Immunity Under Indiana’s Worker’s Compensation Act Does Not Bar Claims Against Co-Employee Physicians Arising Out of Doctor-Patient Relationships

The Indiana Court of Appeals recently considered whether a nurse who suffered a workplace injury can pursue a medical malpractice claim against a co-employee physician who treated the nurse for her injuries despite the exclusivity provision of Indiana’s Worker’s Compensation Act (WCA). In Gardner v. Anonymous Physician, Laurie Gardner (“Gardner”) contracted scabies from another patient while working for a hospital. Gardner filed a worker’s compensation claim against the hospital, which was subsequently resolved. Gardner also filed a medical malpractice claim against a co-employee physician, who was the medical director at the hospital, alleging the physician failed to timely and appropriately treat the patient with scabies, protect Gardner from exposure to scabies, which her family also contracted, direct Gardner’s care, provide appropriate and timely treatment to Gardner, and refer Gardner to an appropriate specialist for treatment.

The physician filed a motion for preliminary determination in court requesting that Gardner’s medical malpractice claim be dismissed pursuant to Indiana Trial Rule 12(B)(1) for lack of subject matter jurisdiction. The physician argued Gardner’s claim was foreclosed by the exclusivity provision of the WCA, which provides that an employee’s rights and remedies under the WCA providing compensation for accidental injuries arising out of and in the course of employment exclude all other rights and remedies of the employee, except for remedies for victims of violent crimes. Ind. Code § 22-3-2-6. However, despite its exclusivity provision, the WCA specifically permits employees to pursue claims against third parties causing injury, that is, persons other than an employer and those “in the same employ.” Ind. Code § 22-3-2-13. The WCA defines “employer” broadly to include parent corporations and subsidiaries, which are deemed joint employers. Ind. Code § 22-3-6-1(a). Here, under the WCA, the hospital for which Gardner worked was a joint employer of the physician, and therefore, he was “in the same employ” as Gardner. As such, the trial court granted the physician’s motion to dismiss Gardner’s malpractice claim.

On appeal Gardner argued, based upon the Court of Appeals’ decision in Ross v. Schubert, 388 N.E.2d 623 (Ind. Ct. App. 1979), that the physician was an independent contractor and therefore not a fellow employee in the same employ as Gardner. The physician in turn argued the holding in Ross had eroded over time and was no longer applicable. While recognizing that the independent contractor rationale in Ross was no longer applicable, the Court of Appeals nonetheless found the holding in Ross was still good law. The Court in Ross had noted that prior to the legislature adding the language “in the same employ” to the WCA, the Indiana Supreme Court had adopted a rule that a physician, whether hired by an employer or not, was a third party under the WCA, with the Court in Ross finding the addition of that language was not intended to immunize physicians for care arising out of a doctor-patient relationship as opposed to an employer-employee relationship.

Here, the Court of Appeals reaffirmed the holding in Ross that immunity under the WCA exclusivity provision does not apply to claims of medical negligence arising out of a doctor-patient relationship between a claimant and a physician. With that said, however, the Court noted that the holding in Ross does not mean that a physician can never have immunity under the WCA. As applicable to Gardner’s claims, the Court found any of her claims attempting to hold the physician liable for actions unrelated to her doctor-patient relationship with the physician were barred, including any claims relating to her exposure and contraction of scabies, as such arose from her employment relationship. The Court found Gardner could, however, pursue her claims arising out of any doctor-patient relationship to the extent such existed, including any claims that the physician negligently directed her care with regards to her scabies condition, failed to provide appropriate and timely treatment, and failed to appropriately refer her to a specialist for treatment. As such, the Court of Appeals reversed the trial court’s dismissal of Gardner’s medical malpractice claim and remanded the case for further proceedings consistent with its opinion.

You can read the full opinion here.