On May 2, 2022, Marietta Gelanie Jones (“Jones”) was admitted to Baptist Health Paducah (“BHP”) for symptoms associated with liver disease. During her stay, Jones fell while walking to the bathroom, accompanied by a single BHP caregiver. Her medical condition left her in an altered mental state, and she had no recollection of the fall. The following day, caregivers discovered that Jones had suffered a fractured hip, and she underwent surgery on May 4, 2022, before being discharged roughly a week later. Jones sued BHP, alleging negligence in failing to prevent or appropriately respond to her fall.

During discovery, Jones requested “any and all incident reports” relating to her fall. BHP identified two responsive documents, an eight-page incident report (also referred to in the record as a “SAFE Report”) and a forty-page root cause analysis, but declined to produce either. BHP asserted that both documents were protected by the federal patient safety work product privilege found in the Patient Safety and Quality Improvement Act (“PSQIA”), 42 U.S.C. § 299b-22(a), and by Kentucky’s peer review privilege, KRS 311.377(2). Broadly speaking, the federal privilege exempts from discovery materials related to a covered entity’s retrospective review and reporting of medical errors to a patient safety organization, while the state privilege exempts materials related to a covered entity’s retrospective review of the professional conduct of its health care providers.

After conducting an in camera review, the McCracken Circuit Court concluded that BHP was mandated by law to prepare both documents. It ordered production of the entire incident report and ordered production of the root cause analysis with redactions permitted for portions that would not normally appear in state-mandated reports. The trial court reasoned that Jones’s medical records contained no information about where or how she fell, her resulting injuries or surgery, or the treatment she was provided afterward, and that she should be able to access the factual portions of these documents to balance BHP’s privilege interests against her need for the information. BHP petitioned the Court of Appeals for a writ of prohibition. The Court of Appeals held that the incident report was not privileged, but disagreed with the trial court as to the root cause analysis, concluding that the mere absence of fall-related information in Jones’s medical records did not override the federal privilege protecting that document. Both sides sought review in the Supreme Court, with BHP challenging the ordered production of the incident report and Jones challenging the protection afforded the root cause analysis.

Because a discovery order requiring production of assertedly privileged documents presents the kind of “certain special case” in which an appellate remedy is inadequate, the Supreme Court agreed that a writ was an available form of relief, noting that privileged information “cannot be recalled once it has been disclosed.” Turning to the merits, the Court first examined the federal privilege. The PSQIA defines protected “patient safety work product” to include data, reports, records, memoranda, analyses (expressly including “root cause analyses”), or written or oral statements that are assembled or developed by a provider for reporting to a patient safety organization, are in fact reported to such an organization, and could result in improved patient safety, health care quality, or health care outcomes. 42 U.S.C. § 299b-21(7)(A). Relying on the affidavit of BHP’s Director of Patient Safety, the Court found that the root cause analysis satisfied each element: it was an analysis of the type the statute specifically identifies, it was prepared for and reported to a patient safety organization, and it contained detailed analysis of care processes, operational suggestions for process improvements, and key takeaways aimed at improving patient safety.

Critically, the Court held that the federal privilege protects such a document in its entirety, with no exception carved out for factual portions, even upon a showing of need for use in litigation. The statute contemplates that the privilege will attach to whole “reports, records, memoranda, [and] analyses,” and it contains no language allowing a party to extract factual content from an otherwise protected document. The trial court therefore erred in ordering disclosure of the factual portions of the root cause analysis. The Court took care to note, however, that a party is not left without recourse: the underlying facts of an incident remain fully discoverable through other avenues, including requests for production of other documents, interrogatories, and depositions.

The incident report received different treatment. The PSQIA expressly excludes from its protection “information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.” 42 U.S.C. § 299b-21(7)(B)(ii). Consistent with post-enactment guidance from the Department of Health and Human Services, the Court explained that documents a provider is independently obligated to create to satisfy external regulatory obligations do not become privileged simply because they are also submitted to a patient safety organization. Here, Kentucky regulation 902 KAR 20:016 Section 3(4)(g) requires hospitals to maintain effective procedures for tracking incidents at their facilities, and BHP’s own falls policy required nursing staff to complete a SAFE Report before the end of the shift in which a fall occurred. Because the incident report was generated on the day of Jones’s fall pursuant to this external regulatory obligation, rather than as part of BHP’s patient safety evaluation system, it fell outside the federal privilege. The Court rejected BHP’s argument that a fall is not the kind of “incident” contemplated by the regulation, observing that the regulation’s use of “including” signals a non-exhaustive list.

Finally, the Court held that Kentucky’s peer review privilege under KRS 311.377 did not shield the Incident Report either. That privilege applies to records created by an entity engaged in the retrospective review and evaluation of the competency of health care providers. The record undercut BHP’s characterization of the Incident Report as such a review: BHP’s own privilege log described the document as one that documented “the circumstances of the alleged incident,” it was generated the same day as the fall, and, by BHP’s account, it “triggered” the root cause analysis rather than forming part of it. In other words, the incident report was an immediate, post-event description of the relevant facts, not the substantive retrospective evaluation the privilege is designed to protect. The Supreme Court accordingly affirmed the Court of Appeals, leaving the root cause analysis protected while confirming that the incident report is discoverable.

For patients pursuing hospital negligence claims in Kentucky, Kitchen provides a useful framework for anticipating what internal hospital documentation can and cannot be obtained. A hospital’s root cause analysis, prepared for and reported to a patient safety organization, will generally be off-limits in its entirety under the PSQIA. But contemporaneous incident reports that a hospital is separately required to generate under state regulatory tracking obligations remain fair game, and the facts underlying an injury can always be pursued through depositions, interrogatories, and other discovery tools. The decision is a reminder that the label a hospital places on a document, or the fact that it was routed to a patient safety organization, does not control the privilege analysis; what matters is why the document was created and what obligation prompted it.

You can read the full opinion here.

In Gierek v. Anonymous 1, Linda Gierek (Gierek) was one of over a thousand patients who received a letter from healthcare providers (collectively referred to as the Hospital) informing them that a technician failed to fully sterilize surgical instruments, which may have exposed them to infectious diseases, including Hepatitis C, Hepatitis B, and HIV. Gierek and her husband filed a class-action complaint for negligent infliction of emotional distress, negligence, and medical malpractice in state court and before the Indiana Department of Insurance (IDOI) and moved for class certification for similarly situated patients and their spouses. The Indiana Patient’s Compensation Fund (the Fund) intervened and moved for partial summary judgment arguing Gierek’s claims sounded in ordinary negligence, not malpractice, and therefore Indiana’s Medical Malpractice Act (MMA) did not apply. While Gierek supported the Fund’s position, the Hospital cross-moved for summary judgment arguing the MMA did apply. The trial court ruled the MMA applied and it denied Gierek’s motion for class certification concluding it lacked subject matter jurisdiction to rule on class certification while the claims were pending before a medical review panel.

The Indiana Supreme Court first determined the MMA applied to Gierek’s claims. While noting the parties generally disputed the MMA’s applicability based upon whether the technician’s conduct constituted ordinary negligence versus medical malpractice, the Court focused instead on whether the MMA applied to Gierek’s claimed injury—emotional harm—as the MMA states, “a patient or the representative of a patient who has a claim under [the Act] for bodily injury or death on account of malpractice may… [f]ile a complaint in any court of law having requisite jurisdiction” and “exercise the right to a trial by jury.” Ind. Code § 34-18-8-1 (italics added). As noted by the Court, the term bodily injury generally means physical damage to a person’s body. 

Nonetheless, relying on the full text of the MMA, “decades of precedent,” legislative history, the overall purpose of the MMA, and the MMA necessarily having to cover potential bodily injury, not just contemporaneous bodily injury, for patients to comply with the MMA’s two-year occurrence-based statute of limitations, the Court concluded the MMA applies to all claims for “malpractice” by a “patient” against a “healthcare provider,” as those terms are defined by the MMA, and not just claims involving bodily injury or death. The Court also concluded that even if the MMA required “bodily injury or death,” Gierek’s emotional-distress claims sufficiently alleged bodily injury. The Court noted Indiana’s modified-impact rule, which allows a claimant to recover damages when the claimant suffers a direct impact by the negligence of another and because of that direct involvement suffers an emotional trauma serious enough to affect a reasonable person, and Indiana’s impact rule, under which “it took little to establish” a “physical injury.” The Court concluded “the Hospital’s alleged tortious conduct here—the use of unsterilized surgical instruments that potentially exposed [Gierek] to infectious diseases—sufficient to constitute a “bodily injury” under the impact rule governing claims for emotional distress.” 

Next, the Court determined the trial court had jurisdiction to preliminarily determine class certification. Under the MMA, trial courts have limited jurisdiction while a claim is pending before a medical review panel. Ind. Code § 34-18-8-7(a)(3). They are expressly prohibited from making a preliminary determination on “any affirmative defense or issue of law or fact reserved for written opinion by the medical review panel,” Ind. Code § 34-18-11-1(b), including whether “[t]he evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint” and whether “[t]he conduct complained of was or was not a factor of the resultant damages,” Ind. Code § 34-18-10-22(b)(1), (4). However, trial courts have authority to, among other things, such as setting a trial date and compelling discovery, “preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure.” Ind. Code § 34-18-11-1(a)(1).

In concluding class certification is an appropriate preliminary determination under the MMA, the Court first distinguished the “overly narrow approach to preliminary jurisdiction” set forth by the Court in Griffith v. Jones, 602 N.E.2d 107 (Ind. 1992), which limited trial court jurisdiction to preliminary determinations under Trial Rule 12(D). The Court noted prior precedent and the MMA’s reference to “the Indiana Rules of Procedure,” not just Trial Rule 12(D). As stated by the Court, “[t]he Act only prohibits a trial court from issuing a preliminary determination on an ‘affirmative defense or issue of law or fact’ reserved for the panel’s expert opinion—i.e., whether the defendant ‘failed to comply with the appropriate standard of care’ and whether the conduct factored into the ‘resultant damages.’” The Court found a class-certification determination does not dictate the substance of a review panel’s opinion, class certification aligns with the MMA’s overall purpose, and while class certification may tend to potentially chill disclosure by healthcare providers in similar circumstances as a policy consideration, “[a] healthcare provider must warn of a subsequently discovered medical error with potentially harmful consequences.”

Justice Slaughter concurred in the judgment in part and dissented in part with a separate opinion in which Justice Molter joined.  

