ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Jon R. Pactor John C. Trimble
Indianapolis, Indiana Lisa M. Dillman
LEWIS WAGNER, LLP
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 72S04-0609-CV-332
EUSEBIO KHO, M.D., Appellant (Plaintiff below),
v.
DEBORAH PENNINGTON,
FINDLING GARAU GERMANO & PENNINGTON, P.C., and
RUBY MILLER Appellees (Defendants below).
_________________________________
Appeal from the Scott Circuit Court, No. 72C01-0301-CT-4
The Honorable Roger Duval, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 72A04-0507-CV-373
_________________________________
September 19, 2007
Dickson, Justice.
The Indiana Medical Malpractice Act generally requires that actions for medical negli-
gence against health care providers must first be submitted to and considered by a medical re-
view panel. For limited purposes, the Act permits such actions to be contemporaneously filed in
court, provided that the complaint contains no information that would allow the defendant pro-
vider(s) to be identified. We hold that the violation of this defendant identity confidentiality
provision may be actionable.
In January 2001, Ruby Miller, as personal representative of the Estate of Tracy Merle
Lee, deceased, filed with the Indiana Department of Insurance a proposed complaint for damages
claiming that medical negligence by a hospital and various physicians and health care providers
caused the death of Lee. Under the Indiana Medical Malpractice Act, such a filing triggers pro-
ceedings leading to the presentation of the claim to a medical review panel before the cause of
action is filed in court. 1 Before any consideration by a medical review panel, however, this
medical malpractice claimant also filed her complaint in Scott Circuit Court. After one of the
named defendants in that action, Eusebio Kho, M.D., filed a motion for summary judgment al-
leging that he had not provided medical care to Tracy Merle Lee, the malpractice claimant and
her lawyers voluntarily dismissed Dr. Kho from the lawsuit by stipulation.
Dr. Kho subsequently commenced an action against Ruby Miller, the malpractice claim-
ant, her attorney, Deborah K. Pennington, and the attorney's law firm, Findling Garau Germano
& Pennington, P.C., seeking damages for "emotional suffering, embarrassment, undue negative
publicity, injury to his reputation, and mental distress" resulting from his being falsely named in
the malpractice lawsuit, which he claims was filed without probable cause and with malice. Ap-
pellant's App'x at 11. The malpractice claimant and her attorneys sought and obtained summary
judgment against the doctor. The doctor appealed, claiming: (1) the evidence demonstrates that
the patient and her lawyers had neither subjective nor objective probable cause for their allega-
tions of medical malpractice against Dr. Kho, and thus he was entitled to summary judgment on
this issue; (2) the lawyers lacked probable cause or any other legal basis to name Dr. Kho in a
medical malpractice action filed in court before their claim was considered by a medical review
panel; (3) a genuine issue of fact exists regarding the lawyers' malice in naming Dr. Kho in the
complaint filed in court; (4) the trial court should have refused the expert affidavit presented in
support of summary judgment; (5) separate from the malicious prosecution claim, Dr. Kho had
valid independent damage claims for statutory negligence or for a private right of action for a
statutory violation; and (6) the lawyers' assertion of res judicata is meritless. The Court of Ap-
peals affirmed the trial court's grant of summary judgment against the doctor. Kho v. Penning-
ton, 846 N.E.2d 1036, 1048 (Ind. Ct. App. 2006). We granted transfer to address one issue:
1
The Indiana Medical Malpractice Act requires the preliminary filing of proposed medical negligence
complaints with the Department of Insurance, which filing precipitates the selection and convening of a
medical review panel and its consideration of the claim. See Ind. Code §§ 34-18-8-4, 34-18-10-1 through
-26 (1998).
2
whether violation of the defendant identity confidentiality provision of Indiana Code § 34-18-8-7
in the Indiana Medical Malpractice Act may give rise to an action for damages. As to all other
issues, 2 we decline review of the opinion of the Court of Appeals and summarily affirm. Ind.
Appellate Rule 58(A)(2).
