submission with the medical review panel. This argument is not presented on appeal, and 

we consider it abandoned. Lake Cty. v. State ex rel. Manich, 631 N.E.2d 529, 537 n.4 (Ind. Ct. App. 1994) 

(holding statutory argument raised before the trial court was abandoned on appeal when party focused on

other arguments in its appellate brief), reh’g denied.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-664 | October 16, 2019 Page 7 of 16

App. 2013), reh’g denied, trans. denied. We review such decisions for an abuse of 

discretion. Id. at 576. “An abuse of discretion exists when the trial court’s 

decision is clearly against the logic and effect of the facts and circumstances 

before it or the reasonable, probable, and actual deductions to be drawn 

therefrom.” Id. But, “[m]atters of statutory interpretation present a pure 

question of law to which we apply a de novo standard of review.” Tyms-Bey v. 

State, 69 N.E.3d 488, 489 (Ind. Ct. App. 2017), reh’g denied, trans. denied.

[11] Initially, we note it is the plaintiff’s responsibility to prosecute his case. See Ind. 

Trial Rule 41(E) (directing court to dismiss case after lengthy period of 

inactivity if plaintiff fails to show sufficient cause for the delay). In support 

thereof, the Act contains several statutes designed to encourage prompt 

disposition of cases. For example, Indiana Code Section 34-18-10-3(c) directs 

the chairman of the medical review panel to “expedite the panel’s review of the 

proposed complaint” and gives the chairman authority to “establish a 

reasonable schedule for submission of evidence to the medical review panel but 

must allow sufficient time for the parties to make full and adequate presentation 

of related facts and authorities.” Furthermore, “[t]he panel shall give its expert 

opinion within one hundred eighty (180) days after the selection of the last 

member of the initial panel.” Ind. Code § 34-18-10-13. If the panel does not 

render an expert opinion within 180-days, then the panel shall submit a report 

to the commissioner of the IDOI explaining the reasons for the delay. Id. 

Indiana Code Section 34-18-10-14 states that a “party, attorney, or panelist who 

fails to act as required by this chapter without good cause shown is subject to 
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mandate or appropriate sanctions upon application to the court designated in 

the proposed complaint as having jurisdiction.” 

[12] Furthermore, Indiana Code Section 34-18-0.5-1, which became effective on 

July 1, 2017, states:

The general assembly emphasizes, to the parties, the courts, and 

the medical review panels, that adhering to the timelines set forth 

in this article is of extreme importance in ensuring the fairness of 

the medical malpractice act. Absent a mutual written agreement 

between the parties for a continuance, all parties subject to this 

article, and all persons charged with implementing this article, 

including courts and medical review panels, shall carefully follow 

the timelines in this article. No party may be dilatory in the 

selection of the panel, the exchange of discoverable evidence, or 

in any other matter necessary to bring a case to finality, and the 

courts and medical review panels shall enforce the timelines set 

forth in this article so as to carry out the intent of the general 

assembly.

Shotts argues that he demonstrated good cause for his late submission and that 

dismissal was too harsh a sanction for the trial court to impose. Defendants 

rely on the above statutes to argue that Shotts’ claims should be dismissed 

because the parties never executed a written mutual agreement to extend the 

deadlines and Shotts failed to establish good cause for his failure to adhere to 

the deadlines established by the Act and as set by Kraege.

[13] As our Indiana Supreme Court has observed, “Indiana law has long 

incorporated a strong preference for deciding cases on their merits rather than 

disposing of them via procedural technicalities.” Miller v. Dobbs, 991 N.E.2d 
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562, 565 (Ind. 2013). Nevertheless, we must determine and abide by the 

legislature’s intent in interpreting a statute. Ind. Alcohol & Tobacco Comm’n v. 

Spirited Sales, LLC, 79 N.E.3d 371, 376 (Ind. 2017). If a statute’s language is 

clear and unambiguous, we “will not apply any rules of construction other than 

to require that words and phrases be given their plain, ordinary, and usual 

meanings.” Dykstra v. City of Hammond, 985 N.E.2d 1105, 1107 (Ind. Ct. App. 