You can read the full opinion here, Gierek v. Anonymous 1, 250 N.E.3d 378 (Ind. 2025).

In Allen, a medical malpractice claimant filed a medical malpractice case against several providers. During the medical review panel process, the parties selected a medical review panel chairperson, who, after the medical review panel had been formed, set forth a schedule for the submission of evidence. The patient timely tendered his submission. The providers, however, failed to timely tender their submission, and the patient filed a petition in court seeking default judgment as a sanction for the providers’ failure to timely tender their submission. 

The Indiana Medical Malpractice Act provides that “[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. Medical providers in Indiana have been effective in using this 180-day timeline to get courts to dismiss patient claims. See, e.g., Quillen v. Anonymous Hosp., 121 N.E.3d 581 (Ind. Ct. App. 2019); Reck v. Knight, 993 N.E.2d 627 (Ind. Ct. App. 2013); Adams v. Chavez, 874 N.E.2d 1038, 1043-44 (Ind. Ct. App. 2007) (citing numerous cases in which patient claims were dismissed). However, there are no reported cases in which default judgment has been entered against medical providers for their failure to timely tender a submission.

Here, after months of delay, the medical providers tendered their submission to the medical review panel four days after the patient filed his petition seeking default judgment. While recognizing the providers’ delay, the trial court found “good cause” for the delay based upon defense counsel being “credible” in vaguely explaining “a misunderstanding” of the case’s status. The trial court also noted that even without good cause, default judgment, which is disfavored under Indiana law, was not an appropriate sanction. With the trial court noting no other sanction had been requested by the patient, the Court entered an order denying the patient’s petition for default judgment. After months of delay by the medical providers, and delay occasioned by the request for sanctions, which stayed the medical review panel process, the patient was left with the trial court’s “strong[] encourage[ment]” to the panel chairperson to expedite the remaining panel process.

On appeal the patient did not fare any better in holding the defense accountable. The Indiana Court of Appeals noted that the trial court’s decision was reviewable only for an abuse of discretion, a standard of review extremely partial to the decisions of trial courts. While sympathetic to the patient, the Court of Appeals ultimately affirmed the trial court’s decision declining to enter default judgment against the providers. Noting trial courts are to consider whether conduct is intentional or contumacious and whether prejudice resulted in deciding what, if any, sanctions are warranted, the Court of Appeals found it “cannot say” the trial court abused its discretion.

Thus, after months of delay occasioned by the defense, months of delay with litigation in the trial court, and around a year of delay appealing the trial court’s decision, the patient’s case will continue under Indiana’s medical review panel process, with no remedy provided to the patient. 

Judge Brown wrote a separate dissent, opining that the defense’s “repeated and ongoing failure to provide a timely submission to the medical review panel” warranted default as a sanction. Judge Brown thought the trial judge, who had some familiarity with the defense, “may have confused credibility as to counsel’s lack of intentionality with a showing of good cause,” and in any event, without regard to the lack of good cause shown, the defense’s “cavalier disregard for the statutory timelines and complete lack of communication” was intentional or contumacious conduct. Judge Brown noted that “[h]ealthcare provider defendants will continue to thumb their noses at the statutory requirements until and unless they are shown they will also be sanctioned appropriately for such behavior,” and  “it is unfair that our courts are quick to strictly hold plaintiffs accountable for their failures to adhere to evidentiary submission schedules but are reluctant or unwilling to hold defendant healthcare providers accountable for those same failures.” 

You can read the full opinion and Judge Brown’s dissent here.

Background: Improper IV Placement Leads to Severe Injury

In July 2015, Hetep Bilal Neter-Nu, a truck driver, visited the emergency department at Methodist Hospital with complaints of nausea and vomiting. After two IV lines became dislodged from his arms, a nurse—without a physician’s order and despite lacking training—placed an IV in Neter-Nu’s foot. Although he later complained of pain in the foot, and early signs of infiltration were documented, Neter-Nu was discharged two days later.

Several days later in Iowa, Neter-Nu was hospitalized with blackened toes and no blood flow in his foot. Doctors determined the foot was unsalvageable. On August 19, 2015, he underwent a below-the-knee amputation.

Neter-Nu submitted his claim to a medical review panel as required under Indiana’s Medical Malpractice Act. The panel unanimously found that the evidence did not support a conclusion that the healthcare providers failed to meet the applicable standard of care. Undeterred, Neter-Nu filed suit in Lake Superior Court against Methodist Hospital, Nurse Morgan Mittler, and Dr. Zainab Abbas, alleging that Mittler’s negligent IV placement and Abbas’s failure to recognize and respond to signs of injury led to the amputation of his leg, and that Methodist was vicariously liable for their conduct. Despite the unfavorable panel opinion, the case proceeded to a two-week jury trial in late 2022.

A jury found Nurse Morgan Mittler, Dr. Zainab Abbas, and Methodist Hospital liable and awarded Neter-Nu $11 million. The trial court reduced the award to $1.25 million under the then-applicable statutory cap imposed by the MMA (now $1.8 million) and awarded prejudgment interest on the then-applicable single $250,000 cap (now $500,000).

The Court of Appeals Reverses Jury Verdict and Remands for New Trial

The Indiana Court of Appeals had previously reversed the jury verdict and ordered a new trial, finding that the trial court erred in denying Methodist Hospital’s motion for judgment on the evidence and in instructing the jury that it could find the hospital liable for the actions of unnamed employees beyond the nurse and physician. The Court of Appeals also concluded the trial court should have given a superseding cause instruction and committed multiple evidentiary errors in excluding impeachment and habit evidence.

Supreme Court Affirms Verdict but Orders Correction on Prejudgment Interest

The Indiana Supreme Court granted transfer and vacated the Court of Appeals opinion, holding that while the trial court erred in some respects, those errors did not warrant a new trial given the application of joint-and-several liability, the adequacy of the jury instructions as given, and the defendants’ waiver of key evidentiary arguments. The Indiana Supreme Court largely upheld the trial court’s rulings and the jury’s verdict but found one key error: the trial court miscalculated prejudgment interest.

Under Indiana’s then-applicable MMA caps, qualified healthcare providers were liable up to $250,000 individually (now increased to $500,000), with the Patient’s Compensation Fund paying amounts above the cap up to the statutory maximum (presently capped at $1.8 million). The trial court awarded prejudgment interest based on just one $250,000 cap, despite both Mittler and Abbas being separately liable.

The Supreme Court clarified that each provider’s full $250,000 liability is subject to prejudgment interest. In other words, where multiple providers are liable, prejudgment interest applies to each defendants’ pre-Fund cap individually. The Court remanded the case for the trial court to recalculate prejudgment interest accordingly.

This aspect of the ruling represents an important clarification for plaintiffs and trial courts alike, ensuring that interest compensation is not artificially limited when multiple defendants are involved.

Hospital Liability: No Direct Liability Without Expert Testimony

The Court agreed with the defendants that the trial court erred in instructing the jury that it could find Methodist Hospital directly liable or vicariously liable for the acts of unnamed agents. The plaintiff had not presented expert testimony showing that any Methodist employee other than Mittler or Abbas breached the standard of care.

Nevertheless, the error was found to be harmless. The hospital had conceded that it was vicariously liable for both Mittler and Abbas, and the jury was properly instructed on joint-and-several liability. Because the jury’s damages award was not apportioned among defendants and the hospital’s liability flowed through the two employees already at issue, the verdict stood.

Jury Instructions: Superseding Cause and Hindsight

The defense had also requested jury instructions on superseding cause (arguing that Neter-Nu’s delay in seeking care broke the chain of causation) and on avoiding hindsight in assessing the standard of care. The Court found no abuse of discretion in the trial court’s refusal to give these instructions.

The Court explained that the trial court’s standard instructions on proximate cause and reasonable care under the circumstances adequately covered these issues. Importantly, the Court reiterated that superseding cause requires an independent and unforeseeable intervening act—which was not established here. Neter-Nu had been discharged on narcotic medications and was not medically trained, making his delay in seeking additional care foreseeable as a matter of law.

Evidentiary Rulings: Defendants Waived Key Objections

A recurring theme in the decision was the defendants’ failure to preserve certain evidentiary arguments. The providers attempted to introduce past medical records to show that Neter-Nu had a tendency to remove IVs during prior hospitalizations, arguing this showed a habit and could be used to impeach his credibility.

However, the Court found the trial court properly excluded the records. The defendants failed to establish the frequency and consistency necessary for “habit” under Indiana Evidence Rule 406. The Court also found the records constituted inadmissible character evidence under Rule 404(b), and that their introduction posed a risk of unfair prejudice by inviting the jury to infer that Neter-Nu was responsible for the IV dislodgement based on prior conduct.

Crucially, while the defense later argued on appeal that the records could have been used to impeach Neter-Nu’s testimony that he was a “compliant patient,” they did not make that specific argument at trial. By failing to preserve this basis, the Court held the issue was waived.

The same waiver occurred in the defendants’ attempt to impeach Neter-Nu’s expert witness, Dr. Tripp, using an earlier email. The trial court excluded the email after finding the defense had not properly laid the foundation to use it to refresh the expert’s recollection. Although the defense later characterized the email as impeachment evidence, that argument, too, was not clearly raised at trial and was thus waived.

The Court’s ruling serves as a reminder that trial counsel must clearly articulate the legal grounds for evidence admission at the time of the objection or offer of proof—arguments raised for the first time on appeal will not be considered.

Takeaways for Medical Malpractice Litigants

This case provides meaningful guidance on multiple fronts:

• Prejudgment interest applies to each provider’s full statutory cap, not just one, when multiple providers are liable.
• Individual provider defendants are each responsible for a full statutory pre-Fund cap (now $500,000) even if agents or employees of the same healthcare entity.
• The doctrine of superseding cause does not apply to patient actions, but rather applies to an unforeseeable act of a third person or other force.
• A provider raising a defense of superseding cause or other causation-based defense has the burden of coming forward with expert testimony meeting the evidentiary standard for causation, not mere speculation.
• Preserving objections and evidentiary theories at trial is critical—appellate courts will not consider new arguments raised after the fact.

At Barsumian Armiger Injury Lawyers, we remain committed to monitoring and explaining key legal developments affecting personal injury and medical malpractice claims across Indiana. If you or someone you love has been harmed by negligent medical care, our attorneys are here to help you pursue the justice and compensation you deserve. You can read the Indiana Supreme Court’s full opinion here.

