Indiana Court Decisions: June 28-July 12, 2023

7th Circuit Court of Appeals

July 5

Zailey Hess v. Jamie Garcia, Officer, and John Doughty, Chief

22-1550

7th Circuit allows student’s civil rights claims against Hammond officer following ride-along

A student who claimed her constitutional rights were violated when she was allegedly sexually assaulted and harassed on a police ride-along can bring a claim against a Hammond police officer, but not the city’s chief of police, the 7th Circuit Court of Appeals ruled July 5.

The appellate court affirmed the United States District Court for the Northern District of Indiana’s dismissal of a claim against the police chief but reversed and remanded the claim brought against the officer in the case.

According to court records, Zailey Hess was a 17-year-old student in February 2019, when one of her classes required her to participate in a ride-along with a police officer.

On Feb. 15, 2019, Hess went on a ride-along with Officer Jamie Garcia of the Hammond Police Department.

Hess alleged in her complaint that her day with Garcia consisted of a sequence of inappropriate comments and questions punctuated by unwelcome physical sexual contact.

After Hess’s ride-along, another female classmate participated in the course-required ride, also with Garcia. When the classmate told Hess that Garcia had acted inappropriately with her, the two students reported their experiences to a teacher.

Defendant John Doughty was Hammond’s police chief at the time.

Hess sued Garcia and Doughty in their individual capacities under 42 U.S.C. § 1983 for violating her constitutional rights, invoking the equal protection clause of the 14th Amendment, the Fourth Amendment and the due process clause of the 14th Amendment.

Doughty and Garcia filed separate motions to dismiss. The district court granted both motions and dismissed all claims with prejudice.

Hess appealed.

The 7th Circuit affirmed the dismissal of the claim against Doughty but reversed the dismissal of the claim against Garcia and remanded the case.

Senior Judge David Hamilton wrote the opinion for the appellate court.

According to the 7th Circuit, Hess plausibly alleged facts supporting liability under the theories of the 14th Amendment equal protection clause, the Fourth Amendment and the 14th Amendment due process clause as to Garcia.

“At this early procedural stage, we leave all three of these doctrinal lanes open on remand, and we see no basis for requiring plaintiff to choose just one or two while federal courts are sorting out these theories. Alternative legal theories for relief for the same injury can present procedural challenges at trial but are certainly permissible,” Hamilton wrote.

The district court had held that Hess failed to allege a violation of the equal protection clause because her complaint did not identify a similarly situated individual whom Garcia treated more favorably.

The court reversed dismissal on that theory for two reasons.

“First, identifying a similarly situated individual is not necessary at the pleading stage so long as the complaint plausibly alleges differential treatment motivated by plaintiff’s membership in a group that is distinct for equal protection purposes,” Hamilton wrote. “Second, in equal protection cases plausibly alleging sexual assault or sexual harassment, the identification of a similarly situated individual is not necessary at any procedural stage.”

According to Hamilton, Garcia characterized his behavior as nothing more than “boorish flirtation,” “arguably presented in a joking fashion intended to make the ride-along more sensational but not dangerous.”

“Perhaps the defense might try to persuade a jury with that theory — a matter we leave to the district court in the first instance — but we continue to reject the idea that a police officer’s sexual assault or sexual harassment serves any legitimate governmental interest,” Hamilton wrote.

Further, the 7th Circuit declined to recognize a category of constitutionally permissible sexual assault by a public official.

According to Hamilton, an officer acting under color of law does not avoid violating the Constitution by sexually assaulting a member of the public but stopping short of rape or use of force at the level federal judges might consider extreme.

Hamilton noted Garcia’s argument that reversing dismissal would open the proverbial floodgates and that this is not the kind of case federal courts want to hear “every time that incidents such as these” occur involving conduct “as frankly innocuous” as Garcia’s.

“We disagree with the premise. We will not close the federal courthouse doors to people sexually assaulted by government officials acting under color of law,” Hamilton wrote.

In affirming the dismissal of all claims against Doughty, the appellate court held that the allegations Hess made did not plausibly allege that Doughty played a role at the level required to impose personal liability, and that Hess has not identified any amendments she could make to the complaint to cure the problem.

