COA: MMA doesn’t apply to woman’s claims for damages based on sexual assault

An Indiana woman who was sexually assaulted by a nurse during her stay at a Muncie hospital has failed to convince the Court of Appeals of Indiana that the state’s medical malpractice statute should apply to her claims for damages based on the sexual assault.

Jane Doe was admitted to Indiana University Ball Memorial Hospital’s intensive care unit in January 2018 after having suffered a stroke. Nathaniel Mosco, a registered nurse at the hospital, was assigned to care for the woman.

On two occasions that day, after administering morphine and cleaning her catheter, Mosco sexually assaulted Doe. After the second assault, Doe reported the incidents to another nurse.

Mosco was arrested the next day and later charged with Level 6 felony sexual battery. Following a jury trial, Mosco was convicted of Class B misdemeanor battery in May 2019.

Doe filed her complaint for damages against the hospital and Mosco in Delaware County on Oct. 4, 2019, alleging the intentional tort of sexual battery, for which the hospital was vicariously liable, as well as the negligent hiring, retention and supervision of staff. Doe also filed a proposed complaint for damages with the Indiana Department of Insurance, which parroted her civil complaint.

In April 2021, Doe and the hospital entered into a release and settlement agreement. In exchange for payments totaling $400,000, Doe agreed to dismiss her proposed complaint before the IDOI and her civil complaint for damages.

However, the agreement expressly provided: “Plaintiff does not release the Indiana Patient’s Compensation Fund [(the Fund)] for liability in damages in excess of the monies received from Defendant, and Plaintiff will pursue the Fund for additional monies. This settlement is not conditioned on Plaintiff’s ability to recover additional funds from the [Fund].”

In tandem with execution of the agreement, Doe initiated an action in Marion County by filing a petition against the fund and the commissioner of the IDOI for additional compensation. Doe requested a damages hearing and indicated that she sought excess damages from the fund not to exceed $1 million.

The fund eventually moved for summary judgment on the basis that Doe’s underlying claims against the hospital and Mosco were not covered by the Indiana Medical Malpractice Act.

Following a hearing, the Marion Superior Court granted the fund’s motion for summary judgment in December 2021. The Court of Appeals affirmed on Wednesday.

Doe relied on Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549 (Ind. Ct. App. 2019), on appeal.

The COA found that the disagreement centered on whether the tortious conduct – the sexual assault – was “based on health care or professional services” that were provided to her.

“… According to Doe, the effect of Martinez is that courts in Indiana should no longer limit application of the MMA to curative or salutary conduct of a health care provider acting within his or her professional capacity or exclude conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. Rather, relying on Martinez, Doe argues that courts need only consider whether the alleged misconduct arose naturally or predictably from the relationship between the health care provider and the patient or from an opportunity provided by that relationship,” Judge Robert Altice Jr. wrote. “Because Mosco’s employment as a nurse to Doe authorized him to touch her genitals, Doe reasons that his sexual assault of her is subject to the MMA. This is a bridge too far.

“… Martinez did not involve the sexual assault of a patient by a health care provider, an act that has consistently been held to be outside the definition of medical malpractice because its very nature is antithetic to the promotion of the patient’s health or a provider’s exercise of professional expertise, skill, or judgment,” Altice continued. “We refuse to completely unmoor a medical malpractice action from ‘the provision of what our case law has established is the very essence of health care, i.e., conduct, curative or salutary in nature, by a health care provider acting in his or her professional capacity.’

“… A medical review panel is no more equipped to address Doe’s sexual assault allegations in this case than the average juror. Accordingly, we conclude that Doe’s claims do not fall within the purview of the MMA and, therefore, the trial court properly granted summary judgment in favor of the Fund.”

The case is Jane Doe v. Indiana Department of Insurance and the Indiana Patient’s Compensation Fund, 22A-CT-84.