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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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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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