Independent from his claim of malicious prosecution, the doctor contends the trial court
erroneously granted summary judgment in favor of the claimant and her attorneys with respect to
the doctor's claims for statutory negligence and for a private right of action arising from their
violation of a statutory provision prohibiting the identification of a defendant health care pro-
vider in an action filed in court before the claim is submitted to and considered by a medical re-
view panel. 3
The Indiana Medical Malpractice Act generally requires that claims seeking more than
$15,000 in damages must first be considered by a duly constituted medical review panel before
such action is filed in court. Ind. Code § 34-18-8-4 ("section 4"). Section 4 generally prohibits
the commencement of an action in court against a health care provider until both "the claimant's
2
The malpractice claimant and her attorneys also assert that the doctor's claim for damages for violation
of the defendant identity confidentiality provision is barred by res judicata. In the claimant's prior medi-
cal negligence action against Dr. Kho and others, the trial court denied Dr. Kho's motion to dismiss
asserting lack of subject matter jurisdiction by reason of such statutory violation. The Court of Appeals
expressly declined to address the res judicata contention. Kho, 846 N.E.2d at 1040 n.1. We find it with-
out merit. The denial of the doctor's motion to dismiss did not represent an adjudication of whether the
statutory requirement was violated or whether the violation could give rise to an action for damages for
the violation.
3
This contention is expressly presented on appeal. Appellant's Br. at 1, 8, 24-25. The doctor correctly
argues that the motion for summary judgment filed by the claimant and her attorneys addressed only the
issue of malicious prosecution and that, as non-moving party, the doctor was "not obligated to address
issues not raised by the motion." Id. at 24. And he expressly asserts that under his complaint, he "has a
claim for statutory negligence for violation of the statute." Id. at 26. The doctor's complaint specifically
alleged that the malpractice plaintiff and her lawyers violated the defendant confidentiality statute, id. at
10, thus providing sufficient notice to permit the doctor to proceed on the alternative theories of statutory
negligence or private cause of action. See Ind. Trial Rule 8(A)(1). When the trial court not only granted
the summary judgment motion, but then also ordered the entry of final judgment, Appellant's App'x at 4,
the doctor filed a motion to correct error expressly arguing the summary judgment motion addressed only
the issue of malicious prosecution and that the doctor's complaint embraced other alternative theories,
namely "statutory negligence and a private right of action," which the motion for summary judgment
never addressed. Id. at 216-17. At the hearing on the doctor's motion to correct error, the trial court ex-
pressly rejected this contention. Id. at 250. The doctor clearly challenges this ruling on appeal.
3
proposed complaint has been presented to a medical review panel" and "an opinion is given by
the panel." Id. But a conditional exception is provided:
(a) Notwithstanding section 4 of this chapter, beginning July 1, 1999, a claimant may
commence an action in court for malpractice at the same time the claimant's proposed
complaint is being considered by a medical review panel. In order to comply with this
section, the:
(1) complaint filed in court may not contain any information that would allow a
third party to identify the defendant;
(2) claimant is prohibited from pursuing the action; and
(3) court is prohibited from taking any action except setting a date for trial, an ac-
tion under IC 34-18-8-8 [dismissal of action for failure to prosecute], or an action
under IC 34-18-11 [preliminary determination of affirmative defense or issue of
law or fact; discovery];
until section 4 of this chapter has been satisfied.
(b) Upon satisfaction of section 4 of this chapter, the identifying information described
in subsection (a)(1) shall be added to the complaint by the court.
Ind. Code § 34-18-8-7 (emphasis added).
The malpractice complaint filed in Scott Circuit Court repeatedly and explicitly named
Dr. Kho and the other defendant health care providers. The trial court's initial order granting
summary judgment against the doctor did not provide details. But its order denying the doctor's
subsequent motion to correct error included consolidated findings of fact and conclusions of law,
among which were findings: (a) that Indiana Code § 34-18-8-7 [the defendant identity confiden-
tiality requirement] "provides for no manner of relief to a doctor improperly named in a malprac-
tice suit"; (b) that it "fails to set out a manner of relief for someone such as Kho [the doctor] who
has within that statute clearly been improperly named in a malpractice suit"; and (c) that "Miller
and Pennington [the malpractice claimant and her lawyers] did violate the provisions of I.C. 34-
18-8-7," but "the violation of that statute does not relieve Kho from proving the elements of his
malicious prosecution claim." Appellant's App'x at 7.
We address the doctor's appellate contention that the summary judgment erroneously pre-
cluded his theories asserting "a private right of action and statutory negligence" arising from the
4
violation of the identity confidentiality provision in Indiana Code § 34-18-8-7(a)(1) by the mal-
practice claimant and her lawyers. Appellant's Br. at 25.
