Jeffrey Cutchin v. Stephen Robertson

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐1437
JEFFREY B. CUTCHIN, as Personal Representative
of the ESTATES OF CLAUDINE D. CUTCHIN and
ADELAIDE E. CUTCHIN,
Plaintiff‐Appellant,

v.

STEPHEN W. ROBERTSON, Commissioner of the
Indiana Department of Insurance,
Administrator of the Indiana Patient’s
Compensation Fund.,
Defendant‐Appellee.
____________________

Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:18‐cv‐00028‐TWP‐MPB — Tanya Walton Pratt, Judge.
____________________

ARGUED SEPTEMBER 22, 2020 — DECIDED FEBRUARY 3, 2021
____________________

Before SYKES, Chief Judge, and FLAUM and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Jeffrey Cutchin=s wife and daughter
were killed in an automobile accident that occurred when
2 No. 20‐1437

another driver, Sylvia Watson, ran a red light and struck their
vehicle. Cutchin, as the representative of their estates, alleges
that Watson=s driving ability was impaired as the result of
medications she had been prescribed, among them an opioid.
Cutchin filed a malpractice suit against Watson=s healthcare
providers, charging them with negligence for, among other
omissions, an alleged failure to warn Watson that she should
not be driving given the known motor and cognitive affects
of the medications she was taking. After the providers and
their malpractice insurer agreed to a settlement of $250,000,
the maximum amount for which they can be held individu‐
ally liable under the Indiana Medical Malpractice Act (the
AMMA@ or AAct@), Cutchin sought further relief from the Indi‐
ana Patient=s Compensation Fund (the AFund@), which acts as
an excess insurer. The Fund argued that the MMA does not
apply to Cutchin=s claim and that he is barred from seeking
excess damages from the Fund. The district court agreed, re‐
sulting in this appeal.
Because existing Indiana case law does not supply suffi‐
cient guidance on two questions that are crucial to the resolu‐
tion of this appeal, we certify these questions to the Indiana
Supreme Court, pursuant to Circuit Rule 52 and Indiana Ap‐
pellate Rule 64.
I.
Late in the afternoon of February 2, 2017, Watson, age 72,
picked up her car from an automotive repair shop in Owens‐
ville, Indiana and drove toward Princeton, Indiana. Her 27‐
year‐old granddaughter, Brandy Mayer, was riding with her
as a passenger in the car. Before the two left the repair shop,
Mayer had seen her grandmother take two pills from a pre‐
scription bottle and swallow them. As Watson=s car
No. 20‐1437 3

approached a controlled intersection where the traffic light
was red, Watson was unable to move her foot from the accel‐
erator to the brake and exclaimed to Mayer, AI can=t stop.@ As
a result, her car crashed into the vehicle driven by Claudine
Cutchin, 56 (Jeffrey=s wife), with her daughter Adélaide, 22,
in the passenger seat. Claudine was pronounced dead at the
scene of the accident, and Adélaide died a short time later at
a local hospital. Watson herself suffered severe injuries and
died two and a half weeks later. Mayer escaped serious injury.
A blood test performed after the crash revealed the pres‐
ence of opiates in Watson=s system. Watson had been under
the care of Anonymous Healthcare Provider 1 (the APhysi‐
cian@) at Anonymous Healthcare Provider 2 (the AClinic@)
since May 2000. The Physician had prescribed some eight dif‐
ferent medications to Watson, including an opioid and mus‐
cle relaxers.
In January 2018, following the procedural requirements of
the MMA, Cutchin filed a proposed complaint with the Indi‐
ana Department of Insurance against the Physician and the
Clinic seeking the recovery of damages resulting from medi‐
cal malpractice. At the same time, as Indiana law permits, he
filed his malpractice claim in the district court, invoking its
diversity jurisdiction: Cutchin is a citizen of Illinois (as were
the decedents), whereas the Physician and Clinic are citizens
of Indiana. The complaints alleged that the Physician
breached the standard of care he owed to Watson by, inter alia,
failing to warn her about the dangers of operating a motor
vehicle while under the influence of the medications she had
been prescribed, failing to screen her for cognitive impair‐
ment caused by these medications, failing to adjust her medi‐
cations to address problems with muscle control, and failing
4 No. 20‐1437

to ask the Indiana Bureau of Motor Vehicles to conduct an as‐
sessment of Watson=s driving ability. Cutchin further alleged
that the Physician=s negligence in providing health care to
Watson caused the wrongful deaths of his wife Claudine and
daughter Adélaide. Cutchin subsequently amended his com‐
plaint to request a declaratory judgment concerning the ap‐
plicability of the MMA to his claim.
As applicable here, the MMA caps the amount of recover‐
able damages for malpractice at $1.25 million.1 A physician is
responsible for procuring malpractice insurance coverage up
to $250,000, which is the maximum amount for which he or
she can be held personally liable as a Aqualified provider@ un‐
der the Act. Physicians also pay a surcharge to help fund the
Patient=s Compensation Fund (the AFund@), which acts as an
excess insurer and will pay up to $1 million in damages above
the physician=s $250,000 exposure.
With the district court=s permission, the Fund=s adminis‐
trator, Stephen W. Robertson, intervened in the litigation be‐
low in order to protect the Fund=s interest. The Fund took the
position that the Act did not apply to Cutchin=s claim and the
Fund should not be liable for any excess damages.
In March 2019, the district court convened a settlement
conference at which the Fund was represented. The Physician
reached a settlement with Cutchin and agreed to pay the

1
These are the caps that were in place when the acts of malpractice alleged
in this case took place. They have since been increased.
No. 20‐1437 5

maximum of $250,000. All parties, including the Fund, exe‐
cuted a memorandum of agreement which acknowledged the
settlement, called for termination of the medical review panel
proceedings as to the Physician and Clinic that were triggered
by the complaint Cutchin had filed with the Department of
Insurance, and noted that Cutchin was reserving his right to
pursue excess damages from the Fund. The Physician and the
Clinic were dismissed from the litigation and released from
any further liability. Cutchin then filed a petition for payment
of excess damages from the Fund. The Fund took the position
that it had no liability because the underlying acts, in its view,
were not within the purview of the MMA.
The parties filed cross‐motions for summary judgment on
Cutchin=s request for declaratory relief, and the district court
entered summary judgment in favor of the Fund. The court in
the first instance rejected Cutchin=s argument that, by the ex‐
press terms of the Act, the settlement with the Physician was
conclusive of liability under the MMA and precluded the
Fund from contesting the applicability of the Act. The court
went on to find that neither Cutchin, Claudine, nor Adélaide
constituted Apatients@ of the Physician and the Clinic within
the meaning of the MMA, and consequently Cutchin=s claims
did not fall within the scope of the Act. Cutchin was therefore
barred from seeking excess damages from the Fund. Cutchin
v. Ind. Dep=t of Ins., 446 F. Supp. 3d 413 (S.D. Ind. 2020).
II.
Cutchin has presented two questions for review:
(1) Whether Indiana=s Medical Malpractice Act prohibits the
Patient=s Compensation Fund from contesting the Act=s ap‐
plicability to a claim after the claimant concludes a court‐ap‐
proved settlement with a qualified health care provider, and
6 No. 20‐1437

