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

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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.”
 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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