FILED
May 06 2019, 8:46 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Neal F. Eggeson, Jr. A. Richard M. Blaiklock
Fishers, Indiana Wade D. Fulford
Lewis Wagner, LLP
Indianapolis, Indiana
Michael A. Sarafin
Johnson & Bell, P.C.
Crown Point, Indiana
Sharon L. Stanzione
Alan M. Kus
Johnson & Bell, P.C.
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
G.F., May 6, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-PL-2460
v. Appeal from the Marion Superior
Court
St. Catherine Hospital, Inc., The Honorable Timothy Oakes,
Vatsal K. Patel, D.O., and Judge
Indiana Patient’s Compensation The Honorable Caryl Dill,
Fund, Magistrate
Appellees-Defendants. Trial Court Cause No.
49D02-1801-PL-614
Riley, Judge.
Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019 Page 1 of 23
STATEMENT OF THE CASE
[1] Appellant-Plaintiff, G.F., and Appellee/Cross-Appellant-Defendant, the
Indiana Patient’s Compensation Fund (the Fund), appeal the trial court’s
summary judgment in favor of Appellees-Defendants, St. Catherine Hospital,
Inc. (St. Catherine), and Vatsal K. Patel, D.O. (Dr. Patel), concluding that, as a
matter of law, the Indiana Medical Malpractice Act (MMA) applies to G.F.’s
claim against Dr. Patel.
[2] We reverse and remand.
ISSUES
[3] G.F. and the Fund, in separate briefs, present this court with three issues on
appeal, which we consolidate and restate as:
(1) Whether the trial court erred by allowing St. Catherine and Dr. Patel to
file a response to G.F.’s motion for summary judgment outside the time
period specified in Indiana Trial Rule 56; and
(2) Whether the MMA applies to claims involving negligent dissemination
of protected health information.
FACTS AND PROCEDURAL HISTORY
[4] On June 5, 2015, G.F. received in-patient treatment at St. Catherine for
pneumonia-related symptoms. While G.F. was being visited by a co-worker,
Dr. Patel entered the room. With the co-worker in the room, Dr. Patel
informed G.F. that his “CD4 count is low . . . you need to see your infectious
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disease doctor as soon as you can!” (Appellant’s App. Vol. II, p. 12). Because
G.F.’s visitor had a prior family experience with HIV, she immediately
understood the implication of Dr. Patel’s communication to G.F. As soon as
Dr. Patel exited the room, G.F.’s co-worker voiced her understanding of Dr.
Patel’s statement: as her step-brother had died from HIV/AIDS, she
recognized the inferences of discussing CD4 counts with an infectious disease
doctor. Four days later, Dr. Patel phoned G.F. to apologize for what he said in
front of G.F.’s co-worker. Dr. Patel had assumed the co-worker was G.F.’s
fiancée.
[5] As a result of what she learned on June 5, 2015, G.F.’s co-worker has severed
all ties with G.F. Though G.F. and his co-worker had been good friends prior
to this incident, she now no longer calls or visits G.F., she does not return
G.F.’s calls, and she even refuses to acknowledge his existence at work.
Suggesting that the word is out at his workplace, G.F. observed that other co-
workers now “change their path when they see [G.F.] heading in their
directions.” (Appellant’s App. Vol. II, p. 38).
[6] On August 20, 2015, G.F. filed his Proposed Complaint for medical
malpractice against St. Catherine and Dr. Patel with the Indiana Department of
Insurance [IDOI], in its capacity of the Fund. Five months later, on January
21, 2016, G.F. filed an anonymous Complaint for damages against St.
Catherine and Dr. Patel with the Lake County Circuit Court. On March 4,
2016, St. Catherine and Dr. Patel moved to dismiss the Lake County action for
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failing to state a claim upon which relief can be granted. On April 27, 2016, the
Lake County Circuit Court denied the motion to dismiss.
[7] On October 19, 2017, the medical review panel rendered a split decision. The
panel found no breach of standard of care in favor of St. Catherine. As to Dr.
