High court rules doctor can sue in med mal case

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The Indiana Supreme Court ruled that summary judgment should not have been granted because it prohibited a doctor from asserting a statutory negligence claim against a medical malpractice claimant, her attorney, and her attorney's law firm.

In the ruling Wednesday, Justices Brent Dickson and Ted Boehm concurred, with Chief Justice Randall Shepard concurring in a separate opinion. Justice Frank Sullivan concurred in part and dissented in part with a separate opinion in which Justice Robert Rucker concurred.

In Eusebio Kho M.D. v Deborah Pennington, et al., 72S04-0609-CV-332, Ruby Miller, as personal representative of the estate of Tracy Merle Lee, deceased, filed a proposed complaint for damages with the Indiana Department of Insurance, claiming the medical negligence of the hospital and various physicians resulted in Lee's death. Under the Indiana Medical Malpractice Act, filing a claim leads to the presentation of the claim to a medical review panel before an action is filed in court. Section 4 of Indiana Code 34-18-8 prohibits a claimant from filing an action in court against a health care provider until the claimant's complaint has been presented to a medical review panel and the panel gives an opinion. An exception to that can be found in 34-18-8-4(a)(1), which allows a person to file a simultaneous complaint in court provided the defendant is not identified.

Dr. Kho was named in Miller's complaint with the Indiana Department of Insurance and in a lawsuit filed in Scott Circuit Court. After Kho filed a motion for summary judgment stating he had not provided medical care to Lee, Miller and her attorney, Deborah Pennington, dismissed Kho from the lawsuit by stipulation.

Kho commenced an action against Miller, Pennington, and her law firm, seeking damages for emotional suffering, embarrassment, undue negative publicity, injury to his reputation, and mental distress as a result of being named in the malpractice lawsuit. Kho's name appeared originally on the lawsuit because at the time of Miller's death he was on call as a local family physical for any emergency room patients without a doctor. The trial court ruled against Kho, causing him to appeal.

The Supreme Court granted transfer to address just one issue: whether violation of the defendant identity confidentiality provision under I.C. 34-18-8-7 in the Indiana Medical Malpractice Act may give rise to an action for damages. On the other issues Kho appealed, the Supreme Court declined to review and affirmed the opinion of the Court of Appeals.

The trial court's order denying the doctor's motion to correct error said Indiana Code does not provide relief to a doctor improperly named in a malpractice suit; that the code failed to set out a manner for relief for someone clearly improperly named in a malpractice suit; and that Miller and her attorney violated the provisions of I.C. 34-18-8-7, but "the violation of that statute does not relieve Dr. Kho from proving the elements of his malicious prosecution claim."

Justice Dickson wrote the purpose and function of the defendant identity confidentiality requirement of I.C. 34-18-8-7(a)(1) supports the doctor's cause of action for negligence and that the circumstances presented in this case provide an example of the statute's intended purpose. The court holds Kho's claim against Miller and Pennington for violation of the code presents a "cognizable negligence action for violation of an express statutory duty."

Chief Justice Shepherd concurred in a separate opinion, stating that Pennington may be right to argue she could include the doctor's name on the lawsuit because Kho's name would have appeared on many documents generated in the course of Lee's treatment. However, he wrote that Pennington did not have any reason to name Kho, and even if she held no personal animosity toward the doctor, that is not grounds or an excuse for using his name and Pennington was not entitled to summary judgment regarding malice.

Justice Sullivan dissented regarding Kho's ability to assert a statutory negligence claim against the defendants because no claim of statutory negligence for violation of the Indiana Code was properly before the Supreme Court; he believes I.C. 34-18-8-7 set forth procedural requirements, which if not followed, give rise to procedural and not substantive remedies; and if the claim of statutory negligence was properly before the court, the correct way to analyze the claim would be to ask whether the legislature meant for 34-18-8-7(a)(1) to be enforced privately.

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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.