Clinton Branham v. State of Indiana (8/23/04 IndCtApp) [Criminal Law & Procedure]
Ratliff, Senior Judge
The following issue is presented in this appeal: whether a reservation of the right to appeal a pre-trial motion to discharge survives the Defendant’s guilty plea. * * *Terry Severs v. Marjorie Severs (8/23/04 IndCtApp) [Family Law]Defendant argues that a reservation of the right to appeal the trial court’s denial of his motion for discharge, contained within the plea agreement, and reflected in the judgment of conviction, preserves his right to raise the issue by way of direct appeal. Yet, within that same plea agreement, and reflected in the judgment of conviction, Defendant acknowledged that by accepting the plea he was waiving his right to appeal and to post-conviction relief. * * *
Defendant is not entitled to specific performance of the reservation of the right to appeal his pre-trial motion for discharge. The issue became moot upon his plea of guilty to the instant charges. Further, we do not address the issue of whether Defendant’s plea was induced by the alleged promise thereby rendering his plea involuntary because that issue is not before us. Last, even if Defendant were entitled to a direct appeal, he could only challenge issues relating to his sentencing. Affirmed.
BAKER, J., and VAIDIK, J., concur.
In 2002 husband had a heart attack. As a result he was receiving social security disability benefits. He also received VA disability benefits as a result of his exposure to Agent Orange in the Vietnam War. In its final order the court determined that husband’s veteran’s benefits were not marital assets “because the [husband] never made a financial payment or contribution from marital assets.” The court found, however, that husband’s social security disability payments were marital property and ordered that the wife be granted forty percent of all future social security disability payments due the husband. The determination that the social security disability payments were marital property is the sole issue presented in this appeal. We agree that they were not, and we therefore reverse and remand.Larry Roberts v. Dr. Peggy Sankey, et al. (8/23/04 IndCtApp) [Medical Malpractice; Tort; Statutory Construction]Neither party has addressed the potential application of Section 407(a) of the Social Security Act, 42 USCA §407(a), to the facts at bar. [Set out in ftnote. Because we are loath to decide cases on grounds not raised by the parties, and an adequate basis exists to decide the issue correctly under our prior decisions, we do not rely on §407 to reach our result.
While we find no prior Indiana cases considering social security disability payments, several decisions occur in the general area of disability payments which may constitute marital property. We briefly review them sequentially. * * *
From all this we conclude that during the marriage the husband’s social security taxes were simply taxes imposed on all covered employees by the federal government. They did not, in any proper sense, constitute a voluntary contribution by him of money to secure a benefit, that thereby depleted the marital pot. [See footnote]
It follows that the social security disability benefits received by the husband were not marital property and the court erred in awarding a portion of them to the wife. We, therefore, reverse and remand with instructions to the trial court to determine the marital estate and the division thereof with the exclusion of husband’s disability pensions.
SHARPNACK, J., and CRONE, J., concur.Ftnote: To the extent that language in Lawson v. Hayden, 786 N.E.2d 756 (Ind. Ct. App. 2003) (considering the Railroad Retirement Act) would support a different conclusion, we disapprove it.
Larry Roberts, personal representative of the estate of Nell Roberts, appeals the trial court’s grant of summary judgment in favor of Dr. Peggy Sankey. Because we find that Indiana Code § 16-21-2-7 does not create a private right of action, we conclude that the trial court properly granted summary judgment in favor of Dr. Sankey.Posted by Marcia Oddi at August 23, 2004 01:52 PMIn 1994, Nell died while she was a patient in the Vermillion County Hospital (“VCH”). An investigation by the Indiana State Police subsequently revealed that during the time period that Nell was a patient at VCH, the death rate in the four-bed Intensive Care Unit (“ICU”) had increased dramatically. Specifically, during a 22-month period, 147 patients died in the ICU at VCH. Orville Lynn Majors, a licensed practical nurse at VCH, was working when 121 of those patients died. Majors was eventually charged with and convicted of the murder of six of those patients. Majors v. State, 773 N.E.2d 231 (Ind. 2002). Nell was not one of the patients whom Majors was convicted of murdering. * * *
On appeal, Roberts neither disputes this authority nor asserts that Dr. Sankey and Nell had a physician-patient relationship. Instead, Roberts argues that Indiana Code § 16-21-2-7 creates a duty from Dr. Sankey to Nell even in the absence of a physician-patient relationship. * * *
Roberts asserts that because Dr. Sankey, who was a member of the medical staff at VCH, did not review the professional practices at VCH for the purpose of reducing morbidity and mortality, she breached the statutory duty; therefore, he can maintain an action against Dr. Sankey pursuant to the Indiana Medical Malpractice Act. Although Dr. Sankey may have had a duty under Indiana Code § 16-21-2-7, it does not necessarily follow that Roberts may enforce this duty in a private cause of action.
When a civil cause of action is premised upon violation of a duty imposed by statute, the initial question to be determined by the court is whether the statute in question confers a private right of action. * * *We cannot glean any apparent legislative intent to authorize a private right of action for the failure of a physician to follow any of the medical staff responsibilities set out in Indiana Code § 16-21-2-7. We are unwilling to go beyond the intent of the legislature in providing a private remedy under this statutory scheme.
Nevertheless, Roberts argues that Winona Memorial Hospital, Limited Partnership v. Kuester, 737 N.E.2d 824 (Ind. Ct. App. 2000), which is the only case that addresses Indiana Code § 16-21-2-7, creates a duty from Dr. Sankey to Nell. In effect, Roberts argues that Kuester already determined that Indiana Code § 16-21-2-7 confers a private right of action for breach of the statute’s duties. However, Roberts reads too much into Kuester. In Kuester, the court did not create a duty from a physician to a patient under Indiana Code § 16-21-2-7. Rather, the court looked to the statute to determine whether the legislature intended that negligent credentialing of a physician falls within the ambit of the Indiana Medical Malpractice Act. The court ultimately concluded that negligent credentialing of a physician is subject to the Medical Malpractice Act. Roberts is wrong that Kuester determined that Indiana Code § 16-21-2-7 creates a private right of action upon which a patient can sue a physician.Because the statutory scheme contains a comprehensive enforcement mechanism that addresses the State’s responsibility to license and regulate hospitals for the protection of hospital patients, we conclude that Indiana Code § 16-21-2-7 does not create a private right of action. Further, we did not find such a private right of action in Kuester. Accordingly, the trial court properly granted summary judgment in favor of Dr. Sankey. Affirmed.
SULLIVAN, J., and MAY, J., concur.