Patel, the panel concluded that G.F.’s allegations hinged upon “a material issue
of fact not requiring expert opinion, bearing on liability for consideration by the
court or jury.” (Appellant’s App. Vol. II, pp. 71-73).
[8] On January 6, 2018, G.F. initiated an action for declaratory judgment against
St. Catherine, Dr. Patel, and the Fund in Marion County Superior Court,
seeking a declaration of law that his claims fell outside the ambit of the MMA.
On March 10, 2018, G.F. moved for summary judgment on his declaratory
judgment claims, and the Fund joined in the motion on June 1, 2018. St.
Catherine and Dr. Patel failed to respond to G.F.’s motion for summary
judgment within the time allotted by Indiana Trial Rule 56(C); St. Catherine
and Dr. Patel sought leave to respond on April 15, 2018. On April 17, 2018,
the trial court permitted the filing of a belated response.
[9] On October 3, 2018, following a hearing, the trial court issued its findings of
fact and conclusions thereon, denying G.F.’s motion for declaratory judgment
and concluding in pertinent part that:
[G.F.’s] claim involves health care that was provided by a
physician, working in his professional capacity as a provider of
medical services, to a patient, within the confines of a hospital, in
furtherance and promotion of [G.F.’s] health. Further, the
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[c]ourt finds that [G.F.] willfully and voluntarily subjected his
claim to the requirements and restrictions outlined within the
MMA, proceeded through the entirety of the medical review
panel process, and obtained a medical review panel opinion in
accordance with the MMA. Thus, because [G.F.] has willingly
and voluntarily subjected himself to the MMA the [c]ourt thereby
rejects his contention that his claim is not governed by the MMA,
finds that it is one of medical malpractice, governed by the
requirements and restrictions of the MMA, and thereby DENIES
[G.F.’s] [m]otion for [s]ummary [j]udgment in its entirety.
[10] G.F. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[11] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if
it helps to prove or disprove an essential element of the plaintiff’s cause of
action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an
opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.
Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant
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of summary judgment has the burden of persuading this court that the trial
court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.
[12] We observe that, in the present case, the trial court entered findings of fact and
conclusions of law thereon in support of its judgment. Generally, special
findings are not required in summary judgment proceedings and are not binding
on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48
(Ind. Ct. App. 2004). However, such findings offer a court valuable insight into
the trial court’s rationale and facilitate appellate review. Id.
[13] In analyzing a motion for summary judgment, a court may consider only
properly designated evidence. Indiana Trial Rule 56(C) requires each party to a
summary judgment motion to designate to the court all parts of pleadings,
designations, and other matters on which it relies for purposes of the motion.
Because G.F. and the Fund dispute the timeliness of St. Catherine’s and Dr.
Patel’s response to G.F.’s motion for summary judgment, we must first resolve
this procedural threshold issue and determine what designated evidence is
properly before us prior to turning to the merits of the case.
II. Indiana Trial Rule 56
[14] As an initial matter, G.F. contends that the trial court erred in allowing St.
Catherine and Dr. Patel to file a belated response to his motion for summary
judgment. Trial Rule 56 states, in pertinent part:
(C) The motion and any supporting affidavits shall be served in
accordance with the provisions of Rule 5. An adverse party shall
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have thirty (30) days after service of the motion to serve a
response and any opposing affidavits . . .
****
(F) Should it appear from the affidavits of a party opposing the
motion that he cannot for reasons stated present by affidavit facts
essential to justify his opposition, the court may refuse the
application for judgment or may order a continuance or permit
affidavits to be obtained or depositions to be taken or discovery
to be had or may make such other order as is just.
****
(I) For cause found, the [c]ourt may alter any time limit set forth
in this rule upon motion made within the applicable time limit.
In HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008) (quoting
Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n. 5 (Ind. 2005)), our supreme
court clarified the time limits of T.R. 56 and declared that “[w]hen a
nonmoving party fails to respond to a motion for summary judgment within 30
days by either filing a response, requesting a continuance under T.R. 56(I), or
filing an affidavit under T.R. 56(F), the trial court cannot consider summary
judgment filings of that party subsequent to the 30-day period.” This is “a
bright-line rule . . . which precludes the late filing of responses in opposition to
a motion for summary judgment.” Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d
967, 972 (Ind. 2014). “Now firmly entrenched as an article of faith in Indiana
law, this bright-line rule provides clarity and certainty to an area of the law that
for too long lacked both.” Id.
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[15] G.F. filed his motion for summary judgment on March 10, 2018. Accordingly,
St. Catherine and Dr. Patel’s response or request for additional time was due no
later than April 9, 2018. It was not until April 15, 2018, that St. Catherine and
Dr. Patel sought leave to respond. As such, pursuant to HomEq’s premise, their
request should have been denied by the trial court.
[16] Nevertheless, St. Catherine and Dr. Patel now rely on Marion County Local
Rule 203(A) to avoid the implementation of the rigid bright-line rule. Marion
County Local Rule 203(A) provides that “all motions filed with the court shall
include a brief statement indicating whether opposing party(ies) object to or
approve of the granting of said motion.” LR49-TR5-203(A). Because G.F.
failed to indicate in his motion for summary judgment whether St. Catherine
and Dr. Patel agreed or objected to the motion, Appellees maintain that his
motion was not properly filed until this defect was cured on April 16, 2018.
Therefore, St. Catherine and Dr. Patel contend that the 30-day time period to
file their response to the summary judgment motion commenced on April 16,
2018 and accordingly, their motion for leave to file a response was timely filed.
[17] The Indiana Trial Rules specifically authorize the making and amending of
local rules of court:
Each local court may from time to time make and amend rules
governing its practice not inconsistent with these rules. In all
cases not provided for by rule the local court may regulate its
practice in any manner not inconsistent with these rules . . .
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T.R. 81. However, the rules of procedure promulgated by our supreme court
are binding on all Indiana courts, and no court “can circumvent the rules and
thereby avoid their application” by promulgating an inconsistent local rule.
Spudich v. Northern Ind. Public Serv., Co., 745 N.E.2d 281, 286 (Ind. Ct. App.
2001). A local rule which is inconsistent with the Trial Rules is deemed to be
without force and effect. Armstrong v. Lake, 447 N.E.2d 1153, 1154 (Ind. Ct.
App. 1983).
[18] In State v. Bridenhager, 257 N.E.2d 794, 796 (Ind. 1972), our supreme court
clarified the test for determining when a procedural rule enacted by statute is
inconsistent with the trial rules:
To be “in conflict” with our rules . . ., it is not necessary that the
statutory rules be in direct opposition to our rule, so that but one
could stand per se. It is only required that they be incompatible
to the extent that both could not apply in a given situation.
In Armstrong, this court held that the same test would apply to a local rule
alleged to be inconsistent with the trial rules. Armstrong, 447 N.E.2d at 1154.
Furthermore, when two rules cover the same subject matter and one does so
generally whether the other does so specifically, the more specific rule prevails.
Daugherty v. Robinson Farms, Inc. 858 N.E.2d 192, 197 (Ind. Ct. App. 2006),
trans. denied.
[19] We recognize that Local Rule 203(A) applies to all motions filed with the
Marion County trial court, whereas the requirements of T.R. 56 only apply to
summary judgment motions—and therefore is the more specific rule.
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Moreover, St. Catherine and Dr. Patel assume that failure to comply with Local
Rule 203(A) means that a motion has not been filed or that the filing is exempt
from any time requirements until the defect has been cured. However, Local
Rule 203(A) does not specify a consequence or penalty and neither does the
trial court’s chronological case history indicate that G.F.’s motion for summary
judgment was not deemed filed for lack of compliance with the Local Rule.
While Local Rule 203(A) and T.R. 56(I) are not incompatible per se, we find
that the more specific T.R. 56(I) takes precedence over Local Rule 203(A) and
the 30-day time period to respond to a motion for summary judgment cannot be
enlarged or restricted by the application of Local Rule 203(A). 1
[20] As a result, the trial court abused its discretion by allowing St. Catherine and
Dr. Patel to file a belated response to G.F.’s motion for summary judgment and
1
It should be noted that in a further effort to bring their designated evidence in front of the trial court, St.