(2) whether Indiana=s Medical Malpractice Act applies to
claims brought against individuals who did not receive med‐
ical care from the provider, but who are injured as a result of
the provider=s negligence in providing medical treatment to
someone else. Cutchin at the outset asks that we certify these
questions to the Indiana Supreme Court pursuant to Seventh
Circuit Rule 52(a) and Indiana Rule of Appellate Procedure
64. For the reasons that follow, we agree that certification is
appropriate: The questions presented are ones of state law,
are important, are dispositive of this case, and are likely to
recur, and yet the existing Indiana case law sends conflicting
signals as to the appropriate answers.
The MMA was enacted in 1975 in response to a malprac‐
tice insurance crisis in Indiana: malpractice claims were in‐
creasing in number and resulting in higher damage awards;
insurers were withdrawing from the Indiana market; premi‐
ums were soaring; physicians were having difficulty obtain‐
ing coverage, particularly in high‐risk specialties like anesthe‐
siology; and rural areas of the state were losing physicians.
The Indiana General Assembly adopted a comprehensive
scheme to address the crisis that features caps on malpractice
damages, voluntary participation in a state‐sponsored excess
insurance fund, a partially streamlined adjudicative process,
and enhanced oversight of healthcare providers via medical
review panels. A provider wishing to invoke the protections
of the MMA obtains malpractice liability coverage in an
amount equivalent to the applicable limit on the provider=s
liabilityCin this case, $250,000Cfiles proof of financial respon‐
sibility with the commissioner of the Indiana Department of
Insurance, and pays a surcharge to the Fund for excess
No. 20‐1437 7

coverage. The Fund then acts as a provider=s excess insurer.
The Fund=s own liability is likewise capped, in this case at $1
million. Once a malpractice claim against a provider is re‐
solved at the limits of the provider=s liability, the Fund=s cov‐
erage is triggered, and liability is considered established; the
only issue for resolution at that juncture is the amount of ex‐
cess damages to which the claimant is entitled.
Having settled with the Physician for the maximum
amount of the Physician=s exposureC$250,000CCutchin is
seeking additional damages from the Fund up to the maxi‐
mum of its exposureC$1 million. But the Fund asserts that
Cutchin=s claim falls outside the scope of the MMA and that
it consequently has no liability to Cutchin.
Neither Cutchin nor his decedents were in the medical
care of the Physician with whom he settledCWatson was the
doctor=s Apatient@ in the sense that we ordinarily understand
that term. But the term Apatient@ is also a term used in the
MMA to determine, among other things, who may pursue a
medical malpractice claim under the Act. Cutchin=s claim is
premised on the notion that Watson=s doctor was negligent in
treating her, and as a result of that negligence, his wife and
daughter were foreseeably injured. He asserts that his claim
therefore is one for medical malpractice, and one for which he
may seek recompense according to the terms of the MMA, in‐
cluding its broad definition of Apatient.@ The Fund takes the
position that because neither Claudine nor Adélaide qualifies
as a Apatient@ of the Physician under the terms of the Act,
Cutchin=s claim is not one for malpractice and therefore is not
one governed by the Act, with the result that the Fund can
have no liability to Cutchin. Of course, the claim against the
Physician presumably was settled on the understanding that
8 No. 20‐1437

Cutchin=s claim is one for malpractice. Which brings us to the
first of the two questions presented.
Where, as in this case, a health care provider or its insurer
has agreed to settle the provider=s liability on a malpractice
claim by paying the policy limits ($250,000), and the claimant
is demanding an amount in excess of those limits, a claimant
must file a petition in court seeking an excess payment from
the Fund. The Act specifies that in resolving what damages, if
any, should be paid by the Fund, Athe court shall consider the
liability of the health care provider as admitted and estab‐
lished.@ Ind. Code ' 34‐18‐15‐3(5). Cutchin understands this
language to mean that his settlement with the Physician pre‐
cludes the Fund from contesting whether the underlying
claim is one for malpractice that is covered by the Act and on
which the Fund can be liable. In his view, the only task for the
court to resolve is what excess damages he is owed for the
death of his wife and daughter.
The Fund=s contrary position, that it is free to contest the
applicability of the Act and its own liability notwithstanding
the settlement with the Physician, finds support in cases
which have addressed certain categories of coverage ques‐
tions after settlements with healthcare providers. We discuss
these cases below. More broadly, the Fund=s position is con‐
sistent with Indiana cases treating questions as to whether a
claimant has alleged a claim of medical malpractice as ones
implicating the subject matter jurisdiction of the court. See
Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct.
App. 2006); Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104,
No. 20‐1437 9

1106, 1107–08 (Ind. Ct. App. 1999); Putnam Cnty. Hosp. v. Sells,
619 N.E.2d 968, 970 (Ind. Ct. App. 1993).
Because the Act establishes a compensation scheme for
claims of medical malpractice against qualified providers of
medical care, courts have entertained threshold questions as
to whether particular claims against the Fund arise from the
provision of medical care by qualified providers despite prior
settlements with the providers in question.
For example, in Wisniewski v. Bennett, 716 N.E.2d 892 (Ind.
1999), the Indiana Supreme Court concluded that a claimant
could not seek recovery from the Fund because the physician
and medical group charged with malpractice (and with
whom the claimant had already settled) were not qualified
providers under the Act. As the court emphasized at the out‐
set of its analysis:
The Act is explicit that A[a] health care provider
who fails to qualify under this article is not cov‐
ered by this article and is subject to liability un‐
der the law without regard to this article. If a
health care provider does not qualify, the pa‐
tient=s remedy is not affected by this article.@
Ind. Code ' 34‐18‐3‐1 (1998). In addition, A[o]nly
while malpractice liability insurance remains in
force are the health care provider and the health
care provider=s insurer liable to a patient or the
patient=s representative for malpractice to the
extent and in the manner specified in this arti‐
cle.@ Id. ' 34‐18‐13‐1.
Id. at 894. The providers in question had obtained medical
malpractice coverage as required by the Act, but from an
10 No. 20‐1437

