Articles Posted in Medical Malpractice

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.

We previously wrote about the Indiana Court of Appeals decision in Arrendale v. Am. Imaging & MRI, LLC in which the Indiana Court of Appeals held that the apparent agency principles set forth in the Indiana Supreme Court’s opinion in Sword v. NKC Hosps., Inc., 714 N.E.2d 142 (Ind. 1999) and Restatement (Second) of Torts section 429 applied to non-hospital medical providers. The Indiana Supreme Court granted transfer and agreed, holding Sword and Section 429’s apparent agency principles apply to non-hospital medical entities that provide healthcare to patients.

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).

The Indiana Supreme Court recently reversed the Indiana Court of Appeals’ denial of a medical malpractice claimant’s request to amend her complaint to allege a violation of 42 U.S.C. § 1395dd, a federal law also known as the Emergency Medical Treatment and Labor Act (“EMTALA”). The claimant, Betty Miller, had sued various health-care providers under medical malpractice theories claiming her mentally ill grandson, Zachary Miller, should not have been released from Community Howard Regional Health Hospital’s (“Community Howard”) emergency room after he had arrived at Community Howard’s emergency room requesting admission for his mental illness and dangerous propensities. She later sought to amend her complaint to include an EMTALA claim.

EMTALA was enacted by Congress to deter hospitals from the practice “dumping” indigent patients. EMTALA provides that a hospital emergency department must screen individuals for “emergency medical condition[s]” and either stabilize the condition or transfer the patient as permitted under the law. However, relevant to the issue presented, any legal claim under the law must be brought no more than two years after the date of the violation.

Federal law can preempt state law either implicitly or explicitly when provisions of the federal and state laws are at odds. EMTALA contains an express preemption provision which provides that “this section does not preempt any State or local law requirement, except to the extent that requirement directly conflicts with a requirement of this section.” 42 U.S.C. § 1395dd(f). A year before Miller, in Williams v. Inglis, the Indiana Court of Appeals had held that EMTALA’s two-year statute of limitations preempted Indiana Trial Rule 15(C)’s provision allowing amendments to timely-filed complaints to relate back to the time the complaint was filed. In, other words, in Williams, the Court of Appeals had held that because EMTALA provided a claim had to be filed within two years after the violation, this conflicted with the otherwise liberal right to amend a complaint under Indiana law and refused to allow an amendment to relate back to add an EMTALA claim after the two years. And, the Indiana Supreme Court had refused to consider Williams’ request for review, so the Court of Appeals had simply followed its past precedent in Miller to deny the same request. Luckily for Miller, unlike in Williams, the Indiana Supreme Court agreed to accept her appeal of the issue in her petition to transfer.