7th Circuit Court of Appeals
Civil — Sex Offenders/Fifth Amendment
Donald Lacy v. Keith Butts
Finding the disclosures provide information that any law enforcement agent “would love to have,” the 7th Circuit Court of Appeals has ruled Indiana’s requirement that sex offender inmates give detailed accounts of their past actions violates the Constitution’s protections against self-incrimination.
Donald Lacy, a sex offender inmate in the Indiana Department of Correction, filed a class action on behalf of all inmates who lost good-time credits and suffered a demotion in credit class because they failed to meet the requirements of the Indiana Sex Offender Management and Monitoring program. Lacy argued the disclosures required and the penalties imposed for nonparticipation constituted a violation of his Fifth Amendment right to be free from compelled self-incrimination.
The U.S. District Court for the Southern District of Indiana agreed. It ordered the inmates’ lost good-time credits to be restored and vacated all disciplinary actions and sanctions for failure to participate in INSOMM.
On appeal, Indiana countered that the INSOMM program does not carry any sufficiently serious risk of incrimination to trigger the protections of the Fifth Amendment. Moreover, even if it did, the state continued, the revocation of credit time and the demotion of credit class do not add up to unconstitutional compulsion.
The 7th Circuit found the INSOMM workbooks asked for detailed and specific information. Offenders are required to reveal the names and ages of their victims, what parts of the body were touched, where and when the abuse occurred, and how the victims were selected and groomed.
Based on their answers, the offenders may then be given a polygraph examination. There, they will be asked such things as how many children they have molested and how many times they made child pornography.
Indiana’s contention that the answers are so general that they are not able to be used in an investigation or count as an admission at trial did not convince the circuit panel.
“Saying so does not make it so,” Chief Judge Diane Wood wrote for the court. “This ipse dixit does not explain why granular descriptions of the circumstances surrounding specific sex crimes and patterns of criminal sexual behavior would prove useless to investigators or prosecutors. … The questions posed to an INSOMM participant would yield answers that any competent sex-crimes investigator or prosecutor would love to have.”
Citing McKune v. Lile, 536 U.S. 24 (2002), the 7th Circuit ruled Indiana’s denial of good-time credit as a means of inducing offenders to furnish information is an impermissible compulsion to self-incriminate.
“The decision to decline participation in INSOMM is not merely a trigger for a later stage in which the state takes a more holistic view of an inmate’s progress toward rehabilitation,” Wood wrote. “Instead, a prisoner’s choice to invoke his privilege against self-incrimination is the direct cause of his loss of credits – credits that otherwise would be statutorily guaranteed… .”
Civil — Exoneration/Brady Violation
Walter Goudy v. Rodney J. Cummings, et al.
An exonerated man whose murder conviction was vacated nearly a decade ago can continue seeking damages against the investigators in his case, the 7th Circuit Court of Appeals has ruled, reversing a lower court’s decision that the claims couldn’t stand.
In 1993, two individuals in Anderson shot into a car occupied by several people, killing the driver and seriously injuring the front seat passenger. Walter Goudy was convicted of the murder, even though eyewitness descriptions of Goudy did not match up with those of the shooter.
Certain evidence favorable to Goudy’s case was never disclosed to the jury during his trial, including three police reports that revealed information that several witnesses identified a different man, Kaidi Harvell, as the shooter on the driver’s side of the car out of a photo lineup. The jury also didn’t hear a video-recorded confession by Romeo Lee, Goudy’s “lookalike” brother, who was there at the time of the shooting and ultimately confessed to being one of the shooters, alongside Harvell.
Goudy petitioned for post-conviction relief in the state courts in vain, arguing the state failed to comply with Brady v. Maryland, 373 U.S. 83 (1963), obligations. A 7th Circuit panel reversed the denial of his petition for habeas corpus and found him entitled to relief in 2010, concluding the Indiana Court of Appeals’ decision on Goudy’s Brady claims involved an “unreasonable application of clearly established federal law.”
In that decision, 7th Circuit Judge William Bauer then wrote that the COA unreasonably required Goudy to show that the suppressed evidence would establish his innocence. Goudy’s conviction was vacated, and he was released after serving nearly 16 years in prison.