Illinois insurer that was not licensed to issue such policies in
Indiana. Moreover, the insurer had failed to pay the requisite
surcharge to the Fund on behalf of the physician and medical
group. Consequently, the medical care that the physician and
medical group had provided fell outside the coverage of the
Act and, despite their settlement with the plaintiff, the Fund
bore no liability to the plaintiff.
[T]he purposes of both the Act and the Fund
would be frustrated by the result Wisniewski
seeks. To preserve an acceptable standard of
health care and an adequate number of provid‐
ers in Indiana, the General Assembly estab‐
lished a state sponsored liability insurance pro‐
gram. See Johnson v. St. Vincent Hospital, Inc., 273
Ind. 374, 379–80, 404 N.E.2d 585, 589–90 (1980).
If healthcare providers comply with the require‐
ments of the Act, including paying the yearly
surcharge, the Act caps liability for these pro‐
viders who pay the first $100,000 on a claim [the
applicable limit at that time]. If providers and
insurers who have not paid the yearly surcharge
that maintains the Fund are permitted to avoid
liability by paying the first $100,000 on a claim
from some other source, including personal
funds, and shift the remaining liability to the
Fund, the financial viability of the Fund is un‐
dermined. In addition, it would be fundamen‐
tally unfair to other providers and insurers to
permit Chand and ISIMIE [the physician and in‐
surer], who did not pay into the Fund, and
No. 20‐1437 11

Southeastern [the medical group], who paid
into the Fund for a fraction of the exposure pe‐
riod, to shift their financial liability to the Fund.
The Fund was not designed to be, in effect, a
free excess carrier for insurance companies who
have received premiums and accepted the risk
of malpractice by their insured. Rather only
those who contribute to the Fund are intended
to get its benefits.
Id. at 897. See also Smith v. Pancner, 679 N.E.2d 893, 896 (Ind.
1997).
Likewise, despite claimants= prior settlements with their
providers, Indiana courts have readily reached questions as
to whether particular claims against the Fund sound in mal‐
practice, as is it only such claims that the Act covers. Thus, in
Murphy v. Mortell, 684 N.E.2d 1185 (Ind. Ct. App. 1997), the
court held that a claimant, who while hospitalized had been
sexually molested by a hospital technician, could not seek
compensation from the Fund.
The Medical Malpractice Act does not specifi‐
cally exclude intentional torts from the defini‐
tion of malpractice; however, the Act pertains to
curative or salutary conduct of a health care
provider acting within his or her professional
capacity, and is designed to exclude that con‐
duct unrelated to the promotion of a patient=s
health or the provider=s exercise of professional
expertise, skill, or judgment.
Id. at 1188 (cleaned up). The claimant=s injuries in Murphy did
not arise from the provision of healthcare: although her
12 No. 20‐1437

injuries occurred at the hospital, the perpetrator=s wrongful
acts were not aimed at promoting the claimant=s health nor
did they call for the exercise of the perpetrator=s skill and ex‐
pertise as a health care provider. Id. By contrast, in Dillon v.
Callaway, 609 N.E.2d 424 (Ind. Ct. App. 1993), the court con‐
cluded that a claimant whose physician had engaged in a sex‐
ual relationship with her over the course of psychotherapy for
sexual abuse, was permitted to seek damages from the Fund.
The court=s majority agreed with the Fund in the first instance
that it could address this issue notwithstanding the physi‐
cian=s settlement with the claimant:
[T]he Fund=s argument here, that Callaway=s
sexual relationship with Dr. Chambers did not
fall within the scope of the Act, relates to the
question of whether Callaway=s injuries are
compensable under the Act. Therefore, Y the
compensable nature of Callaway=s injuries was
not decided by her settlement with Dr. Cham‐
bers and his insurer, and is properly before us.
Id. at 426. Relying on a recognized phenomenon of transfer‐
ence, in which the patient is encouraged to imagine her ther‐
apist as the abuser, the majority went on to find that the phy‐
sician=s abuse did arise from an effort to provide healthcare to
the patient, in the course of which the provider was called on
to exercise his professional skill and judgmentChowever
badly he mishandled the therapy. The patient=s claim thus did
qualify as one for malpractice, and she had the ability to seek
excess damages from the Fund. Id. at 427–28. The third mem‐
ber of the panel concurred in the result, reasoning that the
No. 20‐1437 13

Fund=s arguments opposing the plaintiff=s right to recover
concerned questions of proximate cause and liability rather
than whether her injuries were compensable under the MMA.
The concurrence deemed the settlement with the physician
and his insurer preclusive of such arguments. Id. at 428–29.
The Act assigns courts the role of determining appropriate
damages when claims are asserted against the Fund. Thus,
courts have also entertained questions as to whether the types
of injuries for which claimants have sought relief from the
Fund are, in fact, compensable under the Act.
In Rimert v. Mortell, 680 N.E.2d 867 (Ind. Ct. App. 1997),
for example, the court held that a patient=s loss of enjoyment
of life stemming from his imprisonment was not the sort of
injury that was compensable under the Act and the Fund was
therefore not subject to a claim for excess damages for such an
injury. The patient in Rimert was mentally ill and had been
hospitalized for his illness for several weeks until his physi‐
cian discharged him. He soon thereafter murdered four peo‐
ple. He was charged with the murders and found guilty but
mentally ill and was incarcerated for life. His mother, as his
representative, pursued a claim of malpractice against the
physician, characterizing as negligent his decision to release
her son from the hospital. She settled with the physician and
then sought excess damages from the Fund, contending that
the physician=s malpractice had deprived her son of the en‐
joyment of his life, given his incarceration. Although the claim
was one for medical malpractice, the asserted injury, in the
court=s view, was not one that was compensable under the
Act. By way of explanation, the court noted preliminarily that
the settlement with the physician did not preclude the court
from considering whether the excess damages sought from
14 No. 20‐1437

the Fund were of the sort for which the law permitted com‐
pensation. ASince the [Fund] is not required to pay legally
non‐compensable damages, we have determined that a settle‐
ment of liability [as to the physician] does not render the re‐
quested damages [from the Fund] legally compensable.@ Id. at
871 (citing Callaway). Surveying the case law from other juris‐
dictions, the court then went on to conclude that public policy
proscribed compensation for injuries resulting in part from an
illegal act for which the patient himself was culpable. Id. at
871–76. As a matter of state law, the jury=s finding that the pa‐
tient was guilty but mentally ill ascribed the same degree of
culpability to the patient as an unqualified verdict of guilty.
Id. at 875. Consequently, the patient was criminally responsi‐
ble for the murders, and this barred his mother=s claim for
damages: AThe petition for excess damages from the [Fund] is
predicated upon a criminal act for which Gary [the son/pa‐
tient] has been found fully responsible and is therefore barred
as a matter of public policy.@ Id. at 876. See also J.L. v. Mortell,
633 N.E.2d 300, 303–04 (Ind. Ct. App. 1994) (settlement with
provider did not preclude inquiry into compensable nature of
claimant=s damages); Robertson v. B.O., 977 N.E.2d 341, 347
(Ind. 2012) (acknowledging that settlement with provider did
not preclude Fund from contesting compensability of claim).
At the same time, the Rimert court held that it was without
the authority to reach a separate question that the Fund had
presented as to whether the physician=s malpractice was the
proximate cause of the patient=s injury. A[T]he question of
proximate causation is a component of the greater concept of
liability and Y therefore, if liability has been established, the
issue of proximate causation has necessarily been decided.@
No. 20‐1437 15

