Indiana Supreme Court Clarifies Applicability of Indiana’s Medical Malpractice Act in Sexual Assault and Negligent Credentialing Claims

We previously wrote a blog on the Indiana Court of Appeals decision in Indiana Dep’t of Ins. V. Doe, in which the Court of Appeals found in favor of the Indiana Patient’s Compensation Fund (the Fund) in a claim for excess compensation based upon a pediatrician’s sexual assault of a patient and a hospital’s negligent credentialing of the pediatrician. In the case, during a physical exam, which involves the touching of genitals, a pediatrician sexually assaulted a 12-year-old boy. The boy’s parents (the Does) filed a medical malpractice claim against the pediatrician and his employer, a hospital. Thereafter the Does and the hospital entered into a settlement agreement permitting the Does to pursue excess compensation from the Fund. The Fund in turn filed a motion for summary judgment, arguing it had no liability to pay excess damages because the Does’ claims did not constitute medical malpractice under the Indiana Medical Malpractice Act. While the trial court denied the Fund’s motion, the Indiana Court of Appeals reversed, with the Court finding the pediatrician’s sexual assault was not medical malpractice, but ordinary negligence, and an underlying claim of medical malpractice is required for a negligent credentialing claim.

The Indiana Supreme Court granted transfer, thus vacating the opinion of the Court of Appeals, and ultimately affirmed the trial court’s denial of the Fund’s motion for summary judgment, with the Court resolving three issues of first impression.

First, the Court concluded that the Fund can challenge the applicability of the Medical Malpractice Act in claims for excess compensation. While a healthcare provider’s liability is considered admitted and established in claims for excess compensation, the Court noted that there is a critical distinction between a healthcare provider’s liability and the Fund’s liability, with the Fund being responsible only for claims that fall under the Act. The Court distinguished factual questions of compensability, like whether a patient suffered an injury and what caused it, which the Fund cannot contest, from legal questions of compensability, like whether an injury is one for which the law recognizes a cause of action and which theory of recovery applies, which the Fund can contest. Here, the Court found the Fund’s challenge to the Does’ claims involved a legal question of compensability, namely, whether the claims constituted medical malpractice under the Act or ordinary negligence.

Second, the Court concluded that a negligent credentialing claim can fall under the Indiana Medical Malpractice Act only if the credentialed physician commits medical malpractice. Under the Court’s analysis, a negligent credentialing claim is a not a stand-alone claim, but a secondary claim of liability in which the credentialing hospital and the credentialed physician must have each committed malpractice. While the Court recognized that credentialing is integral to health care, the Court noted that not every act of misconduct by a credentialed physician necessarily constitutes health care. The Court reasoned that without an underlying act of malpractice by the credentialed physician, a negligent credentialing claim lacks the necessary connection to health care. 

Third, the Court concluded that a physician’s sexual assault of a patient during an authorized examination can constitute malpractice if the alleged misconduct stems from an inseparable part of the health care being provided. The Court noted Indiana’s Medical Malpractice Act defines “malpractice” as “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18. “Tort” is defined as “a legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another.” Ind. Code § 34-18-2-28. And “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.” Ind. Code § 34-18-2-13. Thus, under the Court’s statutory analysis, sexual assault is a tort of malpractice if it is based on an act or treatment performed or furnished by a health care provider for, to, or on behalf of a patient during their medical care, treatment, or confinement. Looking at caselaw, the Court noted that there must be a causal connection between the conduct complained of and the patient-healthcare provider relationship, which is absent when the conduct is demonstrably unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. The Court noted that the necessary connection is more likely to be present when, as in this case, a physician assaults a patient during an authorized medical exam that requires the touching of sensitive areas.

Having resolved these three issues, the Court examined the Does’ specific claims. The Court noted that the pediatrician’s sexual assault in this case arose out of an authorized examination that involved the touching of the child’s sensitive areas and the misconduct was based on the pediatrician’s behavior or practices while acting in his professional capacity as a provider of medical services. The Court noted that the misconduct itself does not have to be an “act of health care” to be malpractice, so long as it stems from an inseparable part of the health care being provided during an authorized medical examination. Here, the misconduct was not demonstrably unrelated to the promotion of the boy’s health or the exercise of the pediatrician’s professional expertise, skill, or judgment. The Court accordingly found the designated evidence failed to show the Fund was entitled to judgment as a matter of law. The Court affirmed the trial court’s denial of the Fund’s motion for summary judgment and remanded the case for further proceedings.

You can read the full opinion here.