Whether a claim is a case of ordinary negligence or medical malpractice is important because it is one of the deciding factors determining if a case is subject to the Indiana Medical Malpractice Act. (Ind. Code §34-18-et seq. referred to after as “the act”). The second deciding factor is whether the defendant provides proof of financial responsibility with the Commissioner of the Indiana Department of Insurance to become a “qualified provider.” [1]
Whether a claim is subject to the act is important for two reasons:
Is the plaintiff required to go through a medical review panel before filing the case in court?[2]
Is the plaintiff subject to the act’s damage caps?[3]
How Negligence and Medical Malpractice Differ
The Act defines “malpractice” as a “tort or breach of contract based on health care or professional services provided or that should have been provided by a health care provider to a patient.” To be within the act, the underlying negligence must constitute “health care.” “Health care” is defined as an “act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” General Negligence claims are outside the scope of the act. Not every negligent act or omission by a health care provider constitutes medical malpractice. Methodist Hospital of Indiana v. Ray, 551 N.E.2d 463 (Ind. Ct. App. 1990), summarily aff’d on transfer, 558 N.E.2d 829 (Ind. 1990); Putnam Cty. Hosp. v. Sells, 619 N.E.2d 968,970 (Ind. Ct. App. 1993).
A mere connection with a healthcare provider or providing care to a patient does not automatically fall within the act. See e.g., Pluard ex rel. Pluard v. Patients Compensation Fund, 705 N.E.2d 1035 (Ind. Ct. App. 1999) Application of the act was denied when a surgical lamp positioned over the patient by hospital janitorial staff became detached and fell on the patient. The court determined the claim in (Ray, 558 N.E.2d 829) was outside the act. Another case involved a hospital’s negligence, which allowed the facility to become infested with a deadly Legionnaire’s Pneumonia Virus outbreak. Both cases were in medical facilities, one during a procedure, but neither met the standard for application of the act. General negligence can occur even during ongoing medical treatment if the negligent act itself does not involve curative or salutary conduct, the promotion of the patient’s health, or the exercise of professional expertise, skill, or judgment. See, e.g., Thomas v. Deitsch, 743 N.E.2d 1218, 1220-21 (Ind. Ct. App. 2001); Pluard, 705 N.E.2d at 1038. “The test to determine whether a claim is medical malpractice is determined by whether it’s based on the provider’s behavior or practices while acting in his professional capacity as a provider of medical services.” B.R. ex rel. Todd v. State, 1 N.E.3d 708, 714 (Ind. Ct. App. 2013).
Legal Direction for Determining Medical Malpractice
When deciding whether a claim falls under the act, judges are directed to look at the substance of a claim when establishing applicability. In Doe by Roe, 652 N.E.2d. at 104, a case was presented as an ordinary negligence claim but was later determined by judges to be medical malpractice. “To fall outside the Act, a health care provider’s actions must be demonstrably unrelated to promoting the plaintiff’s health or an exercise of the provider’s professional expertise, skill, or judgment.” Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 186 (Ind. 2011).
Claims held to be outside the act can generally be placed into one of five categories:
Premises liability: Premises liability is a significant question within this topic and will be covered in greater detail. We will explore three examples of medically related premises liability.
Conduct that does not require any medical training or certifications: The best example of this exception from the Act is OB-GYN Associates of N. Indiana, P.C. v. Ransbottom, 885 N.E.2d 734 (Ind. Ct. App. 2008). Here, a plaintiff brought a claim for burns she received as a result of an allegedly negligent cosmetic hair removal procedure. The procedure was performed by an R.N. at an OB/GYN office. However, the designated evidence showed the procedure was often performed in beauty salons by beauty salon employees. Ransbottom, 885 N.E.2d at 739. The defendant moved to dismiss the case under T.R. 12(B)(1) for lack of subject matter jurisdiction because the matter had not proceeded through a medical review panel. It argued the act in question constituted “health care” because it was performed by a registered nurse who worked for a health care provider, utilized equipment that required training, so it involved the exercise of skill and expertise, and involved “medicinal implications and complications” by its improper use. Ransbottom, 885 N.E.2d at 738. The court held this was insufficient to render the act “health care,” so the claim was outside the act.
