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Articles Posted in Medical Malpractice

The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment for a healthcare provider in a medical malpractice case which was based upon a motorist’s prior settlement with the Plaintiff and the Indiana Medical Malpractice Act’s cap on damages. In Batchelder v. Indiana Univ. Health Care Associates, Inc., the Plaintiff filed a lawsuit against a healthcare provider arising out of a radiologist’s failure to diagnose her late husband’s unstable cervical spine fracture which he suffered in a motor vehicle collision with another driver. After settling the motor vehicle case for $1.25 million, the Plaintiff filed a medical malpractice lawsuit against the healthcare provider as a joint tortfeasor with joint and several liability for the death of her husband.

The healthcare provider filed a motion for summary judgment arguing that the Plaintiff could not recover any more money because she had already received $1.25 million arising from her husband’s death, which was, at the time, the cap of damages set forth by the Indiana Medical Malpractice Act. The Plaintiff, on the other hand, argued that the $1.25 million-dollar setoff from her settlement with the motorist should be deducted from the total amount of damages, which she valued between six and ten million dollars, as opposed to the Indiana Medical Malpractice Act’s cap on damages. Without any determination of the total amount of damages in the case, the trial court granted summary judgment in favor of the healthcare provider applying the $1.25 million settlement setoff to the Indiana Medical Malpractice Act’s $1.25 million cap on damages.

The Indiana Court of Appeal reviewed prior decisions and Indiana’s “one satisfaction” principle in joint and several liability cases, which provides that courts should credit the funds received from a defendant against amounts recoverable from other co-defendants. In Palmer v. Comprehensive Neurologic Services, P.C., the Indiana Court of Appeals previously upheld a trial court’s judgment of $0 for a plaintiff after a jury awarded $375,000 to the plaintiff against a medical provider where the plaintiff had previously received more than $375,000 from non-healthcare providers. Similarly, in Indiana Dept. of Ins. v. Everhart, the Indiana Supreme Court upheld a $1 million-dollar judgment against the Indiana Patient’s Compensation Fund where the trial court found the Plaintiff’s total damages were $3.15 million and where the Plaintiff had already received $2.15 million from a non-healthcare provider and the underlying medical providers.

The Indiana Court of Appeals recently issued a decision on whether a non-physician healthcare provider could render an expert opinion as to medical causation in an Indiana medical malpractice case. In Riley v. St. Mary’s Med. Ctr. of Evansville, Inc., the patient filed a lawsuit against a hospital arising out of an IV contrast extravasation the patient suffered during a CT scan to rule out a pulmonary embolism. The patient alleged that the hospital’s radiologic technologist (RT) was negligent in injecting contrast dye into her right arm in preparation for the CT scan, and as a result, suffered compartment syndrome necessitating surgery and causing permanent injuries.

After the medical review panel formed in the parties’ case returned a unanimous opinion in favor of the hospital, the hospital moved for summary judgment. In response, the patient designated an affidavit from another radiologic technologist, Barry Southers, RT (Southers), who opined that the hospital RT did not comply with the applicable standard of care and that the hospital RT’s conduct was a factor in the resultant injury to the patient. In reply, the hospital argued that Southers, while he could give an opinion as to breach of the standard of care, could not give an expert opinion as to causation. The trial court agreed and entered summary judgment in favor of the hospital.

Plaintiffs in medical malpractice cases in Indiana must prove that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s injuries. A unanimous opinion of a medical review panel is ordinarily sufficient to support a party’s motion for summary judgment where the non-movant is then required to rebut the medical review panel opinion with expert medical testimony. The question before the Indiana Court of Appeals was whether Southers was sufficiently qualified to render an expert opinion on the element of causation to rebut the negative opinion of the medical review panel.

A few months ago we wrote about an Indiana Supreme Court decision granting a plaintiff a new trial as a result of a trial court’s refusal to strike a biased juror for cause which caused the plaintiff to lose a peremptory strike of another juror.

In Floyd v. Neal, the Kentucky Supreme Court reversed the Kentucky Court of Appeals decision to give an alleged medical malpractice wrongful death victim’s spouse and her late husband’s estate a new trial under similar circumstances albeit with a twist of facts.

