Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
A woman’s allegations that her doctor committed sexual misconduct against her did not fall under the Medical Malpractice Act, the Court of Appeals of Indiana affirmed in allowing the case to proceed without going before a medical review panel.
Taylor Krieter saw Dr. Jatinder Kansal in 2016 and 2017 for her seasonal allergies. During his treatment of her, Kansal brought up Krieter’s eczema and said he needed to examine her skin.
Krieter’s mother went to the appointments early on but eventually stopped accompanying her daughter. That’s when Kansal’s demeanor and conduct changed, according to Krieter.
According to Krieter’s deposition, Kansal touched her chest, bottom and thighs and told her he needed to “check everywhere,” which she believed until she realized he was touching her in a sexual way that wasn’t related to medical treatment. During one of the last appointments, he only touched her chest.
Also, Krieter claimed Kansal spoke to her in a different voice than the one he used when others were in the room and told her she was a “very pretty girl.” Additionally, she said he asked her questions about her boyfriend, told her to shave her legs because men prefer smooth legs, and asked whether her boyfriend cared that she worked at Hooters.
In 2019, Krieter sued Kansal for battery and intentional infliction of emotional distress, alleging he inappropriately touched her when she saw him for allergies and eczema.
Kansal moved to dismiss her complaint for lack of subject-matter jurisdiction under Trial Rule 12(B)(1). He denied any inappropriate conduct or statements and argued that the claims were subject to the Medical Malpractice Act.
The Lake Superior Court denied Kansal’s motion without explanation.
Kansal renewed his argument at the appellate court that Krieter’s claims were medical malpractice claims and thus subject to the Medical Malpractice Act, meaning she would have been required to present the complaint to a medical-review panel before going to court. Because she didn’t do that, he argued, the trial court lacked subject-matter jurisdiction.
However, the appellate court disagreed.
“This detour to sexual groping, if it occurred, was not medical care and did not ‘involve’ medical care,” Judge Nancy Vaidik wrote.
Because the complaint didn’t involve medical care, the COA concluded, it does not fall under the Medical Malpractice Act.
“Doctors often have to touch patients in sensitive areas and in uncomfortable ways, and a patient could misinterpret proper medical touching as inappropriate sexual touching,” Vaidik wrote. “In a case where the doctor and the patient agree as to the touching that occurred but disagree as to the purpose of the touching, application of the Act and presentation to a medical-review panel might be appropriate. But this isn’t such a case, so we leave that issue for another day.
“… This is a ‘he said, she said’ credibility fight that would not benefit from consideration by a medical-review panel,” Vaidik concluded. “The factual issue is ‘capable of resolution by a jury without application of the standard of care prevalent in the local medical community.’ … Therefore, Krieter’s claims are not subject to the Medical Malpractice Act, and the trial court did not err by denying Dr. Kansal’s motion to dismiss.”
Judges Elizabeth Tavitas and Peter Foley concurred.
The case is Jatinder K. Kansal, M.D., P.C. v. Taylor Krieter, 22A-CT-2646.
Please enable JavaScript to view this content.