The exonerated man then sought damages against the investigators of his case for the time he spent behind bars, alleging now-Madison County Prosecutor Rodney Cummings and Detective Steve Napier, who investigated the case, deprived him of due process in violation of the 14th Amendment.
Specifically, Goudy argued the investigators subjected him to an improper show-up procedure, withheld a recording of witnesses identifying a different person as the shooter in a lineup and withheld interview notes showing that Harvell initially had denied any involvement in the murder, but later switched his story.
Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana awarded summary judgment in favor of the investigators on all aspects of the case, finding “no evidence” that Cummings intentionally concealed the videotape from prosecutors; that the notes were not suppressed or material for Brady purposes, and; that the improper identification procedure could not support either investigator’s liability.
But Barker has also sanctioned two attorneys for withholding documents from Goudy’s attorneys.
The 7th Circuit found Barker’s summary judgment decision to be premature in a May 1 decision. It thus reversed the lower court’s ruling, finding Goudy had presented enough evidence to advance his arguments that the investigators suppressed lineup videotape and interview notes.
On the videotape claim, the 7th Circuit found that the jury could conclude Cummings’ concealment was the cause of the prosecutors’ failure to find and disclose the video due to the unexplained retention of the video for 14 months; the return of the video on the same date that the judge definitively blocked defense counsel from seeing the police reports describing it, and; the trial prosecutor’s “still N/A” note.
It also found that Cummings’ followup interview with Harvell did nothing to change its conclusion on the interview note issue, and that a reasonable jury could decide Napier’s initial interview notes were suppressed.
“Even if it was not purposefully misleading, Cummings’s reference to the earlier interview was cryptic enough that a diligent defense representative might have determined there was nothing to see in the notes of that initial interview, or that notes of that previous interview may not exist,” Chief Judge Diane Wood wrote for the unanimous panel. “Goudy’s counsel cannot be criticized for failing to guess that Harvell’s initial statement was more substantive than Cummings let on.”
Looking at Goudy’s overarching claim that he was constitutionally injured by the investigators, the 7th Circuit concluded all defendants who can be shown to have suppressed evidence in violation of Brady should be liable for the aggregate impact on the outcome of Goudy’s trial.
“Goudy has presented enough to go to trial on his allegations that Cummings and Napier violated his due process right to a fair trial. We need not and do not address his allegation that the allegedly improper one-man ‘showup’ procedure independently constituted a basis for liability,” the panel wrote.
“On remand, the district court is free to consider this issue afresh; evidence of the showup procedure may prove to be relevant at trial as Goudy seeks to hold the defendants liable for his constitutional injury.”
Indiana Supreme Court
Mental Health — Commitment Orders/Judges Signature
In the Matter of the Civil Commitment of T.W. v. St. Vincent Hospital and Health Care Center, Inc., et al.; In the Matter of the Civil Commitment of A.M. v. Community Health Network, Inc.
The Indiana Supreme Court has expressly disapproved of a Marion County judge’s practice of summarily approving civil commitment orders individually reviewed by the presiding commissioner, though the justices also noted that the fact that the defendants’ commitment orders have expired makes their appeals moot.
In an April 30 per curiam opinion, the justices granted transfer and consolidated the appeals in In the Matter of the Civil Commitment of T.W. v. St. Vincent Hospital and Health Care Center, Inc., et al.; In the Matter of the Civil Commitment of A.M. v. Community Health Network, Inc., 19S-MH-264. At issue in both cases were civil commitment orders signed by Marion Superior Court Commissioner Kelly M. Scanlan. Neither order was individually signed by Marion Superior Judge Steven Eichholtz, who instead approved the commitments by signing an order designated as a “non-case matter.”
T.W. was ordered to commitment after he stopped taking medication prescribed to treat schizophrenia, while A.M. was ordered to commitment for unspecified schizophrenia spectrum and another psychotic disorder. On appeal, both defendants argued their commitment orders were invalid because they lacked Eichholtz’s signature, but the Indiana Court of Appeals largely sidestepped that issue as either moot or waived.