The Kentucky Court of Appeals had concluded that a juror was biased and should have been struck for cause and that the plaintiff should have thus been able to use a peremptory strike on another prospective juror who was ultimately empaneled.  In other words, a peremptory strike was utilized unnecessarily, depriving the plaintiff of utilizing it later.  The Supreme Court, over a lone dissent, concluded that the plaintiff failed to preserve the error, even though the error apparently would have been preserved under the language of then-existing precedent.  The dissent took issue with the Court’s retroactive application of a clarified striking procedure and the constitutionality of allowing a juror with an admitted bias to sit on the jury. Of significance to the Supreme Court’s decision was that in identifying the peremptory strikes she would have used, the plaintiff identified not one, but two jurors, when she only had one peremptory strike remaining.

The Indiana Court of Appeals recently issued an opinion in Strickholm v. Anonymous Nurse Practitioner reversing a trial court’s grant of summary judgment based upon the statute of limitations. Under the Indiana Medical Malpractice Act (MMA), a claim for medical malpractice may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) year after the date of the alleged act, omission, or neglect. Health care is defined by the MMA as an act or treatment performed or furnished, or that should have been performed or furnished, by a healthcare provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.

On October 29, 2015, the patient, Peter Strickholm, established primary care with Anonymous Nurse Practitioner (Anonymous NP). Anonymous NP thereafter saw Peter on December 1, 2015, at which time she prescribed a blood pressure medication to manage his high blood pressure and recommended that he return for a blood pressure check the following week. When Peter returned on December 8, 2015, a blood pressure check was performed by a licensed practical nurse (LPN). On December 11, 2015, the Anonymous NP electronically reviewed and approved the LPN’s report, but the Anonymous NP did not recommend any further testing or treatment despite the results. On December 15, 2015, Peter went to the hospital and was diagnosed with low sodium. He then suffered a cardiopulmonary arrest and hypoxic event causing a permanent brain injury.

Peter, and his parents, as his guardians, filed a proposed medical malpractice complaint on December 4, 2017. Anonymous NP filed a motion for preliminary determination of law and motion for summary judgment on February 1, 2018 claiming that the complaint was barred by the two (2) year statute of limitations because the last day Anonymous NP provided health care to Peter was on December 1, 2015 with the complaint having been filed more than two (2) years after that date. The trial court granted summary judgment in favor of Anonymous NP holding that the continuing-wrong doctrine (which provides that the statute of limitations can be extended when an entire course of conduct of a continuous nature combines to produce an injury) did not apply to Anonymous NP’s single act of prescribing the medication on December 1, 2015, Anonymous NP did not provide health care on December 8, 2015 because she did not see Peter on that date, and Anonymous NP’s review and approval of the LPN’s report on December 11, 2015, did not constitute the provision of health care to a patient. The plaintiff appealed the trial court’s decision.

Goshen Health Hospital and Emergency Room has recently alerted patients undergoing surgical procedures between April 1, 2019 and September 30, 2019 that they may have been exposed to infectious diseases such as the hepatitis B virus, the hepatitis C virus, and the human immunodeficiency virus (HIV) due to their failure to fully complete a multistep sterilization process for certain surgical instruments. According to articles in the Elkhart Truth and The Goshen News, it is possible that around 1200 patients may have been affected by one of Goshen Health’s seven surgical instrument sterilization technicians failing to complete a step in their sterilization process. The situation has gained national attention.

Goshen Health is currently offering free testing to potentially affected patients, and has, according to reports, put additional policies and safety measures in place to make sure that it does not happen again.  Depending upon the circumstances surrounding the technician’s error, injuries arising out of a failure to complete a sterilization process step could constitute ordinary and/or professional negligence and could give rise to personal injury and/or medical malpractice claims for physical and emotional injuries by the affected patients.