Judge John Lee concurred.

Judge Frank Easterbrook concurred and joined all except for the section of the court’s opinion that covered substantive due process.

Easterbrook cited Graham v. Connor, 490 U.S. 386 (1989), which he said showed that substantive due process was not the way to analyze Hess’ contentions. Graham dealt with bodily injury inflicted both directly and indirectly by officers’ misconduct.

“Police are accountable for objectively unreasonable searches and seizures, but they are not liable just because jurors are disgusted by an officer’s loutish behavior,” Easterbrook wrote.

The case is Zailey Hess v. Jamie Garcia, Officer, and John Doughty, Chief, 22-1550.

Indiana Supreme Court

June 29

Zachary Miller v. Laxeshkumar Patel, M.D.; John Schiltz, M.D.; Benjamin Coplan, M.D.; Community Physicians of Indiana, Inc.; and Community Howard Regional Health, Inc., d/b/a Community Howard Behavioral Health

22S-CT-371

Split IN Supreme Court affirms summary judgment for providers in manslaughter- mental health case

Guilty pleas have the same preclusive effect as trial verdicts, a split Indiana Supreme Court ruled in affirming a trial court’s decision to enter summary judgment for mental health providers sued by a man who pleaded guilty but mentally ill to voluntary manslaughter.

In the third round of appeals stemming from Zachary Miller’s killing of his grandfather, the high court was asked to consider Miller’s allegations that his mental health providers essentially didn’t prevent his crime.

In 2018, while his criminal prosecution was pending, Miller filed a proposed complaint for damages with the Indiana Department of Insurance, alleging his providers’ care and treatment “failed to comply with the applicable standards of care.” He further argued that as a direct result of that failure, he “suffered and will continue to suffer from permanent injuries and disabilities, great pain, emotional distress, mental trauma and loss of freedom.”

Miller also added a claim for negligent infliction of emotional distress.

Miller said during proceedings that because of the providers’ negligent conduct, he killed his grandmother’s dog and his grandfather. He argued that the providers caused injury to him by not admitting him to the hospital, and that his grandmother’s dog and his grandfather would be alive if they did.

Miller filed an anonymous complaint in 2019 for damages with the Howard Superior Court. He pleaded guilty but mentally ill to voluntary manslaughter in 2020 and was sentenced to 20 years, with 12 executed.

The Indiana Medical Review Board determined in 2020 that the defendants failed to comply with the appropriate standard of care as charged in the complaint and that the “conduct complained of was a factor of the resultant damages.”

Miller then filed a motion for leave to amend the complaint in the trial court to identify the previously anonymous providers.

The providers moved for summary judgment under Indiana Trial Rule 56(C), arguing that Miller’s alleged damages weren’t compensable under Indiana policy and that Miller was collaterally estopped from relitigating his responsibility for the crime.

The trial court granted the motion and Miller appealed, arguing that he should be allowed to “rebut the prima facie case and prove he was insane at the time of the assault,” and that he didn’t “commit an intentional act.”

The Court of Appeals of Indiana reversed and remanded, finding the providers failed to establish there were no genuine issues of material fact warranting summary judgment because it was “unclear” whether Miller was legally responsible for his act.

The Court of Appeals, relying on a Supreme Court of Illinois opinion, also found collateral estoppel didn’t bar Miller’s action because the issue of whether he was criminally insane when he killed his grandfather was not fully and fairly litigated when he entered his plea agreement.

The Supreme Court granted transfer in November 2022 and noted Miller did not file a brief responding to the providers’ petition for transfer.

A majority of justices affirmed the trial court’s grant of summary judgment, ruling in part that collateral estoppel can be applied to Miller because he “enjoyed his day in court” and “reasonably weighed the costs and benefits of whether to enter a guilty but mentally ill plea, or press on and challenge his fault at trial.”

Justice Mark Massa wrote for the majority that also included Justices Geoffrey Slaughter and Derek Molter.

Chief Justice Loretta Rush concurred in part and dissented in part with a separate opinion, which Justice Christopher Goff joined.

In a matter of first impression, the majority first ruled Miller is estopped from relitigating his legal responsibility under defensive issue preclusion.