The Indiana Supreme Court granted transfer, thus vacating the opinion of the Court of Appeals, and ultimately affirmed the trial court’s denial of the Fund’s motion for summary judgment, with the Court resolving three issues of first impression.

First, the Court concluded that the Fund can challenge the applicability of the Medical Malpractice Act in claims for excess compensation. While a healthcare provider’s liability is considered admitted and established in claims for excess compensation, the Court noted that there is a critical distinction between a healthcare provider’s liability and the Fund’s liability, with the Fund being responsible only for claims that fall under the Act. The Court distinguished factual questions of compensability, like whether a patient suffered an injury and what caused it, which the Fund cannot contest, from legal questions of compensability, like whether an injury is one for which the law recognizes a cause of action and which theory of recovery applies, which the Fund can contest. Here, the Court found the Fund’s challenge to the Does’ claims involved a legal question of compensability, namely, whether the claims constituted medical malpractice under the Act or ordinary negligence.

Second, the Court concluded that a negligent credentialing claim can fall under the Indiana Medical Malpractice Act only if the credentialed physician commits medical malpractice. Under the Court’s analysis, a negligent credentialing claim is a not a stand-alone claim, but a secondary claim of liability in which the credentialing hospital and the credentialed physician must have each committed malpractice. While the Court recognized that credentialing is integral to health care, the Court noted that not every act of misconduct by a credentialed physician necessarily constitutes health care. The Court reasoned that without an underlying act of malpractice by the credentialed physician, a negligent credentialing claim lacks the necessary connection to health care. 

Third, the Court concluded that a physician’s sexual assault of a patient during an authorized examination can constitute malpractice if the alleged misconduct stems from an inseparable part of the health care being provided. The Court noted Indiana’s Medical Malpractice Act defines “malpractice” as “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. “Tort” is defined as “a legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another.” Ind. Code § 34-18-2-28. And “health care” is defined as “an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Ind. Code § 34-18-2-13. Thus, under the Court’s statutory analysis, sexual assault is a tort of malpractice if it is based on an act or treatment performed or furnished by a health care provider for, to, or on behalf of a patient during their medical care, treatment, or confinement. Looking at caselaw, the Court noted that there must be a causal connection between the conduct complained of and the patient-healthcare provider relationship, which is absent when the conduct is demonstrably unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. The Court noted that the necessary connection is more likely to be present when, as in this case, a physician assaults a patient during an authorized medical exam that requires the touching of sensitive areas.

Having resolved these three issues, the Court examined the Does’ specific claims. The Court noted that the pediatrician’s sexual assault in this case arose out of an authorized examination that involved the touching of the child’s sensitive areas and the misconduct was based on the pediatrician’s behavior or practices while acting in his professional capacity as a provider of medical services. The Court noted that the misconduct itself does not have to be an “act of health care” to be malpractice, so long as it stems from an inseparable part of the health care being provided during an authorized medical examination. Here, the misconduct was not demonstrably unrelated to the promotion of the boy’s health or the exercise of the pediatrician’s professional expertise, skill, or judgment. The Court accordingly found the designated evidence failed to show the Fund was entitled to judgment as a matter of law. The Court affirmed the trial court’s denial of the Fund’s motion for summary judgment and remanded the case for further proceedings.

You can read the full opinion here.

Jonathan Armiger, Barsumian Armiger LLC

Medical malpractice attorneys must sometimes confront the question: To what extent can one pursue separate claims for medical malpractice when there is only one resulting injury? Another question is why one would want to. In considering both questions, one must keep in mind the “all too familiar” but maybe “all too forgotten” doctrines of claim preclusion and issue preclusion.

Davidson v. State

The Indiana Supreme Court did not mince words in the recent case of Davidson v. State, 211 N.E.3d 914 (Ind. 2023), reh’g denied (Sept. 6, 2023), when it found, in a non-medical malpractice context, that issue preclusion barred a separate lawsuit for the same injury, advising “a plaintiff seeking tort damages from both government and non-government defendants must sue all such tortfeasors in one lawsuit.” Id. at 919.

In Davidson, the plaintiff obtained a $3.2 million judgment after a bench trial against a trucking company whose driver fell asleep and crashed his semi-truck into an overpass bridge pier in a construction zone, expelling the plaintiff passenger and rendering her a quadriplegic. Id. at 919-920. The plaintiff then filed a separate lawsuit against the State/INDOT and other private defendants for failing to plan and set up the construction zone so as to prevent or lessen any impact. Id. at 920. While Indiana’s Comparative Fault Act explicitly does not apply to “tort claims” against the government, Ind. Code § 34-51-2-2, the Davidson Court nonetheless found that the Comparative Fault Act does apply to “actions” against the government, as the Comparative Fault Act, with limited exceptions, “governs any action based on fault brought to recover damages for injury or death to a person or harm to property,” Ind. Code § 34-51-2-1, and factfinders “shall consider the fault of all persons who caused or contributed to cause the alleged injury,” Ind. Code § 34-51-2-7(b)(1), 34-51-2-8(b)(1). Davidson, 211 N.E.3d at 923. Because the State/INDOT was not named as a party or non-party in the first lawsuit, the Court found the trial court’s judgment against the trucking company necessarily apportioned 100% fault to it, and therefore, issue preclusion prevented relitigating fault for plaintiff’s injuries in the second lawsuit. Id. at 921-922.

Davidson addressed challenges based on both claim preclusion and issue preclusion.  The Supreme Court in Davidsonrejected the trial court’s finding that claim preclusion barred the plaintiff’s claims. Claim preclusion requires four elements: (1) the former judgment was decided by a court of competent jurisdiction, (2) the former judgment was decided on the merits, (3) the matter at issue in the present case was or might have been determined in the prior case, and (4) the prior case was between the same parties in the present case or their privies. Id. at 921. The last claim preclusion element—a prior action between the same parties or their privies—was not applicable in Davidson. Id.

Issue preclusion, on the other hand, prevents a party or its privy from relitigating in a subsequent lawsuit the same fact or issue necessarily decided by a court of competent jurisdiction in a prior lawsuit. Id. Notably, the Court retained the requirement that the party against whom issue preclusion is asserted must have lost on the issue, with courts to consider whether the party against whom issue preclusion is asserted had a full and fair opportunity to litigate the issue in the prior suit, as well as whether it would be unfair under the circumstances for issue preclusion to be used. Id. at 923-924. In Davidson, the Court reasoned the plaintiff “really did lose” in the first lawsuit because she lost on the issue of whether to assign any fault to persons not included as parties or nonparties. Id. at 923.

Davidson and Medical Malpractice Claims

So, what does Davidson have to do with medical malpractice claims? Unlike the “actions” versus “tort claims” distinction applicable to government defendants that the Court analyzed in Davidson, the Comparative Fault Act does not apply to an “action” against a qualified healthcare provider under the Medical Malpractice Act. Ind. Code § 34-51-2-1(b). Of course, inconsistently, the Comparative Fault Act then includes a section that “applies to a claim filed” under the Medical Malpractice Act with regards to the pleading of a nonparty defense. Ind. Code § 34-51-2-17; see also Palmer v. Comprehensive Neurologic Servs., P.C., 864 N.E.2d 1093, 1099 (Ind. Ct. App. 2007) (recognizing the seemingly inconsistent provisions of the Comparative Fault Act and affirming that comparative fault does not apply to medical malpractice actions). The Comparative Fault Act also specifically provides for reasonable delays in actions brought against non-qualified defendants in cases involving qualified and non-qualified defendants, upon application of the claimant, as well as the joinder of qualified defendants after the panel process. Ind. Code § 34-51-2-18. In any event, in cases in which there is a claim subject to the Comparative Fault Act, as noted by the Court in Davidson, “the Act applies to require the jury to apportion a percentage of fault and damages to all defendants and nonparties.” Davidson, 211 N.E.3d at 923-924.  There are limits, however, to such apportioning in the context of subsequent malpractice in the treatment of an injury, where a defendant cannot assert a nonparty defense. Edwards v. Sisler, 691 N.E.2d 1252, 1254-1255 (finding the Comparative Fault Act did not change Indiana’s long-standing rule that a tortfeasor is responsible for subsequent malpractice in the treatment of an injury); see also Infectious Disease of Indianapolis, P.S.C. v. Toney, 813 N.E.2d 1223, 1230 (Ind. Ct. App. 2004), opinion amended on reh’g, 828 N.E.2d 386 (Ind. Ct. App. 2005) (recognizing the responsibility for subsequent malpractice also applies when the original tortfeasor is a healthcare provider).

While comparative fault does not apply to actions against qualified defendants under the Medical Malpractice Act, given the Court’s distinction in Davidson between “actions” and “tort claims,” the extent to which issue preclusion is implicated in a fault apportionment against a non-qualified defendant is certainly a consideration to keep in mind in prosecuting claims. As noted by Justice Goff in his concurrence in Davidson, the interplay between Indiana’s common-law and comparative-fault negligence schemes is a “vexingly complicated area,” cautioning against “hard and fast rule[s] of procedure in mixed-theory cases.” Davidson, 211 N.E.3d at 927. However, the analysis is somewhat lessened in straight-up malpractice cases with all qualified defendants.

Prosecuting Two Separate Medical Malpractice Claims for One Injury

As to claims against qualified health care providers under the Medical Malpractice Act, there is no prohibition against prosecuting two separate claims. There may actually be compelling reasons to do so in some cases, particularly while the claims are going through the medical review panel process. Having been excluded from coverage under the Comparative Fault Act, Ind. Code § 34-51-2-1(b), qualified provider defendants under the Medical Malpractice Act are subject to joint and several liability, pursuant to which a plaintiff has the option of suing any or all of the tortfeasors, who are each responsible for the entire amount of damages caused by their negligence without regard to apportionment of fault. Indiana Dep’t of Ins. v. Everhart, 960 N.E.2d 129, 137-38 (Ind. 2012); see also Batchelder v. Indiana Univ. Health Care Associates, Inc., 148 N.E.3d 1116, 1119 (Ind. Ct. App. 2020); Palmer, 864 N.E.2d at 1099. Under historic common law joint and several liability, “[a]n action for personal injuries is joint and several, and one who has received an injury from a wrongful act or omission of two or more persons acting together or independently causing a single injury may enforce his remedy against all jointly or against any one separately.” Kniola v. Kozlowski, 129 N.E. 489, 489 (Ind. Ct. App. 1921). The general rule of joint and several liability provides that “when the torts of two or more persons unite to produce an injury, such injury is indivisible and the person wronged has his remedy against one or all of the tortfeasors in a single or separate actions.” Kizer v. Hazelett, 49 N.E.2d 543, 544 (Ind. 1943). Under the common law, “a person injured by joint tort-feasors may maintain separate suits against each person….” Smith v. Graves, 108 N.E. 168, 170 (Ind. Ct. App. 1915).

