Health care provider doesn’t retain immunity from med-mal suit for causing abuse report, COA rules in reversal

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An amendment to the child abuse or neglect reporting statute represents a policy determination that a health care provider who hasn’t acted with gross negligence or willful misconduct doesn’t retain immunity from a medical malpractice action for causing a report of child abuse, the Court of Appeals of Indiana has ruled in reversing a lower court.

Jasmine McNeil filed a proposed complaint individually and on behalf of her three children to the Indiana Department of Insurance against an anonymous hospital and other qualified health care providers, accusing the hospital of medical malpractice.

The proposed complaint was based on incorrect laboratory test results that led to a misdiagnosis and that caused an erroneous report of child abuse. McNeil claimed the hospital’s alleged malpractice was the proximate cause of the emotional distress and other damages she and her children have suffered as a result of the child abuse investigation.

The hospital sought an initial determination of law and asked the St. Joseph Superior Court to enter summary judgment against McNeil.

The hospital argued it has statutory immunity from McNeil’s claims under Indiana Code § 31-33-6-1(a), which generally grants qualified immunity to a person who makes or causes to be made a report of child abuse or neglect.

McNeil countered that under I.C. 31-33-6-1(b), the immunity provided under the reporting statute doesn’t apply to a qualified health care provider defending an action for medical malpractice.

The trial court granted the hospital’s motion for preliminary determination and motion for summary judgment.

McNeil filed a motion to correct error, which was denied.

On appeal, McNeil argued the reporting statute doesn’t bar a medical malpractice claim where the examination, tests or diagnosis underlying the report support such a claim.

The Court of Appeals agreed.

The Indiana Legislature added subsection (b) to the statute in question in 2018. It says subsection (a) “does not apply to an action brought against a qualified health care provider for medical malpractice under IC 34-18-8.”

The hospital argued that the amendment creates ambiguity, but McNeil contended subsection (b) is unambiguous.

“These subsections complement one another,” the opinion says. “One subsection is simply an exception to the other subsection.”

The appellate court ruled subsections (a) and (b) can “easily be harmonized and reconciled.”

“Thus, we hold that the qualified immunity provided under subsection (a) does not preclude a cause of action for medical malpractice as provided under subsection (b) arising from the same facts,” the opinion says. “In other words, where medical negligence causes or contributes to an otherwise lawful report of suspected child abuse or neglect, the reporting statute does not preclude a medical malpractice claim arising from the same facts, evidence, and circumstances leading to the report. Subsection (a) and subsection (b) can be harmonized and, thus, the reporting statute and the Medical Malpractice Act are mutually exclusive.”

The Court of Appeals next addressed whether the subsection (b) amendment abrogates the court’s opinion in Anonymous Hospital v. A.K., 920 N.E.2d 704 (Ind. Ct. App. 2010).

In that case, the court held that under subsection (a), the hospital was afforded immunity from a medical malpractice action “for the good faith reporting of suspected child abuse, as required by statute, and … that such immunity extends to the underlying diagnosis … .”

The hospital in the case at hand argued A.K. is controlling, contending A.K. would survive subsection (b).

The Court of Appeals disagreed, ruling the amendment abrogated its past decision.

“To accept the Hospital’s theory would require that we entirely ignore the 2018 amendments, which added subsection (b),” the opinion says. “The Hospital’s theory finds no expression in the statute.”

The Court of Appeals also addressed a number of other arguments from the hospital, including that it would be “illogical” for subsection (b) to defeat the legislative intent expressed in subsection (a).

“We conclude that subsection (b) is not ‘illogical’ simply because it removes medical malpractice claims from the scope of subsection (a),” the opinion says. “These two subsections are not incompatible and can co-exist.”

The appellate court directed the trial court to deny the hospital’s motion for summary judgment and remanded the case for further proceedings.

Senior Judge Edward Najam Jr. wrote the opinion. Judges L. Mark Bailey and Terry Crone concurred.

The case is Jasmine McNeil, individually and on behalf of Arth’dara McNeil, Chyna Brown, and Imoni Brown, Minors v. Anonymous Hospital, Anonymous M.D., Anonymous Emergency Physicians, Inc., Anonymous Medical Foundation, Inc., and Amy L. Beard, in her capacity as Acting Commissioner of the Department of Insurance, 22A-CC-2209.

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