However, Judge Elizabeth Tavitas relied on L.J. v. Health & Hosp. Corp., 113 N.E.3d 274 (Ind. Ct. App.), in a dissent in T.W. opining that “(a) litigant cannot waive a trial court judge’s exercise of statutory responsibility.”
In its per curiam opinion, the Indiana Supreme Court initially agreed with the COA that T.W. and A.M.’s appeals were moot because the period at issue in their commitment orders had passed. Thus, the court did not reach the merits of arguments concerning sufficiency of the evidence or appellate waiver. However, it did write to “address an issue of great public importance.”
“In Marion County, a probate commissioner may hear evidence and make reports to the court thereon, including ‘reports concerning the commissioner’s findings and conclusions regarding the proceedings,’” the court wrote, referencing Indiana Code section 33-33-49-16(a). “But all matters handled by a commissioner under this subsection ‘are under the final jurisdiction and decision of the judge of the probate division.’… With exceptions not applicable here, ‘a magistrate shall report findings in an evidentiary hearing, a trial, or a jury’s verdict to the court’ and ‘[t]he court shall enter the final order.’”
In A.M. and T.W.’s cases, Eichholtz signed an “Approval Order for Record of Judgments and Daily Orders” to approve the civil commitments. The “approval orders” were designated as “court business records” and didn’t cross-reference any specific mental health cases.
“Nor do they direct the clerk to enter the Approval Orders on the (chronological case summary) for the mental health cases or direct distribution to parties or their counsel,” the court continued. “And the Approval Orders are ambiguous in this context: they purport to adopt findings and recommendations of the ‘magistrate, commissioner and/or referee’ for matters heard on a particular day, yet the temporary commitment orders on their face, purport to be those of a ‘Judge,’ not a commissioner, magistrate, or referee.
“In short, the Approval Orders provide inadequate assurance that Judge Eichholtz was presented with (in writing), reviewed, and approved the temporary commitment orders in the cases of T.W. and A.M.”
However, because the cases are moot, the justices declined to remand them back to the trial court.
Indiana Court of Appeals
Miscellaneous — Scope of Employment/Summary Judgment
Kailee M. Smith and Jeffrey S. McQuary v. State of Indiana
Summary judgment for a conservation officer was reversed April 25 after the Indiana Court of Appeals found, among other things, that his actions in procuring the prosecution of a woman who killed his dog were not noncriminal.
After Kailee Smith struck and killed Department of Natural Resources conservation officer Scott Johnson’s dog with her car, she informed Johnson what happened, called police and reported the incident. A few months later, Johnson visited the Hancock County Prosecutor in his uniform and told the chief deputy prosecutor that Smith might have committed Class B misdemeanor failure to stop after an accident causing property damages other than to a vehicle.
Johnson then spoke with an investigator from the prosecutor’s office, and Smith was charged with the offense. The charges were dismissed, however, after Johnson admitted Smith did, in fact, inform him of the incident the night the accident occurred.
Smith and her fiancé then filed a state claim alleging Johnson’s action in procuring her prosecution constituted false arrest and malicious prosecution, negligence and intentional infliction of emotional distress under Indiana law, among other things. She also alleged Johnson acted within the scope of his employment, and that his actions violated the Fourth Amendment.
A federal claim was also filed against Johnson, alleging his actions violated the Fourth Amendment and that he acted under the color of Indiana law when he procured her prosecution.
The state claim was ultimately dismissed, but a district court jury awarded the appellants $10,000 in damages and more than $52,000 in attorney fees on the federal claim. They also drafted a contract by which Johnson assigned his right to file an indemnification action against the state to the appellants as partial payment for the judgment against him in the federal claim.
Both Johnson and the appellants signed the agreement, and the appellants then filed a complaint for damages and declaratory judgment. Ultimately, both parties filed cross-motions for summary judgment, and a trial court ruled in favor of the state, denying the appellants’ motion for summary judgment and dismissing the indemnification claim with prejudice.
The Marion Superior Court concluded the appellants were collaterally estopped from asserting Johnson acted within the scope of his employment, and that the state was entitled to judgment as a matter of law.
Reviewing that ruling, the Indiana Court of Appeals first concluded the trial court’s findings and conclusions regarding the issue of collateral estoppel were in error.
