COA allows nurse’s med-mal complaint against doctor to continue

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A nurse who contracted a skin infection through her work at a Hobart hospital can pursue a medical malpractice complaint against a physician, the Court of Appeals of Indiana ruled in a Thursday reversal.

According to court records, Laurie Gardner, a nurse at St. Mary Medical Center in Hobart, contracted scabies from contact with a patient and then unknowingly exposed her family, resulting in family members contracting the skin infection.

Gardner filed a workers’ compensation claim against the hospital in March 2018, which was settled by a compromise agreement in October 2019.

In May 2018, she filed a proposed complaint against the physician with the Indiana Department of Insurance. She alleged that the physician — who was medical director of the hospital’s Infection Control and Wound Care Department — failed to protect her from exposure to and failed to diagnose the scabies, which led to a delay in appropriate treatment.

That failure to diagnose, she argued, caused her to unknowingly expose her family to scabies, which resulted in her family members also contracting scabies.

The physician sought dismissal under Indiana Trial Rule 12(B)(1), arguing that Gardner had “exhausted her sole remedy, a worker’s compensation claim, upon a workplace accident and subsequent medical care which occurred when she and [Anonymous Physician] were employed by subsidiaries of the same corporate parent(s).”

The Lake Superior Court granted the motion to dismiss, but the Court of Appeals reversed.

On appeal, Gardner argued that physicians are third parties under the Worker’s Compensation Act and thus are not shielded from claims of medical negligence brought by an employee of the same company.

She relied on Ross v. Schubert, 388 N.E.2d 623 (Ind. Ct. App. 1979), for her argument that the physician cannot be considered to have been in the same employ as her because “as a matter of law physicians are independent contractors and not ‘fellow employees.’”

The physician recognized the holding in Ross but argued that it had been eroded over time and should no longer be followed.

“We do not believe that Anonymous Physician has made a good case for abandoning the holding of Ross, which, though battered, has remained standing since 1979 and has not been altered by any of the multiple amendments to I.C. § 22-3-2-13 since that time,” Chief Judge Robert Altice wrote. “Its holding, however, does not extend so far as Gardner attempts to employ it.

Ross does not hold that a physician can never benefit from the WCA’s fellow employee immunity provision,” Altice wrote. “It holds only that immunity does not apply to claims of medical negligence arising out of a doctor-patient relationship between the claimant and the physician.

“… Gardner’s exclusive remedy for this workplace injury was through the WCA, and she cannot sue Anonymous Physician for negligence based on him allegedly failing to timely diagnose the patient and protect Gardner from exposure to scabies or for his general handling of the scabies outbreak in his role as medical director,” he continued. “That said, to the extent the physician directly engaged in a doctor-patient relationship with Gardner after her exposure and exercised independent medical judgment to treat her, his status then changed to that of a third party, making him subject to liability for any aggravation of her workplace injury resulting from his negligent treatment of her.”

Thus, “While Gardner’s proposed complaint does not contain a positive assertion that an actual doctor-patient relationship existed between her and Anonymous Physician, the allegations suggest — sufficiently to withstand dismissal — that such a relationship existed (namely, Gardner alleged that Anonymous Physician negligently directed her care, failed to provide appropriate and timely treatment, and failed to refer her to appropriate specialists for treatment),” the COA concluded. “This matter may be fleshed out more on remand, but at this early stage and on this limited record, Anonymous Physician has failed to establish that the trial court lacked jurisdiction to hear this medical malpractice action.”

Judges Melissa May and Peter Foley concurred in Laurie Gardner v. Anonymous Physician, 23A-CT-345, which was remanded for further proceedings.

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