Id. at 871 (citing Dillon v. Glover, 597 N.E.2d 971, 973 (Ind. App.
Ct. 1992)). By the terms of the MMA, the mother=s settlement
with the physician for the limit of his individual responsibility
had resolved the matter of liability; consequently, the Fund
was barred from disputing proximate cause. Id. at 871. The
court was sympathetic to the Fund=s concern that a settlement
between a claimant and a provider might be motivated by
something other than merits of the malpractice claim, and that
physicians and their insurers ought not be able to unilaterally
bind the Fund on liability questions by agreeing to settle. Id.
at 871. But, in the court=s view, such arguments were better
directed to the Indiana legislature. Id.
In the same vein, Glover, which Rimert followed, held that
questions concerning proximate cause were off limits once the
Fund=s liability was triggered by resolution of the claim
against the physician. The claimant in Glover alleged that a
physician=s nine‐month delay in diagnosing her husband=s
lung cancer had resulted in his death. The claimant settled
with physician and insurer for the provider‐maximum and
then sought excess damages from the Fund. After a trial, the
lower court awarded her $400,000. The Fund contended on
appeal that it had no liability to the claimant because the al‐
leged malpractice was not the proximate cause of her hus‐
band=s death. In the Fund=s view, the physician=s negligence
had deprived the patient of merely modestly‐improved odds
of survival; the real cause of his death was cancer. But the ap‐
pellate court abstained from that question, reasoning that, by
the express terms of the MMA, the Fund=s liability was estab‐
lished by the settlement with the physician; the matter of
proximate cause could therefore not be litigated by the Fund.
16 No. 20‐1437

This statute is unambiguous, in fact it could be
characterized as a paragon of clarity. In deter‐
mining the amount to be paid from the Fund
Athe court shall consider the liability of the
health care provider as admitted and estab‐
lished@ if it has agreed to settle its liabilityCas
happened here.
The Fund would equate settlement with an ad‐
mission of negligence, and claims that the issue
of whether the health care provider=s negligence
proximately caused any damage is properly
considered by the trial court. The Statute, how‐
ever, speaks of settling a health care provider=s
liability and provides that the trial court will
consider the liability of the health care provider
as admitted and established.
Our Supreme Court has observed: AIt is axio‐
matic that, before liability can be imposed, there
must be proof that the defendant=s negligence
proximately caused the plaintiff=s harm.@ Dunn v.
Cadiente (1987), Ind., 516 N.E.2d 52, 55 (empha‐
sis supplied). It therefore follows that once lia‐
bility is established, the issue of proximate cause
is decided.
Id. at 973 (emphasis in Glover). See also Atterholt v. Herbst, 902
N.E.2d 220, 223–24 (Ind. 2009) (agreeing with Glover that set‐
tlement with provider precluded consideration of causation,
but holding that evidence regarding patient=s slim chance of
survival even with timely diagnosis was separately
No. 20‐1437 17

admissible as to measure of damages); Robertson v. B.O., supra,
977 N.E.2d at 345 (maximum settlement with provider estab‐
lishes liability, and by implication, the required elements of
causation and injury); Atterholt v. Robinson, 872 N.E.2d 633,
643 (Ind. Ct. App. 2007) (although maximum settlement with
provider precludes Fund from disputing causation, it does
not preclude Fund from contesting statutory theory of recov‐
ery).
One can make competing arguments as to whether the de‐
fenses that the Fund asserts to Cutchin=s claim fall within the
limited category of issues that may be contested after a settle‐
ment with the provider at the provider=s maximum exposure.
It is easy to appreciate that the Fund is raising a threshold
question concerning the applicability of the MMA. As the
Fund sees it, because Claudine and Adélaide were never
treated by the Physician, Cutchin is not a Apatient@ who may
assert a claim within the MMA framework. This question is
comparable to the threshold contention raised in Wisniewski
that the physician and hospital there were not Aqualified pro‐
viders@ under the Act. And yet there is no real doubt that
Cutchin=s claim is one founded in malpractice allegedly com‐
mitted by the Physician (a qualified provider): the Physician
was providing medical care to Watson, Cutchin=s claim arises
from that care and challenges the propriety of the Physician=s
acts and omissions in providing that care, and in order to as‐
sess whether the Physician breached his professional obliga‐
tions to Watson, a factfinder would necessarily have to refer‐
ence the medical standard of care prevailing in the local com‐
munity. See Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389,
394 (Ind. Ct. App. 2014). At the same time, as we discuss be‐
low, there are Indiana cases recognizing that a physician does
have a duty to warn and monitor his patient as to the side
18 No. 20‐1437

effects of prescribed medications that may foreseeably endan‐
ger not only the patient, but third parties. It is this particular
duty that Cutchin alleges Watson=s physician breached. Ar‐
guments as to whether it was foreseeable that a breach of this
duty might result in harm to Claudine and Adélaide could be
understood as contentions focused on whether the Physi‐
cian=s alleged malpractice proximately caused the deaths of
Claudine and Adélaide, given that the foreseeability of injury
is one aspect of the probable cause determination. See Goodwin
v. Yeakle=s Sports Bar & Grill, Inc., 62 N.E.3d 384, 389 (Ind. 2016)
(citing Control Techs., Inc. v. Johnson, 762 N.E.2d 104, 108 (Ind.
2002)) (recognizing that for most negligence actions, proxi‐
mate cause is primarily a question of foreseeability); Johnson
v. Jacobs, 970 N.E.2d 666, 671 (Ind. Ct. App. 2011) (ATo be con‐
sidered a proximate cause, the negligent act must have set in
motion a chain of circumstances which, in the natural, proba‐
ble and continuous sequence, led to the resulting injury. And
foreseeability of injury is regarded as an essential element or
fundamental test of proximate cause.@) (citations omitted).
Seen in this way, the arguments that the Fund raises could be
deemed to implicate subsidiary aspects of liability that the
MMA deems resolved once a claimant has settled with a pro‐
vider for the limit of the provider=s liability, as in Rimert and
Glover.
Which brings us to the second issue that the parties have
raised in this case. The MMA by its terms regulates claims
arising from the injury or death of a Apatient.@ See Ind. Code
' 34‐18‐14‐3(a) (setting forth caps on recovery). And the Act
authorizes a complaint to be filed solely by Aa patient or the
representative of a patient who has a claim under the article
No. 20‐1437 19