The Centers for Disease Control and Prevention (CDC) has offered a Guideline for Disinfection and Sterilization in Healthcare Facilities. These guidelines discuss appropriate and recommended sterilization cycle verification (verification of sterilizers with biological and chemical indicators prior to routine use), physical facilities (including areas designed for decontamination, packaging, and sterilization and storage), cleaning (cleaning and decontamination after use to prevent residual debris), packaging (in accordance with guidelines set forth by the Association for the Advancement of Medical Instrumentation (AAMI) and other organizations), loading (allowing for sterilant circulation with proper placement of trays and items), storage (including proper wrapping and handling), and monitoring (routine checking of mechanical, chemical and biological indicators).

Informed Consent
The Indiana Court of Appeals recently affirmed a trial court’s denial of a defendant’s motion for judgment on the evidence and motion to correct error in a medical malpractice informed consent case in which a jury awarded significant damages to the plaintiff arising out of a nerve injury during surgery. The patient in Glock v. Kennedy underwent five surgeries to his left hand, including amputations to his left index finger, which were performed by a surgeon after the patient suffered a crush injury to his left hand. During the fourth surgery, the surgeon caused a nerve injury to the patient’s thumb.

While the medical review panel formed to review the case pursuant to the Indiana Medical Malpractice Act found that the surgeon met the applicable standard of care and his conduct was not a factor of the resultant damages, the panel found there was a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury as to whether the surgeon provided appropriate informed consent before the fourth surgery.

In order to prevail on a claim asserting lack of informed consent in a medical care case, a patient must prove (1) nondisclosure of required information; (2) actual damage… (3) resulting from the risks of which the patient was not informed; (4) cause in fact, which is to say that the plaintiff would have rejected the medical treatment if he had known the risk; and (5) that reasonable persons, if properly informed, would have rejected the proposed treatment. The plaintiff in Glock presented testimony from one of the medical review panel members stating that discussion of the risks of the procedure performed should include nerve injury and reoccurrence of pain or the lack of eliminating the pain. Contrary to the surgeon’s testimony, the patient testified that he was never told the likelihood of success of the procedure in which the nerve injury occurred was only 75% and that the surgeon never explained any risk of the nerves being close together between the index finger and thumb. The patient’s stepsister also testified that the patient was not told about the risk of nerve damage.

The right to a trial by a jury is considered one of our sacred rights under the Constitution. However, this guarantee means little if the impaneled jurors profess to having an unalterable belief as to the propriety of awarding money damages even when instructed by a judge that it is their duty to do so. Indiana’s guidance to trial judges is quite general when it comes to whether a juror should be stricken, as the trial court’s literal reading of the rule in Estate of Pyle v. Mattar, M.D. illustrates.

In Estate of Pyle, the personal representative of the deceased Pyle’s estate, filed a wrongful death/medical malpractice suit against Dr. Mattar and other healthcare providers seeking money damages. During jury selection (also known as voir dire), the following exchange took place between plaintiff’s counsel and a prospective juror, Miller:

[Miller]: So, we have to determine the dollar amount?

Indiana has a rather complex and parsimonious medical malpractice statute which sometimes leads to claimants seeking creative solutions to some of the obstacles they face in pursuing justice for claims with merit.  Garau Germano, P.C. v. Robertson, 2019 WL 3886461, involved just such a creative approach.  In Garau Germano, the Indiana Court of Appeals upheld the dismissal of a complaint for declaratory judgment and mandate filed on behalf of a law firm and one of its clients against the Indiana Patient’s Compensation Fund (PCF) and related parties.  The law firm and client sought to prevent the defendants from requiring a medical malpractice claimant’s periodic payments agreement with a qualified health care provider to pay out the provider’s maximum liability under the Indiana Medical Malpractice Act (MMA) before the claimant could access the PCF. For context, the MMA provides that healthcare providers can discharge their liability to claimants by making an immediate payment of their maximum liability under the MMA, or by making an immediate payment and paying the cost of a periodic payments agreement. Ind. Code § 34-18-14-4. The plaintiffs in this case argued that the MMA does not require that a healthcare provider’s immediate payment plus the money paid out under a periodic payments agreement equal the provider’s maximum liability before a claimant can access the PCF.

