7th Circuit certifies 2 med-mal questions to Indiana Supreme Court

The 7th Circuit Court of Appeals has certified two questions to Indiana’s Supreme Court justices in a Wednesday opinion, asking for clarification in a Medical Malpractice Act dispute.

In 2017, Jeffrey Cutchin’s wife and daughter were killed in an automobile accident when another driver, Sylvia Watson, ran a red light and struck their vehicle. Watson also died from injuries two weeks after the crash.

Watson, who took two prescription pills prior to the accident, approached the intersection and informed her passenger that she couldn’t move her foot from the accelerator to the brake. Blood tests following the accident revealed that Watson had been under the care of two different healthcare providers who prescribed some eight different medications to Watson, including an opioid and muscle relaxers.

Cutchin, as the representative of his wife and daughter’s estates, alleged on appeal that Watson’s driving ability was impaired as the result of medications she had been prescribed. He filed a malpractice suit against Watson’s healthcare providers, charging them with negligence for, among other omissions, an alleged failure to warn Watson that she should not be driving given the known motor and cognitive affects of the medications she was taking.

After the providers and their malpractice insurer agreed to a settlement of $250,000, the maximum amount for which they can be held individually liable under the Indiana Medical Malpractice Act, Cutchin sought further relief from the Indiana Patient’s Compensation Fund. That fund acts as an excess insurer, but argued that the MMA did not apply to Cutchin’s claim. It further argued that Cutchin was barred from seeking excess damages from the fund.

The U.S. District Court for the Southern District of Indiana agreed, prompting the 7th Circuit appeal. However, upon finding that the important state law questions presented by Cutchin on appeal were dispositive of the case and likely to recur, the 7th Circuit noted that existing Indiana caselaw sends conflicting signals.

First, the 7th Circuit posed the following question: Whether Indiana’s Medical Malpractice Act prohibits the Patient’s Compensation Fund from contesting the Act’s applicability to a claim after the claimant concludes a court‐approved settlement with a covered health care provider.

Its second question asks whether Indiana’s Medical Malpractice Act applies to claims brought against qualified providers for individuals who did not receive medical care from the provider, but who are injured as a result of the provider’s negligence in providing medical treatment to someone else.

“True, the circumstances in (Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011)) may be distinguished for precisely the reasons that (Preferred Prof. Ins. Co. v. West, 23 N.E.3d 716, 732 (Ind. 2014)) articulated. But West does not answer the question why, as a matter of logic, when a physician’s malpractice proximately causes injuries not just to his patient but also to a third party whom the patient encountered, both may not seek relief for the malpractice under the MMA,” Circuit Judge Ilana Rovner wrote for the panel, consisting of Chief Judge Diane Sykes and Circuit Judge Joel Flaum.

“These questions leave us uncertain as to precisely how a negligence claim like the one that Cutchin pursues should be treated. The scenario underlying his claim may not be one that occurs frequently, but as cases like (Cram v. Howell, 680 N.E.2d 1096 (Ind. 1997)) and (Manley v. Sherer, 992 N.E.2d 670 (Ind. 2013)) reveal, it is one that recurs. The viability of Cutchin’s claim turns exclusively on Indiana law as established by both the terms of the MMA and the Indiana cases interpreting those terms. It is important to the courts and citizens of Indiana that the questions presented be answered authoritatively,” the 7th Circuit wrote.

“We submit these questions with respect and with the hope that the Court will lend us its guidance in agreeing to answer these questions. Resolution of the merits of this appeal is stayed pending the Indiana Supreme Court’s decision.”

The case is Jeffrey Cutchin v. Stephen Robertson, 20-1437.

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