By William A. Ramsey
For a variety of reasons, plaintiffs with claims against doctors, nurses, hospitals, or other health care providers usually choose to characterize their claims as ones for ordinary negligence, while defendants in general prefer to have a claim constitute one for medical malpractice. Indiana courts have developed a workable test, but one that makes it difficult in some instances to predict whether certain acts constitute ordinary negligence or medical malpractice. While other states take a variety of approaches to the issue — some of which provide even less certainty than the Indiana test — borrowing from approaches taken by other states could lead to a more objective test that would align with the overall purpose of Indiana’s Medical Malpractice Act (“the Act”).
Who can commit “malpractice”?
The Act applies not only to individuals such as physicians, nurses, psychologists, dentists, and optometrists, but also institutions, facilities, hospitals, and other organizations or entities. See Ind. Code § 34-18-2-14; Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 186 (Ind. 2011). Indeed, hospitals themselves owe a duty of care to patients independent of that duty owed by individual providers. See McSwane v. Bloomington Hosp. and Healthcare Sys., 916 N.E.2d 906, 910 (Ind. 2009). The Act also applies to employees of a hospital or health care facility who act within the scope of their employment. See Ind. Code § 34-18-2-14(1). Thus, virtually any person affiliated with a health care facility can commit malpractice.
What is “malpractice”?
The Act applies to claims of malpractice, not claims of ordinary negligence. See Anonymous Hosp., Inc. v. Doe, 996 N.E.2d 329, 333 (Ind. Ct. App. 2013). The Act defines malpractice as “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18. A patient is defined as “an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider.” Ind. Code § 34-18-2-22. “‘Health care’ means an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Ind. Code § 34-18-2-13. Claims based on health care are subject to the Act, while claims that are not based on health care are not. See Robertson v. Anonymous Clinic, 63 N.E.3d 349, 357 (Ind. Ct. App. 2016), trans. denied.
When determining whether a claim falls within the Act, courts look to the substance of the claim. See Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d 101, 104 (Ind. Ct. App. 1995), trans. dismissed. “[T]he test to determine whether a claim sounds in medical malpractice is whether the claim is based on the provider’s behavior or practices while ‘acting in his professional capacity as a provider of medical services.’” Anonymous Hosp., 996 N.E.2d at 333 (quoting Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006), trans. denied). In other words, the Act “applies where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship.” Id. at 333 (citing Putnam Cnty. Hosp. v. Sells, 619 N.E.2d 968, 971 (Ind. Ct. App. 1993)). The Court of Appeals has also explained:
A case sounds in ordinary negligence [rather than medical negligence] where the factual issues are capable of resolution by a jury without application of the standard of care prevalent in the local medical community. By contrast, a claim falls under the Medical Malpractice Act where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship.
Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 2014) (quoting B.R. ex rel. Todd v. State, 1 N.E.3d 708, 714–15 (Ind. Ct. App. 2013) (citations omitted), trans. denied). Courts have consistently focused on the central issue of whether a jury will need to apply the standard of care within the medical community. See, e.g., Robertson, 63 N.E.3d at 361; Van Sice v. Sentany, 595 N.E.2d 264, 267 (Ind. Ct. App. 1992).
Why It Matters
A medical malpractice claim differs significantly, in both substance and procedure, from an ordinary negligence case.
Unless they agree to not pursue damages that exceed $15,000, medical malpractice plaintiffs must first submit their claims to the medical review panel and may not pursue claims in state court until after the medical review panel has issued its decision.
Claims against health care providers that fall outside the Act are not subject to the Act’s cap on damages.
Claims against health care providers that fall outside the Act will often be covered by insurance policies with higher limits than claims covered by medical malpractice policies.
Claims against health care providers that fall outside the Act are not subject to traditional negligence principles of contributory negligence and are instead subject to the Comparative Fault Act.
A judgment or settlement based on ordinary negligence arguably would not require a report to the National Practitioner’s Database.
Claims under the Act are subject to an occurrence-based statute of limitations, while claims of ordinary negligence are subject to a discovery-based statute of limitations.
Application of the test leads to varying results.
The current test has led courts generally to find that claims involving missed diagnoses, failed surgeries, or similar occurrences fall within the Act. For example, “[t]he failure to obtain informed consent, a doctor’s alleged fraudulent representations about an operation’s risks, and a hospital’s failure to provide adequate security of a patient have all been deemed conduct subject to the malpractice act.” Valencia v. St. Francis Hosp. & Health Ctr., 2004 WL 963712, at *6 (S.D. Ind. Mar. 1, 2004). Further, the Court of Appeals has found that the failure to report a rape falls within the Act, see Terry, 17 N.E.3d at 394, and the Supreme Court has held that claims related to the maintenance of records fall within the Act, Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 186 (Ind. 2011).
On the other hand, courts have found claims by patients against medical providers involving alleged batteries committed by health care facility employees fall outside the Act. See Murphy v. Mortell, 684 N.E.2d 1185, 1188 (Ind. Ct. App. 1997); Doe v. Madison Ctr. Hosp., 652 N.E.2d 101, 104 (Ind. Ct. App. 1995).
