ILNews

Foster child’s claim against health center falls outside Medical Malpractice Act

Back to TopCommentsE-mailPrint

A Morgan County court erred when it granted Adult and Child Mental Health Center Inc.’s motion to dismiss a lawsuit filed on behalf of a child in foster care who suffered severe brain damage from a near-drowning. The center argued the complaint was subject to the Indiana Medical Malpractice Act.

B.R. was 3 years old when he was placed in therapeutic foster care and referred to the health center. He had disruptive behavior disorder and was significantly developmentally delayed. He was placed with foster parents, and a health center employee supervised the placement and served as B.R.’s case manager. The center has a contract with the Department of Child Services to facilitate these types of placements.

In 2007, while B.R. was placed in respite care with therapeutic foster parents Mark and Penny Hughes, he ran onto an adjacent property, entered a pool and nearly drowned, resulting in serious damage to his brain.

The health center sought to dismiss the lawsuit that alleged it breached its duty to B.R. by failing to adequately supervise his foster parents, the Hugheses’ property, and other claims. It alleged that B.R.’s action is a malpractice claim against a health care provider, which claim is subject to review by a medical review panel, and that since B.R. had not submitted his claim through the review panel process, the trial court lacked subject matter jurisdiction. The Morgan Superior Court granted the center’s motion to dismiss.

In B.R., a Minor, by his Guardian, Teresa Todd v. State of Indiana, Indiana Department of Child Services, Morgan County Office of Department of Child Services, and Adult and Child Mental Health Center, 55A05-1212-CT-639, the Court of Appeals found that the health center’s authority to make therapeutic foster care placements arises solely from its contract with DCS. The appellate court also held that the center was not providing health care to B.R. when it placed him with the Hugheses, as defined under I.C. 34-18-2-18. The judges rejected the center’s argument that the claim should first go before a medical review panel.

“The issues presented in this case surrounding B.R.’s case manager’s alleged negligence are unquestionably within the understanding of the average lay juror. A medical professional is no better equipped than the average juror to consider whether the case manager complied with the appropriate standard of care,” Judge Paul Mathias wrote.

“The allegations in B.R.’s complaint, i.e. that his case manager negligently placed him with the respite therapeutic foster parents and negligently failed to inform the foster parents that B.R. was an overly active child known to run from adults and escape his home, are not directly related to any medical care B.R. received from the Health Center. Furthermore, the foster care placement was not made by a health care professional. Because B.R.’s claims sound in general negligence, his claims fall outside the Medical Malpractice Act.”
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

ADVERTISEMENT