Inappropriate Sexual Contact During Medical Examination Is Not Medical Malpractice: The Indiana 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.” I.C. § 34-18-2-18. A claim is subject to the Indiana Medical Malpractice Act if (1) the alleged tortious conduct involves provision of medical services and (2) the rendering of medical services is to the plaintiff for the plaintiff’s benefit.
In an Indiana lawsuit claiming battery and intentional infliction of emotional distress alleging that the defendant doctor touched the plaintiff inappropriately when she was seeing him for allergies and eczema, the defendant doctor argued that both prongs of the test whether a claim is for medical malpractice were satisfied because the conduct at issue occurred “during the provision of medical services” and “in the course of scheduled medical appointments” meant to benefit the plaintiff.
The Court of Appeals of Indiana stated in its July 10, 2023 Opinion: “The issue isn’t whether the alleged tortious conduct occurred during the provision of medical care but whether the conduct itself was part of the provision of medical care. Assuming sexual misconduct occurred, as we must at this early stage of the case, it was wholly unrelated to the provision of medical care. Therefore, Krieter [the plaintiff] is not claiming medical malpractice, the Medical Malpractice Act doesn’t apply, and the trial court has subject-matter jurisdiction.”
“We add a caveat. At oral argument, Dr. Kansal’s [the defendant’s] attorney told us that Dr. Kansal denies the alleged touching at the core of Krieter’s claims—cupping her breasts, rubbing her nipples, and rubbing her buttocks for fifteen to twenty seconds at a time. But if he was admitting that touching and arguing it was medically appropriate, the Medical Malpractice Act might apply. Krieter conceded as much at the hearing on the motion to dismiss. Tr. pp. 25, 29, 35-36. With certain medical specialties, the line between medical touching and sexual touching can be blurry. Doctors often have to touch patients in sensitive areas and in uncomfortable ways, and a patient could misinterpret proper medical touching as inappropriate sexual touching. In a case where the doctor and the patient agree as to the touching that occurred but disagree as to the purpose of the touching, application of the Act and presentation to a medical-review panel might be appropriate. But this isn’t such a case, so we leave that issue for another day.”
Source Kansal, M.D. v. Krieter, Court of Appeals Case No. 22A-CT-2646.
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