The variance in conclusions includes a true split related to claims involving patient confinement or safety. On the one hand, the Court of Appeals has recognized the Act’s specific reference to “confinement” in finding that “[t]he providing or not providing of suitable confinement for such a patient can hardly be classed as anything other than a professional judgment based on medical knowledge under the terms of the Act as written.” Ogle v. St. John’s Hickey Mem’l Hosp., 473 N.E.2d 1055, 1059 (Ind. Ct. App. 1985). As the Ogle court explained, “the legislature expressly recognized that proper confinement is an act of medical care as it drafted the Health Care Definition section to encompass acts occurring during ‘the patient’s medical care, treatment or confinement.’” Id. On the other hand, the Court of Appeals found that a claim by one patient against a health care facility based on injuries caused during an altercation with another patient fell outside the Act. See R.R.K., 853 N.E.2d at 1288. The R.R.K. court focused on the identity of the plaintiff and noted that a claim against the facility based on failure to properly confine the patient who injured the plaintiff may have been subject to the Act. Id. at 1289. Ogle is consistent with the Act’s definition of health care and malpractice, which indicate that the Act applies to claims involving services provided to “a patient,” not only the plaintiff, see Ind. Code § 34-18-2-13, -18, but the spit exists and illustrates the lack of certainty created by the current test.
The Court of Appeals has recognized the difficulty of reconciling decisions regarding the Act’s applicability, noting that courts struggle applying the test and that doing so results in “hairline distinction,” Preferred Professional Ins. Co. v. West, 23 N.E.3d 716, 727 (Ind. Ct. App. 2014), trans. denied, and that “courts have held the Act applied to a variety of claims that do not look like traditional medical negligence . . . [and] have also held the Act did not apply in a variety of instances where the claim did look more like medical malpractice,” Terry, 17 N.E.3d at 393.
How can Indiana create more certainty?
To avoid overstating the issue, no reasonable dispute will exist over the categorization of many claims. Also, establishing a bright-line test that will make the determination clear in all cases is likely impossible. See Wilson v. Monroe Cty., 411 S.W.3d 431, 439–41 (Tenn. Ct. App. 2013) (recognizing that the difference between claims of ordinary and medical negligence can be “subtle”). However, given the high stakes and express statements by the Court of Appeals regarding the difficulty applying the current test, looking at ways to create further certainty makes sense and is a reasonable goal.
Simplify the test
Although Pennsylvania has not explicitly used the test in the context of medical malpractice, when determining whether claims are for professional or ordinary negligence, courts examine whether the duty at issue is one owed by the defendant as a professional or as any person (for example, a landowner) in the defendant’s position. See Merlini v. Gallitzin Water Auth., 980 A.2d 502, 507-08 (Pa. 2009). This test involves a discrete question that could lead to relatively predictable results. This test preserves a plaintiff’s ability to file ordinary negligence claims, such as slip-and-falls by visitors to a facility, but should help reduce the gray area for claims involving injuries to patients based on allegations of failure to supervise or monitor — obligations that relate directly to the patient-provider relationship.
Modify the statute
The legislature can also help reduce uncertainty. Many disputes over the Act’s applicability relate to patient safety issues, such as supervision, monitoring or provision of protective devices. The Texas legislature reduced uncertainty in this area by placing safety-based claims within its statutory medical malpractice scheme, making claims related to a health facility’s duties as a premises owner ones for ordinary negligence, but claims related to a facility’s duties as a health care provider one for medical malpractice. See Texas Health Res. v. Coming Attractions Bridal & Formal, Inc., 2018 WL 2228648, at *2–4 (Tex. Ct. App. May 16, 2018). A similar clarification by the Indiana legislature could help reduce disputes, would fall in line with the Act’s purpose of minimizing the cost of medical treatment, see, e.g., Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 379, 404 N.E.2d 585, 589-90 (1980), and would be consistent with the general national law regarding patient safety claims, see, e.g., Perry v. Valerio, 143 A.3d 1202, 1206–07 (Conn. Ct. App. 2016) (holding claim that therapist failed to properly secure leg brace and supervise patient while walking sounded in medical negligence); Dorris v. Detroit Osteopathic Hosp. Corp., 594 N.W.2d 455 (Mich. 1999) (recognizing that a layperson will be unfamiliar with the standards for adequate supervision in a hospital’s psychiatric wing); Bell ex rel. Todzia v. WSNCHS N., Inc., 59 N.Y.S.3d 475, 476–78 (N.Y. App. Div. 2017) (finding claim that hospital nurses and staff improperly restrained a patient who fell out of bed and broke her arm was one of medical malpractice).
Create a presumption
Establishing a burden-shifting approach should promote certainty. Texas has established a rebuttable presumption that a claim sounds in medical malpractice “if it is against a physician or health care provider and is based on facts implicating the defendant’s conduct during the course of a patient’s care, treatment, or confinement.” Hopebridge Hosp. Houston, L.L.C. v. Lerma, 521 S.W.3d 830, 836 (Tex. App. 2017). Given the broad terms of the Act and its goal of guarding against increased costs of health care, a similar presumption in Indiana would make sense, be consistent with the Act’s terms, and further the Act’s purpose.
Litigation over whether a claim sounds in ordinary negligence or medical malpractice can be time-consuming, expensive, and uncertain. Any steps that the legislature or courts can take to increase certainty would benefit providers, plaintiffs, and their attorneys. Whether such clarification comes, it is important to identify early any possible dispute over the nature of a case and to devote appropriate resources to the critical issue of whether a claim falls within the Act.•
Mr. Ramsey is a partner in the Fort Wayne firm of Barrett & McNagny and is a member of the DTCI Health Law Section. The opinions expressed in this article are those of the author.