Catherine and Dr. Patel filed a cross-motion for summary judgment on May 2, 2018. However, in its Order
of October 3, 2018, the trial court only ruled on G.F.’s motion for summary judgment and declared “the
cross-motion for summary judgment filed by [Dr. Patel and St. Catherine] [] moot.” (Appellants App. Vol.
II, p. 11). Dr Patel and St. Catherine do not appeal the trial court’s conclusion that their cross-motion for
summary judgment is moot. Moreover, even if the cross-motion was properly before us for consideration,
our conclusion that St. Catherine and Dr. Patel cannot designate evidence outside the time-period designated
in T.R. 56 would not be altered. In Life v. Tucker Co., Inc., 948 N.E.2d 346, 351 (Ind. Ct. App. 2011), Life
filed a belated response to Tucker’s motion for summary judgment, as well as a motion for partial summary
judgment against Tucker which included the same arguments and designated evidence as in the belated
response. We concluded that
[w]hile we certainly acknowledge that Trial Rule 56(a) allows for claimants to move for partial
summary judgment “at any time after the expiration of twenty days from the commencement of the
action or after service of a motion for summary judgment by the adverse party,” the Lifes may not
be permitted to bypass established rules of trial procedure by cloaking their response in another
procedural mechanism. Doing so would render meaningless Trial Rule 56(C)’s time limit of thirty
days and allow litigants to respond to summary judgment motions at their leisure so long as they
also included their own motion.
Id.
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designate evidence in support thereof. Accordingly, we will consider only the
evidence designated by G.F. and the Fund in reviewing the trial court’s
summary judgment in favor of St. Catherine and Dr. Patel.
III. Application of MMA on Dissemination of Protected Health Information
[21] Since its enactment in 1975, the MMA has dictated the statutory procedures for
medical malpractice actions. See I.C. § 34-18-1-1 et seq. The MMA is not all-
inclusive for claims against healthcare providers, nor is it intended to be
extended to cases of ordinary negligence. Peters v. Cummins Mental Health, Inc.,
790 N.E.2d 572, 576 (Ind. Ct. App. 2003). Instead, the MMA was designed to
curtail, not expand, liability for medical malpractice. Atterholt v. Herbst, 902
N.E.2d 220, 223 (Ind. 2009). As such, the MMA is in derogation of common
law and should be narrowly construed. Patel v. Barker, 742 N.E.2d 29, 31 (Ind.
Ct. App. 2001).
[22] Similar to other statutes in derogation of the common law, the MMA is to be
strictly construed against imposing any limitations upon a claimant’s right to
bring suit. Peters, 790 N.E.2d at 576. When the legislature enacts a statute in
derogation of the common law, courts presume that the legislature is aware of
the common law, and that the legislature does not intend to make any change
beyond what is declared in express terms or by unmistakable implication.
Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104, 1107-08 (Ind. Ct. App.
1999).
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[23] By limiting provider liability, the MMA makes healthcare more affordable and
accessible to patients throughout Indiana. McCarty v. Sanders, 805 N.E.2d 894,
899 (Ind. Ct. App. 2004). “The obvious purpose of the [MMA] was to protect
health care providers from malpractice claims . . . not to create new and
additional causes of action. Were it to create a separate cause of action it
would increase the incidence of such claims rather than protect against them.”
Breece v. Lugo, 800 N.E.2d 224, 227-28 (Ind. Ct. App. 2003). In Johnson v. St.
Vincent Hospital, Inc., 404 N.E.2d 585, 589 (Ind. 1980), overruled on different
grounds by In re Stephens, 867 N.E.2d 148 (Ind. 2007), our supreme court noted
that the MMA was a legislative response to escalating problems in the medical
malpractice insurance industry and was passed to address the rapidly escalating
costs to physicians of malpractice insurance, the near unavailability of such
coverage to physicians engaged in certain high risk specialties, and because
“[h]ealth care providers had become fearful of the exposure to malpractice
claims and at the same time were unable to obtain adequate malpractice
insurance at reasonable prices.” Id. at 589. The MMA created “voluntary
state-sponsored liability insurance for doctors and other health care providers,
created a patient compensation fund, took measures to prevent injuries to
patients through the negligence of health care providers, and subjected
negligence claims against health care providers to special controls limiting
patient remedies.” Id. at 590. Whether the case is one of medical malpractice
as defined by the MMA is a question of law to be determined by the court.
Weldon, 714 N.E.2d at 1107.
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[24] Indiana courts have developed an analytical framework for determining
whether the MMA applies to a certain claim. Courts look to the substance of a
claim, not the manner in which the conduct is framed in a pleading by the
claimant. Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d 101, 104 (Ind. Ct. App.
1995). To fall within the purview of the MMA, a provider’s conduct must be
undertaken in the interest of, or for the benefit of, the patient’s health. In other
words, the conduct must be “curative or salutary in nature or effect” for the
person claiming patient status under the MMA. Collins v. Thakkar, 552 N.E.2d
507, 510 (Ind. Ct. App. 1990). The curative or salutary conduct must be
directed toward the person to whom the provider owes a duty of care. See
Peters, 790 N.E.2d at 577. Conversely, the MMA does not apply to conduct
“unrelated to the promotion of a patient’s health or the provider’s exercise of
profession expertise, skill, or judgment.” Howard Reg’l Health Sys. v. Gordon, 952
N.E.2d 182, 185 (Ind. 2011).
[25] Given the limiting language of the MMA, not every negligent act or omission
by a health care provider constitutes medical malpractice. Putnam Co. Hosp. v.
Sells, 619 N.E.2d 968, 970 (Ind. Ct. App. 1993). A medical malpractice claim
under the Act exists only when the substance of the claim involves a causal
connection between the negligence and the nature of the provider/patient
relationship. Doe by Roe, 652 N.E.2d at 103. General negligence can occur
during the course of ongoing medical treatment if the negligent act itself does
not involve curative or salutary conduct, the promotion of the patient’s health,
or the exercise of professional expertise, skill, or judgment. See, e.g., Thomas v.
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Deitsch, 743 N.E.2d 1218, 1220-21 (Ind. Ct. App. 2001) (no medical malpractice
where doctor allowed inebriated patient to leave office and patient was arrested
on way home from doctor’s office for operating while inebriated); Hart v. Caylor-
Nickel Hosp. Inc., 553 N.E.2d 874, 879 (Ind. Ct. App. 1990) (allegation that a
bed rail properly raised by health care provider, but which gave way under
plaintiff’s weight after turning himself in bed was outside the MMA); Collins v.
Thakkar, 552 N.E.2d 507, 510-11 (Ind. Ct. App. 1990), trans. denied (no medical
malpractice where a doctor performed an abortion on a patient without her
consent). Recently, this court addressed the difference between ordinary
negligence and medical malpractice which would fall under the purview of the
MMA, as follows:
A case sounds in ordinary negligence [rather than medical
negligence] where the factual issues are capable of resolution by a
jury without application of the standard of care prevalent in the
local medical community. By contrast a claim falls under the
[MMA] where there is a causal connection between the conduct
complained of and the nature of the patient-health care provider
relationship.
Metz as Next Friend of Metz v. Saint Joseph Reg’l Med. Center-Plymouth Campus, Inc.,
115 N.E.3d 489, 495 (Ind. Ct. App. 2018) (quoting Terry v. Cmty. Health Network,
Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 2014)) (internal citations omitted).
