Judgment for IU Health on a complaint stemming from a near-fatal surgery has been reversed, with the Indiana Court of Appeals finding an issue of fact as to whether the patient in question knew his anesthesiologist was an independent contractor.
On the day that Richard Jernagan was due to have spine surgery, he was handed a business card for Dr. Michael Miller, the anesthesiologist who would be assisting the surgeon during the procedure. However, Jernagan was not informed that the anesthesiologist was an independent contractor and not an employee of IU Health, where his surgery was performed.
When Jernagan suffered a cardiac arrest during the procedure and had to be resuscitated, it was Miller who spoke with Jernagan’s family about what had happened. Later, Miller corresponded directly with Jernagan’s wife to answer questions about her husband’s prognosis.
After an adverse ruling from a medical review panel – which did not address Miller’s conduct – Jernagan sued his surgeon and IU Health in Marion Superior Court. The surgeon was later dismissed at Jernagan’s request, while IU Health moved for summary judgment on Jernagan’s claim that it was vicariously liable for Miller’s acts during the procedure.
The hospital’s initial summary judgment motion was denied, but it prevailed on a second motion, with the trial court concluding that “by providing [Jernagan] with Dr. Miller’s business card at check-in prior to surgery, [IU Health] sufficiently notified [Jernagan] that it was not the provider of anesthesia care.” Therefore, the trial court ruled, the hospital was not vicariously liable pursuant to Sword v. NKC Hospitals, Inc., 714 N.E.2d 142 (Ind. 1999).
Additionally, the trial court concluded IU health was entitled to summary judgment because Jernagan had “failed to identify any expert to testify that IU Health, through the actions or conduct of its nursing staff, breached the applicable standard of care.”
The Indiana Court of Appeals, however, reversed that decision Monday in Richard Jernagan v. Indiana University Health, a/k/a Indiana University Health ACT, Inc., 20A-PL-41.
Ruling first on IU Health’s cross-appeal, the appellate court held that because Jernagan requested that the trial court extend his deadline to file his response to the hospital’s motion for summary judgment pursuant to the directives of HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008), Jernagan’s response was timely and would not be stricken.
Turning next to Jernagan’s argument, the panel concluded that a genuine issue of material fact exists as to whether the business card could be considered meaningful written notice to Jernagan, acknowledged at the time of admission, that Miller was an independent contractor.
Additionally, the court concluded that given the Sword analysis, vicarious liability claims do not fall within the purview of the medical review panel or the Medical Malpractice Act.
“Accordingly, as the medical review panel’s procedure is a legal construction solely used in medical malpractice claims, we conclude that Jernagan did not need to file a proposed Complaint with respect to Dr. Miller to the medical review panel prior to commencing a vicarious liability claim against IU Health,” Judge Patricia Riley wrote. “As there is a genuine issue of material fact whether IU Health can be held vicariously liable pursuant to the Sword doctrine, we reverse the trial court’s grant of summary judgment to IU Health on this issue.”