Of course, by filing two separate medical malpractice claims for one injury, a plaintiff cannot obtain more than “one satisfaction” for the damages caused. See, e.g., Batchelder, 148 N.E.3d at 1120 (discussing the “one satisfaction rule” whereby payment of the full amount of an injured party’s damages determined by judgment constitutes a satisfaction of a plaintiff’s rights against any other obligor responsible for the indivisible injury); see also Infectious Disease of Indianapolis, P.S.C., 813 N.E.2d at 1231 (finding issue preclusion barred patient from seeking a second recovery from another medical provider after having received the full measure of damages); Westfield Gas & Milling Co. v. Abernathey, 35 N.E. 399, 400-01 (Ind. Ct. App. 1893) (recognizing at common law that while a plaintiff can pursue separate actions under joint and several liability, the plaintiff can have but one satisfaction). Under the Medical Malpractice Act, “a patient who suffers only one compensable injury, regardless of the number of negligent acts causing that injury, is entitled to only one maximum statutory recovery.” Med. Assur. of Indiana v. McCarty, 808 N.E.2d 737, 745 (Ind. Ct. App. 2004). However, the “one satisfaction rule” does not affect a plaintiff’s ability to pursue separate claims, at least not until receiving full satisfaction. See Batchelder, 148 N.E.3d at 1123-1124; see also Infectious Disease of Indianapolis, P.S.C., 828 N.E.2d at 387-388 (recognizing the principle of satisfaction precludes the continuation of a lawsuit when full damages have already been received).

Contrary to what opponents of separate claims and separate panels may argue, there is nothing in the Medical Malpractice Act or in the Indiana Rules of Trial Procedure that prohibits such an approach. In fact, pursuing separate claims for medical malpractice when there is only one resulting injury comports with the Medical Malpractice Act. The Medical Malpractice Act provides, for instance, that if there is only one party-defendant who is an individual and who specializes in a limited area, two of the medical review panelists selected must also specialize in the same area as the defendant. Ind. Code § 34-18-10-8. In cases with multiple different defendants with multiple specialties providing care at different times, it can be beneficial to have separate medical review panels. Having only a single panel review a case in which there are more than three specialties results in a panel composition that does not include all the relevant specialties. The Medical Malpractice Act evidences the legislature’s intent for medical review panels to consist of similarly specialized physicians, which makes common sense given the scope of review.

While some defendants may continue to seek court intervention for a preliminary determination with regards to separately filed claims, Indiana law is clear that “medical review panels should be allowed to operate in [an] informal manner,” and “the grant of power to the trial court to preliminarily determine matters is to be narrowly construed.” Griffith v. Jones, 602 N.E.2d 107, 110-111 (Ind. 1992). For instance, joint and several liability, by definition, renders joinder of an indispensable party under Indiana Trial Rule 19(A) inapplicable, with Trial Rule 19(E) even providing that “[j]oinder of all the parties to a joint and several obligation… shall not be required, and [a] joint or separate action may be brought….” Ind. R. Trial P. 19(E). To be sure, medical malpractice claimants can proceed with separate claims to have separate panels comprised of experts relevant to the separate claims.

Conclusion

Certainly, in light of Davidson, plaintiffs should be very cautious in attempting to prosecute separate lawsuits for the same injuries if one claim is subject to the Comparative Fault Act (e.g., a claim against a non-qualified provider), given the mandatory fault apportioning under the Comparative Fault Act. However, in the context of straight-up medical malpractice cases, filing separate claims remains a viable and sometimes beneficial approach, particularly while the claims are pending before a medical review panel. Of course, “the devil is in the details,” and plaintiffs should remain mindful of the potential pitfalls of claim and issue preclusion.

Jonathan Armiger is a member of Barsumian Armiger LLC. He graduated cum laude from the Indiana University Maurer School of Law in 2011. He is licensed to practice law in Indiana and represents individuals and families in personal injury and medical malpractice cases.

Republished with permission of ITLA.

The Indiana Court of Appeals first reviewed the nature of Indiana’s wrongful death statutes. Since there was no tort liability for another’s death at common law, recovery for wrongful death in Indiana is purely statutory and Indiana’s wrongful death statutes are strictly construed. Pecuniary loss, as opposed to loss of life itself, is the foundation of wrongful death claims in Indiana. Indiana has three wrongful death statutes: the General Wrongful Death Statute, applicable when there is a surviving spouse, dependent children, or dependent next-of-kin, the Child Wrongful Death Statute, applicable when there is the death of a child, and the Adult Wrongful Death Statute (AWDS).

When an adult unmarried individual without dependents dies due to a wrongful act or omission of another person, the personal representative of the adult person’s estate may pursue damages for wrongful death under the AWDS, Indiana Code § 34-23-1-2. Damages under the AWDS may include medical and funeral and burial expenses, which inure to the estate for the payment thereof, and damages for the loss of the adult person’s love and companionship, which inure to nondependent parents or children of the adult person. Attorney’s fees and expenses and loss of services are also available. However, damages cannot be obtained under the AWDS for a person’s grief, punitive damages, or lost earnings of the deceased, and damages for the loss of love and companionship suffered by nondependent parents and children are capped at $300,000.

Indiana NIED claims can be pursued under the impact rule, the modified impact rule, the bystander rule, and in cases involving sexually abused children. Recovery is available under the impact rule when a claimant suffers a direct physical impact that causes physical injury and emotional trauma. Recovery is available under the modified impact rule when there is an injury or death to a third party and the claimant sustains a direct physical impact and thereby suffers emotional trauma serious enough to affect a reasonable person. Recovery under the bystander rule, which Hyzy attempted to pursue his NIED claim under, is available when a claimant, without any direct impact, witnesses a relative’s severe injury or death or witnesses the immediate aftermath.

The Court in Hyzy ultimately affirmed the trial court’s order dismissing Hyzy’s claim holding “the trial court properly dismissed Hyzy’s [NIED] claim which was brought under the [AWDS] and pursuant to the procedures of the Medical Malpractice Act.” The Court based its decision on Indiana Supreme Court precedent in Indiana Patient’s Compensation Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010) and Chamberlain v. Walpole, 822 N.E.2d 959 (Ind. 2005). The Supreme Court in Chamberlain concluded that “the MMA is procedural and [does] not create new causes of action” and the Supreme Court in Patrick found “damages for emotional distress are not available under the [AWDS], [and thus] a [claimant] cannot bring a derivative claim seeking such damages under the Medical Malpractice Act.” Patrick, 929 N.E.2d at 190; Chamberlain, 822 N.E.2d at 963.

Relying on Patrick and Chamberlain, the Indiana Court of Appeals in Hyzy found his claim for NIED “exists exclusively under the AWDS” and “Hyzy’s NIED claim cannot proceed under the AWDS.” While recognizing Indiana Supreme Court precedent that separate claims for NIED outside the wrongful death statutes are not precluded, the Hyzy Court nonetheless rejected Hyzy’s argument that his NIED claim was independent of the AWDS, with the Court reasoning—for some reason—that to be outside the AWDS Hyzy’s claim would necessarily also have to be outside the MMA (“whether Hyzy’s NIED claim… was brought ‘outside the wrongful death statutes,’ we acknowledge that to be outside these statutory parameters, ‘a health care provider’s actions must be demonstrably unrelated to the promotion of the plaintiff’s health or an exercise of the provider’s professional expertise, skill, or judgment.’”). The Court concluded Hyzy’s claim “[fell] within the statutory framework of the MMA and the AWDS” because there was an “absence of any necessary facts [in the Proposed Complaint] which could propel [the] claim outside the province of the MMA and AWDS and place it within the auspices of the bystander doctrine.”

You can read the full opinion here.

The physician filed a petition in court under Indiana Code § 34-18-10-14, which provides “[a] party, attorney, or panelist who fails to act as required by [Chapter 10 of the Indiana Medical Malpractice Act] without good cause shown is subject to mandate or appropriate sanctions upon application to the court designated in the proposed complaint as having jurisdiction.” The physician requested the trial court order the patients redact from their submissions all references to alleged mental illness or drug or alcohol abuse, arguing such was not “evidence.” The trial court granted the petition and ordered the patients to redact all such references and any references to the physician’s wife’s complaint. The Indiana Court of Appeals affirmed, likening Bojko to its prior decision in Sherrow v. GYN, Ltd., 745 N.E.2d 880, 884-885 (Ind. Ct. App. 2001), in which the Court of Appeals ruled trial courts have authority under Indiana Code § 34-18-10-14 to order redaction of legal argument in evidentiary submissions because legal argument is not “evidence.”

On transfer to the Indiana Supreme Court, the Court first reviewed the scope of authority trial courts have under Indiana Code § 34-18-10-14. In looking at the statute, the Court recognized that a condition precedent to relief under the statute is the failure of a party, attorney, or panelist to comply with Chapter 10 of the Indiana Medical Malpractice Act, which imposes various requirements on parties, attorneys, and panelists during medical review panel proceedings (e.g., parties cannot communicate with panelists prior to the issuance of opinions and must timely tender evidence and panels must timely issue their opinions). The Court recognized trial courts have authority to direct panel proceedings to the extent necessary to ensure the various statutory duties are met. The Court referenced Sherrow, the case relied upon by the Court of Appeals, as instructive, in that the Medical Malpractice Act requires panel chairs to advise the panel as to legal questions and the issue in that case was the panel chair’s failure to carry out that duty given the legal argument by the defendants. In Bojko, the Indiana Supreme Court ruled trial courts have authority to grant relief under Indiana Code § 34-18-10-14, but only if there is a failure to act as required by the statute.

Having clarified the scope of trial court authority under Indiana Code § 34-18-10-14, the Court next reviewed Indiana Code § 34-18-10-17, which describes the evidence panels may review and requirements relating thereto. Under the statute, parties must promptly submit evidence, panels must take an oath in reviewing the evidence and rendering their opinions on the evidence, and panel chairs must ensure panels have the opportunity to review the evidence, which “may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable by the medical review panel.” The Court found the statute’s plain, unambiguous language does not confer authority upon trial courts to order redaction, or otherwise exclude evidence, submitted by parties, as there is no restriction on the type of evidence that may be submitted, other than that it be “allowable” by the panel. According to the Court, the panel alone has the authority to determine what evidence it will consider.