[26] Relying on this framework, G.F. and the Fund contend that the trial court erred
when it concluded that G.F.’s claim against Dr. Patel fell within the purview of
the MMA. G.F. does not contend that the statement by Dr. Patel led to an
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inaccurate diagnosis, improper treatment, or bodily injury; rather, G.F. claims
that the communication resulted in emotional harm and an irreparable loss of
privacy. Characterizing Dr. Patel’s disclosure of G.F.’s confidential health care
information to a third party as neither curative nor salutary to G.F., G.F. and
the Fund maintain that the claim against Dr. Patel sounds in ordinary
negligence. In response, St. Catherine and Dr. Patel assert that Dr. Patel’s
communication of laboratory results to G.F., as well as the recommendation of
follow-up care, were directly related to tests performed in furtherance of G.F.’s
care and treatment and occurred while Dr. Patel was acting in his professional
capacity. As such, they posit that Dr. Patel’s conduct falls squarely within the
purview of the MMA.
[27] In a previous case, we have held that claims alleging negligent dissemination or
communication of patients’ confidential health information against a heath care
provider were not governed by the MMA. In H.D. v. BHC Meadows Hosp., Inc.,
884 N.E.2d 849, 851-52 (Ind. Cr. App. 2008), reh’g denied, trans. denied, a
therapist at an in-patient psychiatric facility faxed the plaintiff’s diagnosis and
the fact of her hospitalization to the plaintiff’s high school where the fax was
viewed by school administrators and students, even though the plaintiff’s
parents and the defendant had signed a confidentiality agreement that the
information of plaintiff’s treatment was not to be disclosed to her school
counselor. After the plaintiff filed suit for negligence and invasion of privacy,
the hospital moved to dismiss the case on the grounds that plaintiff had omitted
to present her claims to a medical panel. Id. at 852. Following the trial court’s
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dismissal of the lawsuit because it was not brought under the MMA, the court
of appeals unanimously reversed the trial court. Id. at 852. Framing the
question as “whether a health care provider’s negligent or reckless
dissemination of a patient’s confidential information to members of the general
public comes within the purview of the [MMA],” this court analyzed the
language of the MMA discussing whether each of three separate
communications from the therapist to the plaintiff’s school counselor was sent
for the purpose of providing health care or professional services for the patient.
Id. Discarding two communications as being surveys which had not been sent
for the purpose of healthcare or providing services and therefore could not
constitute medical malpractice, the court of appeals determined that a third
faxed communication had been sent for the “dual purpose of providing health
care or professional services.” Id. at 854. This particular message, sent by the
therapist to the school counselor and faxed to a machine located in the general
secretarial pool in the main office, read as follows:
Thanks for referral. Addressing issues of depressional stress.
Doing well, withdrawn and anxious @ times. Please call @ . . .
to discuss issues.
Thanks again.
Id. at 851-52.
[28] Starting our analysis from BHC Meadows Hospital’s argument, we reasoned as
follows:
[The Hospital] argues that “[t]he reasonableness of [the
t]herapist’s decision to communicate with [the school c]ounselor
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and share confidential information during the course of [the
t]herapist’s treatment constitutes the quintessential exercise of
judgment in rendering professional services in caring for
[plaintiff] and her serious, suicidal ideation.” We would agree
with this statement on its face; however, what has been
represented by [the plaintiffs] is much more than a confidential
communication between a therapist and a counselor. It is
undisputed that the therapist sent private, confidential
information to the fax machine of a high school without knowing
who had access to the machine. Indeed, we have doubts as to
whether the [plaintiffs] would have experienced any injury had
the therapist directly and privately communicated with H.D.’s
school counselor who was already aware of her suicide note,
although such communication would still have been in
contravention of the [plaintiffs’] explicit wishes. For this reason,
we conclude that the more appropriate question to answer is
whether a health care provider’s negligent or reckless
dissemination of a patient’s confidential information to members
of the general public comes within the purview of the [MMA].
Id. at 854. Next, we concluded that the primary purpose of the MMA was to
address difficulties health care providers were experiencing in obtaining
professional liability insurance coverage. Nevertheless, we noted that the
general claim asserted by the plaintiffs sounded in common law negligence and
the purpose of the MMA would not be served by extending its provisions to the
claim under consideration. Id. at 855. Accordingly, the court concluded that
“the [plaintiffs] have articulated claims of ordinary negligence and similar
claims; we are particularly persuaded that an average juror is well equipped to
consider those claims.” Id. at 856.
