Carol Fluhr v. Anonymous Doctor 1 ( 2024 )

FILED
May 09 2024, 8:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Carol Fluhr, Individually and as Personal Representative of the
Estate of Ed Fluhr, Deceased,
Appellant-Respondent/Plaintiff
v.
Anonymous Doctor 1, Anonymous Medical Group 1,
Anonymous Doctor 2, Anonymous Medical Group 2,
Anonymous Medical Center 1, Anonymous Doctor 4, and
Anonymous Medical Center 2,
Appellees-Third-Party Defendants
and
Anonymous Doctor 3 and Anonymous Medical Group 3,
Appellees-Petitioners/Defendants
and
Amy L. Beard, Commissioner, Indiana Department of Insurance,
Third-Party Respondent
Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 1 of 15
May 9, 2024
Court of Appeals Case No.
23A-MI-1632
Appeal from the Marion Superior Court
The Honorable Gary L. Miller, Judge
Trial Court Cause No.
49D03-2212-MI-41670
Opinion by Judge Weissmann
Judges Mathias and Tavitas concur.
Weissmann, Judge.
[1] On April 28, 2020, during the early days of the global COVID-19 pandemic,
Carol Fluhr’s husband, Ed Fluhr, died of a stroke. Carol, individually and as
the personal representative of Ed’s estate, contends that the defendants
misdiagnosed Ed and delayed critical care, thereby contributing to his death.
Defendants moved for summary judgment on grounds that they were immune
from Carol’s complaint under Indiana’s COVID-19 immunity statute. The trial
court agreed. We affirm.
Facts1
[2] On March 6, 2020, Governor Holcomb issued Executive Order 20-02, declaring
1
We held oral argument in this case on April 4, 2024, and thank counsel for their excellent advocacy. We
also thank the amici, the Indiana State Medical Association and the American Medical Association, for their
helpful brief.
Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 2 of 15
a Public Health Emergency for the COVID-19 pandemic. The next month, on
April 23, EMTs brought Ed to Anonymous Medical Center 1 with symptoms of
nausea, vomiting, and a headache. While en route, EMTs also performed a
stroke assessment test on Ed that reported, at that time, no signs of a stroke.
Arriving at Medical Center 1, doctors initially thought that Ed had COVID-19
and ordered a test to confirm. Doctors also had Ed undergo a head CT scan,
which did not reveal any abnormalities. But while the COVID-19 test results
were still pending, Ed’s condition deteriorated enough that he was sedated and
transferred to Anonymous Medical Center 2.
[3] Doctors at Anonymous Medical Center 2 also suspected Ed of being COVID-
19 positive. At that time, about six weeks after Governor Holcomb’s executive
order, emergency COVID-19 protocols required placing patients suspected of
having COVID-19 in contact isolation. The protocols restricted health care
providers from performing comprehensive full-contact physical examinations
while patients were suspected to have COVID-19. But doctors could still
perform more cursory physical examinations. The protocols delayed a physical
exam of Ed by several hours.
[4] Ed’s initial exam did not raise any immediate concerns. But his medical chart
noted that a more thorough, full-contact exam would have been performed if
not for Ed’s suspected COVID-19 diagnosis. Ed then received two more
COVID-19 tests at Medical Center 2. All three tests ultimately came back
negative. After two days in Medical Center 2, doctors eventually diagnosed Ed
with a stroke, which was his eventual cause of death.
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[5] Carol filed a medical malpractice claim against the attending doctors and
associated medical centers (collectively, Defendants). She argued that
Defendants’ failure to adequately examine Ed when he arrived caused his
stroke to go undiagnosed and contributed to his death. Carol provided an
affidavit from an expert witness who stated that no “medical reason” prevented
Defendants from properly diagnosing and treating Ed’s stroke. Id. at 122.
[6] Before the medical malpractice process began, Defendants moved for a
preliminary determination that they were immune from Carol’s suit and, if the
trial court agreed, summary judgment on that basis.2 Defendants’ immunity
claim arose under a new statute, Ind. Code § 34-30-13.5-1, et seq., which gave
health care providers civil liability immunity for services rendered during the
COVID-19 emergency.