for bodily injury or death on account of malpractice.@ Ind.
Code ' 34‐18‐8‐1. The Act defines the term Apatient@ as:
an individual who receives or should have re‐
ceived health care from a health care provider,
under a contract, express or implied, and in‐
cludes a person having a claim of any kind, whether
derivative or otherwise, as a result of alleged mal‐
practice on the part of a health care provider. Deriv‐
ative claims include the claim of a parent or par‐
ents, guardian, trustee, child, relative, attorney,
or any other representative of the patient in‐
cluding claims for loss of services, loss of con‐
sortium, expenses, and other similar claims.
Ind. Code ' 34‐18‐2‐22 (emphasis supplied).
As we have noted, the person who received healthcare
from the Physician in this case was Watson. Cutchin is not
pursuing that claim as Watson=s representative, but rather as
the representative of his deceased wife and daughter, neither
of whom was in the medical care of the Physician or the
Clinic; they were strangers to the relevant relationship be‐
tween Watson and her doctor. Cf. Madison Ctr., Inc. v. R.R.K.,
supra, 853 N.E.2d at 1288 (emphasizing that medical malprac‐
tice is the breach of duty owed by health care provider to pa‐
tient); Giles v. Anonymous Phys. 1, 13 N.E.3d 504, 511 (Ind. Ct.
App. 2014) (A[A] physician who does not treat a patient or per‐
form some affirmative act regarding the patient has no physi‐
cian‐patient relationship and thus owes no duty to that pa‐
tient.@). But Cutchin responds that he is Aa person having a
claim of any kind, whether derivative or otherwise, as a result
of alleged malpractice on the part of a health care provider.@
Cutchin=s claim is premised on the allegation that the
20 No. 20‐1437

Physician committed malpractice in the course of treating
Watson; he simply asserts that the malpractice injured not
only Watson herself, but Claudine and Adélaide. That third
parties might be injured by the Physician=s failure to monitor
and warn Watson regarding the effects of opiates and other
medications prescribed to her, Cutchin argues, was as fore‐
seeable as the possibility that Watson herself might be in‐
jured; therefore, he has the right to pursue relief under the
MMA. Cutchin adds that the purpose of the MMA is to limit
liability of healthcare providers; pursuing his claim within the
framework of the MMA and its limits on patient recovery is
consistent with that purpose. In Cutchin=s view, it would be
ironic if the result of this case would be to limit the recovery
of one who was actually treated by a provider (like Watson)
while allowing unlimited recovery by third parties injured as
a result of the same treatment (like Caudine and Adélaide).
Whether a party in Cutchin=s position has the authority to
assert a claim pursuant to the MMA implicates two related
questions: first, whether a physician=s duty of care to his pa‐
tient extends to third parties who might, like the patient her‐
self, be injured as a result of a breach of that duty, and if so,
then second, whether such a third party (or her representa‐
tive) can be considered to be a Apatient@ as the MMA broadly
defines that term with the authority to seek relief (including
excess damages from the Fund) under the Act. There are In‐
diana cases addressing both questions but, once again, they
do not supply a clear answer as to whether Cutchin may pur‐
sue relief under the MMA.
No. 20‐1437 21

We begin by noting that the Indiana Supreme Court has
allowed a party other than the person treated by a healthcare
provider (or her representative) to assert a claim for medical
negligence against the provider. These cases recognize that a
physician may owe a duty of care to an unknown third party
foreseeably injured as a result of the physician=s treatment of
a person in his care.
In Cram v. Howell, 680 N.E.2d 1096 (Ind. 1997), the court
reversed the dismissal of a malpractice claim filed against a
physician by the estate of a man who was struck and killed in
traffic when the physician=s patient passed out while driving,
shortly after he received a vaccination in the physician=s of‐
fice. The patient had a history of losing consciousness in the
immediate aftermath of vaccinations, and the estate argued
that the physician, despite his awareness of this history, failed
to monitor the patient for a sufficient period of time following
the vaccination and failed to warn the patient about the po‐
tential hazards of driving after receiving a vaccination. Look‐
ing to its prior decision in Webb v. Jarvis, 575 N.E.2d 992 (Ind.
1991), the court weighed three factors in assessing whether
the physician owed a duty to a third party injured by his pa‐
tient: (1) the relationship between the parties, (2) the reasona‐
ble foreseeability of harm to the injured person, and (3) public
policy concerns. 680 N.E.2d at 1097. Although there was no
relationship between the physician and the non‐patient who
was injured, the court concluded that the other two factors
weighed in favor of recognizing a duty to the non‐patient.
One could infer from the estate=s allegations that the doctor
had actual knowledge of his patient=s propensity to lose con‐
sciousness following a vaccination. AIt was therefore reasona‐
bly foreseeable that the patient, if permitted to drive in this
condition, would injure third persons.@ Id. at 1098. Public
22 No. 20‐1437

policy considerations likewise supported recognizing a duty
to such third persons. The estate=s claim did not suggest that
the physician should have refrained from giving his patient
appropriate medical care, including vaccinations, but rather
that the physician should have watched his patient for an ap‐
propriate time before allowing him to leave the office and
should have admonished his patient about the dangers asso‐
ciated with operating a motor vehicle while he was at risk of
losing consciousness. Imposing such a duty for the benefit of
third parties thus was not inconsistent with the physician=s
professional obligations to his own patient. Id. ABalancing the
three Webb factors, we find that the defendant physician here
owed a duty of care to take reasonable precautions in moni‐
toring, releasing, and warning his patient for the protection of
unknown third persons potentially jeopardized by the pa‐
tient=s driving upon leaving the physician=s office.@ Id.
Consistent with its decision in Cram, the Indiana Supreme
Court, on facts even closer to those presented here, implicitly
sustained the viability of a malpractice claim asserted by a
third party injured as a result of a physician=s breach of duty
to his patient. Manley v. Sherer, 992 N.E.2d 670 (Ind. 2013). The
plaintiff in Manley was injured in a head‐on collision with a
patient who lost consciousness while driving due to a medical
condition and medications prescribed by the patient=s physi‐
cian. The plaintiff suffered permanent, debilitating injuries as
a result of the collision. After settling a suit against the patient,
the plaintiff and her husband (who claimed loss of consor‐
tium) filed suit against the physician pursuant to the MMA,
alleging that the physician had committed malpractice in fail‐
ing to warn his patient not to drive. The physician sought to
No. 20‐1437 23