The COA noted the trial court dismissed the appellant’s state claim in an order containing no findings or conclusions, therefore leaving the issue of whether Johnson was acting within the scope of his employment not expressly adjudicated.
“Further, it would be unfair to preclude Appellants from arguing Officer Johnson was acting within the scope of his employment when he told the Hancock County Prosecutor that Kailee had left the scene of an accident, because that was not adjudicated as part of the Federal Claim,” Judge Melissa May wrote, with Judge Patricia Riley concurring in result.
The appellate court further concluded summary judgment was improper when it found a genuine issue of material fact regarding whether Johnson’s action of telling the Hancock County prosecutor that the appellants left the scene of an accident was within the scope of his employment.
It based that decision partly on the affidavit designating Johnson was “on duty, in uniform, conducting State business, and performing duties that were an ordinary part of [his] employment as a Conservation Officer” at the time. It also noted the appellants’ assertion that Johnson was furthering the state’s business by reporting to a prosecutor what he believed to be a crime, something that was a normal part of his job duties.
Lastly, the appellate court concluded Johnson’s action were not noncriminal, and because neither party designated evidence as to such, the judgment was ultimately in error.
The panel therefore reversed and remanded the case of Kailee M. Smith and Jeffrey S. McQuary v. State of Indiana, 18A-MI-1593.
Criminal — Child Pornography/Sexual Conduct
Brian Siebenaler v. State of Indiana
A former Ball State math professor convicted of child pornography and exploitation charges last year will have three of his convictions reversed after the Indiana Court of Appeals found some of the images of nude children he possessed did not explicitly depict “sexual conduct.”
After Ball State University campus police were alerted to someone accessing child pornography on a classroom computer in May 2016, they discovered math instructor Brian Siebenaler in an empty classroom sitting behind a computer. As police entered the room, Siebenaler frantically began closing windows on the computer, while officers noticed a flash drive inserted into the device.
Siebenaler admitted to possessing photos of nude boys between the ages of 5 and 15 on his flash drive, which he uploaded to an image-sharing website in graphics interchange format, commonly referred to as GIFs. Police conducted a search and found roughly 2,000 such images on his flash drive.
Siebenaler was later charged and convicted of four counts of possession of child pornography and four counts of child exploitation, receiving a sentence of four years on each count to be served concurrently, all suspended to probation.
All but one of the images presented to the Delaware Circuit Court showed the uncovered genitals of boys, while the remaining image showed one boy fondling another underneath his clothing. Judge Marianne L. Vorhees said she “had problems determining whether, as a matter of law, these images were crimes, possessing these images, making these images was actually a crime.”
Vorhees thus invited the Indiana Court of Appeals to look at the case, noting there was room for the COA to possibly reverse her determination. Similarly, on appeal, Siebenaler argued the images did not depict “sexual conduct” as required by Indiana Code section 35-42-4-4, and that there was insufficient evidence to support his convictions.
The COA agreed with Siebenaler that three of the images did not depict sexual conduct as defined under the statute and, thus, reversed two counts of child exploitation and one count of child pornography. It affirmed the remainder of his convictions in Brian Siebenaler v. State of Indiana, 18A-CR-1381.
Specifically, Siebenaler argued the images at question in the first seven counts only depicted “mere nudity” and were, therefore, protected as free speech under the First Amendment. The appellate court rejected that argument on all counts, with the exception of one image listed under his child pornography convictions.
“Although the State argued at trial that Exhibit 9 shows that the boys were ‘about to engage in oral sex’ because the sitting boy’s head is at the level of the standing boy’s penis, we cannot agree with the State’s characterization of this image,” Chief Judge Nancy Vaidik wrote for the unanimous court. “First, it is hard to tell the distance between the boys. Second, the boys are not touching each other or even looking at or acknowledging each other; rather, they just happen to be in the same photograph.”
The appellate court came to the same conclusion regarding two images listed under Sienbenaler’s child exploitation convictions, finding the images depicted boys “getting depantsed and then quickly covering themselves or pulling up their pants or shorts.”