[7] As part of their affirmative defense, Defendants’ evidence conceded that more
“complete and comprehensive physical exam[s] could have been performed on
[Ed]” and that “more testing, evaluation, or treatment alternatives may have
resulted in other differential diagnoses being considered and/or ruled out.”
Appellant’s App. Vol. II, p. 75. But Defendants generally contended that the
2
Under Indiana’s Medical Malpractice Act (MMA), “before a party brings a medical malpractice action in
an Indiana court, the MMA requires that the proposed complaint be presented to a medical review panel and
that the panel render an opinion.” Ramsey v. Moore, 959 N.E.2d 246, 250 (Ind. 2012) (citing Ind. Code § 34-
18-8-4); but see Ind. Code § 34-18-11-1(a) (allowing a defendant to request an appropriate trial court to
“preliminarily determine an . . . issue of law” before submitting the case to the medical review panel).
Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 4 of 15
care Ed received followed policies designed to limit the spread of a deadly
disease. The trial court granted Defendants’ motions for summary judgment.
Discussion and Decision
[8] In reviewing a summary judgment ruling, “[w]e apply the same standard as the
trial court.” Shawa v. Gillette, 209 N.E.3d 1196, 1199 (Ind. Ct. App. 2023). The
party moving for summary judgment bears the initial burden to show that no
genuine issue of material fact exists. Id. Summary judgment is improper if the
moving party fails to meet this burden, or, if the burden is met, the nonmoving
party in turn establishes a genuine issue of material fact. Fox v. Barker, 170
N.E.3d 662, 665 (Ind. Ct. App. 2021). Only the evidence specifically designated
to the trial court will be considered. Ind. Trial Rule 56(. All factual inferences
are construed in the nonmoving party's favor. Id. at 665-66.
[9] “When the defendant is the moving party, the defendant must show that the
undisputed facts negate at least one element of the plaintiff's cause of action or
that the defendant has a factually unchallenged affirmative defense that bars the
plaintiff’s claim.” Sheets v. Birky, 54 N.E.3d 1064, 1069 (Ind. Ct. App. 2016).
Here, Defendants rely on the COVID-19 immunity statute as an affirmative
defense. See Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 291 (Ind. Ct. App.
2013) (noting that immunity is an affirmative defense to a medical malpractice
claim).
[10] Thus, our analysis proceeds by determining whether Defendants can establish
that no genuine issue of material fact exists and that they are immune from civil
Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 5 of 15
liability as a matter of law. Id. at 294-95. We conclude that the trial court
properly granted summary judgment.
I. Defendants Have Statutory Immunity
A. Background of the COVID-19 Immunity Statute
[11] The COVID-19 immunity statute was enacted as part of a broader bill, Public
Law No. 166-2021, designed to insulate and protect areas of public life at risk
from the pandemic. See generally Mellowitz v. Ball State Univ., 221 N.E.3d 1214,
1218-19 (Ind. 2023) (discussing a separate section of Public Law No. 166-2021).
Under the provision here, health care providers cannot be “held civilly liable for
an act or omission relating to the provision or delay of health care services or
emergency medical services arising from a state disaster emergency declared
under IC 10-14-3-12 to respond to COVID-19.” Ind. Code § 34-30-13.5-1(b)(1).
The statute’s operative language—“arising from a state disaster emergency”—
means an injury or harm:
(1) caused by or resulting from an act or omission performed in
response to a state disaster emergency declared under IC 10-14-3-
12 to respond to COVID-19; and
(2) arising from COVID-19.
Ind. Code § 34-6-2-10.5. Both sides agree that the first triggering condition, a
state disaster emergency to respond to COVID-19, is met here.
[12] “[A]rising from COVID-19,” in turn, has a broad array of defined meanings,
including:
Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 6 of 15
(1) the implementation of policies and procedures to:
(A) prevent or minimize the spread of COVID-19; and
(B) reallocate or procure staff or resources for COVID-19.