2013), trans. denied. We interpret the statute such that every word is “given 

effect and meaning, and no part is to be held meaningless if it can be reconciled 

with the rest of the statute.” Guzman v. AAA Auto Rental, 654 N.E.2d 838, 840 

(Ind. Ct. App. 1995). 

[14] Indiana Code Section 34-18-0.5-1 explicitly directs courts, parties, and medical 

review panels to follow the timelines provided in the Act. As we recently

explained, “[i]t is apparent, therefore, that the general rule is that [the Act’s] 

timelines—including submission schedules created by the medical review 

panel—must be carefully and strictly followed.” Quillen v. Anonymous Hosp., 

121 N.E.3d 581, 587 (Ind. Ct. App. 2019) (holding trial court did not err in 

dismissing proposed medical malpractice complaint when plaintiff failed to 

comply with panel’s submission schedule, object to the schedule, or request an 

extension of time and plaintiff’s counsel did not give a reason for the 

delinquency until his response to defendants’ motion to dismiss), trans. denied.

It is not disputed that Shotts failed to make his submission before the deadline 

set by the chair of the medical review panel. Further, the parties did not enter 

into a mutual written agreement to continue or extend the 180-day deadline for 
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the medical review panel to render its expert opinion. Nor did Shotts contact 

the medical review panel chairman before the 180-day deadline expired.

[15] Therefore, pursuant to Indiana Code Section 34-18-10-14, we must determine 

whether the trial court abused its discretion in finding Shotts failed to show 

good cause for his failure to comply with the Act’s timelines and sanctioning 

him accordingly. Shotts argues his case is like Mooney v. Anonymous M.D. 4. In 

Mooney, the plaintiff filed a proposed medical malpractice complaint with 

IDOI. 991 N.E.2d at 568. The defendants had difficulties getting written 

discovery responses from the plaintiff and the plaintiff had trouble setting up 

depositions of the defendants. Id. at 570-75. A medical review panel was 

formed, but plaintiff failed to make a submission for more than 180 days after 

formation of the panel. Id. The defendants moved to dismiss the plaintiff’s 

proposed complaint, in part, on the basis that plaintiff failed to comply with the 

Act. Id. at 575. The trial court granted the defendants’ motion. Id. We noted 

that the Act’s 180-day deadline is not a statute of limitations and failure of the 

panel to produce its expert opinion in that time is not automatically grounds for 

sanctions. Id. at 578. We reversed the trial court because plaintiff’s counsel did 

not sit idly by and do nothing. Id. at 579. Plaintiff’s counsel kept the chair of 

the medical review panel informed that discovery was ongoing, sent multiple 

letters attempting to set dates for depositions, and defendants’ counsel stated in 

writing that she was amendable to an extension of the 180-day deadline “if 

necessary.” Id. at 578. 
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[16] However, we find the case at bar distinguishable from Mooney. Notably, 

Mooney was decided before Indiana Code Section 34-18-0.5-1 became effective. 

Additionally, in Mooney, counsel for the parties communicated with each other 

and the chairman of the medical review panel regarding the completion of 

discovery. Shotts wholly failed to communicate with defense counsel or the 

chairman of the medical review panel until after expiration of the 180-day 

deadline. And, when Shotts communicated with the chairman of the medical 

review panel, he failed to copy defense counsel on the correspondence and he 

communicated through an attorney who had not entered her appearance in the 

case.

[17] Shotts also analogizes his case to Beemer v. Elsking, 677 N.E.2d 1117 (Ind. Ct. 