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[29] A more recent case from the Northern District of the United States District
Court, interpreting Indiana’s MMA, reached a similar result. In Reed v. Rodarte,
2013 WL 594107 (N.D. Ind. 2013), Reed was injured during his employment.
Rodarte—wrongly—diagnosed Reed with a sexually transmitted disease and
informed Reed’s employer that this was not a work-related injury. Id. In filing
his Complaint, Reed focused on the perceived violation of his privacy rights
under HIPAA, state privacy laws, and state defamation laws. Id. Rodarte
moved for a dismissal of the Complaint, alleging that the claim fell within the
MMA. Id. The federal court reviewed the provisions of the Act, and Indiana
case law pertaining to the issue of the scope of coverage, acknowledging that
the MMA “extends to seemingly administrative tasks that are intricately related
to patient care” because “the skillful, accurate, and ongoing maintenance of test
and treatment records bears strongly on subsequent treatment and diagnosis of
patients.” Id. (quoting Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 186
(Ind. 2011)). However, “Indiana courts have declined to extend the [MMA] to
cover lawsuits stemming from unauthorized communications by a health care
provider to third parties regarding the patients’ medical conditions.” Id.
Relying on BHC Meadows Hospital, the federal court reasoned that “[u]nlike
memorializing medical observations in a chart or authorizing a patient’s
commitment, sharing a patient’s medical condition with a third party requires
no ‘professional expertise, skill or judgment.’” Id. (quoting Collins, 552 N.E.2d
at 510).
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[30] Turning to the case at hand, G.F. does not contend that Dr. Patel’s statement
led to an inaccurate diagnosis or improper treatment. Rather, in his Complaint,
G.F. articulated his claims as to “whether the [MMA] applies to claims
involving: the violation of a patient’s medical confidentiality; [and] the
negligent or intentional disclosure of protected health information[.]”
(Appellant’s App. Vol. II, p. 24). The fact that Dr. Patel’s statement was
uttered in a facility that provides health care does not, by itself, make G.F.’s
claim fall within the purview of the MMA. Doe ex rel. Roe, 652 N.E.2d at 104.
Nor does the fact that G.F. was a patient of Dr. Patel create such a claim.
Collins, 552 N.E.2d at 511. Instead, the test is based on the provider’s behavior
or practices while “acting in his professional capacity as a provider of medical
services.” Id. at 510. Based on these parameters, we cannot conclude that
G.F.’s claims are within the boundaries of the MMA.
[31] As in BHC Meadows Hospital, where the confidential information was directed at
the school counselor, but instead was read by the secretarial and administrative
staff of the school; likewise, here, the communication by Dr. Patel had the dual
effect of providing medical information to G.F., while at the same time, an
inadvertent broadcast disclosed confidential information to the visitor, a third
party. It is this disclosure of confidential information that is the focus of G.F.’s
claim; not the services provided by Dr. Patel. At no point did the broadcast of
confidential information to the third party constitute a health care treatment to
G.F., nor did Dr. Patel’s statement of G.F.’s HIV status to a third party have a
curative or salutary effect on G.F. Furthermore, as in BHC Meadows Hospital
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and Rodarte, we do not determine expert testimony to be necessary as “an
average juror is equally equipped” to consider the elements of a state law
privacy claim. See BHC Meadows Hospital, 884 N.E.2d at 856. Accordingly,
G.F.’s Complaint, as it pertains to the negligent or intentional disclosure of
protected health information, is not subject to the limitations of the MMA.
[32] St. Catherine and Dr. Patel now maintain that, because G.F. filed his case both
by a proposed complaint for medical malpractice with the IDOI, and also by an
anonymous Complaint for damages in the Lake County Circuit Court, he
thereby elected to file his case as a medical malpractice claim and should not
now be permitted to argue that it is not governed by the MMA. Relying on
Cmty Hospitals of Ind., Inc., v. Aspen Ins. UK Ltd, 113 N.E.3d 636 (Ind. Ct. App.