dismiss the suit, arguing inter alia that the malpractice claim
was without merit.
The trial court granted the motion to dismiss, but the ap‐
pellate court disagreed and deemed the claim viable. Manley
v. Sherer, 960 N.E.2d 815 (Ind. Ct. App. 2011), opinion vacated
upon transfer, 967 N.E.2d 1034 (Ind. 2012); Ind. R. App. P.
58(A). Although the plaintiff and her husband had no rela‐
tionship with the physician, it would have been reasonably
foreseeable to the physician that his patient was at risk of los‐
ing consciousness while driving, in view of her medical con‐
ditions and medications, and to that extent posed a danger to
third parties. The physician thus bore a duty to warn his pa‐
tient not to driveCa duty that extended not only to his patient
but to third parties whom his patient might foreseeably injure
if she drove. Id. at 822–23. Imposing such a duty, in the court=s
view, would not impinge on the doctor‐patient relationship;
on the contrary, such a duty would benefit the patient herself
as well as third parties like the plaintiff. Id. The court went on
to find that there were disputes of fact as to whether the phy‐
sician=s failure to adequately warn his patient about the dan‐
gers of driving proximately caused the injury to the plaintiff:
the doctor had warned her on at least one occasion, and the
patient had acknowledged to police in the immediate after‐
math of the accident that she should not have been driving,
and yet she continued to drive even after the accident, which
suggested that a warning from her doctor would not have al‐
tered her behavior. Id.; see also 992 N.E.2d at 675–76.
The Supreme Court=s decision on transfer tracked the ap‐
pellate court=s (vacated) rationale in part. It is noteworthy that
the Supreme Court did not explicitly address whether the
physician owed a duty of care that extended to the plaintiff. It
24 No. 20‐1437

did, however, agree that there were factual disputes regard‐
ing proximate cause that required resolution at trial. Id. at
675–76. It also rejected the plaintiffs= belated contention that
their claim against the physician was not one governed by the
MMA. Id. at 674. The Court pointed out that the plaintiffs had
treated it as one subject to the MMA by filing a copy of their
complaint with the Department of Insurance. They could not
belatedly argue otherwise. Id.2
Because the Supreme Court=s decision in Manley did not
address the subject of the physician=s duty (if any) to the
plaintiff or adopt the appellate court=s holding on that point,
it can be dismissed as irrelevant to whether a third party in‐
jured by a physician=s treatment of another person may pur‐
sue relief for malpractice under the MMACall the more so
given that Manley=s holding as to the applicability of the MMA
turned on an estoppel/waiver rationale. On the other hand,
given that the Supreme Court (like the appellate court) re‐
versed the trial court=s dismissal of the claim and held that
there were factual questions as to whether the physician=s al‐
leged malpractice was the proximate cause of harm to the
plaintiffs, Manley is, at the least, consistent with the notion
that a third party can in some circumstances pursue a mal‐
practice claim against a physician.

2
Preferred Prof. Ins. Co. v. West, 23 N.E.3d 716, 732 (Ind. 2014), characterized
the Indiana Supreme Court=s holding in Manley on this point as a proce‐
dural ruling turning on waiver. See also G.F. v. St. Catherine Hosp., Inc., 124
N.E.3d 76, 89 (Ind. Ct. App. 2019).
No. 20‐1437 25

Cases in this line are to be contrasted with a separate line
of cases exemplified by the decision in Tarasoff v. Regents of
Univ. of Cal., 551 P.2d 334 (Cal. 1976), which are premised not
on a physician=s duty to provide appropriate medical care to
his patient, but instead upon an independent duty to protect
third parties from violent, criminal harm that his patient
might inflict on them. See Ind. Code ' 34‐30‐16‐1. The Indiana
Appellate Court has held that a claim based on a breach of the
latter duty is not one for medical malpractice that may be pur‐
sued under the MMA. AThe purpose of the Malpractice Act is
unrelated to the sort of liability a health care provider risks
when a patient commits a criminal act against a third party.@
Midtown Cmty. Mental Health Ctr. v. Estate of Gahl by Gahl, 540
N.E.2d 1259, 1261‐62 (Ind. Ct. App. 1989).
Cutchin presents his claim as one based on Cram (and
Manley, for whatever relevance it may have) rather than Tar‐
asoff and Gaul. In particular, Cutchin is alleging that the Phy‐
sician=s negligence in treating Watson (including the Physi‐
cian=s failure to monitor the effects of the prescribed medica‐
tions and to warn Watson about the risks of driving) foresee‐
ably injured not only Watson but others.3 Cutchin is not alleg‐
ing that the physician had an independent duty to warn oth‐
ers that Watson might harm them.

3
The Fund suggests that the claim that Cram recognizes is not one for mal‐
practice but for generic negligence. That suggestion is hard to reconcile
with Cram itself, which describes the claim as one for medical malpractice.
See 680 N.E.2d at 1096 (Athe Court of Appeals affirmed the trial court=s dis‐
missal of a medical malpractice complaint under Indiana Trial Rule
12(B)(6)), id. at 1096‐97 (referring to the actions taken by Athe plaintiff in
this medical malpractice case@).
26 No. 20‐1437

Apart from the question of whether the duty of care that a
physician owes to his patient extends to third parties, there is
a statutory question of whether a third party claiming the
breach of such a duty qualifies as a Apatient@ who may seek
relief under the MMA. As we noted earlier, the Act confines
the right to file a complaint to Aa patient or the representative
of a patient@ pursuing relief for injuries incurred as a result of
medical malpractice. Ind. Code ' 34‐18‐8‐1. A second line of
Indiana cases addresses this particular question.
Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011), holds that
the term Apatient,@ as used in the MMA, can include persons
whose claim is not derivative of an injury to the individual
who was treated by the physician. The plaintiffs in Spangler
were parents who, as relevant here, sued a hospital under the
MMA for negligent infliction of emotional distress after their
full‐term baby daughter died in utero just prior to birth. The
trial court dismissed that claim on the assumption that the
parents= claim was necessarily derivative of an injury to their
child: the court believed that an unborn child could not be
treated as a Apatient@ under the MMA and consequently her
parents could not pursue a derivative claim based on injuries
to her. See Ind. Patient’s Comp. Fund v. Winkle, 863 N.E.2d 1, 9–
11 (Ind. Ct. App. 2007) (relied on by hospital in Spangler for
proposition that stillborn fetus does not qualify as patient un‐
der MMA, thus precluding parents from pursing derivative
claim arising from baby=s death). The Indiana Supreme Court
concluded that it was unnecessary to decide whether an un‐
born child might qualify as a patient for purposes of MMA,
because the parents= claim for emotional injuries need not be
understood as derivative of an injury to another person.
No. 20‐1437 27