The Court next reviewed what constitutes “evidence” under the Indiana Medical Malpractice Act and whether the physician’s wife’s complaint constituted “evidence” under the Act. While the Act does not define “evidence,” it provides that undefined legal terms of art have a meaning consistent with the common law. Ind. Code § 34-18-2-2. In reviewing Indiana’s common law and Black’s Law Dictionary, the Court found “evidence” under the Act to mean “any material submitted to a medical review panel that tends to produce conviction in the mind as to the existence of an alleged fact.” Using this definition in Bojko, the Court held the physician’s wife’s complaint—while not necessarily reliable or relevant, which is a determination left to the panel—was evidence a panel may consider. Ultimately, the Court reversed the trial court, finding trial courts have no authority to act as gatekeeper of evidence submitted to medical review panels, and the wife’s complaint was evidence, thus the trial court lacked authority to order the patients to redact their submissions.

You can read the full opinion here.

Generally, in Indiana, when a medical review panel finds against a patient, the patient must then present expert medical testimony to refute the panel’s opinion to survive summary judgment. Here, in response to the defendants’ motion for summary judgment, Korakis designated an affidavit from an orthopedic doctor, Dr. James E. Kemmler. In his affidavit, Dr. Kemmler opined that 1) Korakis suffered an occult fracture of her left elbow, which was evident in the two sets of x-rays she had at the hospital, 2) the ER doctor failed to identify the fracture during Korakis’ initial ER visit, 3) Dr. Messmer failed to order additional imaging “when appropriate,” 4) Dr. Messmer “should have done more testing” prior to sling placement and referring Korakis for therapy, 5) the delay in diagnosis and “appropriate treatment” likely worsened Korakis’ condition, and 6) Dr. Messmer’s treatment “fell below the standard of care.” In turn, the medical defendants argued, with the trial court agreeing, that Dr. Kemmler’s affidavit was insufficient to survive summary judgment.

The Indiana Court of Appeals affirmed the trial court’s judgment. The court noted Dr. Kemmler’s affidavit did not identify any negligence by the hospital or state it had breached the standard of care; while it stated the ER doctor failed to identify Korakis’ fracture, it did not state that such failure was a breach of the standard of care; and while it stated Dr. Messmer breached the standard of care, it did not explicitly state that Dr. Kemmler was familiar with the applicable standard of care or what the applicable standard of care was, therefore making the affidavit insufficient to survive summary judgment. On transfer to the Indiana Supreme Court, the Indiana Supreme Court summarily affirmed the Court of Appeals opinion as to the ER doctor and the hospital. However, the Court fashioned a new test for the sufficiency of an expert’s affidavit in medical malpractice cases, and as applied to Dr. Messmer’s care, found Dr. Kemmler’s affidavit sufficient to preclude summary judgment.

The Indiana Supreme Court identified the “core issue” in Korakis as whether experts must expressly state the applicable standard of care in their affidavits under Indiana’s summary-judgment standard. The Court reviewed two prior conflicting cases, each with their own line of subsequent cases, that provided different answers to that question. Ultimately, in Korakis, the Court rejected any requirement that a medical expert affidavit expressly state the applicable standard of care, so long as the standard of care can be inferred by the content in the affidavit. However, the Court retained the requirement that an affiant state that the subject care fell below the standard of care, as that statement functions as an “evidentiary fact” for summary judgment. Thus, under the Court’s new test, expert affidavits must (1) contain substantively sufficient information from which to infer the applicable standard of care and (2) state that the treatment fell below the standard of care.

In applying the Court’s new test, the Court found the content of Dr. Kemmler’s affidavit sufficient to preclude summary judgment for Dr. Messmer. Dr. Kemmler’s affidavit set forth his medical credentials, including his experience as an orthopedic doctor for around 25 years and his experience performing “standard of care reviews” in medical malpractice cases. His affidavit also set forth his medical judgment, based upon his review of the x-rays and medical records. Dr. Kemmler stated Korakis had a left elbow fracture visible on the x-rays, Dr. Messmer “failed to order additional x-rays… when appropriate,” Dr. Messmer “should have done more testing,” and the delay in identifying the fracture and providing “appropriate treatment” likely worsened Korakis’ condition. The Court found Dr. Kemmler’s affidavit to be a “detailed qualified judgment” about Dr. Messmer’s care. Dr. Kemmler’s affidavit also explicitly stated Dr. Messmer’s care fell below the standard of care. Concluding Dr. Kemmler’s affidavit passed its test and created a “conflict of evidence” to be resolved by a trier of fact, the Court reversed the trial court’s entry of summary judgment in favor of Dr. Messmer.

You can read the full opinion here.

The physician filed a motion for preliminary determination in court requesting that Gardner’s medical malpractice claim be dismissed pursuant to Indiana Trial Rule 12(B)(1) for lack of subject matter jurisdiction. The physician argued Gardner’s claim was foreclosed by the exclusivity provision of the WCA, which provides that an employee’s rights and remedies under the WCA providing compensation for accidental injuries arising out of and in the course of employment exclude all other rights and remedies of the employee, except for remedies for victims of violent crimes. Ind. Code § 22-3-2-6. However, despite its exclusivity provision, the WCA specifically permits employees to pursue claims against third parties causing injury, that is, persons other than an employer and those “in the same employ.” Ind. Code § 22-3-2-13. The WCA defines “employer” broadly to include parent corporations and subsidiaries, which are deemed joint employers. Ind. Code § 22-3-6-1(a). Here, under the WCA, the hospital for which Gardner worked was a joint employer of the physician, and therefore, he was “in the same employ” as Gardner. As such, the trial court granted the physician’s motion to dismiss Gardner’s malpractice claim.

On appeal Gardner argued, based upon the Court of Appeals’ decision in Ross v. Schubert, 388 N.E.2d 623 (Ind. Ct. App. 1979), that the physician was an independent contractor and therefore not a fellow employee in the same employ as Gardner. The physician in turn argued the holding in Ross had eroded over time and was no longer applicable. While recognizing that the independent contractor rationale in Ross was no longer applicable, the Court of Appeals nonetheless found the holding in Ross was still good law. The Court in Ross had noted that prior to the legislature adding the language “in the same employ” to the WCA, the Indiana Supreme Court had adopted a rule that a physician, whether hired by an employer or not, was a third party under the WCA, with the Court in Ross finding the addition of that language was not intended to immunize physicians for care arising out of a doctor-patient relationship as opposed to an employer-employee relationship.

Here, the Court of Appeals reaffirmed the holding in Ross that immunity under the WCA exclusivity provision does not apply to claims of medical negligence arising out of a doctor-patient relationship between a claimant and a physician. With that said, however, the Court noted that the holding in Ross does not mean that a physician can never have immunity under the WCA. As applicable to Gardner’s claims, the Court found any of her claims attempting to hold the physician liable for actions unrelated to her doctor-patient relationship with the physician were barred, including any claims relating to her exposure and contraction of scabies, as such arose from her employment relationship. The Court found Gardner could, however, pursue her claims arising out of any doctor-patient relationship to the extent such existed, including any claims that the physician negligently directed her care with regards to her scabies condition, failed to provide appropriate and timely treatment, and failed to appropriately refer her to a specialist for treatment. As such, the Court of Appeals reversed the trial court’s dismissal of Gardner’s medical malpractice claim and remanded the case for further proceedings consistent with its opinion.

You can read the full opinion here.

Indiana patients pursuing medical malpractice claims against healthcare providers covered under the Indiana Medical Malpractice Act must first present their cases to medical review panels, which are comprised of one non-voting advisory attorney and three healthcare providers selected by the parties, and receive opinions from the medical review panels before pursing those cases in court. Ind. Code §§ 34-18-8-4, 8-7, 10-3 to 10-10. After the panels are formed, the parties are to submit “evidence,” which “may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable by the medical review panel.” Ind. Code § 34-18-10-17. Panels are then to “express [their] expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint,” and whether “[t]he conduct complained of was or was not a factor of the resultant damages.” Ind. Code § 34-18-10-22. Under the Indiana Medical Malpractice Act, “[a] party, attorney, or panelist who fails to act as required by [the Act] without good cause shown is subject to mandate or appropriate sanctions upon application to the court… having jurisdiction.” Ind. Code § 34-18-10-14.

On appeal the patients in Bojko argued the trial court lacked subject matter jurisdiction to grant the physician’s petition ordering them to redact portions of their submissions. However, in its decision affirming the trial court, the Indiana Court of Appeals referenced its prior decision in Sherrow v. GYN, Ltd., 745 N.E.2d 880 (Ind. Ct. App. 2001), in which it found that Indiana Code section 34-18-10-14 of the Medical Malpractice Act supplied subject matter jurisdiction to trial courts to order redaction of legal argument in “evidentiary submissions because legal argument is not ‘evidence.’” Sherrow, 745 N.E.2d at 884-885. Similar to legal argument, the Court in Bojko reasoned “unsworn [and] unsubstantiated allegations in a third-party proposed medical malpractice complaint are not evidence as described in Indiana Code Section 34-18-10-17.” Bojko, 215 N.E.3d at 380. According to the Court, Indiana Code sections 34-18-10-17 and 10-22 of the Medical Malpractice Act require panel opinions to be “based on the actual facts (and sworn testimony regarding those facts) of the particular case before the panel and not on mere allegations raised in another case or cases,” which are “non-evidentiary matters [that] are ‘inappropriate in evidentiary submissions’ to a medical review panel.” Bojko, 215 N.E.3d at 381. Finding the trial court had authority under Indiana Code section 34-18-10-14 to mandate compliance with Indiana Code section 34-18-10-17, the Court affirmed the trial court’s order requiring redactions of the patients’ submissions.

You can read the full opinion here.

By way of background, Plaintiff, Zachary Miller (Miller) pleaded guilty but mentally ill to the voluntary manslaughter of his grandfather, which left his grandmother, Betty Miller, widowed. The conduct and killing arising out of Miller’s actions generated two previous appeals arising out of the same conduct. In Miller I, a case we previously blogged about here, the Court found that the federal Emergency Medical Treatment and Labor Act’s (EMTALA) statute of limitations did not preempt a state rule allowing for amendments relating back to an original pleading. Next, in Miller II, which opinion can be found here, the Indiana Court of Appeals, in reviewing Betty Miller’s claim arising out of her husband’s death, found Zachary Miller’s mental health providers were not immune from liability under two statutory provisions for failing to warn or take precautions to protect others from a patient’s violent behavior.