2018), they contend that G.F. is estopped from arguing his case should proceed
pursuant to ordinary negligence principles.
[33] In Aspen, this court interpreted our supreme court opinion in Manley v. Sherer,
992 N.E.2d 670 (Ind. 2013), and concluded that once plaintiffs have filed a
proposed complaint with the Department of Insurance and received an
unfavorable opinion of the medical panel, they no longer can contend that the
MMA is not applicable to their claim. Aspen, 113 N.E.3d at 644. In Manley,
the plaintiff was injured in a head on collision with Zehr, who had lost
consciousness while driving due to medications prescribed by her physician, Dr.
Sherer. Manley, 992 N.E.2d at 672. In evaluating the parties’ respective
summary judgment arguments, our supreme court mentioned that the Manleys
“filed their proposed complaint with the [IDOI] but at no time did they ever file
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their complaint in court.” Id. at 673. It also observed that the Manleys, in their
opposition to Sherer’s summary judgment motion, had argued that their claims
were not subject to the MMA because Manley was not a patient of Sherer and
thus her claim was not for medical malpractice subject to the special
occurrence-based statute of limitation. Id. at 674. Before addressing the merits
of the statute of limitations issue, the supreme court stated,
We preliminarily reject the plaintiffs’ claim that their action
against Dr. Sherer and his medical group is not governed by the
[MMA]. The plaintiffs have treated it otherwise by filing their
proposed complaint with the [IDOI] as required by the [MMA].
They may not now contend the [MMA] and its time limitation
do not apply to their claim.
Id.
[34] We find the interpretation of Manley by this court in Preferred Prof’l Ins. Co. v.
West, 23 N.E.3d 716 (Ind. Ct. App. 2014), trans. denied, to be more persuasive.
In West, we considered the supreme court’s “remarks to be a comment
particular to the facts and circumstances of the Manley case, not a statement of
law.” Id at 732. The West court reasoned that
We do not find that the West’s decision to simultaneously file
complaints in the St. Joseph Circuit Court and the IDOI, likely
done to avoid any potential statute of limitations issues, is
problematic or that it thereby prevented them from pursuing a
determination that the MMS did not apply to their claims. [The
Fund] is in agreement, stating that plaintiffs, meaning the Wests
or any others, may not decide that a case is one of medical
malpractice simply by filing it as such, as that determination is
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for the courts to make. As we have recognized, it is the
substance of a claim, not its caption, which determined whether
compliance with the MMA is necessary.
Id. The West court’s interpretation of Manley is more in line with current
precedents, in which a court determines whether the case is one of medical
malpractice as defined by the MMA as a question of law by looking at the
substance of the parties’ claims. Weldon, 714 N.E.2d at 1107; Doe by Roe, 652
N.E.2d at 104. See also Fairbanks Hosp. v. Harrold, 895 N.E.2d 732, 738 (Ind. Ct.
App. 2008), trans. denied, (after medical panel found for plaintiff, court of
appeals affirmed the trial court’s determination that the MMA did not cover
Harrold’s claims). Accordingly, we conclude that G.F. was not estopped from
pursuing a determination that the MMA did not apply to his claims.
[35] We reverse the trial court’s conclusion that G.F.’s allegations constitute claims
of medical malpractice subject to the applicability of the MMA. Therefore, its
summary judgment in favor of St. Catherine and Dr. Patel was clearly
erroneous. We remand for further proceedings in accordance with this opinion.
CONCLUSION
[36] Based on the foregoing, we hold that the trial court erred by allowing St.
Catherine and Dr. Patel to file a response to G.F.’s motion for summary
judgment outside the time period specified in Indiana Trial Rule 56. We also
hold that the MMA is not applicable to claims involving negligent
dissemination of protected health information and thus the trial court erred in
granting summary judgment to St. Catherine and Dr. Patel.
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[37] Reversed and remanded for further proceedings.
[38] Bailey, J. and Pyle, J. concur
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