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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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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. 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.

  4. 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?

  5. 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

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