The court further noted the GIFs were not focused on the genitals and were not sexually suggestive, but rather the genitals were barely visible in some of the images. It concluded by finding that none of the GIFS ended with genitals, and the appellate court therefore reversed Siebenaler’s convictions on two of the child exploitation counts.
Criminal — Drunken Driving/Insufficient Evidence
Alfonso Artigas v. State of Indiana
A man’s drunken driving convictions were reversed April 26 after the Indiana Court of Appeals found insufficient evidence that his blood alcohol concentration met the requisite limit for the convictions.
While investigating a vehicle collision, several Indianapolis police officers noticed a vehicle speeding toward them in the adjacent lane. The oncoming vehicle, driven by Alfonso Artigas, nearly struck one officer before coming to a halt.
Officers observed that Artigas had slurred speech and glassy eyes and smelled of alcohol. A hospital lab report later found Artigas’ blood had “a whole blood ethyl alcohol concentration in the range of 0.070 to 0.084% w/v (0.070 to 0.084 g/100mL).”
Thus, Artigas was charged under Indiana Code section 9-30-5-1(a) with operating a vehicle while intoxicated endangering a person, operating a vehicle with an alcohol concentration equivalent to at least 0.08 but less than 0.15 g/100mL of blood, and driving without a license. Artigas was only found guilty of the latter two charges, and he received partially suspended, 60-day concurrent sentences for both, plus 180 days of probation for driving without a license.
But the Indiana Court of Appeals reversed his convictions in Alfonso Artigas v. State of Indiana, 18A-CR-2877, finding there was insufficient evidence to prove Artigas’ blood alcohol concentration was at least .080 g/100mL, rather than below 0.080 g/100mL.
Finding the state misplaced its focus on visible signs of impairment, the appellate court noted section 9-30-5-1(a) “creates strict liability for operating a vehicle with a blood alcohol concentration within the specified range, irrespective of whether the operator exhibits signs of intoxication.”
“Indeed, under Indiana Code Section 9-30-5-1(a) — in contrast to Indiana Code Section 9-30-5-2(a) — the question is not whether a person was physically or mentally impaired by alcohol. Rather, to convict the defendant, the fact-finder must instead determine how much alcohol — down to hundredths of a gram — was in 100 milliliters of a person’s blood when that person operated a vehicle,” Judge L. Mark Bailey wrote for the court. “Only the laboratory report was relevant to this inquiry. Indeed, evidence of visible intoxication is not probative of a particular scientific measurement.”
“… Here, the State presented evidence that Artigas displayed signs of intoxication when he was pulled over around 3:00 a.m., and that his blood alcohol concentration was somewhere from .07 to .084 g/100mL at 3:53 a.m.,” Bailey continued. “From this evidence, a fact-finder could not conclude beyond a reasonable doubt that Artigas’s blood alcohol concentration was at least .08 g/100mL when he operated the vehicle. Thus, there is insufficient evidence to support a conviction as charged under Indiana Code Section 9-30-5-1(a).”
Civil Tort — Negligence/Duty
Cavanaugh’s Sports Bar & Eatery, Ltd., v. Eric Porterfield
A Lake County sports bar should have contemplated that rowdy behavior might take place outside the facility at closing time, the Indiana Court of Appeals ruled April 30, finding the bar failed to prove it had no duty to protect a patron who was seriously injured in a parking lot fight.
Eric Porterfield ended up seriously injured in a fight outside of Cavanaugh’s Sports Bar & Eatery, Ltd., in Lake County after his friend, who had been drinking that night, aimed a comment toward a woman nearby as patrons were ushered outside at closing time. Her boyfriend and his friends took offense at the remark, and an altercation ensued between the men, Porterfield and his friend.
Porterfield walked away with a serious eye injury and subsequently filed a personal injury action against Cavanaugh’s, claiming it was negligent in failing to take reasonable care for his safety as an invitee and patron. The bar filed a motion for summary judgment several years later, claiming that as a matter of law, it owed no duty to protect Porterfield.
