The Court of Appeals of Indiana (“Indiana Appellate Court”) ruled on November 7, 2016 that the plaintiffs’ claims regarding alleged contaminated steroid injections were medical malpractice claims and therefore subject to the provision of the Indiana Medical Malpractice Act (“MMA”). The plaintiffs had alleged that the Defendants were negligent in choosing to purchase and administer preservative-free methylprednisolone acetate (“MPA”) — a steroid — and in choosing the New England Compounding Pharmacy, Inc., a/k/a the New England Compounding Center (“NECC”) without proper vetting.
Some of the plaintiffs filed their lawsuit without using the procedures laid out in the MMA, and the defendants moved either for dismissal or summary judgment on the basis that the plaintiffs’ claims were claims of medical malpractice. The Indiana Department of Insurance, which administers the Indiana Patient’s Compensation Fund (“PCF”), intervened, arguing that the plaintiffs’ claims were of general negligence and therefore not subject to the provisions of the MMA. The trial courts ultimately agreed with the defendants and the plaintiffs (who had reversed their initial position), that the plaintiffs’ claims were governed by the MMA.
On appeal, the PCF argued that the trial courts erred in concluding that the plaintiffs’ claims are claims of medical malpractice, but both the defendants and the plaintiffs argued that the plaintiffs’ claims are subject to the MMA as they involve actions informed by the exercise of professional medical judgment.
The Indiana Appellate Court stated that the question before it was whether the negligence alleged against the defendants qualifies as “health care,” which “… means 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.” Indiana Code section 34-18-2-13. Specifically, the question before the Indiana Appellate Court was whether deciding to use preservative-free MPA and deciding to purchase it from NECC constitute “health care” under the MMA. If so, the alleged negligence in those areas would be subject to the MMA. If not, such claims would be claims of general negligence.
In deciding the question, the Indiana Appellate Court stated that it would depend on whether the issues were capable of resolution without referring to the medical standard of care; if so, the claims would not be subject to the MMA. In the case it was deciding, the Indiana Appellate Court stated that it had little trouble concluding that the selection of preservative-free MPA—in particular, preservative-free MPA made by NECC—in favor of MPA with preservatives from other suppliers, were actions that involved the exercise of professional medical skill and judgment.
The Indiana Appellate Court stated that the practice of medicine may be said to consist in three things – first, in judging the nature, character, and symptoms of the disease; second, in determining the proper remedy for the disease; and third, in giving or prescribing the application of the remedy to the disease. The Indiana Appellate Court concluded that the allegations in the case it was deciding clearly fall under the second aspect of the practice of medicine—selection of the proper remedy and that the decision to purchase preservative-free MPA from NECC was an integral part of the remedy-selection process. The Indiana Appellate Court held that the line between MMA claims and non-MMA claims divides them into situations that can be understood without the assistance of expert testimony and those that cannot be, and the claims, in this case, fall into the latter category.
The Indiana Appellate Court further held that general decisions that later affect particular patients are not exempt from the provisions of the MMA for an alleged lack of causal connection.
Source Robertson v. Anonymous Clinic, Court of Appeals Cause No. 71A03-1512-CT-2199.
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