Articles Posted in Medical Malpractice

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 Seventh Circuit Court of Appeals recently addressed whether a federal district court improperly dismissed a 42 U.S.C. § 1983 (Section 1983) claim premised upon a skilled nursing home resident’s complaint that he was chemically restrained and later transferred and discharged without timely notice in violation of the Federal Nursing Home Reform Act (FNHRA). In Talevski v. Health and Hospital Corporation of Marion County (HHC) et al, Gorgi Talevski, through his wife Ivanka, sued HHC, Valparaiso Care, and American Senior Communities, LLC under Section 1983 for violations of FNHRA, 42 U.S.C. § 1396 et seq.

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…”

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.

The Indiana Court of Appeals recently directed a trial court to dismiss a particular theory of liability pursued by a medical malpractice plaintiff after completion of the medical review panel process because the plaintiff’s proposed complaint did not encompass the theory. In Holsten v. Faur, Linda Holsten (“Holsten”) filed a medical malpractice and wrongful death lawsuit arising out of medical care her husband, Paul Holsten (“Paul”), received at an urgent care facility and hospital. Under Indiana’s Medical Malpractice Act, medical malpractice claimants must file a proposed complaint before the Indiana Department of Insurance and obtain an opinion from a medical review panel before they can prosecute their medical malpractice claims in court.

Holsten filed a proposed complaint specifically alleging the defendants committed malpractice in not ordering a chest x-ray (“the x-ray malpractice theory”) and in ordering steroids (“the steroid malpractice theory”), which she alleged resulted in her husband’s death of necrotizing staphylococcus aureus pneumonia. The medical review panel formed to review the case found the defendants failed to comply with the appropriate standard of care; however, they were unable to determine if the defendants’ conduct was a factor in Paul’s death. After receiving the opinion and speaking with the panelists, Holsten filed a state court complaint that was identical in pertinent parts to her proposed complaint, except that she removed the steroid malpractice theory and added another theory which she learned from one of the panelists, that is, that the hospital’s sepsis protocol was not followed (“the sepsis malpractice theory”).

The hospital filed for partial summary judgment arguing that Holsten’s sepsis malpractice theory had not been presented to the medical review panel as required by the Medical Malpractice Act. The trial court agreed with the hospital and entered partial summary judgment in favor of the hospital as to the sepsis malpractice theory. Agreeing that Holsten had failed to present the sepsis malpractice theory to the panel, but that the trial court did not, therefore, have subject matter jurisdiction as to that theory, the Indiana Court of Appeals vacated the trial court’s summary judgment order and remanded the case with instructions for the trial court to dismiss, without prejudice, Holsten’s sepsis malpractice theory of liability.

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.

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