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We previously blogged about the Seventh Circuit’s certified question to the Indiana Supreme Court: “Whether Indiana’s Medical Malpractice Act applies to claims brought against qualified providers for individuals who did not receive medical care from the provider, but who are injured as a result of the provider’s negligence in providing medical treatment to someone else?” In Cutchin v. Beard, the Indiana Supreme Court answered this question in the affirmative.

The Indiana Patient’s Compensation Fund will often take the position in claims for excess compensation that the Medical Malpractice Act does not apply when it would mean escaping liability for otherwise viable claims. In Cutchin, the Fund secured a dismissal of the excess damages claim brought against it by Jeffrey Cutchin. Cutchin had settled a malpractice claim with a qualified medical provider who had negligently prescribed opiates and other medications to Sylvian Watson. Watson had run a red light and killed Cutchin’s wife and daughter. Watson claimed she could not lift her foot from the accelerator in time to stop her vehicle due to the opiates and other medications prescribed by the provider. Despite the settlement, the Fund sought to avoid paying excess damages. Upon appeal of the federal district court’s ruling, the Seventh Circuit certified the above question, as well as another that went unanswered.

In arriving at its decision, the Indiana Supreme Court first addressed the Act’s definition of “patient” found in Indiana Code Section 34-18-2-22: “an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider. Derivative claims include the claims of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient including claims for loss of services, loss of consortium, expenses, and other similar claims.” The Court found this definition creates two categories of “patient” under the Act: the first is the traditional patient who receives care by a provider; the second is a third party whose claim results from a provider’s medical malpractice to a traditional patient.

The Indiana Court of Appeals recently extended the Indiana Supreme Court’s Sword apparent agency holding to a non-hospital medical provider in Arrendale v. Am. Imaging & MRI, LLC. At issue in Sword and Arrendale was whether medical facilities could be held liable for the negligence of non-employee medical providers contracted to perform services for patients at the facilities.

The Indiana Supreme Court in Sword v. NKC Hosps., Inc., 714 N.E.2d 142 (Ind. 1999) adopted the Restatement (Second) of Torts section 429 (1965) dealing with apparent agency in the hospital setting, which states 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). Under Sword, a judge or jury must consider the totality of the circumstances surrounding a hospital’s manifestations and a patient’s reliance on such manifestations, including the reasonableness of a patient’s belief that a hospital or its employees were rendering the care provided. “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 physicians, 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 physicians.

In Arrendale, the Plaintiff, Harold Arrendale (“Arrendale”), filed a medical negligence lawsuit against Marion Open MRI and radiologist Dr. Alexander Boutselis and other healthcare providers arising out of their failure to diagnose and treat an arteriovenous fistula of his spine. In his lawsuit, Arrendale alleged Marion Open MRI was vicariously liable for Dr. Boutselis’ negligence because Dr. Boutselis was “an employee and/or agent” of Marion Open MRI. Marion Open MRI moved for summary judgment arguing that it could not be held liable for Dr. Boutselis because he was not an employee of Marion Open MRI, but rather an independent contractor. Marion Open MRI argued that the holding in Sword should be limited to hospitals only and not applied to non-hospital medical facilities. The trial court, while indicating it tended to agree with Arrendale’s position, granted Marion Open MRI’s motion reasoning that Indiana’s appellate courts should resolve the issue.

The Indiana Court of Appeals recently reversed a trial court’s order on a motion for preliminary determination filed by a dentist in a dental malpractice case directing a patient to redact portions of her submission to a medical review panel formed to review the case. In White v. Nichols, Millie White (“White”) filed a dental malpractice case against John Lee Nichols, D.D.S. and John L. Nichols, D.D.S., P.C. (“Dr. Nichols”) as a result of injuries stemming from the placement of a dental bridge. Prior to filing the lawsuit, White notified the Indiana Dental Association of her complaints, and in response, the Indiana Dental Association provided White and Dr. Nichols a “resolution letter” setting forth a panel of dentists’ findings and recommendations. White’s submission to the medical review panel included the text of the resolution letter. Dr. Nichols filed a motion for preliminary determination asking the trial court to order White to redact the contents of the resolution letter from her submission arguing the letter was privileged and inadmissible. The trial court ordered White to redact the contents of the resolution letter and White appealed.