(2) testing in response to COVID-19;
(3) monitoring, collecting, reporting, tracking, tracing, disclosing,
or investigating COVID-19 exposure or other COVID-19 related
information;
(4) using, designing, manufacturing, providing, donating, or
servicing precautionary, diagnostic, collection, or other health
equipment or supplies, including [PPE], for COVID-19;
(5) closing or partially closing to prevent or minimize the spread
of COVID-19;
(6) delaying or modifying the scheduling or performance of a
nonemergency medical procedure or appointment due to
COVID-19;
(7) reasonable nonperformance of medical services due to
COVID-19; and
(8) providing services or products in response to government
appeal or repurposing operations to address an urgent need for
[PPE], sanitation products, or other products necessary to protect
the public from COVID-19.
Ind. Code § 34-6-2-10.4(c). Defendants argue they are immune from Carol’s
claims as their actions amounted to “the implementation of policies and
procedures to . . . prevent or minimize the spread of COVID-19.” Ind. Code §
34-6-2-10.4(c)(1)(A).
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B. Applying the COVID-19 Immunity Statute
[13] Defendants met their burden to show that they acted in line with policies
designed to mitigate or prevent the spread of COVID-19. See F.D. v. Ind. Dep’t
Child Servs., 1 N.E.3d 131, 136 (Ind. 2013) (holding that the “party seeking
immunity bears the burden of demonstrating that its conduct is within the
protection afforded by [an immunity statute]”).
[14] Because Ed was suspected of having COVID-19, he was subject to isolation
procedures then in place. During Ed’s treatment, his doctors wrote in their care
notes that they were “unable to perform a full contact physical exam of [Ed]
due to Covid protocols at the hospital.” Appellant’s App. Vol. II, p. 68. This
falls under the category for implementing policies and procedures designed to
limit the spread of COVID-19. Ind. Code § 34-6-2-10.4(c)(1)(A). Thus, we have
no difficulty in finding Defendants qualify for immunity here. See Mills v.
Hartford Healthcare Corp., 298 A.3d 605, 623 (Conn. 2023) (“The diagnosis and
treatment of a patient with health care complications that the health care
provider believed in good faith to be caused by COVID-19, as well as the
prevention of the spread of COVID-19 to other patients, clearly constitute acts
or omissions connected to the provision of health care services in support of the
state's COVID-19 response.”).
[15] Carol does not rebut this showing. Instead, she points out that there is no
separate document in Defendants’ designated evidence containing the Medical
Centers’ COVID-19 policies. Given this lack of first-hand proof, Carol argues
that summary judgment is improper. We disagree.
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[16] “To obtain summary judgment, ‘the movant must designate sufficient evidence
to foreclose the nonmovant’s reasonable inferences and eliminate any genuine
factual issues.’” Staat v. Ind. Dep’t of Transp., 177 N.E.3d 427, 430 (Ind. 2021)
(quoting Butler v. City of Peru, 733 N.E.2d 912, 915 (Ind. 2000)). There is no
reasonable inference or genuine factual dispute that Defendants’ actions were
not governed by policies designed to limit the spread of COVID-19.
Defendants’ designated materials refer several times to the relevant aspects of
the Medical Centers’ COVID-19 policies; namely that Ed was placed in
isolation while suspected of having COVID-19 and that certain physical
examinations were deferred until the COVID-19 test results came back.
Appellant’s App. Vol. II, pp. 65, 74-75. In short, although we agree with Carol
insofar as the designated evidence would be stronger with a copy of the written
policies, regardless, Defendants met their burden of proof.
[17] Carol then seeks to rebut Defendants’ immunity through an affidavit from her
own expert witness, who stated: “Based on [his] review of the medical records,
there [was] no medical reason that any medical provider . . . was prevented from
doing a complete and comprehensive physic[al] and/or medical exam.”
Appellant’s App. Vol. II, pp. 119-22 (emphasis added). This statement does not
rebut Defendants’ immunity. Whether a medical reason justified Defendants’
alleged failure to promptly perform a full contact physical examination is
irrelevant to the existence of the COVID-19 protocols. See Jarvis Drilling, Inc. v.
