Articles Posted in Medical Malpractice

We previously wrote a personal injury and medical malpractice blog about the decision of the Indiana Court of Appeals in Korakis v. Mem’l Hosp. of S. Bend in which the court affirmed summary judgment for three medical defendants based upon the insufficiency of the patient’s expert’s affidavit submitted to refute a negative medical review panel opinion. In the case, Penny Korakis (Korakis) suffered an occult radial fracture of her left elbow, which went undiagnosed and untreated and ultimately required corrective surgery. Korakis filed a lawsuit against an ER doctor, the hospital where she had two sets of x-rays a week apart, and a family practice physician, Dr. Michael R. Messmer, who had referred her to physical therapy without obtaining additional imaging of her elbow. The medical review panel in the Indiana Department of Insurance proceedings found for the medical defendants. After the lawsuit was filed in court, the defendants moved for summary judgment based on the panel opinion.

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 Court of Appeals recently considered whether a nurse who suffered a workplace injury can pursue a medical malpractice claim against a co-employee physician who treated the nurse for her injuries despite the exclusivity provision of Indiana’s Worker’s Compensation Act (WCA). In Gardner v. Anonymous Physician, Laurie Gardner (“Gardner”) contracted scabies from another patient while working for a hospital. Gardner filed a worker’s compensation claim against the hospital, which was subsequently resolved. Gardner also filed a medical malpractice claim against a co-employee physician, who was the medical director at the hospital, alleging the physician failed to timely and appropriately treat the patient with scabies, protect Gardner from exposure to scabies, which her family also contracted, direct Gardner’s care, provide appropriate and timely treatment to Gardner, and refer Gardner to an appropriate specialist for treatment.

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.

The Indiana Court of Appeals recently affirmed a trial court’s order directing patients in related medical malpractice claims to redact portions of their submissions tendered to medical review panels formed to review the cases under the Indiana Medical Malpractice Act. In Bojko v. Anonymous Physician, 215 N.E.3d 376 (Ind. Ct. App. 2023), six patients filed medical malpractice claims against a physician and the physician’s practice (the “physician”). After medical review panels were formed in each of the cases, the patients tendered separate, but in parts similar, submissions to the panels. Among other things, the patients’ submissions referenced a medical malpractice complaint filed by the physician’s wife on behalf of the physician’s estate (the physician was allegedly killed after being prematurely discharged from a hospital ER) wherein the physician’s wife stated the physician suffered from chronic alcohol and drug abuse with signs of mental illness. The physician in Bojko objected and filed a petition in court requesting the trial court order non-evidentiary allegations in the patients’ submissions be redacted. After a hearing, the trial court granted the physician’s petition and ordered the patients to redact “any and all references to the [malpractice complaint]” filed by the physician’s wife and “any and all references to allegations of drug and/or alcohol abuse or mental health issues of [the physician].”

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.

The Indiana Court of Appeals recently reversed a trial court’s denial of a motion for summary judgment filed by the Indiana Department of Insurance and the Indiana Patient’s Compensation Fund (the Fund) in a negligent credentialing claim. In Indiana Dep’t of Ins. v. Doe, a doctor sexually molested a minor child during a physical exam. The child’s parents (the Does) filed a medical malpractice claim against the doctor and the hospital for which the doctor worked. In their lawsuit, the Does asserted the hospital was negligent in credentialing the doctor. The Does and the hospital thereafter entered into a settlement agreement, which was contingent on the Does obtaining access to excess damages from the Fund. After the Does filed a petition against the Fund for excess damages, the Fund moved for summary judgment, with the hospital as an intervening party. The Fund argued the Does’ negligent credentialing claim was not medical malpractice within the scope of the Indiana Medical Malpractice Act (the Act), and therefore, it had no liability to pay excess damages, thereby making the settlement between the Does and the hospital null and void. The trial court denied the Fund’s motion for summary judgment and the Fund appealed.

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.

We previously wrote about a decision by the Indiana Court of Appeals regarding a hospital employee’s unauthorized access of patient records in Community Health Network, Inc. v. McKenzie here. However, the Indiana Supreme Court later granted transfer in McKenzie, thus vacating the Court of Appeals’ decision.