In the subject of this blog, Miller v. Patel, et al. decided on June 29, 2023 (Miller III), the Court first examined the case background. Miller, who suffered from severe mental illness, killed his grandfather in January 2017 after receiving allegedly negligent care from his mental health providers. Miller pleaded guilty but mentally ill to voluntary manslaughter and was sentenced to 20 years in prison, 12 executed. Miller filed a civil lawsuit against his providers, alleging that they failed to comply with the appropriate standard of care and caused him permanent injuries, pain, emotional distress, and loss of freedom from his incarceration. A medical review panel found that the providers were negligent, and their conduct was a factor of Miller’s damages. However, the trial court granted summary judgment for the providers, finding that Miller’s damages were not compensable under Indiana public policy and that he was estopped from relitigating his responsibility for the crime. The Court of Appeals reversed and remanded, holding that 1) the providers failed to show there were no genuine issues of material fact and 2) collateral estoppel did not apply to Miller’s guilty plea.

The Supreme Court affirmed the trial court’s summary judgment ruling finding Miller could not recover damages arising from the crime. Specifically, the Court found Miller was estopped from relitigating his legal responsibility under defensive issue preclusion, because his guilty plea has the same preclusive effect as a trial verdict, and he had a full and fair opportunity to litigate his legal responsibility in his criminal case. Moreover, the Court held that Miller could not recover damages that stem, in whole or in part, from his criminal conduct, because such damages are barred by Indiana public policy under the wrongful-acts doctrine, which prevents plaintiffs from imposing liability on others for the consequences of their own illegal or immoral acts. The Court also held that Miller waived his argument about his pre-criminal act damages, because he did not adequately raise or support it in his motion opposing summary judgment or in his appellate brief.

Writing separately, Chief Justice Rush concurred in part with the majority’s application of the wrongful-acts doctrine, noting she was “open to examining the tension between the doctrine and the principles of comparative fault in a future case.” She observed that under Indiana’s comparative fault scheme as applied to a wrongful-acts doctrine situation, “the issues of fault and causation may appear vexing, but the factfinder—not a detached appellate court—is best equipped to assess the array of factors” involved in the decision to allocate fault.

She dissented from the majority’s opinion, however, arguing she did not believe that Miller had waived his argument contesting the entry of summary judgment on his claims for pre-criminal act damages, because the providers did not move for summary judgment on those claims and Miller raised those claims before the trial court and on appeal. She asserted that “not only has Miller not waived his argument, but it is also meritorious,” citing Miller’s designation of the medical review panel’s unanimous finding that leading up to Miller’s criminal act, the Providers “failed to comply with the appropriate standard of care” and that the failure “was a factor” of Miller’s damages.

Finally, she dissented from the majority’s opinion that Miller’s claims for pre-criminal act damages were barred. She argued the claims should not be barred by Indiana public policy or collateral estoppel, because they are based on the providers’ negligence prior to the offense and do not rely on Miller’s criminal act. She concluded that summary judgment was inappropriate because there were genuine issues of material fact regarding Miller’s pre-criminal act damages and whether he was criminally insane when he killed his grandfather. Chief Justice Rush further criticized the majority for applying a rigid and unfair version of collateral estoppel that ignores the circumstances of Miller’s guilty plea that she found “antithetical” to the Court’s role in reviewing summary judgment to ensure a litigant is not deprived of his day in court.

You can read the majority’s decision and Chief Justice Rush’s concurrence and dissent here.

Under Indiana law, the Act applies to claims for malpractice against healthcare providers qualified under the Act. The Act provides a monetary cap on the liability of healthcare providers, and if a healthcare provider agrees to settle a claim under the Act, claimants may then pursue excess damages from the Fund. Over the years, there have been a variety of cases setting forth what is, and what is not, medical malpractice under the Act, as the Act does not cover all claims against healthcare providers. Whether a claimant can recover excess damages from the Fund depends on whether the Act applies. The Act applies to curative or salutary conduct of a healthcare provider while acting in a professional capacity. The Act does not apply to conduct unrelated to the promotion of a patient’s health or a healthcare provider’s exercise of professional expertise, skill, or judgment. Courts analyze (1) whether the alleged negligence involved the provision of medical services and (2) whether the provision of medical services was to a patient for the patient’s benefit.

Here, the Does sought to recover excess damages from the Fund based upon their negligent credentialing claim against the hospital. However, Indiana caselaw has found the Act inapplicable to claims of sexual misconduct by healthcare providers, and under prior precedent, claimants are required to prove underlying malpractice to succeed on a negligent credentialing claim. The Indiana Court of Appeals reaffirmed its prior position in holding “an underlying act of medical malpractice is a necessary predicate and condition precedent to a medical credentialing malpractice claim,” and concluded that, since the Does’ underlying claim against the doctor was not malpractice under the Act, the Does’ negligent credentialing claim also fell outside of the Act, thereby preventing the Does access to excess damages from the Fund.

Several arguments were advanced by the Does and the hospital on appeal. For instance, the Does argued the Fund could not contest their negligent credentialing claim because under the Act in cases against the Fund a healthcare provider’s liability is “admitted and established.” However, the Court rejected this argument, noting the difference between “factual compensability,” that is, a healthcare provider’s underlying liability for negligence, which cannot be challenged by the Fund, and “legal compensability,” that is, whether a claim is compensable under the Act, which the Fund can challenge. The hospital in turn argued laches and estoppel should apply, but the Court noted the hospital had not set forth any of the elements of laches and the Fund is not required to participate in the settlement of an underlying claim or intervene in any such action. As to estoppel, the Court found the reliance element had not been met, noting, among other things, that the settlement agreement between the Does and the hospital specifically contemplated the Fund challenging the Does’ ability to access the Fund, such that the parties could not have relied on the Fund not interjecting its position during the underlying settlement negotiations. Lastly, as the Court had done in a previous case, which was the subject of one of our previous blogs, the Court distanced itself from the “current test” as to the applicability of the Act, that is, whether the misconduct arises naturally or predictably from the relationship between the healthcare provider and patient or from an opportunity provided by that relationship, as set forth in Martinez v. Oaklawn Psychiatric Care.

In summary, the Court held an underlying act of medical malpractice proximately causing harm is a necessary predicate and condition precent to a medical credentialing malpractice claim, where the Fund is not a party to a settlement agreement it is free to challenge the applicability of the Act, and the Fund has no affirmative duty to intervene in the settlement discussions in an underlying claim or address a claim for excess damages until a petition for excess damages has been filed. The Court reversed and remanded the case, instructing the trial court to enter summary judgment in favor of the Fund. Judge Robb concurred in part and dissented in part with a separate opinion.

You can read the full opinion here.

The disclosing employee, Katrina Gray, was previously employed by an orthopedic group along with one of the eventual plaintiffs, Heather McKenzie. Heather was supervised by Katrina, who was the group’s medical records coordinator. Katrina also introduced Heather to her stepson and Heather and Katrina’s stepson would marry and have children. Later, Heather and Katrina’s stepson divorced, and Heather received custody. Heather then married Daniel McKenzie. The Grays and McKenzies did not get along. Later, after the orthopedic group was acquired by Community, despite agreeing to restricted access to orthopedic records only, Katrina used her access to Epic to access her records and those of other patients, including Heather’s family and relatives. Heather McKenzie, her husband, her children, her parents, and her father-in-law all brought claims against Katrina’s employer, Community, based upon Katrina’s actions.

In its opinion, departing from the Court of Appeals, the Supreme Court held that Indiana does recognize a tort claim for the public disclosure of private facts, paraphrasing a popular comic-book refrain: “with great access comes great responsibility—an abuse of which may give rise to liability.” The Court also reiterated that the situation was not governed by Indiana’s Medical Malpractice Act. Further, the Court found that the patients’ negligence claims could not survive, because, although their “distress is understandable,” no negligence claim for emotional distress may be maintained in Indiana where there is no physical impact or where the claimant does not contemporaneously “perceive any physical injury to a loved one.”

Significantly, the Supreme Court clarified a confusing body of prior cases discussing a “general right of privacy,” recognizing that a tort claim for the public disclosure of private facts does, in fact, exist in Indiana. Crucial to the clarification of the law were recent observations by Court of Appeals Judges Crone and Bailey, who urged the Court to recognize the disclosure tort, pointing to technological advancements. First, Judge Crone noted “the increase in speed and ease with which sensitive, personal information can now be accessed and ‘broadcast to the public.’” Second, Judge Bailey noted the “ubiquity of digital data” and the ease with which third parties can obtain and share highly sensitive and personal information. The Court echoed these concerns to join “nearly every other state” in recognizing the tort.

The Court adopted for its framework the four elements articulated in the Restatement (Second) of Torts § 652D, which can be boiled down to these essentials: 1) private facts; 2) publicity; 3) highly offensive to a reasonable person; and 4) lacking newsworthiness. Turning to comments on the Restatement, the Court first addressed the meaning of private facts. This means the information is both factually true and privately held. Information already public which is further publicly shared would not qualify.

The court turned to the second element, publicity, noting that commentary suggests this means communicating the private facts in a way that either reaches or is sure to reach the public in general or a “large enough number of persons” to ensure that the information “is sure to become public knowledge.” The Court refused to define what “large enough” means, deferring to each case’s peculiar facts and circumstances as to whether the disclosure would be deemed “sufficient.”

The third element examined by the court in the commentary to the Restatement, whether the disclosure would be considered “highly offensive to a reasonable person,” requires diving into “society’s accepted, communal norms and social mores.” Noting that there is no such thing as perfect privacy, the Court determined that to meet this standard, the “reasonable person would feel justified in feeling seriously aggrieved by it.”

The fourth, and final, element—lack of newsworthiness—means the information is not “of legitimate concern to the public.” Matters of concern, such as public figures and newsworthy information, are areas of legitimate concern. So, the proper inquiry should be whether a reasonable person would say the information disclosed causes no concern.

