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Worker's comp claim bars med mal complaint

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The Indiana Court of Appeals reversed the denial of a hospital's motion to dismiss a medical malpractice complaint because the claimant, who was employed by the hospital and on duty at the time of the injury, could only file a complaint against the employer under the Worker's Compensation Act.

In ProCare Rehab Services of Community Hospital v. Janice S. Vitatoe,  No. 49A02-0707-CV-583, Janice Vitatoe, who was employed as a registered nurse by Community, slipped and fell during her shift and injured her right hamstring. She began treatment with an orthopedic surgeon at Central Indiana Orthopedics and underwent outpatient physical therapy at ProCare Rehab Services, which is a department of Community.

Vitatoe filed a worker's compensation claim against Community. After she was no longer employed by the hospital, she filed a proposed medical malpractice complaint with the Indiana Department of Insurance, alleging negligence of her orthopedic surgeon, Central Indiana Orthopedics, and ProCare.

Vitatoe and Community settled the worker's compensation claim and Community moved to dismiss the medical malpractice complaint for lack of subject matter jurisdiction. The trial court denied Community's motion.

The Worker's Compensation Act contains an exclusivity provision that the rights and remedies granted to an employee through the act "shall exclude all other rights and remedies of such employee ... at common law or otherwise ..." The Indiana Supreme Court has ruled that the Worker's Compensation Act's exclusivity provision bars a court from hearing any common law action brought by the employee based on the same injuries.

Community argues that Vitatoe's injuries arose out of and in the course of her employment so her medical malpractice claim against Community is barred under the Worker's Compensation Act. Vitatoe counters that the injuries that form the basis for her complaint didn't arise from and in the course of her employment but during treatment for the original injury.

Citing previous caselaw, the Indiana Court of Appeals ruled that if an employee's injury happened during the course of her employment is aggravated by treatment for that injury, regardless of where, when, by whom, and for how long the treatment was provided, the injury caused by the treatment will be deemed as a matter of law to have come out of and in the course of her employment for purposes of the Worker's Compensation Act. As a result, the employee's exclusive remedy against the employer for the injury caused by the treatment is under the act, wrote Judge Terry Crone.

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