Miller’s guilty plea, the court ruled, constituted a final judgment on the merits. His medical malpractice claim “turns on the theory that he was insane at the time of the killing,” the opinion says, but Miller’s mens rea was already established by his guilty but mentally ill plea, so he was essentially attempting to relitigate the same issue adjudicated in the prior proceeding.

The majority also ruled Miller had a “full and fair” opportunity to litigate the issue, citing the fact that his criminal case lasted more than three years.

“We wade into uncharted waters in Indiana, but we reach safe harbor to conclude for the first time that plea agreements reflect a ‘full and fair opportunity to litigate,’ and thus collateral estoppel applies with equal force whether the prior criminal adjudication was based on a jury verdict or guilty plea,” the opinion says. “Both are simply two sides of the same coin: they each constitute final judgments.”

Considering whether applying collateral estoppel to Miller would be “otherwise unfair” because he entered a guilty but mentally ill plea, the majority concluded that while Miller’s mens rea wasn’t decided by a jury, he still “accepted the factual basis of his voluntary manslaughter conviction.”

The providers also met the burden of establishing Miller’s damages aren’t compensable, the majority ruled.

Miller’s motion opposing summary judgment “barely, if at all, addresses these damages,” the majority wrote, concluding Miller’s arguments about his pre-criminal-act damages were waived.

In a separate opinion, Rush wrote the providers didn’t carry their initial burden to show Miller’s pre-criminal-act damages aren’t compensable and thus aren’t entitled to summary judgment on the entirety of the complaint.

Rush also wrote Miller didn’t waive his argument on that issue because he raised it before the trial court and on appeal. Finding he waived his argument is “antithetical” to the court’s role in reviewing summary judgment to make sure no party is denied their day in court, she wrote.

The case is Zachary Miller v. Laxeshkumar Patel, M.D.; John Schiltz, M.D.; Benjamin Coplan, M.D.; Community Physicians of Indiana, Inc.; and Community Howard Regional Health, Inc., d/b/a Community Howard Behavioral Health, 22S-CT-371.

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Christopher Jerome Harris v. State of Indiana

23S-CR-165

Supreme Court split in excluding unrelated felony testimony at habitual offender trial

A defendant’s testimony about a prior unrelated felony was irrelevant to his habitual offender trial, a sharply divided Indiana Supreme Court has ruled.

Appellant-defendant Christopher Harris was “hanging out” with a woman who resided in Indianapolis in the summer of 2019. He became suspicious that she was seeing another man, so Harris approached the man as he was sitting in his car.

Harris pointed a handgun at the man and accused him of “messing with” the woman. He then fired two shots and swung the gun at the man’s head, took money and a gold chain from him, and ordered him to get out of the car before firing several more shots into it. The man was left bleeding.

Harris was subsequently charged with Level 3 felony robbery while armed with a deadly weapon, Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony battery with a deadly weapon and Level 6 felony criminal recklessness while armed with a deadly weapon.

The state also sought a sentence enhancement, alleging Harris was a habitual offender because he had two prior unrelated felony convictions.

Harris waived trial by jury and the state dismissed the unlawful possession charge. He was then found guilty at a bench trial of robbery and battery, but not criminal recklessness.

However, Harris did elect for a jury trial on the habitual offender enhancement.

At the jury trial, Harris testified to his age when his present and prior convictions had occurred.

Outside the presence of the jury, Harris proffered testimony that, at the time of the robbery, he had recently been diagnosed with PTSD and was taking unfamiliar medication. He also wanted to testify to his plans of rehabilitation and explain the circumstances of a 2002 robbery conviction, including that he was 19 and in serious legal trouble for the first time and didn’t realize he could have taken the case to trial, rather than taking a plea agreement.

The trial court excluded the testimony as a collateral attack on a prior conviction.

The jury found Harris to be a habitual offender and the trial court sentenced him to an aggregate term of 27 years, which included the 15-year habitual offender enhancement.

On appeal to the Court of Appeals of Indiana, Harris argued that the exclusion of his testimony violated Article 1, Sections 19 and 13 of the Indiana Constitution, as well as federal guarantees of the right to testify in his own defense.

The high court granted transfer in its June 29 opinion.

