Indiana Court of Appeals Finds Erroneous Organ and Tissue Donor Designation Was Ordinary Negligence and Not Medical Malpractice

The Indiana Court of Appeals recently decided a dispute about the applicability of Indiana’s Medical Malpractice Act in a case involving an erroneous organ and tissue donor designation. In Anonymous Healthcare Provider 1 v. Foust, Russell A. Foust (Russell) died in a hospital from sepsis following a prosthetic knee infection. On the morning of his death, a hospital nurse called a donor organization to report Russell’s impending death and refer him for potential organ and tissue donation. An employee of the donor organization searched the Indiana Donor Registry and incorrectly matched Russell to a person named Russell N. Foust with a different date of birth. As a result of the employee’s error in matching Russell, the employee recorded Russell as a registered donor, even though he was not a registered donor. After Russell passed, his corneal tissue was removed, and his wife, Diana Foust (Diana), filed a negligence lawsuit against the hospital, the donor organization and its employee, and an eye bank. 

Diana filed the lawsuit before the Indiana Department of Insurance as a medical malpractice case, and then later, she filed it in state court asserting negligent infliction of emotional distress and moved for a preliminary determination that Indiana’s Medical Malpractice Act did not apply to her claims. In Indiana, medical malpractice claims must go before a medical review panel before they can be prosecuted in state court. The hospital and the donor organization and its employee opposed Diana’s motion, arguing her claims were medical malpractice claims governed by Indiana’s Medical Malpractice Act. The hospital also cross-moved for summary judgment arguing that it did not search the donor registry and owed no duty of care to Russell to search the registry under Indiana’s Revised Uniform Anatomical Gift Act (RUAGA). The trial court issued a preliminary determination that Indiana’s Medical Malpractice Act did not apply to Diana’s claims, and it denied the hospital’s motion for summary judgment. 

On appeal, the Indiana Court of Appeals first reviewed whether Indiana’s Medical Malpractice Act applied to Diana’s claims. Under Indiana law, not all claims against healthcare providers fall under the Act. Claims of ordinary negligence do not fall under the Act. Indiana’s Medical Malpractice Act defines “medical malpractice” as “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18. “Health care” is defined as “an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Ind. Code § 34-18-2-13. And “patient,” in relevant part, is defined as “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.” Ind. Code § 34-18-2-22. 

Indiana’s Medical Malpractice Act applies to curative or salutary conduct of a healthcare provider acting within the provider’s professional capacity; it 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. Claims fall under Indiana’s Medical Malpractice Act when there is a causal, temporal connection between the conduct complained of and the nature of the patient-health-care-provider relationship. Cases with factual issues capable of resolution by a jury without reference to the applicable medical standard of care sound in ordinary negligence, not medical malpractice.

Here, the Indiana Court of Appeals concluded that Diana’s claims did not fall under Indiana’s Medical Malpractice Act because the conduct complained of—searching a donor registry—was not “health care” under the Act, that is, curative, salutary, or otherwise intended to benefit Russell. While the healthcare providers here argued the health benefits a potential beneficiary of an organ and tissue donation might receive constitute health care, the Court reasoned that a non-claimant third party does not qualify as a traditional patient under the Act, and therefore, any health benefit such a person might receive as a result does not qualify as “health care” under the Act. In reviewing prior case precedent, Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104 (Ind. Ct. App. 1999), in which a prior panel of the Court found the Act did not apply in a case involving a blood donor injected with antigens for the benefit of third parties, the Court noted that to qualify as health care, the conduct complained of must have been performed for a traditional patient, that is, a person who receives health care. As reasoned by the Court, even if conduct is curative, salutary, or otherwise intended to benefit a person, such as a potential beneficiary of an organ or tissue donation, the Act does not apply if that person is not the one bringing the claim or giving rise to another’s derivative claim. 

As for the hospital’s motion for summary judgment, however, the Court agreed with the hospital that it did not owe any duty to Russell to search the donor registry. The RUAGA states that “when a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of . . . the Indiana donor registry . . . to ascertain whether the individual has made an anatomical gift.” Ind. Code § 29-2-16.1-15(a)(3). Interpreting the statute, the Court concluded it is the organ procurement organization, not the hospital, that shall make the search, and accordingly, the trial court erred in denying the hospital’s motion for summary judgment. The Court of Appeals affirmed the trial court’s preliminary determination that Indiana’s Medical Malpractice Act did not apply to Diana’s claims but reversed the trial court’s denial of the hospital’s motion for summary judgment, instructing the trial court to enter summary judgment for the hospital on remand.

You can read the full opinion here.