Although the Court set out these four elements, it ultimately found the result depended on just one: publicity. Because Community designated evidence that Gray “did not publish, discuss or retain any medical information of any party,” it became incumbent upon McKenzie to overcome this evidence with conflicting evidence. McKenzie designated general testimony that Gray had openly discussed other patients’ medical records and testimony that Gray knew about “an extremely personal and sensitive aspect” of one of the McKenzie’s medical histories that would not have been known, but for access to the medical records. The Court found that Gray’s conduct towards other patients’ medical information was irrelevant to whether she publicly disclosed McKenzie’s. And, the Court found that whether or not Gray knew sensitive information about one of the McKenzies did not equate with publicly disseminating such information. And, even if it did, there had been no showing that the information had been disclosed beyond the member of her family. Consequently, the Court directed the trial court to enter judgment in favor of Community on all claims. The Court’s opinion can be found here.

To prevail in a medical malpractice case a patient must prove (1) the defendant owed the patient a duty, (2) the defendant failed to comply with the applicable standard of care, and (3) the defendant’s failure to comply with the applicable standard of care proximately caused injury to the patient. Under the Indiana Medical Malpractice Act, a medical malpractice claimant must present their case to a medical review panel comprised of three healthcare providers who issue an opinion as to whether a defendant failed to meet the applicable standard of care and whether the conduct complained of was a factor in the resultant damages. If a medical review panel finds a defendant complied with the applicable standard of care, a patient must then come forth with expert testimony to refute that opinion in order to survive summary judgment. Expert testimony necessary to refute a medical review panel opinion must establish (1) the applicable standard of care required by Indiana law, (2) how the defendant breached that standard of care, and (3) that the defendant’s negligence in breaching the standard of care proximately caused the injuries complained of.

Here, the Medical Review Panel formed to review Korakis’s case found the Defendants complied with the applicable standard of care, and the Defendants filed a motion for summary judgment based upon that opinion. In response, Korakis designated the affidavit of an orthopedic physician, James Kemmler, M.D. (Dr. Kemmler), who opined that Korakis suffered an occult fracture of her left elbow which was visible on the x-rays Korakis had at the Hospital; Dr. Halperin failed to diagnose the fracture; Dr. Messmer failed to order additional x-rays of Korakis’s elbow; Dr. Messmer should have done more testing; the delay in diagnosing and treating Korakis’s fracture worsened her condition and recovery; and Dr. Messmer’s treatment fell below the standard of care. The Defendants argued in turn that Dr. Kemmler’s affidavit was insufficient to create a genuine issue of material fact refuting the opinion of the Medical Review Panel. The trial court ultimately agreed with the Defendants and granted summary judgment in favor of the Defendants, and Korakis appealed.

On appeal, the Indiana Court of Appeals first disposed of Korakis’s claims against Dr. Halperin and the Hospital. The Court noted that while Dr. Kemmler’s affidavit stated that Dr. Halperin failed to diagnose Korakis’s fracture, Dr. Kemmler did not state Dr. Halperin breached the standard of care in failing to do so. As to the Hospital, the Court noted that Dr. Kemmler’s affidavit did not identify any particular negligence on behalf of the Hospital or state that it breached the standard of care. The Court therefore found Dr. Kemmler’s affidavit insufficient to create a genuine issue of material fact for Korakis to survive summary judgment as to Dr. Halperin and the Hospital.

As to Dr. Messmer, the Court ultimately found that, although Dr. Kemmler’s affidavit stated Dr. Messmer’s treatment fell below the standard of care, Dr. Kemmler did not state he was familiar with the applicable standard of care and what the applicable standard of care was, therefore making his testimony insufficient to create a genuine issue of material fact. Korakis argued on appeal that even if Dr. Kemmler did not explicitly state the standard of care, his averments implicitly set forth the standard of care. However, while recognizing contrary prior opinions by other panels of the Court, the Court here rejected Korakis’ argument as inconsistent with Indiana Supreme Court precedent as to what is required to be set forth regarding the standard of care. The Court reasoned that Korakis’s position would require undue speculation as to the applicable standard of care. Therefore, the Court affirmed summary judgment in favor of the Defendants. In so doing, the Court noted further guidance from the Indiana Supreme Court would be helpful to practitioners.

You can read the full opinion here.

The MMA applies to claims of medical malpractice against healthcare providers that are qualified under the MMA. Qualified healthcare providers have numerous protections under the MMA, including, among other things, a cap on damages. Ind. Code § 34-18-14-3. Under the MMA, if a qualified healthcare provider or its insurer has agreed to settle its liability by payment of its limits, a claimant is then allowed to seek excess damages from the Fund. Ind. Code § 34-18-15-3. However, not all claims against qualified healthcare providers constitute medical malpractice.

Over the years, court decisions have delineated tests as to what constitutes medical malpractice. These tests include whether the claim involves curative or salutary conduct of a healthcare provider acting in a professional capacity, whether the subject conduct was related to the promotion of a patient’s health and the provider’s exercise of professional expertise, skill, or judgment, and whether the issues in the case are capable of resolution by a jury without application of the standard of care. However, in the recent Indiana Court of Appeals decision in Martinez v. Oaklawn Psychiatric Ctr., Inc., the Court stated that “the current test… as to whether the [MMA] applies to specific misconduct is to determine whether that misconduct arises naturally or predictably from the relationship between the health care provider and patient or from an opportunity provided by that relationship,” with the Court also noting such conduct may include tortious or abusive conduct. Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549, 558 (Ind. Ct. App. 2019).

On appeal here, Doe argued that under Martinez the applicability of the MMA is no longer limited to curative or salutary conduct of a healthcare provider while acting in a professional capacity or to conduct related to the promotion of a patient’s health and the provider’s exercise of professional expertise, skill, or judgment, factors which were not present in Mosco’s sexual assault. Instead, Doe argued Mosco’s sexual assault arose naturally or predictably from the relationship between Mosco/the Hospital and Doe, or from an opportunity provided by that relationship, given Mosco’s employment as a nurse authorized to provide certain medical care. However, the Court of Appeals backtracked on the “current test” espoused in Martinez, refusing to find it supplanted established law as to what constitutes medical malpractice. The Court noted that in Martinez it did not actually even apply the test, and the test had not been cited or applied by the Court since Martinez. The Court went on to distinguish Martinez based upon the established factors and, with reference to previous decisions finding the MMA inapplicable to sexual misconduct claims, held Doe’s claims did not fall under the MMA and therefore she could not recover from the Fund.

You can read the full opinion here.

The parties tendered their submissions to a medical review panel formed to review the case. In the Radils’ submission, the Radils did not present any evidence concerning, or even mention, alleged calls Ardith made to Dr. Long on day 4 and day 5 post-surgery. In his submission, Dr. Long argued that while Ardith had a change in her vision on day 4 and day 5, she had not alerted him.

The medical review panel found in favor of Dr. Long. Based upon the panel’s opinion, Dr. Long filed a motion for summary judgment. In response, the Radils designated an affidavit from Ardith in which she stated she had called Dr. Long on day 4 and day 5 reporting her deteriorating vision and Dr. Long had told her to continue using the eye drops. The Radils also designated an expert affidavit from Dr. Bernard Spier, who opined that Dr. Long was negligent when he failed to examine or refer Ardith to another provider when Ardith contacted him on day 4 and day 5.

Dr. Long withdrew his initial motion for summary judgment. He later filed a motion a limine seeking to exclude any evidence of breaches in the standard of care not raised in Radils’ submission. The trial court granted Dr. Long’s motion in limine. Dr. Long then subsequently filed another motion for summary judgment arguing that because the Radils had not included any evidence in their submission as to the calls Ardith made on day 4 and day 5, and because Dr. Spier’s opinion was based solely upon those calls, he was entitled to summary judgment. After a hearing, the trial court granted Dr. Long’s motion for summary judgment and the Radils appealed.

The Indiana Court of Appeals affirmed summary judgment in favor of Dr. Long based upon its precedent in McKeen v. Turner. Under the Court’s holding in McKeen, plaintiffs are permitted to raise any theory of malpractice post-panel so long as (1) the proposed complaint encompasses the theory and (2) evidence related to the theory was provided to the panel. On appeal, Dr. Long acknowledged the Radils satisfied the first prong of McKeen; however, Dr. Long argued that by failing to present any evidence as to the calls on day 4 and day 5 the Radils failed to satisfy the second prong of McKeen, and therefore, failed to raise a genuine issue of material fact rebutting the unanimous opinion of the panel. While the Radils argued that the records submitted to the panel established that Ardith and Dr. Long communicated on day 4 and day 5, the Court disagreed, noting the records did not even support an inference of such communications. Accordingly, the Court found the Radils did not satisfy the second prong of McKeen and therefore failed to create a genuine issue of material fact with Dr. Spier’s affidavit to survive summary judgment.

You can read the full memorandum decision here.

In Wilson, Darci Wilson (“Wilson”) received medical care from Anonymous Defendant 1, an orthopedic physician group. She had a knee replacement performed at Anonymous Defendant 1’s facility and was thereafter referred for physical therapy on the second floor of Anonymous Defendant 1’s facility. Anonymous Defendant 1 and Accelerated Rehab, a physical therapy company, had a “Staffing Agreement” whereby Accelerated Rehab would provide physical therapy personnel to staff Anonymous Defendant 1’s facility. Athletico, Ltd and Athletico Management, LLC (“Athletico”) thereafter acquired Accelerated Rehab and seemingly continued to operate under the “Staffing Agreement.” However, there was no contract, agreement, or any legal relationship between Anonymous Defendant 1 and Athletico or its rehab personnel.

Wilson was injured while undergoing physical therapy with physical therapist Christopher Lingle (“Lingle”) at Anonymous Defendant 1’s facility, which also housed Athletico. Wilson filed a proposed complaint alleging medical negligence against Anonymous Defendant 1 before the Indiana Department of Insurance, and later, after the two-year statute of limitations had already expired, she filed against Lingle and Athletico, which were not qualified under the Medical Malpractice Act, in state court. Lingle and Athletico moved for summary judgment based upon the statute of limitations, which the trial court granted. Anonymous Defendant 1 also moved for summary judgment arguing it could not be liable for Lingle because it had no employment or contractual relationship with Lingle. The trial court granted Anonymous Defendant 1’s motion and Wilson appealed. On appeal the Indiana Court of Appeals agreed with Anonymous Defendant 1 finding Anonymous Defendant 1 could not be held liable for Lindle’s actions under Sword because there was no independent contractor relationship between Anonymous Defendant 1 and Lingle. However, the Indiana Supreme Court accepted transfer, thereby vacating the Court of Appeals opinion, and reversed the trial court, finding a genuine issue of material fact existed under Section 267’s apparent agency principles.