The MMA provides that healthcare providers are not liable for an amount in excess of $250,000.00 for an act of malpractice that occurs after June 30, 1999 and before July 1, 2017, $400,000.00 for an act of malpractice that occurs after June 30, 2017 and before July 1, 2019, and $500,000.00 for an act of malpractice that occurs after June 30, 2019. Ind. Code § 34-18-14-3. However, if a healthcare provider’s immediate payment of money plus its expenditure for a periodic payments agreement exceeds $187,000.00 for an act of act of malpractice that occurs after June 30, 1999 and before July 1, 2017 or seventy-five percent (75%) of its maximum liability for an act of malpractice after June 30, 2017, the healthcare provider will be considered to have paid its maximum liability. Ind. Code §§ 34-18-14-4, 34-18-15-3. If a healthcare provider has agreed to settle its liability by payment of its maximum liability, either by an immediate payment or by making an immediate payment and paying for a periodic payments agreement to pay out money in the future, a claimant can thereafter file a petition to seek excess damages from the PCF. Ind. Code § 34-18-15-3.

The question raised by the plaintiffs was whether the present payment of money by a healthcare provider plus the future payments under a periodic payments agreement must equal a healthcare provider’s maximum liability. For an act of medical malpractice that occurred after June 30, 1999 and before July 1, 2017, could a claimant access the PCF if a healthcare provider makes an immediate payment of $150,000.00 and pays $37,001.00 for a periodic payments agreement that only pays out $50,000.00 in the future (a total of $200,000.00 in payments), as opposed to paying out $100,00.00 (a total of $250,000.00 in payments)? The answer to this question is important as it relates to elderly claimants, for instance, as any future payments under a periodic payments agreement may not pay out during their lifetime.

We previously wrote about a split between two panels of the Indiana Court of Appeals on what constitutes preferred venue under Indiana Trial Rule 75 in medical malpractice cases in Indiana. Indiana Trial Rule 75 provides for preferred venue in “the county where… the principal office of a defendant organization is located…,” and the Indiana Supreme Court has previously interpreted the term “principal office” as “the place in Indiana where one serves the corporate registered agent.” Ind. R. Trial P. 75(A)(4); Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971, 975 (Ind. 2006) (American Family).

Plaintiffs in both medical malpractice cases argued preferred venue existed in Marion County, Indiana because one or more of the defendants had registered agents with office addresses in Marion County. However, the healthcare Defendants in these cases argued that preferred venue did not lie in Marion County because a new Indiana statute provides that “[t]he address of [an entity’s registered] agent does not determine venue in an action or a proceeding involving the entity.” Ind. Code § 23-0.5-4-12.

The Indiana Court of Appeals in Morrison v. Vasquez, 107 N.E.3d 1103 (Ind. Ct. App. 2018) held that Marion County, Indiana was not a preferred venue based upon the address of the defendant’s registered agent, whereas the Court in Indiana Univ. Health S. Indiana Physicians, Inc. v. Noel, 114 N.E.3d 479 (Ind. Ct. App. 2018) held that preferred venue lied in Marion County.

Not all claims against healthcare providers in Indiana constitute medical malpractice and fall within the scope of the Medical Malpractice Act. A slip-and-fall on untreated ice in a parking lot at a hospital, for instance, is a claim of ordinary negligence, as opposed to medical malpractice. The Medical Malpractice Act does not apply to claims of ordinary negligence.

Whether a claim constitutes medical malpractice or ordinary negligence is a question of law and often turns on hairline distinctions with courts looking to the substance of a claim. The test is whether the claim is based on the provider’s behavior or practices while acting in a professional capacity as a provider of medical services. The Medical Malpractice Act applies to curative or salutary conduct undertaken for the benefit of a patient’s health. The Medical Malpractice Act does not apply to conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. Courts also ask whether the issues are capable of resolution by a jury without application of the standard of care and whether there is a causal connection between the conduct complained of and the patient-healthcare provider relationship.

The Indiana Court of Appeals recently held that the Medical Malpractice Act was not applicable to a claim of negligent dissemination of protected health information.

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