In opposition, Porterfield submitted exhibits showing local police had made five runs to Cavanaugh’s during the 11 months preceding his incident, all involving fights that occurred outside the bar shortly after closing time. The Lake Superior Court denied Cavanaugh’s summary judgment motion, but noted it did not consider the police reports in its decision. Thus, the court determined the bar’s motion to strike the exhibits was moot.
In an interlocutory appeal, Cavanaugh’s argued the trial court erred in denying its motion for summary judgment, claiming it owed no duty as a matter of law to protect Porterfield against an after-hours criminal assault in its parking lot. But the Indiana Court of Appeals affirmed the trial court’s decision, finding Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016), which the bar relied on, was similar, but not in the manner of the attacks in each case.
“Goodwin involved the sudden shooting of bar patrons by another patron inside the bar. This case involves a fistfight between bar patrons in the parking lot just after closing. We believe that the distinction between a shooting and a fistfight is pivotal when examining foreseeability within the context of duty,” Judge Terry Crone wrote for the unanimous panel.
The panel noted that although no evidence was designated to indicate Cavanaugh’s had express notice concerning tensions between Porterfield and the perpetrators, evidence did show the altercation happened immediately after the bar closed.
“We believe that parking lot fistfights at closing time are generally within the type of ‘rowdy behavior’ that bar owners should contemplate, and that, in particular, Cavanaugh’s history of reported incidents gave it reason to contemplate further such incidents in its own parking lot,” Crone continued.
“To say that a bar owner’s duty to protect its patrons extends only to herding them through the exits at closing time is to essentially immunize the bar owner for violence that ensues between patrons immediately thereafter in its parking lot. We do not believe that the Goodwin court intended so broad a sweep of the pendulum, especially where the bar has a documented history of similar incidents on its grounds.”
The appellate panel added that the trier of fact will determine whether Cavanaugh’s breached its duty to Porterfield, but that the bar did fail to establish as a matter of law that it owed no duty to protect him in Cavanaugh’s Sports Bar & Eatery, Ltd. v. Eric Porterfield, 18A-CT-1814.
Criminal — Firearms/Charging Information
Levern Nicole Howard v. State of Indiana
A split Indiana Court of Appeals reversed four counts of a woman’s conviction, finding the trial court abused its discretion in allowing the state to amend the charging information without giving the defendant a “reasonable opportunity” to prepare and defend against the new counts.
Levern Howard was originally charged with 10 felonies and three Class A misdemeanors after Indianapolis Metropolitan Police Department officers found her to be in possession of heroin, cocaine, a synthetic lookalike drug and firearms. Also, the officers found children between 5 and 9 years old left alone in Howard’s home.
In May 2018, more than 19 months after the state had filed the original charges, more than 16 months after the omnibus date and just two days before Howard’s bench trial, Indiana moved to amend the charging information to allege four new Level 6 felonies for neglect of a dependent child. The premise of the new charges was that Howard had allegedly endangered a minor’s life by leaving firearms unsecured where a child could get them.
As the trial began, the state argued the amended charges did not add any new evidence or witnesses. Moreover, the guns were in the probable cause affidavit and had been known about since the beginning of the incident.
Howard countered that the theory of the amended counts was completely different from the original counts. She argued that although the affidavit says several firearms were located at the scene, it does not say where they were recovered and whether they were properly stored.
The Marion Superior Court granted the state’s motion. However, it required the state to present the evidence for the original and the amended counts on the first day of the trial, allowing Howard to recall and cross-examine the witnesses on the amended counts on the second day.
Howard was subsequently found guilty on all counts except dealing in a narcotic drug (heroin), a Level 3 felony.
The Court of Appeals reversed the convictions under the four amended counts in Levern Nicole Howard v. State of Indiana, 18A-CR-1830, finding the state’s inability to identify a good cause for waiting so long to amend the charges “reeks of surprise and gamesmanship… .”
In particular, the majority held that the original counts were related to Howard’s alleged dealing in and possession of illicit drugs. The counts related to her firearms were related to either enhancing facts or her alleged carrying without a license.
“At no point prior to the State’s motion to amend the information did Howard have any reason to think that the State would seek to use the firearms in any other way or in support of any other possible offenses,” Judge Edward Najam Jr., wrote for the majority. “That is, nothing about the facts underlying the original counts would have impelled a reasonable defense attorney to investigate further the facts on which the amended counts were premised.