In its opinion in Wilson, the Indiana Supreme Court agreed with Anonymous Defendant 1 that Sword did not apply because there was no legal relationship between Anonymous Defendant 1 and Lingle. However, the Court adopted Restatement (Second) of Agency section 267 which does not require a legal relationship between a principal and agent. Section 267 provides that “[o]ne who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.” Restatement (Second) of Agency § 267 (1958). Under Section 267, courts look to the principal’s representations and the third-party’s reliance on those representations.

As noted by the Court, the question before the Court in applying Section 267 in Wilson was (1) whether Anonymous Defendant 1 used some form of communication, whether direct or indirect, which gave rise to a reasonable belief in Wilson that Lindle was an agent of Anonymous Physician 1 and (2) whether that belief led Wilson to get treatment from Lindle. In its opinion, the Court noted that Wilson did not know who Lingle’s employer was and there were signs indicating he was an employee of Anonymous Defendant 1. Anonymous Defendant 1 referred Wilson to the second floor of its facility, which only had Anonymous Defendant 1’s branding. Wilson signed an appointment policy that said, “Thank you for choosing [Anonymous Defendant 1] for your therapy needs.” This policy was signed by the “[Anonymous Defendant 1] Physical/Occupational Therapy Department.” The policy also noted it was the policy of Anonymous Defendant 1, not Athletico, to require at least 24 hours’ notice of any appointment cancellations. There was no indication the second floor of Anonymous Defendant 1’s facility was occupied by Accelerated Rehab or Athletico. Anonymous Defendant 1 provided Lindle with physical therapy forms to fill out. A physician with Anonymous Defendant 1 signed Wilson’s physical therapy records. Anonymous Defendant 1 also billed Wilson for her physical therapy. Given these facts, the Indiana Supreme Court found there was a genuine issue of material fact as to whether Lindle was Anonymous Defendant 1’s apparent agent thereby precluding summary judgment for Anonymous Defendant 1. Accordingly, the Court reversed the trial court and remanded the case for further proceedings.

You can read the full opinion here.

The Plaintiff in Arrendale, Harold Arrendale (“Arrendale”), sued American Imaging & MRI, LLC, also known as Marion Open MRI (“Marion Open MRI”), an outpatient diagnostic imaging center, and radiologist Dr. Alexander Boutselis for medical malpractice relating to MRIs Arrendale underwent at Marion Open MRI that were interpreted by Dr. Boutselis. While Dr. Boutselis was not an employee of Marion Open MRI, Arrendale sought to hold Marion Open MRI responsible for his malpractice as an apparent agent of Marion Open MRI, which, unlike Dr. Boutselis, was not qualified under the Indiana Medical Malpractice Act. Marion Open MRI never indicated to Arrendale that Dr. Boutselis was an independent contractor, Dr. Boutselis’ opinions and conclusions in his radiology report were on Marion Open MRI’s letterhead, and Marion Open MRI advertised its services stating in a building sign that patients could “Save $$ on your next MRI!”

The trial court granted summary judgment in favor of Marion Open MRI because Indiana’s appellate courts had not yet applied Sword outside the hospital setting. The Indiana Supreme Court in Sword adopted the Restatement (Second) of Torts section 429 with regards to care provided in the hospital setting. Section 429 provides that “[o]ne who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.” Restatement (Second) of Torts § 429 (1965).

Pursuant to Sword the two main factors are (1) the principal’s manifestations that an agency relationship exists (actions which would lead a reasonable person to conclude that a provider is an agent and/or employee) and (2) the patient’s reliance on such manifestations (did the patient rely upon the conduct of the hospital or its agent consistent with ordinary care and prudence). Under Sword, “[a] hospital will be deemed to have held itself out as the provider of care unless it gives notice to the patient that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital.” Sword, 714 N.E.2d at 152. Hospitals can generally avoid liability by giving meaningful notice to patients, acknowledged at the time of admission. If hospitals do not give meaningful notice, if the patient has no special knowledge of a hospital’s relationship with its independent contractor physician, and if there is no reason the patient should have known of the relationship, then reliance is presumed, and a hospital can be held liable for the negligence of its independent contractor.

In its opinion, the Indiana Supreme Court in Arrendale first discussed the background of Sword, Section 429, and vicarious liability under Indiana law. The Court then held Sword and Section 429 should be applied to non-hospital medical providers. The Court analyzed the ongoing changes in healthcare in which patients increasingly rely upon non-hospital medical providers and found the policy reasons underlying Sword were also applicable to non-hospital providers. Lastly, applying Sword to the facts in Arrendale, the Court found that under the totality of the circumstances there was a genuine issue of material fact as to whether Dr. Boutselis was an apparent agent of Marion Open MRI. The Court noted Marion Open MRI advertised itself as a provider of MRI services and it provided healthcare services to Arrendale, there was no evidence Marion Open MRI provided meaningful notice to Arrendale that Dr. Boutselis was an independent contractor, and Arrendale–having no special knowledge or indication that Dr. Boutselis was an independent contractor and having received Dr. Boutselis’ report on Marion Open MRI’s letterhead–thought Marion Open MRI employed Dr. Boutselis. Accordingly, the Indiana Supreme Court reversed the trial court’s grant of summary judgment in favor of Marion Open MRI and remanded for further proceedings.

You can read the full opinion here.

Specifically, Talevski alleged in his complaint against the skilled nursing facility, Valparaiso Care, that it failed to follow FHNRA in several respects including failing to provide adequate medical care, administering psychotropic medicine to chemically restrain him resulting in rapid physical and mental decline, discharging him without the consent of his family or guardian, refusing to fulfill an administrative judge’s order to readmit him, and maintaining a policy, practice, or custom that failed to promote, maintain, or enhance the quality of his and each resident’s life. On appeal, Talevski narrowed the allegations to only two particulars that appear in FNHRA: the right to be free of chemical restraints imposed for purposes of discipline or convenience and his rights related to resident-transfer and discharge procedures, namely his right to remain at Valparaiso Care and to receive timely notice of transfer or discharge.

The issue for the Court was whether Section 1983, a federal law that allows for a private citizen to bring a private claim for damages for civil rights violations, would extend to a claim that a nursing home resident’s rights conferred by the language of a federal statute were violated. The Court noted that FHRNA places minimum standards of care required of nursing-home facilities to qualify for federal funding under the Medicaid program. Medicaid allows states to subsidize, through federal aid, medical assistance to low-income qualifying individuals and families. In return for this funding, the states must adhere to the program’s statutes and regulations, including FHRNA. Along with the specific rules to qualify, FHRNA also includes requirements relating to resident’s rights. The Court emphasized that FHRNA Section 1396r(c)(1)(A) provides that a “nursing facility must protect and promote the rights of each resident, including each of the following rights…(ii) Free from restraints…Restraints may only be imposed—(I) to ensure the physical safety of the resident or other residents, and (II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used…”

In analyzing the propriety of the dismissal of Talevski’s FHRNA-premised Section 1983 claims, the Court examined the legal framework for a valid Section 1983 claim. Section 1983 requires an allegation that a federal right was violated, not just a federal law. To make this distinction, the United State Supreme Court has set forth three factors for examination, which can be summarized as: 1) Did Congress intend the law in question to benefit the claimant? 2) Has the plaintiff demonstrated the statute is clear enough that it would not make it difficult for courts to enforce?, and 3) Does the law clearly impose a mandate on the States? Assuming these three factors are met, the right is presumptively enforceable under Section 1983. The only way, then, there can be no claim is if the claim has been otherwise expressly or impliedly foreclosed by Congress.

The Court made quick work of the first question of whether the law was intended to benefit residents like Talevski, stating “We do not know how Congress could have been any clearer. After the heading, the statute says ‘[a] skilled nursing facility must protect and promote the rights of each resident, including each of the following rights.’” 42 U.S.C. § 1396r(c)(1)(A). Although Valparaiso Care argued Talevski could not show the statute was intended to apply to an individual, the Court emphasized the plain language of the law: “What must it do? ‘[P]rotect and promote the rights of each resident…” The Court noted FHRNA was enacted to curb widespread abuses within government-certified nursing facilities. It found “dispositive the fact that Congress spoke of resident rights, not merely steps that the facilities were required to take.”

As for the second question of whether Talevski had demonstrated the law was clear and easily enforceable by courts, the Court noted that facilities “must not” do exactly what Talevski was complaining had occurred. Observing that Talevski’s allegations were not so complex that they would require input from a medical review panel, as might be required in an ordinary medical malpractice or nursing home claim in Indiana. Inquiries such as whether a patient was chemically restrained or transferred or discharged “are focused, straightforward inquires that agencies and courts are well equipped to resolve.”

For the final question of whether the law clearly imposes a mandate upon the States, the Court found “there is no dispute” and agreed with Talevski that “a common sense reading of its provisions leaves no room for disagreement.”

Having determined a right had been established, the Court finished its analysis by examining whether a private right of action premised upon Section 1983 had been expressly or impliedly foreclosed by Congress. The Court found no express foreclosure of such a claim. Valparaiso Care argued that the right had been impliedly foreclosed, because Congress otherwise requires annual nursing home surveys to enforce nursing home adherence to laws and regulations. The Court noted, however, “[t]his is not the type of comprehensive enforcement scheme, incompatible with individual enforcement, that we are looking for.” While such surveys and enforcement actions might measure compliance with FHRNA, “[t]hey do not address, and thus do not protect, individual entitlements to be free from chemical restraints or involuntary transfer or discharge.” The Court also rejected the argument that the administrative appeals process Tavleski had gone through constituted any kind of comprehensive enforcement scheme, noting the Supreme Court had rejected similar arguments in the past. The Court concluded with a nail in the coffin of Valparaiso Care’s argument:

Were there any lingering doubt, it should be put to rest in the general guidance provided in section 1396r(h)(8): “The remedies provided under this subsection are in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies, including any remedy available to an individual at common law…there is nothing that support carving out section 1983, and we will not rewrite the statute to create any such exception.

The Court noted in passing that Valparaiso Care also argued Talevski’s claim was barred by the two-year statute of limitations applicable to Section 1983 claims brought in Indiana. However, given Talevski’s mental condition and wife’s guardianship over him, this was a mixed question of law and fact left for the district court to determine his capacity to bring such a claim, as the statute of limitations only runs on an incapacitated person’s claim under Indiana law when “the disability is removed.”

You can read the Tavleski opinion in full here.