The malpractice claimant and her lawyers respond that (a) the statutory identity confiden-
tiality provision "is a purely procedural statute that does not create a substantive cause of action,"
Appellees' Br. at 15, and (b) the doctor's claim is "disingenuous" because the statutory provision
does not guarantee anonymity in light of other sources by which the identity of a defendant
health care provider may be discovered, id. at 19.
Indiana courts have a long and continuous history of recognizing negligence actions for
statutory violations. City of Indianapolis v. Garman, 848 N.E.2d 1087, 1088 (Ind. 2006) (viola-
tion of statutory duty requiring operation of emergency vehicles with due regard for the safety of
all persons); Patrick v. Miresso, 848 N.E.2d 1083, 1087 (Ind. 2006) (same); City of Gary v.
Smith & Wesson Corp., 801 N.E.2d 1222, 1234-1235 (Ind. 2003) (violation of gun registration
laws); Canfield v. Sandock, 563 N.E.2d 1279, 1283 (Ind. 1990) (violation of statutory duties of
pedestrians); Clipp v. Weaver, 451 N.E.2d 1092, 1094 (Ind. 1983) (violation of statutory stan-
dard of care owed by boat operators); Corey v. Smith, 233 Ind. 452, 455, 120 N.E.2d 410, 411-
12 (1954) (violation of statute prohibiting certain types of farm animals from running at large on
the highway or other people's property); Northern Indiana Transit, Inc. v. Burk, 228 Ind. 162,
172, 89 N.E.2d 905, 909 (1950) (violation of statute regulating standing or parking of vehicles);
Indiana & Chicago Coal Co. v. Neal, 166 Ind. 458, 460, 77 N.E. 850, 850 (1906) (acknowledg-
ing "the general rule": "In every case, where a statute enacts, or prohibits a thing for the benefit
of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage,
or for the recompense of the wrong done to him contrary to said law."). 4 The violation of a duty
4
For similar opinions from the Court of Appeals, see Am. United Life Ins. Co. v. Douglas, 808 N.E.2d
690, 705 (Ind. Ct. App. 2004) (violation of "state statutory and federal regulatory law in selling the prod-
uct"), trans. denied; Phoenix Natural Res., Inc. v. Messmer, 804 N.E.2d 842, 847-48 (Ind. Ct. App.
2004) (violation of Flood Control Act by mining company), reh'g denied; Indian Trucking v. Harber, 752
N.E.2d 168, 172-73 (Ind. Ct. App. 2001) (violation of Federal Motor Carrier Safety Regulations incorpo-
rated into Indiana statutory law), trans. not sought; Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 580-81
(Ind. Ct. App. 1995) (violation of a city sewer use ordinance), trans. not sought; Rubin v. Johnson, 550
N.E.2d 324, 329 (Ind. Ct. App. 1990) (violation of gun restriction laws), trans. denied; Ray v. Goldsmith,
400 N.E.2d 176 (Ind. Ct. App. 1980) (violation of municipal ordinance governing abandoned refrigera-
5
fixed or prescribed by statute is often described as negligence per se. New York Cent. R.R. Co.
v. Glad, 242 Ind. 450, 457, 179 N.E.2d 571, 574 (1962); Larkins v. Kohlmeyer, 229 Ind. 391,
398, 98 N.E.2d 896, 899 (1951); Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 600, 106 N.E. 365, 368
(1914). As recently explained by the Court of Appeals, the unexcused violation of a statutory
duty constitutes negligence per se "if the statute or ordinance is intended to protect the class of
persons in which the plaintiff is included and to protect against the risk of the type of harm which
has occurred as a result of its violation." Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981,
986 (Ind. Ct. App. 1999) (citing French v. Bristol Myers Co., 574 N.E.2d 940, 943 (Ind. Ct. App.
1991), trans. denied), trans. denied; see also State v. Snyder, 732 N.E.2d 1240, 1244 (Ind. Ct.
App. 2000), trans. not sought; Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 580 (Ind. Ct. App.
1995), trans. not sought; Rubin v. Johnson, 550 N.E.2d 324, 329 (Ind. Ct. App. 1990), trans. de-
nied; Smith v. Cook, 172 Ind.App. 610, 613, 361 N.E.2d 197, 199 (1977), trans. not sought. The
fact that a statutory violation may result in a separate harm or penalty "will not prevent an action
for damages resulting therefrom." French, 574 N.E.2d at 943.