At the Indiana Supreme Court, Harris again argued that Article 1, Section 19 of the Indiana Constitution gave jury the discretion to decide if a defendant is a habitual offender even if the unrelated convictions have been proven.

In ruling that Article 1, Section 19 applies to a habitual offender jury trial, Justice Christopher Goff wrote, “This provision does not require the legislature to entrust sentence enhancement status decisions to juries. … But, when a jury trial is held, the jury must be allowed to perform its constitutionally mandated functions. Thus, in the habitual offender phase, the jury may determine both whether the defendant has the convictions alleged and whether those convictions make the defendant a habitual offender as a matter of law.”

The high court also ruled that the amended habitual offender statute does not strip the jury of its law-determining role, although the justices did find the statute was ambiguous.

Applying the rule in Sims v. United States Fidelity & Guar. Co., 782 N.E.2d 345 (Ind. 2003), Goff wrote, “Indiana Code subsection 35-50-2-8(h) requires the jury, in reaching its verdict, to determine the existence of the requisite convictions. But this does not preclude what Article 1, Section 19 demands, namely that the jury be allowed to determine the ultimate issue of habitual offender status.”

Next, looking at Harris’ testimony, the high court held that only evidence tending to prove or disprove a defendant’s convictions is relevant to habitual offender status.

“To allow the circumstances of prior convictions to come in would contradict the purpose of giving the jury the right to determine habitual offender status,” Goff wrote.

Looking specifically at Harris’ case, the court said he wasn’t entitled to present the circumstances of his crimes in an effort to persuade the jury to show mercy.

“We agree with the trial court that none of the testimony Harris proffered was relevant. He attempted to testify about the circumstances of two of his crimes, namely his present robbery conviction and a prior, unrelated robbery conviction. As to his present conviction, Harris would have told the jury about his PTSD, medication difficulties, and intent to rehabilitate himself,” Goff wrote. “Because this testimony could not serve to disprove the existence of Harris’s unrelated convictions, the trial court properly excluded it as irrelevant. And, by waiving a jury trial in the guilt phase, Harris turned down his opportunity for a jury to hear the circumstances of his crimes of conviction.”

Harris also argued that various federal and state constitutional protections entitled him to testify in his own defense.

But “(b)ecause testimony to the circumstances of a defendant’s crimes is irrelevant to the habitual offender status determination, Harris had no constitutional right to present it,” Goff wrote.

The case was remanded to the trial court for attachment of the habitual offender sentence enhancement to the sentence for robbery.

Justice Derek Molter concurred in part and in the judgment with a separate opinion, which Justice Mark Massa joined.

According to Molter, “Our Court’s precedents establish that the trial court properly excluded Harris’ proffered evidence as irrelevant.”

But he also wrote, “Now, it may be difficult to reconcile the conclusion in the lead opinion that Article 1, Section 19 applies to the habital offender phase with our previous conclusion that the General Assembly can exclude the jury from that phase completely,” citing Smith v. State, 825 N.E.2d 783, 786 (Ind. 2005). “… Law in this area has long been tangled, and I worry that by unnecessarily pulling on this string we are tightening rather than loosening the knot.”

Chief Justice Loretta Rush concurred in part and dissented in part with a separate opinion, which Justice Geoffrey Slaughter partially joined.

Rush concurred that under Article 1, Section 19, the jury in a habitual offender proceeding must decide two issues: whether the defendant has been convicted of the requisite number of prior unrelated felonies, and whether, based on those convictions, they should be given habitual offender status.

But she disagreed that the only evidence relevant to the two issues is that tending to prove or disprove the necessary unrelated convictions. She also dissented from the conclusion that all testimony to the circumstances of a defendant’s crimes is irrelevant to the habitual offender status determination.

Rush opined that the framers and ratifiers of the Indiana Constitution intended an expansive role for juries in criminal cases.

“In the years following the convention, our precedent routinely recognized the broad scope of a jury’s authority under Article 1, Section 19 even though the Court eventually began to impose limitations,” she wrote.

Rush also found that following the adoption of Article 1, Section 19, the court consistently recognized the provision’s importance and scope but ultimately curtailed the jury’s authority relating to instructions it receives.

