December 14, 2019

The Court of Appeals of Indiana (“Indiana Appellate Court”), in its opinion dated November 21, 2019, reversed the trial court’s grant of summary judgment in favor of the defendant nurse practitioner (“NP”), finding that there was a genuine issue of material fact as to when the defendant NP last treated the plaintiff. Therefore, whether the plaintiff’s Indiana medical malpractice lawsuit was timely filed could not be determined on a summary judgment basis.

On October 29, 2015, the defendant NP first saw the then 57-year-old plaintiff as a new patient, with the intention of becoming the plaintiff’s new primary care medical provider. He was seen for high blood pressure on that date and on subsequent visits to the medical practice where the defendant NP was employed.

On December 8, 2015, the plaintiff returned to the medical practice for a “Nurse Check” to have his blood pressure checked. At that visit, an LPN checked his blood pressure and found it to be 140/110 mmHg. The LPN electronically conveyed the blood pressure result to a physician in the office. On December 11, 2015, at the latest, the defendant NP electronically reviewed and approved the LPN’s report of the “Nurse Check” but did not recommend any further testing or treatment at the time.

On December 15, 2015, the plaintiff arrived at a hospital emergency room with altered mental status. He was diagnosed with hyponatremia (low sodium). He was admitted to the hospital’s ICU and suffered cardiopulmonary arrest the next day. He was revived but he had suffered a hypoxic event which caused cognitive impairment.

On December 4, 2017, the plaintiff filed his proposed complaint against the defendant NP with the Indiana Department of Insurance, as required by Indiana’s medical malpractice laws, alleging that the defendant NP had breached the relevant standard of care in her treatment of the plaintiff up to and through at least December 8, 2015, causing him harm. The defendant NP filed a motion for summary judgment, alleging that the plaintiff’s Indiana medical malpractice complaint was untimely because the last day she provided any health care to the plaintiff was December 1, 2015, when she prescribed Lisinopril-HCTZ. The trial court granted the defendant NP’s motion for summary judgment, finding that the designated evidence established as a matter of law that the defendant NP did not provide any medical care to the plaintiff after December 1, 2015, thus rendering his medical malpractice complaint late by three days. The plaintiff appealed.

Indiana Appellate Court Opinion

The Indiana Appellate Court stated, “A claim […] may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect[.]” Ind. Code § 34-18-7-1. The Indiana Appellate Court stated, “We choose to address the claim that there is a genuine issue of material fact that [defendant] NP’s December 11, 2015, act of reviewing and approving the record of [the plaintiff’s] earlier visit constituted the provision of health care, and we find it to be dispositive.”

The Indiana Appellate Court stated, “the MMA [Indiana Medical Malpractice Act] concerns health care that was provided or “that should have been provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18 (emphasis added). The Indiana Appellate Court concluded: “Even if we assume that [defendant] NP did not see [the plaintiff] after December 1, 2015, there is designated evidence that December 11, 2015, was the last opportunity she had to evaluate [the plaintiff’s] latest test results and order further testing or further treatment. We conclude that the allegation that [defendant] NP negligently failed to act after evaluating [the plaintiff’s] test results generates a genuine issue of material fact regarding whether she provided health care to [the plaintiff] on December 11, 2015 … Consequently, we reverse the trial court’s entry of summary judgment in favor of [defendant] NP and remand for trial on the question of timeliness.”

Source Strickholm v. Anonymous Nurse Practitioner, Opinion 19A-MI-696.

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