Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
A child victim of a sexual assault by his physician could be eligible for excess compensation from the state’s patient’s compensation fund, after the Indiana Supreme Court affirmed a trial court’s denial of the fund’s summary judgment motion.
The fund and the Indiana Department of Insurance had claimed excess compensation for the victim of a sexual assault by a physician was not available under the Indiana Medical Malpractice Act, a claim the high court rejected.
In affirming the trial court’s denial of defendants’ motion for summary judgment, the court remanded the case for proceedings consistent with the opinion.
According to court records, in February 2019, physician Dr. Jonathon Cavins sexually assaulted a 12-year-old patient during a medical examination at an unnamed hospital.
Cavins was ultimately sentenced in June 2020 to 19 years in prison and four years probation.
According to WTHR, the former Lebanon pediatrician was convicted of two counts of child molestation, one count of sexual Misconduct with a minor and two counts of child seduction, after five male patients said Cavins inappropriately touched their genital area after putting a condom on them.
The Indiana Court of Appeals affirmed Cavins’ convictions.
The child and his parents filed a medical malpractice complaint, which included a negligent-credentialing claim, against the hospital that employed Cavins.
The case with the hospital was settled, with the hospital agreeing to pay a total of $400,000, its maximum liability under the malpractice act.
In the agreement, the hospital stated that the plaintiffs were entitled to seek excess compensation from the Indiana Patient’s Compensation Fund, but specified that if the fund “successfully reject[ed]” the agreement, then it would “be null and void.”
The child and his parents proceeded to seek excess compensation from the fund.
Defendants, which include the fund and the Indiana Department of Insurance, pursued a summary judgment claim, arguing excess compensation was not available because neither the sexual assault nor the hospital’s negligence fell within the state’s medical malpractice act.
The Boone Circuit Court denied summary judgment. On interlocutory appeal, a divided panel of the Court of Appeals reversed the trial court’s order and granted the defendants’ summary judgment motion.
Appellees, which includes the child, his parents, and the hospital, petitioned for transfer, which the supreme court granted.
In denying summary judgment for the defendants, Chief Justice Loretta Rush wrote in the high court’s opinion that the fund and the state’s insurance department failed to show they are entitled to judgment as a matter of law.
Their argument that the assault and the hospital’s negligence does not fall under the malpractice was denied by the supreme court, which concluded that a negligent-credentialing claim does fall within the malpractice act only if both the hospital’s credentialing decision and the physician’s misconduct constitute malpractice.
“We conclude that claims premised on sexual assault by a physician during an authorized medical examination can fall within the MMA if the alleged misconduct stems from an inseparable part of the health care being rendered,” Chief Justice Rush wrote.
Justice Christopher Goff concurred.
Justice Mark Massa concurred in part and dissented in part with a separate opinion, which Justice Geoffrey Slaughter joined.
In his dissent, Massa wrote that the malpractice act covers only health care matters, defining “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,” under Indiana law.
He claimed the doctor’s molestation of the patient is a criminal act, but is not under the definition of malpractice, arguing the court was deviating from the act’s plain text.
Justice Derek Molter concurred with a separate opinion.
In his opinion, Molter offered a response to Massa’s concern that the court is straying from the act’s plain terms.
Molter wrote that the court’s statutory interpretation of the act mirrored how the fund interpreted the act when applying it to a case of nonsexual battery during medical treatment.
Massa stated that if the fund correctly interpreted the act previously to cover a nonsexual battery case (Weinberger v. Gill, 983 N.E.2d1158, 1160), the court was correct in treating a sexual battery during medical treatment the same.
This story has been updated.
Please enable JavaScript to view this content.