The doctrine of statutory negligence has long been a well-accepted component of Ameri-
can jurisprudence. It is reflected in Restatement (Second) of Torts §§ 285 and 286 (1965), and is
discussed extensively in authoritative treatises. See, e.g., 1 Dan B. Dobbs, The Law of Torts,
311-334 (§§ 133-142) (2001); William L. Prosser, Handbook of the Law of Torts, 190-205
(1971).
Restatement section 285, entitled "How Standard of Conduct Is Determined," includes in
relevant part the following: "The standard of conduct of a reasonable man may be (a) established
by a legislative enactment or administrative regulation which so provides, or (b) adopted by the
court from a legislative enactment or an administrative regulation which does not so provide …"
Restatement section 286 provides:
The court may adopt as the standard of conduct of a reasonable man the requirements of a
legislative enactment or an administrative regulation whose purpose is found to be exclu-
sively or in part
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
tors), trans. denied; Cook v. Ormsby, 45 Ind.App. 352, 354-55, 89 N.E. 525, 526 (1909) (violation of
statute requiring that manufacturing establishments guard all saws while in use), trans. denied.
6
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.
Restatement (Second) of Torts § 286.
The purpose and function of the defendant identity confidentiality requirement of Indiana
Code § 34-18-8-7(a)(1) supports the doctor's cause of action for negligence. This Court has rec-
ognized that "the dominant aim" of the Medical Malpractice Act as a whole "is to preserve health
care services for the community." Johnson v. St. Vincent Hosp., 273 Ind. 374, 388, 404 N.E.2d
585, 595 (1980), overruled in part on unrelated issue by In re Stephens, 867 N.E.2d 148, 156
(Ind. 2007). And we unanimously observed that the defendant identity confidentiality require-
ment of Indiana Code § 34-18-8-7 serves to "disfavor subjecting a health care provider to public
accusations of medical malpractice until after such claim is presented to a medical review panel."
Schriber v. Anonymous, 848 N.E.2d 1061, 1065 n.3 (Ind. 2006). While permitting a court filing
of a medical negligence action before its consideration by a medical review panel is complete, 5
the statute expressly demands that such a court-filed complaint "not contain any information that
would allow a third party to identify the defendant." Ind. Code § 34-18-8-7(a)(1). This language
makes clear the risk of harm against which the statute is directed.
The parties do not dispute that Dr. Kho falls within the class of persons intended for pro-
tection by this statutory provision. And the nature of the damages sought by the doctor falls
within the risk of the type of harm against which the statute is directed. In addition to specifi-
cally claiming the violation of this statutory provision, Dr. Kho's complaint alleges resulting
damages including embarrassment, undue negative publicity, and injury to his reputation. Ap-
pellant's App'x at 11.
5
Such a contemporaneous court filing may, for example, facilitate the compelling of discovery or the pre-
liminary judicial determination of an affirmative defense or issue of law or fact not reserved for written
opinion by the medical review panel. See Ind. Code § 34-18-11-1. It may also enable a malpractice
plaintiff to comply with the applicable statute of limitations in the event one of the named defendants is
later determined not to be covered by the Act's provisions that toll the statute of limitations upon the filing
of a proposed complaint with the Department of Insurance. See Ind. Code § 34-18-7-3; see also, e.g.,
Schriber v. Anonymous, 848 N.E.2d 1061, 1065 n.3 (Ind. 2006); Miller v. Terre Haute Regional Hosp.,
603 N.E.2d 861, 863 (Ind. 1992); Guinn v. Light, 558 N.E.2d 821, 824 (Ind. 1990); Lusk v. Swanson, 753
N.E.2d 748, 751-752 (Ind. Ct. App. 2001), trans. denied.
7
The circumstances presented by this case provide a particularly apt example of the stat-
ute's intended purpose. In medical malpractice cases, plaintiffs are often challenged to timely
identify which of several health care providers or related entities potentially may share legal re-
sponsibility for an alleged medical error, and to determine which may be covered by the protec-
tions of the Medical Malpractice Act. Here, the malpractice claimant's proposed complaint filed
with the Department of Insurance initially named a hospital and two physicians, and was shortly
thereafter amended to add the name of the corporation alleged to have employed one of the phy-
sicians. Id. at 58-60, 62-63. Dr. Kho's name pervasively appeared throughout the medical re-
cords pertinent to the malpractice complaint, apparently because he was on call as a local family
physician for any emergency room patient without a doctor. Id. at 27-35. But in the course of
ensuing discovery, Dr. Kho was able to document his complete lack of any actual involvement in
the emergency room treatment on which the malpractice complaint was based. Approximately
six months after commencing the claim, the malpractice claimant agreed to a stipulation in which
she voluntarily dismissed her action against Dr. Kho. Id. at 166. The discovery of necessary in-
formation and resulting voluntary dismissal nevertheless could likely have been accomplished
without presenting risks to Dr. Kho's reputation by either utilizing the medical review panel pro-
ceedings or complying with the statutory defendant identity confidentiality requirement.
