ILNews

Worker's comp claim bars med mal complaint

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT