Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
A split Court of Appeals of Indiana ruled the Patient’s Compensation Fund is entitled to summary judgment in a medical malpractice case because, among other reasons, an underlying act of medical malpractice is a necessary predicate to a medical credentialing malpractice claim.
The ruling reversed a lower court’s decision.
The legal guardians of a teenager filed a medical malpractice action against Jonathan Cavins and the hospital where he was a pediatrician after Cavins was convicted of two counts of felony child molesting, one count of felony sexual misconduct with a minor and two counts of felony child seduction for his commission of sexual acts on several male teenage patients, including John Doe II, the minor.
Jane Doe and John Doe I reached a settlement with the hospital in an amount sufficient to permit them to petition for excess damages from the Patient’s Compensation Fund.
The settlement isn’t final but is contingent on whether the Does gain access to the fund.
The Does filed this action for additional compensation from the fund, and the hospital and Cavins intervened.
The Department of Insurance and the fund moved for summary judgment, asserting the Does’ claims fall outside the scope of the Medical Malpractice Act.
The Boone Circuit Court denied the motion, and the Department of Insurance and the fund appealed.
The ultimate question presented on appeal, the COA said, was whether the Does satisfied the statutory prerequisites for access to the Patient’s Compensation Fund.
The COA first addressed whether a freestanding claim of negligent credentialing can exist where the underlying act of negligence does not constitute medical malpractice under the act.
Neither the Does nor the hospital argued the negligent credentialing claim turned on whether a sexual assault constitutes medical malpractice, and the fund argued the Does’ negligent credentialing claim against the hospital was based on a claim that isn’t compensable under the act.
The Does argued the substance of their claim against the hospital constituted medical malpractice because the credentialing of a doctor is directly related to the provision of health care. The hospital agreed with the Does and further argued any underlying tort caused by negligent credentialing should suffice, regardless of whether it constitutes medical malpractice.
But the COA did not agree with the hospital’s view that any tort will do, that a negligent credentialing claim is a freestanding claim, and that it doesn’t make a difference whether the underlying claim sounds in medical negligence.
“This is an argument that finds no support in our case law; rather, the case law is clear that an underlying act of medical malpractice is the predicate and condition precedent for a negligent credentialing claim,” the COA ruled.
Citing as an example the case Fairbanks Hospital v. Harrold, 895 N.E.2d 732 (Ind. Ct. App. 2008), the opinion says the court has “consistently held that sexual misconduct is unrelated to the promotion of a patient’s health and does not constitute medical malpractice” and that Cavin’s misconduct constitutes ordinary negligence, not medical malpractice.
The COA next addressed if the liability of the health care provider under Indiana Code section 34- 18-15-3(5) precludes the fund from disputing the compensability of a claim for excess damages.
The Does argued the fund can’t challenge their negligent credentialing claim against the hospital because it is “established” as a matter of law as a result of their settlement agreement.
The opinion says the Does conflated two distinct concepts: factual compensability and legal compensability. There was an “excellent discussion” of the distinction in the case Cutchin v. Ind. Dep’t of Ins., 446 F. Supp. 3d 413, 420-21 (S.D. Ind. 2020), the COA said.
The court in that case concluded a settlement between the plaintiff and the providers did not foreclose the fund from challenging the applicability of the act and did not establish the fund’s liability.
The COA ruled the settlement agreement between the Does, the hospital and Cavins established only the liability of Cavins and the hospital and does not preclude the fund from challenging the applicability of the act to the Does’ claims.
The COA next addressed if the doctrines of laches and equitable estoppel can prevent the fund from contesting compensability of an excess damages claim where the fund did not intervene before the claimant and health care provider reached a settlement agreement to which the fund is not a party.
The hospital argued the doctrines should be applied to preclude the fund from challenging the applicability of the act to the Does’ claim and that the fund should have contested the Does’ claim to excess damages sooner than it did.
The COA disagreed, ruling parties to a medical malpractice claim cannot bind the fund as a non-party by an adjudication or stipulation establishing the health care provider’s factual liability in negligence.
“Rather, the Fund is permitted to make an independent determination of whether a claim for excess damages is based upon a claim covered by the Act,” the opinion says, “and the Fund’s responsibility in this regard is not ripe until a claim for excess damages is made.”
Finally, the COA addressed the applicability of the case Martinez v. Oaklawn Psychiatric Center, Inc., 128 N.E.3d 549 (Ind. Ct. App. 2019).
Martinez announced a new “current test” for evaluating medical malpractice claims based on the employment law concept of scope of employment and the doctrine of respondeat superior. It stated the test for whether the act applies to specific misconduct is “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.”
But the COA ruled Martinez did not apply to the case at hand because the court in Martinez did not apply the “current test” to any conduct not already within the recognized scope of the act.
“Instead, in Martinez we followed—and did not broaden or otherwise deviate from—well-established medical malpractice case law,” the COA said in concluding the actual holding in Martinez doesn’t affect the application of the act in this case.
The case was remanded with instructions to enter summary judgment in favor of the fund.
Senior Judge Edward Najam wrote the majority opinion. Judge Peter Foley concurred.
Judge Margret Robb concurred and dissented in part in a separate opinion.
Robb’s only disagreement was with the determination that an underlying act of medical malpractice is a necessary predicate and condition precedent to a medical credentialing malpractice claim.
“Prior Indiana cases have, in the medical malpractice context, addressed situations where a patient was sexually abused by a medical professional while healthcare or medical treatment was administered to the patient,” Robb wrote. “However, none of those cases quite replicates the facts as presented in the instant case.”
The court’s majority, Robb said, “has essentially foreclosed negligent-credentialing claims in every circumstance where sexual abuse occurs during medical treatment.”
Robb added: “Furthermore, I caution that following the majority’s approach invites the risk that some legitimate negligent-credentialing claims will be prematurely disposed of on summary judgment. I believe we have been presented with just such a case.”
Please enable JavaScript to view this content.