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Sexual misconduct doesn't fall under MedMal act

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The Indiana Court of Appeals today affirmed a trial court determination that an employee's sexual conduct with a patient can't constitute a rendition of health care or professional services, so a negligent hiring complaint against a hospital based on that conduct doesn't fall under the Indiana Medical Malpractice Act.

In Fairbanks Hospital v. Dan Harrold, Eva Harrold, Natalie Harrold, and Indiana Department of Insurance, No. 49A02-0712-CV-1055, the Court of Appeals had to consider whether a complaint alleging negligent hiring, training, and supervision of a hospital employee falls within the act if the underlying tort allegedly committed by the employee was unwanted sexual advances.

Eighteen-year-old Natalie Harrold was admitted to Fairbanks' adolescent unit for inpatient substance abuse treatment. Adolescent guidance counselor Larry Shears participated in Harrold's care in September 1997. Shears later hugged, kissed, and patted Natalie on her buttocks on more than one occasion and urged her to call him. After she was discharged, Natalie reported Shears behavior; he was later fired.

The Harrolds' filed a complaint with the Indiana Department of Insurance and in Marion Superior Court, including an allegation of negligent supervision against Fairbanks. Fairbanks sought a ruling as a matter of law that the Harrolds' claims fall within the scope of the state's Medical Malpractice Act.

Citing Winona Memorial Hospital, Ltd. Partnership v. Kuester, 737 N.E.2d 824 (Ind. Ct. App. 2000), the appellate court wrote that both allegedly tortious acts - that the hospital was negligent and the employee's alleged negligence - that comprise a patient's claim of malpractice must sound in medical malpractice and not merely ordinary negligence, wrote Judge Ezra Friedlander.

In the instant case, Shears sexual misconduct with Natalie doesn't constitute a rendition of health care or professional services, so a claim based on the conduct doesn't fall under the act, wrote the judge. Because Shear's conduct doesn't fall under the act, the negligence claim against Fairbanks also can't fall within the scope of the act.

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