June 18, 2021

The wife of a man who suffered a stroke after being treated on three different occasions at the defendant health care facility filed a proposed complaint for medical malpractice on March 17, 2015, and several amended proposed complaints thereafter, with the Indiana Department of Insurance (“DOI”) against the defendants, Take Care and Healthworks. In the third amended complaint, the plaintiff alleged, in part, that Take Care and Healthworks “failed to implement processes, policies and procedures whereby important health information would be gathered, documented, and made available to the various healthcare providers” at the Notre Dame Wellness Center (“Center”). Therefore, the plaintiff alleged, the two entities “failed to meet the reasonable and accepted standard of medical care to which [they are] subject” and that failure was a proximate cause of her husband’s subsequent stroke.

On January 4, 2018, the plaintiff filed a Complaint for Damages and Demand for Jury Trial against the defendants alleging negligence and loss of consortium. The plaintiff specifically alleged, and the defendants specifically denied, that Indiana’s Medical Malpractice Act (“MMA”) did not apply to the plaintiff’s claims. On June 29, 2020, the trial court issued an order treating the defendants’ motion to dismiss as a motion for summary judgment and granting it in the defendants’ favor, concluding, in part: “these electronic records were available to the doctor on duty via the other permanent staff at the Wellness Center. The Wellness Center nurse printed out both Shawn[’s] March 3 and March 6, 2014 clinic records for Dr. Millie’s review in her care and treatment of this patient on the morning of March 8, 2014. Dr. Millie’s use of those records or her choice not to use those records lies within the standard of care of a medical professional and is subject to the [MMA] and requires compliance with all of the procedures including presentation to a panel under the [MMA].” The plaintiff appealed.

Indiana Appellate Court Opinion

The Indiana Court of Appeals stated in its opinion dated June 3, 2020: “To determine whether the MMA applies, we look to the substance of a claim. Id. The test is whether the claim is based on the provider’s behavior or practices while acting in his or her professional capacity as a provider of medical services … Neither the fact that alleged misconduct occurred in a healthcare facility nor that the injured party was a patient at the facility or of the provider, by itself, makes the claim one for malpractice. Id. A case sounds in ordinary negligence where the factual issues are capable of resolution by a jury without application of the standard of care prevalent in the local medical community. By contrast, a claim falls under the [MMA] where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship.”

The Indiana Court of Appeals held: “Rossner’s characterization of the claim as general negligence does not alter that it is truly one for medical malpractice. Here, the very essence of Rossner’s claim is that Dr. Millie was unable to exercise professional expertise and judgment and did not timely and accurately diagnose Shawn’s septic condition because of the Defendants’ policy preventing locum tenens physicians from directly and independently accessing a patient’s electronic records. Although the policy relates to the doctor’s ability to directly access the electronic records, the designated evidence shows that Dr. Millie did, in fact, review Dr. Ortega-Schmitt’s progress notes from Shawn’s prior visits, rendering the policy itself irrelevant to Rossner’s claim. Nonetheless, as our supreme court has stated, “Surely the skillful, accurate, and ongoing maintenance of test and treatment records bears strongly on subsequent treatment and diagnosis of patients. It is a part of what patients expect from health care providers. It is difficult to contemplate that such a service falls outside the [MMA]” … Therefore, we conclude Rossner’s claim falls within the purview of the MMA and the trial court properly granted summary judgment in favor of the Defendants on this issue.”

Source Rossner v. Take Care Health Systems, LLC, Opinion 20A-CT-1955.

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