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.”

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of three healthcare providers in a medical malpractice case finding the affidavit of the patient’s expert was insufficient to create a genuine issue of material fact to refute a negative opinion of a medical review panel formed to review the case. In Korakis v. Mem’l Hosp. of S. Bend, Penny Korakis (Korakis) was involved in a car crash and went to Memorial Hospital of South Bend (the Hospital) where she was seen by emergency care physician David Halperin, M.D. (Dr. Halperin). Korakis reported pain from her left hand to her left shoulder and had x-rays of her left arm and hand. Dr. Halperin diagnosed her with an acute soft tissue injury. A week later Korakis returned to the Hospital and had additional x-rays, including x-rays of her left shoulder, elbow, and wrist. Korakis thereafter saw family physician Michael Messmer, D.O. (Dr. Messmer) who ordered additional x-rays of Korakis’s wrist and referred her to physical therapy. Later, Korakis obtained a second opinion from an orthopedic physician, who ordered an MRI of Korakis’s elbow. Korakis ultimately required corrective surgery for a fracture of her elbow, and she sued Dr. Halperin, Dr. Messmer, and the Hospital for failing to appropriately diagnose and treat her injuries.

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.

The Indiana Court of Appeals recently backtracked on one of its more recent opinions on the applicability of the Indiana Medical Malpractice Act (MMA) and held in Doe v. Indiana Dep’t of Ins. that a plaintiff’s claims of sexual battery by a nurse while hospitalized do not fall under the MMA. In Doe, Jane Doe (Doe) was admitted to Indiana University Ball Memorial Hospital (the Hospital) after suffering a stroke. One of the hospital’s nurses, Nathanial Mosco (Mosco), sexually assaulted Doe and was thereafter convicted of battery. Doe filed a lawsuit against Mosco and the Hospital in court and before the Indiana Department of Insurance (IDOI). Doe and the Hospital entered into a settlement agreement for $400,000, which would allow Doe to pursue further damages from the Indiana Patient’s Compensation Fund (the Fund), which is administered by the IDOI. However, the settlement agreement provided that the settlement was not conditioned on Doe’s ability to recover additional damages from the Fund. After Doe filed a petition for excess damages against the Fund, the Fund moved for summary judgment arguing the MMA did not apply, and therefore, it had no obligation to pay any excess damages, even if warranted. The trial court granted the Fund’s motion for summary judgment and Doe appealed.

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).

The Indiana Court of Appeals recently affirmed the grant of summary judgment in favor of an ophthalmologist in a medical malpractice case based on the Court’s precedent in McKeen v. Turner. In Radil v. Long, Ardith Radil and Larry Radil sued Dr. Kuumba Long and his group. Dr. Long had performed cataract surgery on Ardith’s right eye. Three days after surgery Ardith saw Dr. Long and noted vision problems. Dr. Long prescribed eye drops and told her to call him if she had any changes, decreased vision, or concerns. Six days after surgery Ardith called Dr. Long and reported pain and decreased vision. Dr. Long asked her to come into his office and he saw her the same day. Dr. Long diagnosed Ardith with endophthalmitis, a medical emergency. He referred her to a retina specialist, who performed surgery later the same day. Ardith ultimately lost vision in her right eye, and she and her husband filed a medical malpractice lawsuit for damages.

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.

We recently wrote about the Indiana Supreme Court’s decision in Arrendale v. American Imaging & MRI, LLC in which the Court held that non-hospital medical providers could be responsible for the negligent acts or omissions of their independent contractors through apparent agency. The same day the Court issued its opinion in Arrendale, the Court also issued an opinion in Wilson v. Anonymous Defendant 1 in which it adopted Restatement (Second) of Agency section 267 and held as a matter of first impression that a medical provider can be responsible for the negligent acts or omissions of an apparent agent based upon a medical provider’s manifestations that an agency relationship exists, which causes a third party to rely on that relationship. The rule articulated in Wilson, unlike in Arrendale, does not require an independent contractor relationship.

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.