App. 1997), reh’g denied, trans. denied, in arguing that a staffing change 

constitutes good cause for his late submission and that Krague implicitly 

granted Shotts’ an extension of time. In Beemer, we held the trial court abused 

its discretion in dismissing the plaintiff’s complaint for failure to make his 

submission to the medical review panel when plaintiff made his submission five 

days after the 180-day deadline and, in the months leading up to the deadline,

plaintiff’s counsel’s caseload increased as the result of two associates leaving his 

firm, he tried a two-week reckless homicide jury trial, tried another two-day 

jury trial, participated in the mediation of six cases, attended four continuing 

legal education seminars, and took a vacation around the holiday season. Id. at 

1119-21. We also noted the chair of the medical review panel implicitly granted 

the plaintiff in Beemer an extension of time when the chair of the medical review 
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panel sent a letter acknowledging a phone conversation in which plaintiff’s 

counsel stated the submission would be late and evidence was presented that 

plaintiff’s counsel provided the submission as soon as practicable. Id. at 1120. 

[18] However, Shotts’ argument that Krague implicitly granted him an extension of 

time is not well founded. Like Mooney, Beemer was decided before passage of 

Indiana Code Section 34-18-0.5-1. We presume the legislature is aware of 

existing law when enacting legislation. Gallagher v. Marion Cty. Victim Advocate 

Program, Inc., 401 N.E.2d 1362, 1365 (Ind. Ct. App. 1980). The plain language 

of the statute allows extension of the 180-day deadline only upon mutual 

written agreement of the parties. Ind. Code § 34-18-0.5-1 (“Absent a mutual 

written agreement between the parties for a continuance, all parties subject to this 

article, and all persons charged with implementing this article, including courts 

and medical review panels, shall carefully follow the timelines in this article[.]”

(emphases added)). A mutual written agreement extending the 180-day 

deadline was not executed in this case. 

[19] Nevertheless, Shotts’ case differs from Beemer in other ways. Shotts contends 

his late submission resulted from a staffing change, but he does not specify 

exactly how the staffing change impacted law firm operations so significantly 

that he could not comply with the original submission deadline, contact the 

chair of the medical review panel, request an extension of time before 

expiration of the 180-day deadline, or respond to Kraege’s first three letters 
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asking about the status of Shotts’ submission.4

 Shotts’ counsel also fails to 

specify what, if any, changes he made to ensure that similar missteps do not 

happen in the future.

[20] Shotts argues the defendants were not prejudiced by his late submission. He 

notes that while a major health insurance provider initially deemed defendant 

Anonymous M.D. unable to be considered “in-network” due to too many 

outstanding claims, that decision was eventually overturned, and the initial 

decision was made before expiration of the 180-day deadline. (Appellant Br. at 

18.) Defendants maintain that having long standing open medical malpractice 

claims is inherently prejudicial. Nonetheless, whether (or to what degree)

Defendants were prejudiced is not dispositive. See Reck v. Knight, 993 N.E.2d 

627, 634 (Ind. Ct. App. 2013) (trial court may consider the degree of prejudice 

to the defendants in evaluating the appropriate sanction, but party requesting 

sanctions is not required to show prejudice), trans. denied. 

[21] While Shotts argues a sanction short of dismissal would be more suitable, we 

have previously held that dismissal is an appropriate sanction for failure to 

timely make a submission to the medical review panel. See, e.g., Rambo v. 

Begley, 796 N.E.2d 314, 322 (Ind. Ct. App. 2003) (trial court did not abuse its 

discretion in dismissing plaintiff’s complaint for failure to timely submit 

4 “It is the duty of an attorney to regularly check the court records and monitor the progress of pending 

cases.” Patton Elec. Co., Inc. v. Gilbert, 459 N.E.2d 1192, 1194 (Ind. Ct. App. 1984); see also Ind. Professional 

Conduct Rule 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client”). 
Court of Appeals of Indiana | Memorandum Decision 19A-MI-664 | October 16, 2019 Page 14 of 16

evidence to the medical review panel when plaintiff failed to diligently pursue 

discovery or request more time to make his submission); Galindo v. Christensen, 

569 N.E.2d 702, 705 (Ind. Ct. App. 1991) (statutes directing the chair of the 

medical review panel to set up a schedule for the submission of evidence and 

giving the panel 180-days to render an expert opinion imply a “corresponding 

duty upon the parties to comply with the schedule, if one is set by the chair, and 

upon the parties and the panel to comply with the 180 day limit; an available 

remedy for any breach is court-ordered sanctions”). 