The malpractice claimant and her lawyers argue that prior appellate opinions have held
that, because of the non-substantive procedural nature of the Indiana Medical Malpractice Act, it
did not create any new causes of action. Chamberlain v. Walpole contained passages declaring
that the Medical Malpractice Act "does not create new substantive rights or create new causes of
action," and repeating that the Act "is procedural and did not create new causes of action." 822
N.E.2d 959, 963 (Ind. 2005). Neither Chamberlain nor Breece v. Lugo, 800 N.E.2d 224, 227-28
(Ind. Ct. App. 2003), trans. denied, which it cited, involved any claimed violation of the statu-
tory defendant identity confidentiality requirement. Both opinions, rather, rejected attempts to
expand the Act to create new causes of action for wrongful death resulting from medical mal-
practice. But these holdings, and their accompanying language emphasizing the procedural na-
ture of the Act, do not apply to or prevent application of Indiana's traditional doctrine permitting
negligence actions for the violation of express statutory duties such as those created in the defen-
dant identity confidentiality statute.
8
The malpractice claimant and her lawyers also defend the trial court's grant of summary
judgment by arguing that "the only proper remedy for filing the complaint in contravention of the
statute was dismissal of the lawsuit without prejudice." Appellee's Br. at 17 (citing Hubbard v.
Columbia Women's Hosp., 807 N.E.2d 45, 51-52 (Ind. Ct. App. 2004)). In Hubbard, a medical
malpractice claimant filed a proposed complaint seeking submission and consideration of her
claim by a medical review panel and contemporaneously filed a court action that expressly iden-
tified each of the defendant health care providers by name. The trial court dismissed the court
malpractice action for lack of subject-matter jurisdiction, and the Court of Appeals affirmed be-
cause Hubbard did not comply with the statutory mandate for anonymity. Hubbard, 807 N.E.2d
at 52. The court stated that "'[t]he proper course of action when a plaintiff fails to comply with
the Act is for the trial court to dismiss the complaint without prejudice, thereby allowing the
plaintiff to refile after the medical review panel has issued its opinion.'" Id. at 51 (quoting St.
Anthony Med. Center, Inc. v. Smith, 592 N.E.2d 732, 736 (Ind. Ct. App. 1992), trans. denied).
But there was no issue presented or discussed in Hubbard (or in St. Anthony Med. Center) re-
garding whether the health care providers could pursue a statutory negligence action for such
violation. These rulings regarding the propriety of dismissing a malpractice complaint that spe-
cifically identified defendant health care providers contrary to statute are not relevant to whether
such providers may thereafter assert a statutory negligence action against the malpractice claim-
ant for such violation. Moreover, the mere dismissal of a complaint for malpractice filed in vio-
lation of the defendant confidentiality requirement is wholly ineffectual to prevent or remedy the
harm to a defendant physician's reputation that results from media coverage of the court filing. 6
The claimant and her attorneys also argue that violation of the statute should not be sub-
ject to negligence action for statutory violation because other sources may permit discovery of a
defendant health care provider's identity. They assert that the identity of a defendant health care
provider may be discovered because of the public nature of a proposed complaint filed with the
Department of Insurance for purposes of medical review panel consideration. Acknowledging
that the "practical effect" of the rules regarding the commencement of an action and the furnish-
6
In the present case, shortly after the medical malpractice complaint was filed in court, the local newspa-
per published an article entitled "Woman sues local hospital, doctors over man's death." Appellant's Ap-
p'x at 162.
9
ing of a summons is "that a health care provider must be identified in the summons to effect ser-
vice," Judge Bailey in Hubbard held that such requirement "does not . . . eviscerate the require-
ment of anonymity in medical malpractice complaints embodied within I.C. 34-18-8-7." Hub-
bard, 807 N.E.2d 45, 51 n.2. We agree. Although the statutory requirement that the complaint
not disclose the defendant's identity during the preliminary period of consideration by the medi-
cal review panel may be less than foolproof protection for the health care provider's good name
and reputation, it serves a significant ameliorative function clearly intended by the legislature.
