Claims Against Athletic Trainer Fall Under Indiana Medical Malpractice Act: In its Opinion dated June 4, 2023, the Court of Appeals of Indiana held: “the trial court erred by denying Appellants’ motion to dismiss because IncreMedical and AT Gonzalez are qualified health care providers pursuant to the MMA and Kennedy failed to present her proposed complaint to the medical review panel prior to commencing this cause before the trial court.”
Underlying Facts
IncreMedical is a rehabilitation management company that employs approximately 380 individuals and provides a wide variety of resources and personnel in the field of rehabilitation medicine. IncreMedical provides staffing and management of rehabilitation facilities in northern Indiana and surrounding communities. As part of its business services, IncreMedical employs a wide array of health care professionals, including physical therapists and occupational therapists. Annie Gonzalez was an employee of IncreMedical and was acting in the course and scope of her employment with IncreMedical.
On August 22, 2019, Alyssa Kennedy, then a high school student, was playing volleyball at Portage High School. During the game, both Kennedy and a teammate went for a ball and collided. Kennedy was knocked to the ground and her head struck the floor. Kennedy was referred to Athletic Trainer (AT) Gonzalez, working as an IncreMedical employee and contracted to work at Portage High School. AT Gonzalez advised Kennedy’s mother that “there is no use in going to the hospital” because a concussion is not visible on a scan. The following day, Kennedy informed AT Gonzalez that she had a terrible headache. Without doing an impact test as required by Portage High School’s safety policies and procedures, AT Gonzalez cleared Kennedy for practice. Three days later, Kennedy participated at another volleyball game at Portage High School. During the game, Kennedy was struck in the head by a ball. She was clearly dazed and confused. Again, AT Gonzalez advised Kennedy’s mother “that there was no use in going to the ER because there isn’t anything they can do to treat a concussion.”
On August 4, 2021, Kennedy filed her Complaint against Portage High School and Portage Township Schools (collectively, Portage High School), claiming to have sustained a brain injury due to Portage High School’s and its employees’ negligence in failing to follow its safety rules and procedures. On September 30, 2021, Portage High School filed its answer, naming AT Gonzalez and IncreMedical as non-parties. On January 3, 2022, Kennedy amended her
Complaint, adding AT Gonzalez and IncreMedical as defendants and alleging that AT Gonzalez “failed to recognize [Kennedy’s] brain injury” and “failed to perform proper tests regarding concussions and brain injuries.”
On April 6, 2022, the defendants filed their motion to dismiss Kennedy’s Complaint, alleging the trial court lacked subject matter jurisdiction over Kennedy’s claims pursuant to Indiana Code section 34-18-8-4 because Kennedy had failed to submit a proposed complaint naming Appellants to a medical review panel. Together with their motion to dismiss, the defendants provided an affidavit from the Indiana Department of Insurance (IDOI) verifying that IncreMedical was a qualified health care provider pursuant to Indiana’s Medical Malpractice Act (MMA) and an affidavit by Ann Miller (Miller), IncreMedical’s Human Resource Manager, averring that AT Gonzalez was an employee of IncreMedical acting within the course and scope of her employment.
The Court of Appeals of Indiana held: “AT Gonzalez is protected under the MMA pursuant to the catch-all provision included in Indiana Code section 34-18-2-14. Specifically, the MMA is applicable to AT Gonzalez by virtue of being “a person who is an [] employee [] of the [] professional corporation, facility, or institution [and who was] acting in the
course and scope of the person’s employment” … Accordingly, as IncreMedical and AT Gonzalez are qualified health care providers under the MMA, Kennedy must present her proposed complaint to a medical review panel prior to commencing an action in the trial court. I.C. § 34-18-8-4. Kennedy failed to do so. Because the trial court lacked subject
matter jurisdiction, we reverse the trial court’s denial of Appellants’ motion to dismiss.”
Source IncreMedical, LLC v. Kennedy, No. 22A-CT-2929.
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