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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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