We decline to countenance disregard of the provision.
We hold that the doctor's claim against the malpractice claimant and her attorneys for
violation of the statutory defendant identity confidentiality provision presents a cognizable neg-
ligence action for violation of an express statutory duty. The importance of the right to seek a
remedy for harm to one's reputation has been safeguarded in Indiana since 1851 by Article 1,
section 12, of the Indiana Constitution. 7 Our decision today is consistent with the values thereby
protected.
Separate from his statutory negligence claim, the doctor also contends that he is entitled
to bring a private right of action for damages based on the same statutory violation. A violation
of an obligation imposed by statute may give rise to a civil damage claim under traditional tort
doctrine. Cantrell v. Morris, 849 N.E.2d 488, 497 (Ind. 2006). In Cantrell, 849 N.E.2d at 497,
we quoted with approval the doctrine expressed in section 874A of the Second Restatement of
Torts:
When a legislative provision protects a class of persons by proscribing or requiring cer-
tain conduct but does not provide a civil remedy for the violation, the court may, if it de-
termines that the remedy is appropriate in furtherance of the purpose of the legislation
and needed to assure the effectiveness of the provision, accord to an injured member of
the class a right of action, using a suitable existing tort action or a new cause of action
analogous to an existing tort action.
Restatement (Second) of Torts § 874A (1979). This section is not intended to alter traditional
tort law regarding negligence per se and public nuisance but "to supplement them and to indicate
the potential effect on other torts of legislative provisions proscribing or requiring certain con-
7
Section 12 provides in relevant part: "All courts shall be open; and every person, for injury done to him
in his person, property, or reputation, shall have remedy by due course of law" (emphasis added).
10
duct." Id. at cmt. e. Because of the availability of a remedy for statutory negligence, however,
we need not determine whether the statute creates a private cause of action. Rubin, 550 N.E.2d
at 329 n.4.
Conclusion
Summary judgment was erroneously granted prohibiting Dr. Kho from asserting a statu-
tory negligence claim against Ruby Miller, Deborah Pennington, and Findling Garau Germano &
Pennington, P.C., for their undisputed violation of Indiana Code § 34-18-8-7(a)(1). As to all
other issues, we decline review of the Court of Appeals opinion and summarily affirm. The case
is remanded for further proceedings consistent with this opinion.
Boehm, J., concurs. Shepard, C.J., concurs in result with separate opinion. Sullivan, J., concurs
in part and dissents in part with separate opinion in which Rucker, J., concurs.
11
SHEPARD, C.J., concurring in result.
Dr. Kho filed a common law claim of malicious prosecution, and it seems to me
the trial court wrongly kept that claim from going to a jury, whether or not the medical
malpractice statute creates some parallel private cause of action.
Kho’s claim of malicious prosecution rests on two contentions: that attorney
Pennington did not have probable cause to sue him rather than other possible defendants,
and that Pennington should not have used his name in her complaint.
As to the first of these, I conclude that Pennington might well be right to say that
Dr. Kho’s name appeared on a sufficient number of the documents generated during the
course of Tracy Merle Lee’s treatment that she had grounds to include Kho in her law-
suit, at least pending further investigation.
I think the second part of Kho’s claim can be analyzed on very straightforward
common law grounds. Malicious prosecution consists of five elements: prosecution,
without probable cause, with malice, termination in favor of the original defendant, and
damage to the defendant. 19 Indiana Law Encyclopedia, Malicious Prosecution § 1
(2003). Pennington did not have any reason to use Kho’s name. And, for malicious
prosecution purposes, malice is merely “the doing of a wrongful act intentionally and
without just cause or excuse therefor.” Id., § 17. Personal hatred or revenge may be pro-
bative of malice, but it is not a necessary element of it, and the law permits a finding of
this malice as either express or implied. Id. Using Kho’s name in the complaint was
“wrongful,” because the statute expressly prohibits doing so, and there appears no “just
cause or excuse therefor.” That Pennington held no personal animosity toward Kho is
not “just grounds or excuse” for using his name, and thus she was not entitled to sum-
mary judgment as respects malice.
For these reasons, I join in vacating summary judgment and remanding for trial.