[22] Most recently, in Reck, the plaintiff filed a proposed complaint with the IDOI. 

Id. at 629. The chairman of the medical review panel notified the parties when 

the panel was formed and set an evidence submission schedule. Id. The 

plaintiff did not file her evidentiary submission by the deadline and did not 

respond to a letter from the chair of the medical review panel asking when her 

submission would be forthcoming. Id. After the 180-day deadline for the panel 

to render an expert opinion had passed without plaintiff making her 

submission, the defendants moved for a PDL seeking dismissal of plaintiff’s 

complaint for failure to timely file her submission with the medical review 

panel. Id. We affirmed the trial court’s dismissal of plaintiff’s complaint on the 

basis that plaintiff failed to demonstrate good cause for her failure to timely 

submit her evidence to the medical review panel. Id. at 634-35.

[23] Shotts attempts to distinguish his case from Reck. He notes the plaintiff in Reck

filed her submission two days before the hearing on a motion to dismiss and her 

only explanation for the delay in submission was that the records were 
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voluminous. 993 N.E.2d at 629-30. Shotts mailed his submission on the day 

Anonymous Long-Term Hospital and Anonymous M.D. moved to dismiss and 

blames the late submission on a change of staff. Shotts also points out that, in 

Galindo, we remanded the matter back to the trial court because the plaintiff 

was not afforded a hearing. 569 N.E.2d at 706. However, this argument

highlighting the factual differences between Shotts’ case and Reck is 

unpersuasive and the factual similarities between Shotts and the plaintiffs in 

Reck and Quillen are striking. All three failed to make their submission to the 

medical review panel on time, to obtain an extension of time to make such a 

submission, to respond when the panel chairman initially contacted them 

regarding the late submission, and to demonstrate to the trial court good cause 

for the late submission. Unlike the plaintiff in Galindo, Shotts was afforded a 

hearing and a chance to demonstrate to the trial court good cause for the 

delayed submission. 

[24] Shotts was neglectful throughout prosecution of this action. Before the medical 

review panel was even formed, Shotts failed to respond to discovery or the 

panel chairman’s request for Shotts’ nomination to the medical review panel. 

Shotts acted only after one of the defendants filed a motion to compel. Shotts 

did not meet the initial deadline for his submission. Shotts did not reply to the 

first three letters from the chairman asking about the status of Shotts’ 

submission, and he responded five days after the fourth letter from the 

chairman. Shotts’ response was after the deadline established by Indiana Code 

Section 34-18-10-13 for the medical review panel to render its expert opinion. 
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Shotts did not copy opposing counsel or ask for an extension of time. Rather, 

Shotts’ counsel simply indicated that there was a staffing change and she hoped 

to file plaintiff’s submission soon. Given these facts and circumstances, the 

sanction of dismissal was well within the trial court’s discretion. See Jones v. 

Wasserman, 656 N.E.2d 1195, 1197 (Ind. Ct. App. 1995) (holding trial court did 

not abuse discretion in dismissing action after plaintiff failed to submit evidence 

to medical review panel prior to deadline for submission or seek an extension of 

time to do so), trans. denied.

Conclusion

[25] We cannot say the trial court abused its discretion in dismissing Shotts’ 

complaint. The sanction of dismissal was not clearly against the logic and 

effect of the facts and circumstances before the trial court given Shotts’ lack of 

communication with the panel chair and opposing counsel, and given Shotts’

presentation of scant evidence to demonstrate how a staffing change at 

counsel’s office caused such a lengthy delay in his submission of evidence.

Therefore, we affirm. 

[26] Affirmed.

Vaidik, CJ., and Bailey, J., concur.