In its decision filed on August 4, 2016, the Indiana Court of Appeals (“Appeals Court”) held that the defendant pharmacy was not entitled to summary judgment in a pharmacy malpractice case because the pharmacy was not exempted from Indiana’s Comparative Fault Act, and therefore is not entitled to receive a credit or set-off with regard to the plaintiff’s settlement with the defendant medical malpractice physician and his medical practice.
The decedent had visited the defendant physician on December 12, 2012, complaining of head and chest congestion, a dry cough, a low-grade fever, and chills. The defendant physician diagnosed her as having acute bronchitis and prescribed Levofloxacin, which was contraindicated because the plaintiff suffered from a chronic heart condition for which she was taking Amiodarone and Warfarin (Levofloxacin is contraindicated for a patient also taking Amiodarone and Warfarin due to the potential for a drug interaction which would affect the patient’s normal heart rhythm). The defendant pharmacy filled the Levofloxacin prescription. On December 12, 2012, the decedent went into cardiopulmonary arrest and died after taking the Levofloxacin.
The personal representative of the decedent’s estate filed an Indiana medical malpractice claim/lawsuit against the defendant physician, his medical practice, and the pharmacy that had filled the Levofloxacin prescription. The plaintiff settled with the defendant physician and the defendant medical practice and thereafter continued the wrongful death claim against the defendant pharmacy.
Following the dismissal of the defendant physician and his medical practice, the defendant pharmacy moved to amend its answer to the plaintiff’s Indiana wrongful death lawsuit to assert a non-party defense as to the defendant physician and the defendant medical practice, alleging that the plaintiff’s damages were solely caused by their negligent acts. The defendant pharmacy subsequently filed a motion for partial summary judgment in which it sought a judicial ruling that it was entitled to a credit or set-off for the prior medical malpractice settlement.
The plaintiff opposed the defendant pharmacy’s motion for partial summary judgment, arguing that under Indiana’s Comparative Fault Act, the defendant pharmacy was not entitled to a credit or set-off and that the defendant pharmacy’s only remedy was to name the defendant physician and defendant medical practice as non-parties and to ask the jury to apportion the fault. The trial court thereafter issued an order granting the defendant pharmacy’s motion for partial summary judgment, and the plaintiff appealed.
The Appellate Court stated that under Indiana’s Comparative Fault Act, Ind. Code § 34-51-2-1, a named defendant may assert a “nonparty” defense, seeking to attribute fault to a nonparty rather than to the defendant. Ind. Code [ ] § 34-51-2-14 [ ]. When a defendant asserts this defense, the court instructs the jury to determine the percentage of fault of each party and “any person who is a nonparty.” Ind. Code [ ] § 34-51-2-7(b)(1) [ ]. A nonparty is: “a person who caused or contributed to cause the alleged injury, death, or damage to property but who has not been joined in the action as a defendant.” Ind. Code [ ] § 34-6-2-88 [ ]. A defendant must affirmatively plead the nonparty defense, and the defendant carries the burden of proof on the defense. Ind. Code [ ] § 34-51-2-15 [ ].
The Indiana Supreme Court held in the past that the Comparative Fault Act is best served by a rule that obliges defendants to name the settling nonparty if they are to seek “credit” or apportionment of fault at trial. The Indiana Supreme Court explained that in 1985, Indiana’s comparative fault system replaced joint and several liability with several liability, leaving each defendant responsible only for its share of the total liability, and permitted the assertion of a nonparty defense, allowing a defendant to prove the negligence of an absent or settling tortfeasor. I.C. § 34-51-2-15. Thus, the jury’s apportionment of fault now provides a more complete picture of the relative responsibility for the plaintiff’s injuries.
Therefore, credits were no longer warranted in cases where the remaining defendant at trial did not assert a nonparty defense against a settling tortfeasor (the remaining defendant has “a potent tool” to limit its liability—the nonparty defense: allowing the defendant to resort to a common law doctrine to further reduce its liability makes little sense in light of the modernization of tort law represented by the adoption of comparative negligence).
Indiana Code section 34-51-2-1(b)(1) expressly states that the Comparative Fault Act does not apply to an action brought against a qualified health care provider for medical malpractice (the law allowing for credits and set-offs remains good law for cases that involve joint tortfeasors but fall outside the Comparative Fault Act). The Appellate Court held that in this case, the defendant pharmacy was not a qualified health care provider under the Medical Malpractice Act and therefore was not exempted from the Comparative Fault Act.
Because the defendant pharmacy was not exempted from the Comparative Fault Act, the Appellate Court held that the defendant pharmacy was not entitled to receive a credit or set-off with relation to the plaintiff’s settlement with the defendant physician and defendant medical practice. Therefore, the trial court erred in granting the defendant’s motion for partial summary judgment and the Appellate Court held that the defendant pharmacy may only seek to limit its potential liability through its asserted non-party defense.
Source Shelton v. Kroger Limited Partnership I, Opinion 49A02-1601-CT-75.
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