1
Sullivan, Justice, concurring in part and dissenting in part.
Chief Justice Shepard’s opinion addresses the issue presented to us by the parties
in this case: whether the trial court was correct when it granted summary judgment to the
defendants on plaintiff’s malicious prosecution claim. However, I agree with the Court
of Appeals that there was ample evidence suggesting Dr. Kho's possible involvement in
Miller's treatment to warrant a finding of probable cause as a matter of law. Kho v. Pen-
nington, 846 N.E.2d 1036, 1044 (Ind. Ct. App. 2006), citing Wong v. Tabor, 422 N.E.2d
1279, 1288 (Ind. Ct. App. 1981). With such a finding, summary judgment was appropri-
ate because the absence of probable cause is an element of the tort of malicious prosecu-
tion. City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind. 2001).
For this reason, I concur in that part of Justice Dickson's opinion summarily af-
firming the decision of the Court of Appeals in favor of the defendants on the probable
cause issue.
As to Justice Dickson's opinion in respect of plaintiff's ability to assert a statutory
negligence claim against the defendants, I disagree for several reasons.
First, no claim of statutory negligence for violation of Ind. Code § 34-18-8-7(a)(1)
is properly before this Court. The plaintiff's complaint asserted two claims: for malicious
prosecution and for violating Ind. Code § 34-18-8-7(a)(1), both “without probable cause
and with malice.” (Appellant's App. at 10–11.) This is the way the plaintiff himself de-
scribed his claims in his brief in opposition to summary judgment, id. at 85, and in his
brief in support of his motion to correct errors, id. at 217. With due deference to our no-
tice pleading requirements, I find no claim of statutory negligence in the complaint. In
any event, no claim of statutory negligence was litigated in the trial court and statutory
negligence is not mentioned by the plaintiff in his brief to this Court. While fleeting ref-
erences to statutory negligence are buried deep in footnotes in the plaintiff’s two trial
court briefs, id. at 85 n.1 & 217 n.1, and two more are contained in his brief to the Court
of Appeals, Appellant’s Br. at 25 & 26, the Court of Appeals found that plaintiff had of-
fered no argument on the issue and declined to address it. Kho, 846 N.E.2d at 1046 n.10.
In the absence of any argument on the issue from the plaintiff, the benefit of any response
from the defendants, and any analysis or decision by the trial court or Court of Appeals, I
do not believe that this case should be resolved on this basis.
Second, unlike Justice Dickson, I believe that Ind. Code § 34-18-8-7 sets forth
procedural requirements which, if not followed, give rise to procedural and not substan-
tive remedies. This Court has been firm in holding that the Medical Malpractice Act does
not create new and additional causes of action. Chamberlain v. Walpole, 822 N.E.2d 959
(Ind. 2005). And, while Justice Dickson repeatedly refers to Ind. Code § 34-18-8-7(a)(1)
as the "identity confidentiality provision," in point of fact, the statute does not require that
the identity of a potential defendant in a medical malpractice proceeding be kept confi-
dential, only that the potential defendant not be named in a complaint filed pursuant to
Ind. Code § 34-18-8-7. For example, the summons filed with the Court pursuant to Indi-
ana Trial Rule 4.15(B) will place the potential defendant's name in the public record. See
also Hubbard v. Columbia Women’s Hosp., 807 N.E.2d 45, at 50–51 n.2 (Ind. Ct. App.
2004). In addition, the proposed complaint filed with the Indiana Department of Insur-
ance will also contain the potential defendant's name; these files are also open to public
review. The fact that such disclosures are not prohibited, it seems to me, strongly sup-
ports the conclusion that the requirement of Ind. Code § 34-18-8-7(a)(1) was intended by
the Legislature to be procedural and not substantive.
Third, if a claim of statutory negligence for violation of Ind. Code § 34-18-8-
7(a)(1) was properly before us, the correct way to analyze the claim would be to ask
whether the Legislature meant for the provisions of Ind. Code § 34-18-8-7(a)(1) to be en-
forced privately. Indeed, the availability of a private right of action is the question that
the plaintiff in this case presented to us on transfer -- not any question of statutory negli-
gence. We have long-standing analytical tools for addressing whether a statute contains
an implied private right of action. The Court of Appeals applied those tools here and
found none to be implied, a decision that Justice Dickson’s opinion appears to affirm
summarily, and I agree with that determination.
Rucker, J., concurs.
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