Seventh Circuit Court of Appeals Asks Indiana Supreme Court to Answer Questions Regarding Application of Indiana’s Medical Malpractice Act

The United States Court of Appeals for the Seventh Circuit recently requested the Indiana Supreme Court address two questions through a process known as certification of questions. Both Seventh Circuit Rule 52(a) and Indiana Rule of Appellate Procedure 64 recognize federal courts may seek guidance from a state’s highest court on questions arising under the law of that state which will control the outcome of a case pending in federal court.

The questions arose out of a tragic car crash in Gibson County, Indiana, which claimed the lives of two drivers and a passenger. Sylvia Watson was driving from a repair shop in Owensville, Indiana to Princeton, when she approached a red light and exclaimed to the sole survivor of the crash, her granddaughter/passenger, Brandy Mayer, that she could not stop the vehicle. Watson’s vehicle struck a vehicle driven by Claudine Cutchin, whose daughter, Adelaide, was in the passenger seat. Claudine died at the scene and Watson and Adelaide died later from the injuries suffered.

A blood test on Watson revealed opiates in her bloodstream and Mayer recounted Watson had taken two pills before leaving the repair shop. It was later discovered that a physician had prescribed Watson eight different medications, including an opioid and muscle relaxers.

Jeffrey Cutchin, as personal representative of his wife and daughter’s estates, followed Indiana’s procedural requirement of filing a proposed complaint with the Indiana Department of Insurance alleging medical malpractice against the prescribing physician and clinic, as well as filing a malpractice claim in the United States District Court for the Southern District of Indiana, naming the prescribing physician and clinic anonymously. Cutchin alleged the provider breached the standard of care by failing to warn Watson of the dangers of operating a vehicle while under the influence of the prescribed medications, failing to screen her for the cognitive impairment caused while taking the medications, failing to adjust the medications to address potential muscle control issues, and by failing to ask the Indiana BMV to assess Watson’s driving ability. Cutchin subsequently amended his federal court complaint to request a declaration concerning the application of the Indiana Medical Malpractice Act (“MMA”) to his claim.

At the time of the alleged malpractice, the Act capped recoverable damages at $1.25 million, with the physician responsible for procuring $250,000 of coverage and paying a surcharge to the Patient’s Compensation Fund (“Fund”), which Fund may be accessed after collection of damages above the physician’s $250,000 exposure. The Fund intervened in the federal district court case, taking the position that the Act did not apply and that the Fund should not have to pay any excess damages.

Before the district court ruled on the applicability of the Act, the district court convened a settlement conference at which the Fund was represented. At the conference, the physician and Cutchin reached a settlement wherein the physician agreed to pay the maximum $250,000 for which he would have been responsible under the Act. Although the Fund did not contribute to the settlement, all parties, including the Fund, executed a memorandum of agreement “which acknowledge the settlement, called for termination of the medical review panel proceedings as to the Physician and Clinic…and noted Cutchin was reserving his right to pursue excess damages from the Fund.”

After the Physician and Clinic were dismissed from the case, Cutchin filed a petition for excess damages from the Fund in the still-pending district court matter. The parties then filed briefs addressing the Fund’s contention that the MMA did not apply. The district court rejected Cutchin’s argument that the settlement between the physician and Fund precluded the Fund from contesting applicability of the Act. And the court found that neither Cutchin, Claudine, nor Adelaide satisfied the definition of “patients” of the physician and clinic under the MMA. Thus, Cutchin was barred from seeking excess damages from the Fund.

Cutchin appealed the decision to the Seventh Circuit Court of Appeals. The Seventh Circuit examined Indiana law and found conflicting decisions as to both issues ruled upon by the district court. First, as to the question of whether a settlement with a medical provider bars the Fund from challenging the applicability of the Act, Cutchin argued that once a claimant has established an underlying limits settlement and is pursuing excess damages, the MMA specifically provides that “the court shall consider the liability of the health car provider as admitted and established.” The Fund argued that Indiana cases have recognized that claimants must first pass a threshold inquiry of whether the subject matter of the claim constituted medical malpractice in the first instance under the MMA. The Seventh Circuit noted Indiana decisions dismissing past claims against the Fund when the physicians who settled the case were determined not to have qualified as providers under the MMA for failing to pay the requisite surcharge (Wisniewski v. Bennett, 716 N.E.2d 892 (Ind. 1999)) and when the subject matter of the claim—for example, sexual molestation of a patient by a hospital technician or a patient’s loss of enjoyment of life for being imprisoned for killing for people when he was released from the hospital—did not “sound in malpractice” (Murphy v. Mortell, 684 N.E.2d 1185 (Ind.Ct.App. 1997) and (Rimert v. Mortell, 680 N.E.2d 867 (Ind.Ct.App. 1997)). However, the Court found language in decisions elsewhere, including Dillon v. Glover, 597 N.E.2d 971 (Ind.Ct.App. 1992), which had been followed by Rimert, suggesting to the Court that Glover had decided “by the express terms of the MMA, the Fund’s liability was established by the settlement with the physician; the matter of proximate cause could therefore not be litigated by the Fund.”

The Court noted it could understand how under these decisions the Fund could believe it could still raise the issue of applicability of the MMA, while at the same time noting that “there is no real doubt that Cutchin’s claim is one founded in malpractice…the Physician was providing medical care to Watson, Cutchin’s claim arises from that care and challenges the propriety of the Physician’s acts and omissions in providing that care, and in order to assess whether the Physician breached his professional obligations to Watson, a factfinder would necessarily have to reference the medical standard of care prevailing in the local community.” The Court further noted that “Indiana recognizes a physician does have a duty to warn and monitor his patient as to the side effects of prescribed medications that may foreseeably endanger not only the patient, but third parties.”

Having determined that clarification was needed as to the effect of the underlying settlement in stopping a threshold challenge by the Fund, the Court then noted some confusion under Indiana decisions as to who constitutes a “patient” under the MMA. Notably, the MMA definition of patient “includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider.” Cutchin noted he falls within this broad definition of a patient and that “it would be ironic if the result of this case would be to limit the recovery of one who was actually treated by a provider (like Watson) while allowing unlimited recovery by third parties injured as a result of the same treatment (like C[l]audine and Adelaide).” The Court again found that although Indiana cases addressed the question of a physician’s duty to third parties and who constitutes a patient under the MMA, “they do not supply a clear answer as to whether Cutchin may pursue relief under the MMA.”

Judge Ilana Rovner’s opinion in Cutchin thoroughly navigates several Indiana cases which she ultimately and quite understandably deemed simply too conflicting to reconcile. In certifying the questions, Judge Rovner notes that questions are “likely to recur” as an accident caused by side effects from a prescription medication is “hardly unusual.” Moreover, she notes it will be quite helpful to third-party claimants, healthcare providers, and their insurers, as well as the “bench, bar, and citizenry of Indiana” to have correct answers to the certified questions. Indeed, it will be, and we look forward to discussing the Indiana Supreme Court’s ultimate opinion on these issues.