Under the Indiana Medical Malpractice Act (MMA), when bringing a medical malpractice claim against a qualified provider patients must file a proposed complaint before the Indiana Department of Insurance and present the proposed complaint to a medical review panel and receive an opinion from the panel before prosecuting their case in court. During the medical review panel process, the jurisdiction of a trial court is limited. The MMA provides that a trial court has jurisdiction to “(1) preliminary determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure; or (2) compel discovery in accordance with the Indiana Rules of Procedure.” Ind. Code § 34-18-11-1.

White argued on appeal that the trial court lacked jurisdiction to order her to redact the resolution letter from her submission. Examining the limited scope of jurisdiction afforded trial courts under the MMA, the Indiana Court of Appeals agreed and held the trial court exceeded its jurisdiction in ordering White to redact the resolution letter from her submission. The Court found Dr. Nichols’ request did not concern a discovery issue, as both White and Dr. Nichols already had the resolution letter. The Court found that although privilege in some cases could be considered an affirmative defense, in this case, the privilege was not Dr. Nichols’ privilege but rather a third party’s privilege and therefore was not Dr. Nichols’ affirmative defense as to White’s claim against him. And lastly, the Court found Dr. Nichols’ motion did not request the trial court to preliminarily determine any issues of law or fact that may be preliminarily determined under Indiana Trial Rule 12(d).

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Super Lawyers rates Indiana attorneys on a yearly basis in more than 70 different practice areas, including personal injury and medical malpractice.  Following its completion of a peer review process, together with a patented evaluation process, the organization determines the lawyers in Indiana it will include on its Super Lawyers and Rising Stars list and announces those named online and in its Super Lawyers Magazine.  Super Lawyers rates attorneys nationwide among their peers for their respective states and areas of practice.

This year marks Barsumian’s fourth consecutive selection as a Super Lawyer in the field of personal injury.  Super Lawyers recognizes no more than 5 percent of the attorneys in Indiana.  Barsumian was previously selected as a Rising Star on four occasions.  Armiger, recognized for the area of medical malpractice, has now been selected to the Rising Star list on five occasions.  The Rising Stars designation recognizes attorneys 40 years old or younger and represents only 2.5 percent of the attorneys in Indiana.

Barsumian and Armiger are proud of this recognition and look forward to continuing to serve their clients in the Indianapolis and Evansville area in the areas of personal injury, medical malpractice, and wrongful death.

Jacqueline McGuire was a resident of Henderson County Healthcare Corporation’s Redbanks Skilled Nursing Facility in Henderson Kentucky.  After McGuire suffered bedsores and multiple injuries while at Redbanks, McGuire was transferred to another nursing home facility where she ultimately died.  McGuire’s brother, as administrator of her estate, filed a nursing home negligence lawsuit with various claims against Redbanks arising out of the alleged neglect.

During the prosecution of the lawsuit, Redbanks refused to respond to discovery requests seeking documents Redbanks claimed were protected by the Federal Quality Assurance Privilege (FQAP) pursuant to 42 U.S.C. § 1396r(b)(1)(B) and 42 U.S.C. § 1395i-3(b)(1)(B).  The FQAP is a subsection of the Federal Nursing Home Reform Act (FNHRA) passed in 1987.  To ensure quality care of nursing home residents, the FQAP requires skilled nursing facilities and nursing facilities to establish a quality assessment and assurance committee.  The FQAP protects the records of the committee from disclosure.

At times relevant to McGuire’s care, Redbanks had a Quality Assurance Performance Improvement (QAPI) committee, which then contracted with an independent contractor, Wells Health Systems (“Wells”), to consult and evaluate and provide guidance to Redbanks on the facility’s quality of care.  Nurse consultants employed by Wells performed site visits monthly wherein they examined residents’ medical charts, observed Redbanks staff perform their duties, and reviewed various statistical data.  These chart audits, compliance rounds, and statistics reviews were then compiled in reports provided to Redbanks QAPI.  The nurse consultants were neither Redbanks’ employees, nor members of the QAPI.