Sexual misconduct: The cases involving sexual misconduct by a provider against a patient unanimously hold that the claims are outside the act. See Murphy v. Mortell, 684 N.E.2d 1185 (Ind. Ct. App. 1997) (allegations that a respiratory technician molested her were outside the act because the conduct did not constitute a rendition of health care or professional services); Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d 101 (Ind. Ct. App. 1995) (defendant mental health counselor’s conduct, while infected with chlamydia, subjecting the plaintiff to inappropriate conduct, including sexual assault and molestation, was outside the act because it did not constitute rendition of healthcare); Collins v. Thakkar, 552 N.E.2d 507 (Ind. Ct. App. 1990) (defendant’s conduct in having a sexual relationship with the patient and engaging in unapproved conduct to cause miscarriage was outside the act because it was not designed to promote the patient's health). The primary factor used by the courts to determine whether sexual misconduct does not constitute “health care” is that it is not designed to be curative in nature. These cases contrast with claims by a patient that a provider did not use reasonable care in preventing sexual misconduct by third parties. In the latter context, courts have held that using reasonable care to prevent sexual misconduct by third parties is curative, governed by a standard of care, constitutes “health care,” and, thus, is governed by the act.
Disclosure of private health information: The trial court found the claim was subject to the act, and the patient appealed. The Indiana Court of Appeals began its analysis by reaffirming the following important principle in interpreting the act: “Since its enactment in 1975, the [act] has dictated the statutory procedures for medical malpractice actions. The [act] is not all-inclusive for claims against healthcare providers, nor is it intended to be extended to cases of ordinary negligence. Instead, the [act] was designed to curtail, not expand, liability for medical malpractice. As such, the [act] is in derogation of common law and should be narrowly construed.” G.F., 124 N.E.3d at 84. It then stated: “General negligence can occur during the course of ongoing medical treatment if the negligent act itself does not involve curative or salutary conduct, the promotion of the patient’s health, or the exercise of professional expertise, skill, or judgment.” Id. The Court of Appeals reversed the trial court’s determination that the claim was subject to the act, stating: “At no point did the broadcast of confidential information to the third party constitute health treatment to G.F., nor did Dr. Patel’s statement of G.F.’s HIV status to a third party have a curative or salutary effect on G.F. Furthermore, as in BHC Meadows Hospital and Rodarte, we do not determine expert testimony to be necessary as “an average juror is equally equipped” to consider the elements of a state law privacy claim.” G.F., 124 N.E.3d at 89 (citing H.D. v. BHC Meadows Hospital, Inc., 884 N.E.2d 849, 851-52 (Ind. Ct. App. 2008) and Reed v. Rodarte, 2013 U.S. Dist. Lexis 20478 (N.D. Ind. 2013)).
Administrative conduct that can be decided without application of the standard of care: Language from several cases suggests that negligence in routine, administrative tasks should not be considered “health care” subject to the act. See G.F. 124 N.E.3d at 85 (conduct was general negligence, in part, because it did not involve the exercise of professional expertise, skill, or judgment); Ransbottom, 885 N.E.2d at 739 (conduct was general negligence because it could be performed by non-medical personnel without professional supervision); Robertson, 63 N.E.3d at 358 (A fair reading of decisions on this issue indicates that the court’s true focus is on whether the issues were capable of resolution without referring to the medical standard of care; if so, the claims are not subject to the act.).
Final Considerations for Patients Before Filing a Claim
Whether alleged negligent conduct by a “qualified provider” constitutes medical malpractice or standard negligence is a very fact-sensitive inquiry. To properly protect any claim where the nature of it may be in doubt, the counsel’s best course of conduct is to dual file the action with the Indiana Department of Insurance and in court. The key considerations will include whether the claim is based on a defective premise or defective medical care. Another consideration is whether the conduct in the claim is salutary or curative in nature and whether the conduct legally requires medical training or certification. The conduct involved would also need to display the exercise of professional expertise, skill, or judgment. If a claim is only filed with the Indiana Department of Insurance, and it turns out the defendant is unqualified and not subject to the act, the claim is tolled from the time it was filed until the time the plaintiff receives the “unqualified” notification letter from the Department. Miller v. Terre Haute Reg’l Hospital, 603 N.E.2d 861, 863 (Ind. 1992).
It's important to know for sure whether your accident is classified as a negligent act or a case of medical malpractice. It’s an important distinction with serious ramifications for your case. There are different laws governing medical malpractice, and when mistakes are made, victims have a right to fight for compensation.