Rather, such claims of emotional distress repre‐
sent injuries directly inflicted on a plaintiff and
are not derivative in the traditional sense. The
[MMA=s] definition of Apatient@ is much broader
than the Aand other similar claims@ language in‐
cluded in the description of derivative claims
relied on by the Winkle court. The definition be‐
gins by providing that Apatient@ includes Aa per‐
son having a claim of any kind, whether deriva‐
tive or otherwise, as a result of alleged malprac‐
tice on the part of a health care provider.@ Ind.
Code ' 34‐18‐2‐22 (emphasis added). It is this
language that assures the expansive applicabil‐
ity of the MMACincluding the damage cap pro‐
visionCto a variety of actions alleging medical
negligence. Claims for negligent infliction of
emotional distress, if arising from alleged med‐
ical malpractice, are subject to the MMA not be‐
cause they are derivative but because they are
Aotherwise@ a result of alleged malpractice. We do
not read Winkle to preclude the plaintiffs= MMA
actions for negligent infliction of emotional dis‐
tress from the stillbirth of their child. Thus a
parent who suffers emotional distress from ex‐
periencing the birth of a lifeless child resulting
from medical negligence is a Apatient@ subject to
the MMA, but such claims need not be seen as
Aderivative@ ones.
958 N.E.2d at 471–72 (emphasis in Spangler) (footnote omit‐
ted). Spangler, in short, adopted a broad reading of Apatient@
which does not necessarily require that a claimant either have
28 No. 20‐1437

been under the medical care of a provider or possess a claim
derivative of an injury to such individual.
Putting Spangler together with Cram, it would appear that
a person who is not a party to the doctor‐patient relationship,
but is nonetheless foreseeably injured as a consequence of a
physician=s malpractice, may be able to assert a malpractice
claim under the MMA. Cram articulates the factors that bear
on whether such a claim is viable under the particular circum‐
stances of a case. Spangler in turn lends at least some support
for the notion that a person who is not a party to the doctor‐
patient relationship may nonetheless seek relief for injuries
that occur as a result of medical malpractice given the Act=s
broad articulation of who may constitute a Apatient@ for pur‐
poses of pursuing a malpractice claim.
Yet, the Indiana Court of Appeals= relatively recent deci‐
sion in Preferred Professional Insurance Co. v. West, 23 N.E.3d
716 (Ind. Ct. App. 2014), indicates that a claimant like Cutchin
does not qualify as a Apatient@ and therefore cannot pursue a
claim under the MMA. The plaintiff in West was injured when
the elevated platform on which she was working was struck
and knocked over by a forklift driven by an individual taking
a narcotic prescribed to him for pain relief. West and her hus‐
band sued the driver=s healthcare providers, alleging that
they were negligent in failing to advise the driver of the risks
and side effects of his prescribed medication and to warn him
that he should not be driving or operating heavy machinery
while taking such medication. The Wests, in contrast to
Cutchin, did not want to proceed under the MMA and did not
present their claim as one for medical malpractice; they
No. 20‐1437 29

sought a declaratory judgment to that effect which the trial
court granted, reasoning that their claim was one for common
law negligence rather than medical malpractice. The appeals
agreed that the Wests= claim fell outside the coverage of the
MMA. The court assumed that the alleged failure of the
driver=s healthcare providers to warn him about the dangers
of operating heavy equipment while taking the narcotic pain
reliever he was prescribed (a failure attributed in part to in‐
adequacies in office record‐keeping practices) constituted, at
least in some measure, the provision (or denial) of medical
care to the driver. Id. at 728–29. But the court concluded that
West and her husband were not Apatients@ who could pursue
claims under the MMA. Ms. West was not the person who
had received health care treatment; the forklift driver was. Id.
at 729. Although the Wests argued that they were persons
who had Aa claim of any kind, derivative or otherwise@ based
on the alleged malpractice committed by the driver=s
healthcare providers, the court did not believe that the broad
language of the statutory definition of Apatient@ could be re‐
lied on to Aeviscerate[ ] the initial requirement that a patient
be an individual who receives or should have received health
care from a provider.@ Id.
We find that if we were to read the Aor other‐
wise@ language of the statute to expand the def‐
inition of Apatient@ to include anyone injured as
a result of acts by anyone providing health care,
it would effectively render the rest of the stat‐
ute=s language defining Apatient@ meaningless
and without purpose. We do not believe the
MMA was intended to cover claims by third
parties having absolutely no relationship to the
doctor or medical provider.
30 No. 20‐1437

Id. at 730. The court went on to distinguish Spangler on the
ground that the parents of the stillborn child in that case had
a direct connection to the healthcare provider (indeed, the
mother was treated by the same provider), whereas the Wests
had no such connection. Id. The court agreed that the Wests
might have Aa valid general negligence claim based on a fail‐
ure to warn@ akin to the one at issue in Gahl; but because the
Wests, like Gahl, had no prior relationship with the healthcare
provider, it was not a claim reached by the MMA. Id. at 730–
31.
The concurring judge in West gave even more weight to
the claimants= status as persons wholly outside of the doctor‐
patient relationship:
[T]he dispositive question is whether the MMA
covers claims by a third party independent of
the two people engaged in the medical give and
take. I, like the majority, believe Gahl is instruc‐
tive in answering this question. In Gahl, the
claimant was the estate of a third party who was
not warned by medical providers of the pa‐
tient=s dangerous propensities. The patient him‐
self had no claim based on the appropriateness
of his care, nor did anyone whose claim would
have been derivative of the patient=s. The third
party in Gahl alleged the medical providers=
negligence was a direct failure to warn him and
yet we held he was not a patient asserting a
claim governed by the MMA. Here, the Wests
are a completely independent third party
No. 20‐1437 31

alleging a failure to warn the patient caused their
injury. The relationship between the parties is
even more distant in this case than it was in Gaul
and lends further support to the conclusion that
the Wests= claims are not subject to the MMA.
Id. at 733.
West=s rationale, to the extent it represents a correct appli‐
cation of the MMA and its definition of the term Apatient,@
plainly forecloses Cutchin=s ability to pursue relief within the
MMA=s framework. The underlying facts are quite similar to
those presented in West, and Cutchin is the very sort of third
party that West holds may not seek relief under the Act. As
the Fund points out, in the six‐plus years since it was decided,
West has been neither criticized nor overruled.
Yet there are reasons to question whether West reached the
right conclusion. Cram, as we have discussed, recognizes that
a physician owes his patient a duty of care which in appropri‐
ate circumstances can extend to third parties who may be
foreseeably harmed if the patient is not given appropriate
warnings or monitoring as to the side effects of treatment.
Manley, the facts of which are also similar to those presented
here, may at least be said to have entertained such a third‐
party claim within the MMA framework, whatever the limits
of its express rationale. West, although it cites both Cram and
Manley, neither discusses Cram=s analysis of the duty a physi‐
cian owes to third parties nor attempts to reconcile that anal‐
ysis with its conclusion that third parties may not seek relief
under the MMA. The West majority opinion acknowledges
that a third‐party claim of the sort Cutchin presents here is
one that implicates the physician=s skill and expertise in car‐
ing for his patient; and contrary to the reasoning of the West
32 No. 20‐1437