Midwest Oil Producing Co., 626 N.E.2d 821, 825 (Ind. Ct. App. 1993) (“[F]actual
disputes that are irrelevant or unnecessary will not be considered.”). It is only
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where “the evidence permits conflicting reasonable inferences as to material
facts” that civil liability immunity will not be found. Bules v. Marshall Cnty., 920
N.E.2d 247, 250 (Ind. 2010) (emphasis added).
[18] Because Carol does not rebut Defendants’ designated evidence that the
healthcare providers were acting under policies intended to prevent or minimize
the spread of COVID-19, there is no genuine issue of material fact and
Defendants are entitled to immunity as a matter of law.
II. No Exception Applies to Defendants’ Immunity
[19] The COVID-19 immunity statute excludes from its protections conduct
resulting from “gross negligence, willful or wanton misconduct, fraud, or
intentional misrepresentation.” Ind. Code § 34-30-13.5-2. Carol asserts that
there is a genuine issue of material fact about this exception because this is “a
classic case of conflicting affidavits.” Appellant’s Br., p. 10. As our Supreme
Court has recognized, “[i]n medical malpractice cases, expert opinions which
conflict on ultimate issues necessarily defeat summary judgment.” Siner v.
Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1190 (Ind. 2016).
[20] Carol’s complaint alleges that Defendants “acted with gross negligence in the
medical care and treatment of Ed[.]” Appellee (Anon. Doctor 3) Vol. II, pp. 10-
27. In support, her designated evidence contains an affidavit claiming that
“there [is] no medical reason that any medical provider . . . was prevented from
doing a complete and comprehensive physician and/or medical exam.”
Appellant’s App. Vol. II, p. 122.
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[21] On the other hand, Defendants claim the COVID-19 immunity statute’s
protections “would be worthless” if this case is allowed to proceed. Anonymous
Doctor 3 Br., p. 35. In that vein, Defendants assert that “[t]he courts would be
inundated with cases merely alleging gross negligence without factual support,
compelling health care providers to litigate cases from which the legislature
surely intended to protect them.” Id.[22] As recently noted by this Court, “[t]he General Assembly has frequently used
the phrases ‘gross negligence’ and ‘willful or wanton misconduct’ in statutes
granting immunity from civil damages.” McGowen v. Montes, 152 N.E.3d 654,
660 (Ind. Ct. App. 2020) (collecting statutes). The COVID-19 immunity statute,
like other civil immunity statutes, does not define those phrases. Instead, the
General Assembly appears content with our Supreme Court’s definition of
gross negligence as “a conscious, voluntary act or omission in reckless disregard
of . . . the consequences to another party.” N. Ind. Pub. Serv. Co. v. Sharp, 790
N.E.2d 462, 465 (Ind. 2003) (quoting Black’s Law Dictionary 1057 (7th Ed.
1999)). “[W]illful or wanton misconduct” similarly consists of either:
1) an intentional act done with reckless disregard of the
natural and probable consequence of injury to a known
person under the circumstances known to the actor at the
time; or 2) an omission or failure to act when the actor has
actual knowledge of the natural and probable consequence of
injury and his opportunity to avoid the risk.
Howard Cnty. Sheriff’s Off. v. Duke, 172 N.E.3d 1265, 1268 (Ind. Ct. App. 2021).
“[T]he question of whether an act or omission constitutes gross negligence is
Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 11 of 15
generally a question of fact, but the question may become one of law if ‘the
facts are undisputed and only a single inference can be drawn from those
facts.’” McGowen, 152 N.E.3d at 661 (quoting Miller v. Ind. Dep’t of Workforce
Dev., 878 N.E.2d 346 356 (Ind. Ct. App. 2007)).
