Indiana Court of Appeals Abandons Recently Espoused “Current Test” as to Applicability of Indiana’s Medical Malpractice Act

The Indiana Court of Appeals recently backtracked on one of its more recent opinions on the applicability of the Indiana Medical Malpractice Act (MMA) and held in Doe v. Indiana Dep’t of Ins. that a plaintiff’s claims of sexual battery by a nurse while hospitalized do not fall under the MMA. In Doe, Jane Doe (Doe) was admitted to Indiana University Ball Memorial Hospital (the Hospital) after suffering a stroke. One of the hospital’s nurses, Nathanial Mosco (Mosco), sexually assaulted Doe and was thereafter convicted of battery. Doe filed a lawsuit against Mosco and the Hospital in court and before the Indiana Department of Insurance (IDOI). Doe and the Hospital entered into a settlement agreement for $400,000, which would allow Doe to pursue further damages from the Indiana Patient’s Compensation Fund (the Fund), which is administered by the IDOI. However, the settlement agreement provided that the settlement was not conditioned on Doe’s ability to recover additional damages from the Fund. After Doe filed a petition for excess damages against the Fund, the Fund moved for summary judgment arguing the MMA did not apply, and therefore, it had no obligation to pay any excess damages, even if warranted. The trial court granted the Fund’s motion for summary judgment and Doe appealed.

The MMA applies to claims of medical malpractice against healthcare providers that are qualified under the MMA. Qualified healthcare providers have numerous protections under the MMA, including, among other things, a cap on damages. Ind. Code § 34-18-14-3. Under the MMA, if a qualified healthcare provider or its insurer has agreed to settle its liability by payment of its limits, a claimant is then allowed to seek excess damages from the Fund. Ind. Code § 34-18-15-3. However, not all claims against qualified healthcare providers constitute medical malpractice.

Over the years, court decisions have delineated tests as to what constitutes medical malpractice. These tests include whether the claim involves curative or salutary conduct of a healthcare provider acting in a professional capacity, whether the subject conduct was related to the promotion of a patient’s health and the provider’s exercise of professional expertise, skill, or judgment, and whether the issues in the case are capable of resolution by a jury without application of the standard of care. However, in the recent Indiana Court of Appeals decision in Martinez v. Oaklawn Psychiatric Ctr., Inc., the Court stated that “the current test… as to whether the [MMA] applies to specific misconduct is to determine whether that misconduct arises naturally or predictably from the relationship between the health care provider and patient or from an opportunity provided by that relationship,” with the Court also noting such conduct may include tortious or abusive conduct. Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549, 558 (Ind. Ct. App. 2019).

On appeal here, Doe argued that under Martinez the applicability of the MMA is no longer limited to curative or salutary conduct of a healthcare provider while acting in a professional capacity or to conduct related to the promotion of a patient’s health and the provider’s exercise of professional expertise, skill, or judgment, factors which were not present in Mosco’s sexual assault. Instead, Doe argued Mosco’s sexual assault arose naturally or predictably from the relationship between Mosco/the Hospital and Doe, or from an opportunity provided by that relationship, given Mosco’s employment as a nurse authorized to provide certain medical care. However, the Court of Appeals backtracked on the “current test” espoused in Martinez, refusing to find it supplanted established law as to what constitutes medical malpractice. The Court noted that in Martinez it did not actually even apply the test, and the test had not been cited or applied by the Court since Martinez. The Court went on to distinguish Martinez based upon the established factors and, with reference to previous decisions finding the MMA inapplicable to sexual misconduct claims, held Doe’s claims did not fall under the MMA and therefore she could not recover from the Fund.

You can read the full opinion here.