“Indeed,” Najam continued, “the explicitly limited use of the firearms in the original counts may well have led Howard to conclude that the State had decided not to pursue any other firearm-related offenses and, thus, that there was no further preparation or defense to be had for any such hypothetical offenses.”
But Judge Robert Altice concurred and dissented in part.
Writing in a separate opinion, Altice asserted the four new charges of neglect of a dependent mirrored the four original neglect charges, with the exception that the new charges alleged the presence and accessibility of unsecured firearms as opposed to illicit drugs.
“Given the other charges Howard faced — especially the fact that the presence of firearms was used to enhance certain offenses — she cannot now claim she was surprised by the new charges or the evidence giving rise thereto,” Altice wrote.
Civil Plenary — Medical Malpractice Act/Disclosure of Health Information
G.F. v. St. Catherine Hospital, Inc, Vatsal K. Patel, D.O., and Indiana Patient’s Compensation Fund
The Indiana Court of Appeals has reversed and remanded a judgement in favor of an East Chicago hospital and doctor after finding the Medical Malpractice Act did not govern a claim alleging the doctor negligently shared information about a patient’s HIV status.
While G.F. was a patient at St. Catherine Hospital, Inc., doctor Vatsal Patel told G.F., in the presence of G.F.’s visiting co-worker, that his “CD4 count is low” and that he needed to see his infectious disease doctor as soon as possible. Patel, who assumed the woman was G.F.’s fiancé, later apologized to G.F. for making the statement while she was in the room.
G.F.’s co-worker and friend recognized the inferences of Patel’s statements as being related to HIV/AIDS and subsequently severed all ties with G.F. He also suggested that “the word is out” at his workplace and that co-workers now “change their path” when they see him coming their way.
In August 2015, G.F. filed a proposed complaint for medical malpractice against St. Catherine and Patel. A medical review panel came to a split decision that found no breach of the standard of care as to the hospital, but concluded G.F.’s claims against Patel hinged upon “a material issue of fact not requiring expert opinion, bearing on liability for consideration by the court or jury.”
G.F. then filed a complaint against St. Catherine, Patel and the Indiana Patient’s Compensation Fund in Marion Superior Court in January 2018, seeking a declaration of law that his claims fell outside the ambit of the Medical Malpractice Act. After permitting the hospital and doctor to file a belated response, the trial court ultimately denied G.F.’s declaratory judgment motion, finding G.F “willingly and voluntarily subjected himself to the MMA.”
But the Indiana Court of Appeals reversed that decision in G.F. v. St. Catherine Hospital, Inc., Vatsal K. Patel, D.O., and Indiana Patient’s Compensation Fund, 18A-PL-2460, finding the trial court abused its discretion in permitting St. Catherine and Patel’s request for additional filing time and its designation of evidence in support thereof.
G.F. and the fund, who presented arguments against the defendants in separate briefs, also argued the trial court erred when it concluded G.F.’s claim against Patel fell within the purview of the MMA. G.F. didn’t argue Patel’s statements led to an inaccurate diagnosis or improper treatment, but instead claimed the communication in front of his co-worker resulted in emotional harm and irreparable loss of privacy.
The appellate court concluded G.F.’s compliant pertaining to the negligent and intentional disclosure of health information was not subjected to the limitations of the MMA based on previous rulings in H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 851-52 (Ind. Ct. App. 2008) and Reed v. Rodarte, 2013 WL 594107 (N.D. Ind. 2013).
“It is the disclosure of confidential information that is the focus of G.F.’s claim; not the services provided by Dr. Patel,” Judge Patricia Riley wrote May 6. “At no point did the broadcast of confidential information to the third party constitute a health care treatment to G.F., nor did Dr. Patel’s statement of G.F.’s HIV status to a third party have a curative or salutary effect on G.F.”
The COA further held that G.F. was not estopped from pursuing a determination that the MMA did not apply to his claims involving negligent dissemination of protected health information.
The appellate court therefore found the award of summary judgement to the defendants to be clearly erroneous and reversed and remanded the case for further proceedings.•