concurrence, the physician=s patient would benefit from the
particular duty for which the third‐party claimant advocates
here. (The claimed negligence in this case allegedly resulted
in the deaths not only of Cutchin=s wife and daughter, but
Watson herself.)
Of course, neither Cram nor Manley construed the Act=s
language defining who constitutes a Apatient@ who may pur‐
sue relief under the MMA. The Supreme Court in Manley ad‐
dressed the proximate cause issue without addressing (as the
appellate court had) the antecedent question as to the viability
of a malpractice claim pressed by a third party who was not
in the care of the physician; that court also resolved the ap‐
plicability of the MMA to the claim based solely on an estop‐
pel/waiver rationale. It may be that third parties injured as a
result of a physician=s breach of the duty of care to his patient
have a claim for malpractice, but one that can and must be
pursued outside the confines of the MMA, i.e., without the
ability to pursue relief from the Fund and without any caps
on the damages recoverable from the provider. (The Fund it‐
self draws a distinction between medical malpractice and
Astatutory medical malpractice.@ Fund Br. 47.) But see Thomp‐
son v. Cope, 900 F.3d 414, 427 (7th Cir. 2018) (applying Indiana
law) (ARegardless of labels, claims that boil down to a ques‐
tion of whether a given course of treatment was medically
proper and within the appropriate standard are the quintes‐
sence of a malpractice case. By contrast, to fall outside the
Malpractice Act a health care providerʹs actions must be de‐
monstrably unrelated to the promotion of the plaintiffʹs
health or an exercise of the providerʹs professional expertise,
skill, or judgment.@) (cleaned up); Sue Yee Lee v. Lafayette Home
No. 20‐1437 33

Hosp., Inc., 410 N.E.2d 1319, 1324 (Ind. Ct. App. 1980) (ASince
the obvious purpose of the act is to provide some measure of
protection to health care providers from malpractice claims,
and to preserve the availability of the professional services of
physicians and other health care providers in the communi‐
ties and thereby protect the public health and well‐being, it is
totally inconceivable that the legislature intended to extend
this protection only to actions wherein the actual patient was
the party plaintiff and to exclude other claims for medical
malpractice wherein the plaintiff was not the actual patient,
but one whose right of action was derived from the patient
such as the parentsʹ claim here@).
If indeed a third‐party claim for malpractice must be pur‐
sued outside of Indiana=s statutory malpractice framework, as
if it were a generic claim for negligence, then we are presented
with the very dichotomy that Cutchin has identified: a person
under the medical care of a physician may obtain relief for
malpractice under the procedural constraints of the MMA
and up to the limits that the Act imposes, whereas a third
party injured as a result of the very same malpractice may
seek relief outside of the MMA, with no such constraints at
all.4 It seems unlikely that the Legislature would have in‐
tended this result.
Avoiding precisely this sort of dichotomy may also ex‐
plain the legislature=s use of language like Aclaim of any kind@
and Aderivative or otherwise@ in defining the term Apatient.@

4
For its part, the Fund raises the specter of any number of remote tort
victims attempting to sue under the MMA simply because they came into
contact with, and were injured by a patient treated by a healthcare pro‐
vider. Fund Br. 33.
34 No. 20‐1437

The Indiana Supreme Court=s decision in Spangler is certainly
consistent with a generous approach in applying that defini‐
tion. 958 N.E.2d at 472. True, the circumstances in Spangler
may be distinguished for precisely the reasons that West artic‐
ulated. But West does not answer the question why, as a mat‐
ter of logic, when a physician=s malpractice proximately
causes injuries not just to his patient but also to a third party
whom the patient encountered, both may not seek relief for
the malpractice under the MMA.
These questions leave us uncertain as to precisely how a
negligence claim like the one that Cutchin pursues should be
treated. The scenario underlying his claim may not be one that
occurs frequently, but as cases like Cram and Manley reveal, it
is one that recurs. The viability of Cutchin=s claim turns exclu‐
sively on Indiana law as established by both the terms of the
MMA and the Indiana cases interpreting those terms. It is im‐
portant to the courts and citizens of Indiana that the questions
presented be answered authoritatively.
Our Circuit Rule 52(a) provides:
When the rules of the highest court of a state
provide for certification to that court by a fed‐
eral court of questions arising under the laws of
that state which will control the outcome of a
case pending in the federal court, this court, sua
sponte or on motion of a party, may certify such
a question to the state court in accordance with
the rules of that court, and may stay the case in
this court to await the state court=s decision of
the question certified. The certification will be
No. 20‐1437 35

made after the briefs are filed in this court. A
motion for certification shall be included in the
moving party=s brief.
Indiana Rule of Appellate Procedure 64 allows for the cer‐
tification of questions of Indiana law by federal courts to the
Indiana Supreme Court.
Certification is appropriate in a case where the question to
be certified is outcome determinative, where it concerns an
important issue of public concern, where the state supreme
court has not yet provided clear guidance on the matter, and
where the issue is likely to recur. See Tammi v. Porsche Cars
N.A., Inc., 536 F.3d 702, 713 (7th Cir. 2008); see also McKesson v.
Doe, 141 S. Ct. 48, 50–51 (2020); United States v. Franklin, 895
F.3d 954, 961 (7th Cir. 2018) (per curiam); Bernstein v. Bankert,
733 F.3d 190, 221 (7th Cir. 2013). We also take into account the
state supreme court=s particular interest in the development
of state law and the likelihood that the result of the decision
in a particular case will exclusively affect the citizens of that
state. Tammi, 536 F.3d at 713 (quoting State Farm Mut. Auto.
Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001)).
This case presents questions that turn on the meaning and
operation of the terms of the MMA, an Indiana statute which
establishes a comprehensive scheme for the resolution of
medical malpractice claims in Indiana. The answers to these
questions will be outcome determinative: if, for example,
Cutchin does not qualify as a Apatient@ under the MMA, then
he may not assert a claim against the Fund. The issues under‐
lying these questions are likely to recur, as it is hardly unusual
for someone taking a medication prescribed by a physician to
experience side effects that may interfere with her ability to
operate a motor vehicle and result in injuries to third parties.
36 No. 20‐1437

Indeed, the existing body of Indiana case law reveals the re‐
currence of this scenario. Whether the MMA and the recovery
limits it imposes apply to third‐party claims like the one pre‐
sented by Cutchin has important ramifications not only for
claimants but for Indiana healthcare providers and malprac‐
tice insurers. The Indiana Supreme Court has experience and
expertise with these issues that we do not and has a unique
interest in the development of Indiana law. And the bench,
bar, and citizenry of Indiana have a particular and compelling
interest in the correct answers to the questions presented in
this case.
III.
For the reasons discussed above, we certify the following
two questions to the Indiana Supreme Court:
1. Whether Indiana=s Medical Malpractice Act
prohibits the Patient=s Compensation Fund
from contesting the Act=s applicability to a claim
after the claimant concludes a court‐approved
settlement with a covered health care provider.
2. Whether Indiana=s Medical Malpractice Act
applies to claims brought against qualified pro‐
viders for individuals who did not receive med‐
ical care from the provider, but who are injured
as a result of the provider=s negligence in
providing medical treatment to someone else.
We submit these questions with respect and with the hope
that the Court will lend us its guidance in agreeing to answer
No. 20‐1437 37

these questions. Resolution of the merits of this appeal is
stayed pending the Indiana Supreme Court=s decision.
QUESTIONS CERTIFIED TO
INDIANA SUPREME COURT