Unlike Indiana, Kentucky has a statute, the Unfair Claims Settlement Practices Act (“UCSPA”), KRS 304.12-230, that expressly allows for bad-faith claims to be brought against liability insurers for unfair claims settlement practices.  However, so-called captive insurers have taken the position that they are excluded from the law.  The Kentucky Supreme Court recently addressed the issue in Merritt v. Catholic Health Initiatives, Inc.

Harold Merritt alleged that Dr. Anthony Smith, an employee of KentuckyOne Health, was responsible for medical negligence in the deaths of his wife, Kimberly, and infant son.  During her pregnancy, Kimberly developed placenta previa, a condition wherein the baby’s placenta partially or totally covers the mother’s cervix, which can cause severe bleeding during pregnancy and delivery.  Although the high-risk obstetrician to whom Dr. Smith referred Kimberly recommended a caesarian section no later than at thirty-seven weeks gestation, Dr. Smith examined her at thirty-seven weeks and scheduled an appointment one week later.  Shortly thereafter Kimberly was found unresponsive at home and died shortly after being transported to the hospital by EMS.  The couple’s child was delivered by post-mortem caesarian section, but only survived a few hours, suffering seizures during that time.

In his medical malpractice complaint, Merritt named Catholic Health, an entity that sponsors KentuckyOne Health and its affiliates, and First Initiatives, a foreign, wholly-owned subsidiary of Catholic, which provided self-insurance coverage to Catholic, its affiliates and employees including KentuckyOne Health and Dr. Smith.  First Initiatives provided coverage and Catholic paid assessments to First Initiatives, although Catholic’s affiliates did not pay for the coverage.  Merrit included a claim that First Initiatives violated the UCSPA, KRS 304.12-230, by engaging in bad faith settlement negotiations.

The United States Court of Appeals for the Seventh Circuit recently requested the Indiana Supreme Court address two questions through a process known as certification of questions.  Both Seventh Circuit Rule 52(a) and Indiana Rule of Appellate Procedure 64 recognize federal courts may seek guidance from a state’s highest court on questions arising under the law of that state which will control the outcome of a case pending in federal court.

The questions arose out of a tragic car crash in Gibson County, Indiana, which claimed the lives of two drivers and a passenger.  Sylvia Watson was driving from a repair shop in Owensville, Indiana to Princeton, when she approached a red light and exclaimed to the sole survivor of the crash, her granddaughter/passenger, Brandy Mayer, that she could not stop the vehicle.  Watson’s vehicle struck a vehicle driven by Claudine Cutchin, whose daughter, Adelaide, was in the passenger seat.  Claudine died at the scene and Watson and Adelaide died later from the injuries suffered.

A blood test on Watson revealed opiates in her bloodstream and Mayer recounted Watson had taken two pills before leaving the repair shop.  It was later discovered that a physician had prescribed Watson eight different medications, including an opioid and muscle relaxers.

Delivery of a business card to a patient during registration for a surgical procedure does not itself, as a matter of law, constitute meaningful written notice, acknowledged at the time of admission, to a patient that a physician is an independent contractor for which a hospital has no liability arising out of the doctor’s alleged malpractice. This is what the Indiana Court of Appeals recently held in the case of Jernagan v. Indiana Univ. Health.

Richard Jernagan (“Jernagan”) underwent spine surgery at IU Health North Hospital. The anesthesiologist was Dr. Michael Miller, a partner with Anesthesia Consultants of Indianapolis. Prior to the procedure, an IU Health guest relations representative, Mary Mosby (“Mosby”), registered Jernagan and gave Jernagan Dr. Miller’s business card, which stated Dr. Miller’s name, employer, and contact information. Mosby did not tell Jernagan Dr. Miller was an independent contractor and not an employee of the hospital. During the surgery, Jernagan suffered a cardiac arrest requiring resuscitation and admission to the ICU due to a sudden drop in blood pressure and significant blood loss. Jernagan filed a lawsuit against the surgeon and the hospital. A medical review panel found no malpractice on behalf of the named defendants and did not address the conduct of Dr. Miller, who had not been named in the lawsuit. After the hospital filed a second motion for summary judgment, Jernagan filed an expert affidavit as to Dr. Miller and argued the hospital was vicariously liable for his conduct based upon apparent agency pursuant to Sword v. NKC Hospitals, Inc. The trial court granted the hospital’s motion and Jernagan appealed.