[23] Here, the designated evidence does not show that Defendants acted with
reckless disregard. Ed received multiple forms of treatment and medical
examinations including several COVID-19 tests, physical examinations,
intubation, stroke assessments, and a CT scan. All of this occurred in the thick
of a global pandemic—with limited physical contact between the patient and
healthcare providers to prevent the spread of COVID-19. But as Ed’s condition
worsened such that he required physical contact, like when he required
intubation, Defendants properly and promptly acted. We find nothing in the
designated materials to suggest that Defendants acted either grossly negligent or
with willful or wanton misconduct towards Ed’s care. See Duke, 172 N.E.3d at
1272-73 (finding summary judgment inappropriate where the defendant made
“a mistake” that “played a ‘big role’” in the case, which created a genuine issue
of material fact over whether the actions constituted willful or wanton
misconduct).
[24] The only reasonable conclusion reached from the designated evidence is that
Ed received care in-line with that expected during an uncertain time—April
2020—while the world grappled with a global pandemic. Because there is no
genuine issue of material fact for the factfinder to consider, we affirm summary
judgment for Defendants. See McGowen, 152 N.E.3d at 660-62 (finding
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summary judgment proper where the designated evidence was undisputed that
the defendant did not act grossly negligent or commit willful or wanton
misconduct).
I. Carol Waived Any Argument that the COVID-19
Immunity Statute Is Unconstitutional
[25] Carol also challenges for the first time on appeal the constitutionality of the
COVID-19 immunity statute under Article 1, Section 12 of the Indiana
Constitution. She argues the statute is unconstitutional because it retroactively
strips “victims of medical malpractice of their accrued right to recover for their
injuries as long as the care givers claim patients have possible Covid as an
excuse for their neglect.” Appellant’s Br., pp. 13-14.
[26] This claim is waived. Neither Carol’s complaint nor any briefing before the trial
court mentions this constitutional argument. See Plank v. Cmty. Hosps. of Ind.,
Inc., 981 N.E.2d 49, 53 (Ind. 2013) (declaring that the “general rule is that
failure to challenge the constitutionality of a statute at trial results in waiver of
review on appeal”). Although Carol contended at oral argument that this court
still possessed jurisdiction to hear an otherwise waived argument, she provides
no compelling reason to do so. Indeed, the only authority she provides for this
argument is a decision from Arizona, based on their constitutional anti-
abrogation clause—a clause not present in Indiana’s constitution. Appellant’s
Br., pp. 13-14 (citing Roebuck v. Mayo Clinic, 536 P.3d 289 (Ariz. Ct. App.
2023)). Thus, we find Carol’s constitutional claims waived.
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Conclusion
[27] There remains no genuine issue of material fact and Defendants are immune
from civil liability as a matter of law. We therefore affirm the trial court and its
entry of summary in favor of Defendants.
Mathias, J., and Tavitas, J., concur.
ATTORNEY FOR APPELLANT
David W. Stewart
Stewart Phelps Wood Injury Lawyers
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
ANONYMOUS DOCTOR 2 AND ANONYMOUS MEDICAL GROUP 2
Jason A. Scheele
Jordan S. Huttenlocker
Rothberg Logan & Warsco LLP
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
ANONYMOUS MEDICAL CENTER 2
Marilyn A. Young
Marley G. Hancock
Cassiday Schade, LLP
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 14 of 15
ATTORNEYS FOR APPELLEES
ANONYMOUS DOCTOR 3 AND ANONYMOUS MEDICAL GROUP 3
Peter H. Pogue
Julia A. Condict
Schultz & Pogue, LLP
Indianapolis, Indiana
Margaret M. Christensen
Moncerrat Z. Alvarez
Dentons Bingham Greenebaum LLP
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
ANONYMOUS DOCTOR 1 AND ANONYMOUS MEDICAL GROUP 1
Edna M. Koch
Zeigler Cohen & Koch
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
ANONYMOUS MEDICAL CENTER 1
Taylor E. Bonacorsi
Stoll Keenon Ogden PLLC
Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE
INDIANA STATE MEDICAL ASSOCIATION AND
AMERICAN MEDICAL ASSOCIATION
Libby Yin Goodknight
Alexandra Wilson Pantos
Krieg DeVault LLP
Indianapolis, Indiana
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