“It was against this historical backdrop that we began considering the application of Article 1, Section 19 in habitual-offender proceedings before a jury,” she said.

Next, she found that Article 1, Section 19 requires the jury to make separate determinations in a habitual-offender proceeding.

“Yet, three of my colleagues have decided to restrict the jury’s constitutional right by prohibiting any evidence relevant to the status determination. As our precedent has made clear, their position not only resurrects long-repudiated reasoning, but it also dilutes — if not nullifies — the jury’s constitutional right in habitual-offender proceedings,” she wrote.

Rush also found that evidence is relevant in a habitual offender proceeding if it assists the jury in making either of its constitutionally required determinations.

“The stipulation established the existence of the requisite prior convictions, thus entitling the trial court to exclude Harris’s proposed testimony that collaterally attacked one of the convictions. But Harris’s testimony also included circumstances closely related to the primary felony offense. And because the jury was empaneled solely for Harris’s habitual-offender proceeding, it did not have the opportunity to hear any evidence about that offense,” the chief wrote.

Finally, Rush said she would hold that the trial court abused its discretion in prohibiting the jury from hearing Harris’s testimony about the primary felony. She wrote that she would also remand the case to the trial court for a new habitual-offender proceeding.

Slaughter also dissented with a separate opinion, writing that he doesn’t support addressing constitutional questions in a case decided on other, non-constitutional grounds.

“But in a future case, I am willing to consider applying article 1, section 19 outside the habitual-offender context. I am also open to limiting this provision’s application if the legislature elects to remove juries from the habitual-offender determination,” he wrote.

The case is Christopher Jerome Harris v. State of Indiana, 23S-CR-165.

Court of Appeals of Indiana

June 29

Thomas J. Herr v. State of Indiana

22A-PL-142

Closed primary system constitutional, doesn’t violate man’s right to vote

Tippecanoe County’s closed primary voting system is constitutional and does not violate a man’s right to vote, the Court of Appeals of Indiana ruled in affirming a trial court’s granting of summary judgment to the state.

Indiana has a closed primary system where each eligible political party, like Republican and Democratic parties, hold separate primaries to choose its nominees for the general election. Only voters affiliated with that party may vote in that party’s primary.

According to court records, Thomas Herr, who resides and works as an attorney in Tippecanoe County, doesn’t want to affiliate with a single political party but cannot participate in primary elections unless he does.

In 2022, Herr filed a lawsuit in Tippecanoe Superior Court seeking a declaratory judgment that the county’s primary election system is unconstitutional. He argued that it violates his right to vote under the state and federal constitutions.

Herr further argued that other counties in Indiana hold nonpartisan elections for judicial officers and, therefore, the disparate treatment between counties also violates state and federal constitutions.

Both Herr and the state filed cross-motions for summary judgment.

The Tippecanoe Superior Court granted the state’s motion and denied Herr’s. It found no constitutional violation in Tippecanoe County’s closed primary election system.

Herr appealed.

On appeal, Herr claimed that Tippecanoe County’s closed primaries inflict an unconstitutional burden on his right to vote and are thus a violation of the First Amendment.

Judge Nancy Vaidik wrote the opinion for the appellate court.

The COA found the closed primary system doesn’t place a heavy burden on Herr’s First Amendment rights, and the state’s regulatory interests justify its restrictions.

“To vote in Tippecanoe County’s primary election, a voter must have simply voted for the majority of that party’s candidates in the previous general election or intend to do so in the next. This is not particularly burdensome,” Vaidik wrote. “Unlike other systems the U.S. Supreme Court has upheld, it does not even require prior action on the part of the voter or formal enrollment with the party.”

Herr also claimed that the system violates the equal protection clause of the 14th Amendment.

“Because Herr is treated the same as other voters in his county, there is no equal-protection issue,” Vaidik wrote.

Vaidik added that Herr failed to show Tippecanoe’s closed primary system for electing judges violates the First or 14th Amendments.

The appellate court found that the trial court did not err in denying Herr’s motion for summary judgment and granting the state’s motion.

The appellate court also rejected Herr’s argument that the county’s primary system is making him choose loyalty to either the Republican or Democratic Party.

