Health care entities win at COA in Notre Dame med-mal dispute

The Indiana Court of Appeals has affirmed judgment in favor of several health care entities that operate a wellness center at the University of Notre Dame, despite a woman’s fight for her husband who was paralyzed soon after being treated there as an employee.

Shawn Rossner, a maintenance worker at the University of Notre Dame, visited the Notre Dame Wellness Center three times for flu-like symptoms he was experiencing in March 2014. The wellness center, operated by Take Care Health Systems and Premise Health and Healthworks Med Group of Indiana, was the on-site workplace wellness center for employees of the university that employs a full-time physician, nurse practitioners and registered nurses.

During his first visit, the center’s medical director assessed Rossner and believed he had a viral infection consistent with influenza and prescribed him Tamiflu for five days. At his follow-up visit three days later, Rossner presented with joint pain, difficulty walking, body aches, an occasional rash and an intermittent fever, among other things. He was administered intravenous fluids for dehydration and was treated with a precautionary antibiotic in case of pneumonia.

At his third and final visit, Rossner said he was feeling better and was well enough to return to work. However, his condition deteriorated within two days, which landed him in an emergency room. There he was diagnosed with bacterial endocarditis, admitted to the intensive care unit and subsequently suffered a hemorrhagic stroke, which left him paralyzed and unable to speak.

His wife and legal guardian, Cynthia Rossner, later sued for medical malpractice and initiated several amended proposed complaints thereafter with the Indiana Department of Insurance against Take Care and Healthworks. She alleged the two entities “failed to meet the reasonable and accepted standard of medical care to which [they are] subject” and that failure was a proximate cause of Shawn’s injuries.

In 2018, Cynthia filed a complaint for damages and demand for jury trial against the defendants alleging negligence and loss of consortium. She alleged, and the defendants specifically denied, that Indiana’s Medical Malpractice Act did not apply to Rossner’s claims and that Rossner did not learn of the records policy until Oct. 31, 2017.

The defendants filed a motion to dismiss, which the St. Joseph Superior Court treated as a motion for summary judgment. The trial court ultimately ruled in the defendants’ favor, prompting Cynthia to file a motion to correct error, which the trial court denied.

The Indiana Court of Appeals affirmed Thursday in Cynthia Rossner, Individually and as Legal Guardian of Shawn Rosnner v. Take Care Health Systems, LLC, et al., 20A-CT-1955.

“In granting summary judgment in favor of the Defendants, the trial court found that Rossner’s claim is subject to the MMA. Rossner disagrees and contends the claim is one for ordinary negligence. We agree with the trial court,” Judge Margret Robb wrote.

“The parties disagree as to when the statute of limitations began to run, namely whether it began on March 8, 2014, the occurrence of the alleged malpractice, or October 31, 2017, when Rossner alleges it discovered Defendants’ policy on locum tenens physicians’ access to patient records. However, assuming arguendo that the statute of limitations began to run on October 31, 2017, as Rossner contends, the statute of limitations would be fatal to any claim Rossner were to now file with the DOI as it has been over two years,” Robb wrote.

“Because Rossner failed to present its proposed complaint to the DOI, the trial court was without jurisdiction to hear the case on the merits, and it properly granted summary judgment in favor of Defendants on this issue,” the panel concluded.

The appellate court concluded that no genuine issues of material fact existed and that the defendants were entitled to judgment as a matter of law.

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