The Court of Appeals first resolved a procedural issue concerning the timeliness of Jernagan’s response to the hospital’s motion for summary judgment. There had been an agreement for an extension of time reached between Jernagan and the hospital as noted on an entry to the Chronological Case Summary (CCS) with defense counsel directed to circulate an order regarding the summary judgment deadline. Indiana law has a bright-line rule that, unless a party responds to a motion for summary judgment within the applicable timeframe or requests an extension, a trial court has no discretion to alter the time limits for a response. The Court of Appeals agreed with the trial court’s analysis that the CCS entry’s direction that defense counsel circulate an order was meant to separately express the order stated in the CCS entry, and with Jernagan having requested an extension, which was granted by the trial court, Jernagan’s response was timely.

Depending on the circumstances surrounding a fatality caused by another’s negligence, Indiana statutes may place limits on the monetary value of the human life taken when it comes to compensating the remaining family members for their loss.  Known as a “damage cap,” such limits may be triggered by the status of the negligent actor being a qualified healthcare provider or a governmental entity. Another damage cap depends on the dependency of those family members left behind, which is the topic of today’s blog.

The Indiana Court of Appeals recently ruled that the adult son of a decedent was not a dependent for purposes of Indiana’s General Wrongful Death Statute and that he could not pursue an alternative survival claim based upon the Defendants’ admissions of liability. In Franciscan ACO, Inc. v. Newman, Virginia Newman was being transported by an employee of Franciscan ACO, Inc. and/or Franciscan Alliance, Inc. (“Franciscan”). During the transport, Virginia and her wheelchair were not properly secured, and when the employee turned, Virginia and her wheelchair fell over. Virginia suffered injuries and subsequently died. Virginia’s son, Vaughn Newman, filed a lawsuit alleging wrongful death and asserting an alternative survival claim for his mother’s injuries.

Defendants filed an answer in which they admitted the factual allegations in Vaughn’s complaint as to negligence and that the negligence caused Virginia’s death. They thereafter filed a motion for summary judgment arguing that Vaughn was not a dependent under Indiana’s General Wrongful Death Statute and was therefore limited to the $300,000 cap for loss of love and companionship under Indiana’s Adult Wrongful Death Statute. They also argued the evidence established that Defendants caused Virginia’s death, and therefore, Vaughn’s survival claim should be dismissed. After holding a hearing, the trial court denied the Defendants’ motion.

The Indiana Court of Appeals recently held a nursing home, qualified under the Indiana Medical Malpractice Act, had relinquished its right to protections afforded by the Act to medical malpractice defendants by contracting for claims against it to be resolved exclusively by arbitration, such that the estate of a nursing home resident could compel arbitration in lieu of presenting the case before a medical review panel.

The Estate of Sandra King (“the Estate”) filed a medical malpractice lawsuit against Aperion Care d/b/a Aperion Care Tolleston Park (“Aperion”) relating to nursing care provided to King while she was a resident at Aperion. As part of her admission to the nursing home, King signed Aperion’s Arbitration Agreement, which provided all claims against Aperion were to be resolved exclusively by arbitration. After filing a lawsuit and conducting discovery, and prior to tendering its medical review panel submission, the Estate moved to compel arbitration based upon the Arbitration Agreement. After a hearing, the trial court denied the Estate’s motion to compel, finding the case “not yet ripe for arbitration,” as the case had not yet been presented to a medical review panel.

Under the Indiana Medical Malpractice Act, qualified healthcare providers (i.e., those who have filed proof of financial responsibility and paid the applicable surcharge, Ind. Code § 34-18-3-2), get numerous protections, including a requirement that plaintiffs first present their claims before a medical review panel prior to prosecuting them in court. Ind. Code § 34-18-8-4. Medical review panels are comprised of one attorney chairperson and three healthcare providers. Ind. Code § 34-18-10-3. Once the panel is formed, the parties tender medical review panel submissions consisting of evidence to be considered by the panel. Ind. Code § 34-18-10-17. The panel then issues an opinion on whether the defendants complied with the applicable standard of care and whether the conduct complained of was a factor in the resultant damages. Ind. Code § 34-18-10-22.

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