“As an initial matter, we disagree with Herr’s contention that the closed primary system in Tippecanoe County requires him to express loyalty to the Republican or Democratic Party in order to vote,” Vaidik wrote. “Primary elections are not limited to Republican or Democratic candidates, but rather to political parties whose nominee received at least ten percent of the votes cast in the state for secretary of state at the last election, I.C. § 3-10-1-2, although generally only the Republican and Democratic Parties have met this threshold.”

Vaidik added that the statutes don’t require an expression of “loyalty,” but rather the voter must have voted for the majority of that party’s candidates in the previous election or intend to do so in the next election.

The appellate court found the trial court did not err in determining Tippecanoe County’s closed primary system does not violate Herr’s right to vote under the Indiana Constitution.

Lastly, Herr argued that the primary system violates the equal privileges and immunities clause found in Article 1, Section 23 of the Indiana Constitution.

The appellate court again rejected Herr’s argument, with Vaidik writing that Herr had not shown he had been treated differently than other similarly situated individuals.

“He is treated the same as other voters in his county,” Vaidik wrote.

The case is Thomas J. Herr v. State of Indiana, 22A-PL-142.

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June 30

Franciscan Alliance, Inc. v. City of Hammond, Indiana

22A-PL-3085

City lacked standing to sue over closure of local hospital

The city of Hammond lacked standing to bring a case against Franciscan Alliance for planning to close a hospital, the Court of Appeals of Indiana has ruled.

Franciscan moved to close St. Margaret’s Hospital in Hammond at the end of 2022 following years of financial losses, but the city of Hammond sought a preliminary injunction to keep the hospital open.

The city relied on a purported promise made by Franciscan executives 17 months prior that it would not close the hospital and emergency room.

The Lake Superior Court granted the injunction and ordered Franciscan to keep the hospital open for nine more months.

Franciscan filed an emergency motion to stay, citing the looming loss of the hospital’s licensure and accreditation at the end of the year, which it said would make it impossible to comply with the injunction.

Franciscan alleged on appeal that the city lacks standing to bring its claims and that the trial court erred in granting the preliminary injunction. The Court of Appeals agreed as to standing.

At an evidentiary hearing, the city argued closing the hospital would negatively impact Hammond’s residents by leaving approximately 80,000 people without immediate access to emergency medical services. The city also argued the closure would negatively impact its reputation and ability to attract business.

“Yet even if true, any alleged negative effects on Hammond’s citizens cannot sustain the City’s standing. As a municipality, the City may not assert claims on behalf of its citizens,” the Court of Appeals ruled, citing the case Bd. of Comm’rs of Union Cnty. v. McGuinness, 80 N.E.3d 164 (Ind. 2017).

The Court of Appeals additionally ruled damages for the loss of reputation aren’t recoverable on a promissory estoppel claim.

Anticipating it would take about 18 months to plan, budget for and incur the costs of things like new ambulances and finding a new emergency health provider, city officials blamed Franciscan for the “loss of opportunity” to address problems earlier when it first discussed downsizing plans in June 2021.

The trial court agreed, ruling that closing the hospital would endanger Hammond’s residents.

But the Court of Appeals ruled the trial court “improperly focused on speculative and hypothetical damages.”

The city failed to show it has sustained or was in immediate danger of sustaining a demonstrable injury, the COA said, adding that the city also didn’t allege a “direct injury” from Franciscan’s conduct.

“The City merely fears that it will incur the cost of new ambulances from the pressure of increased response times — which arises only indirectly from Franciscan’s decision to close the Hospital,” the opinion says. “Thus, there is no direct injury traceable to Franciscan’s conduct.”

The case was remanded with instructions to dismiss the city’s claim.

Judge Lenna Weissmann wrote the opinion.

The case is Franciscan Alliance, Inc. v. City of Hammond, Indiana, 22A-PL-3085.

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July 10

Jatinder K. Kansal, M.D., P.C. v. Taylor Krieter

22A-CT-2646

‘He said, she said’ case accusing doctor of sexual misconduct doesn’t fall under Medical Malpractice Act

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.”

The case is Jatinder K. Kansal, M.D., P.C. v. Taylor Krieter, 22A-CT-2646.•