John Collip, M.D. v. Vickie Ratts on behalf of Robert A.J. Ratts, and Little Creek Family Health Center, LLP

Dec 31 2015, 9:15 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
John David Hoover Jerry Garau
Michael J. Blinn Garau Germano, P.C.
Hoover Hull Turner LLP Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Collip, M.D., December 31, 2015
Appellant-Defendant, Court of Appeals Case No.
49A05-1501-CT-1
v. Appeal from the Marion Superior
Court
Vickie Ratts on behalf of Robert The Honorable Theodore M.
A.J. Ratts, deceased, and Little Sosin, Judge
Creek Family Health Center, Trial Court Cause No.
LLP, 49D02-1012-CT-55368
Appellees-Plaintiffs
Baker, Judge.
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[1] Dr. John Collip had a contractual relationship with Dena Barger, who is a
nurse practitioner and owns her own medical practice. Pursuant to their
Collaborative Practice Agreement (CPA), Dr. Collip was to collaborate with
Barger and oversee her prescriptive authority. Specifically, he was to review at
least 5% of her charts on a weekly basis to evaluate her prescriptive practices.
On March 30, 2009, Robert Ratts, one of Barger’s patients, died as a partial
result of mixed drug intoxication.
[2] Dr. Collip brings this interlocutory appeal challenging the trial court’s order
granting partial summary judgment in favor of Vickie Ratts, Ratts’s mother, on
her medical malpractice claim. The trial court held as a matter of law that Dr.
Collip had a duty to Ratts even though he had never treated Ratts as a patient.
[3] The Indiana General Assembly has enacted a complex and detailed statutory
scheme that authorizes nurse practitioners to provide medical services. We
infer from the language of the statute that one of the purposes of this legislation
was to provide the public with greater access to affordable healthcare. The
legislature also sought to ensure the safety of the public by requiring that when
prescribing legend drugs, nurse practitioners must be overseen by a licensed
physician. We hold as a matter of law that physicians who undertake this
responsibility owe a duty to the nurse practitioner’s patients to fulfill their
contractual obligations with reasonable care. We affirm and remand.
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Facts 1
[4] Under Indiana law, a nurse practitioner cannot prescribe legend drugs2 without
a collaborative practice agreement with a licensed physician. Dr. Collip and
Barger entered into the CPA in 2006. Pursuant to the CPA, Barger practiced
under the direction and supervision of Dr. Collip; Barger paid Dr. Collip for his
oversight. Dr. Collip admitted that he knew that if he failed to do what was
required of him under the CPA, Barger’s patients could be placed in danger.
He knew that he was obligated to ensure that Barger was providing appropriate
care, including prescriptive care, to her patients. Although Dr. Collip had no
ownership interest in, or employment affiliation with Barger’s clinic, his name
appeared with Barger’s at the top of the clinic’s preprinted prescription forms
and on clinic stationery.
[5] The CPA required Dr. Collip to review at least 5% of Barger’s charts on a
weekly basis and to document Barger’s prescribing practices. Dr. Collip
admittedly never complied with these requirements. He did engage in a limited
review of Barger’s notes,3 and this review caused him to become concerned
about the amount of narcotics that Barger was prescribing to her patients. He
1
We held oral argument on December 3, 2015, in Indianapolis. We thank counsel for both sides for their
able written and oral presentations.
2
“Legend drugs” include “any human drug required by federal law or regulation to be dispensed only by a
prescription, including finished dosage forms and active ingredients subject to 21 U.S.C. 811 through 812.”
Ind. Code § 25-26-14-7.
3
As noted above, Dr. Collip was required to review at least 5% of Barger’s charts. According to counsel at
oral argument, he never reviewed a single one; instead, he reviewed a limited selection of her notes.
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suggested that she attend a narcotic-prescribing seminar and occasionally
commented on the combination or amounts of medications she was prescribing.
Dr. Collip did not follow up regarding the seminar. He knew that he held the
“keys to the drugstore” for Barger and that if he terminated the CPA, she would
no longer be permitted to prescribe drugs at all. Appellant’s App. p. 153. Dr.
Collip did not take any steps to terminate the CPA.
[6] In addition to the CPA with Barger, Dr. Collip had collaborative practice
agreements with eleven to twelve other nurse practitioners. He was also
working ninety hours per week as a family practice physician.
[7] Ratts, a patient of Barger, was a high-risk patient with a history of depression,
suicide attempts, and polysubstance abuse. From January through March
2009, Barger prescribed multiple medications for Ratts, including Lortab (a
combination of hydrocodone and acetaminophen), methadone, Wellbutrin,
lithium, and Xanax. Ratts died on March 30, 2009, and an autopsy revealed
that the cause of his death was acute bronchopneumonia complicating mixed
drug interaction. Dr. Collip never treated Ratts, never saw Ratts in
consultation or in any other circumstances, and never received or reviewed any
of Ratts’s medical records before this litigation.
[8] On October 24, 2013, Vickie Ratts (Mother) filed an amended complaint
against Dr. Collip, Barger, and Barger’s clinic. On September 11, 2014, Mother
filed a motion for partial summary judgment against Dr. Collip; the motion
argued solely that Dr. Collip owed a duty to Ratts as a matter of law. Dr.
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Collip filed a cross-motion for summary judgment, arguing that, as a matter of
law, he did not owe a duty to Ratts. Following briefing and oral argument, the
trial court issued an order on December 9, 2014, summarily granting Mother’s
summary judgment motion and denying Dr. Collip’s cross-motion. The trial
court found that its decision was a case of first impression and sua sponte
certified the order for interlocutory appeal. Dr. Collip now appeals.
Discussion and Decision
I. Standard of Review
[9] Our standard of review on summary judgment is well established:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the
nonmovant to “come forward with contrary evidence” showing
an issue for the trier of fact. Id. at 761–62 (internal quotation
marks and substitution omitted). And “[a]lthough the non-
moving party has the burden on appeal of persuading us that the
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grant of summary judgment was erroneous, we carefully assess
the trial court's decision to ensure that he was not improperly
denied his day in court.” McSwane v. Bloomington Hosp. &
Healthcare Sys., 916 N.E.2d 906, 909–10 (Ind. 2009) (internal
quotation marks omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Although summary
judgment is rarely appropriate in negligence cases, the existence of duty is
generally a matter of law for the courts to decide. E.g., King v. Ne. Sec., Inc., 790
N.E.2d 474, 484 (Ind. 2003).
II. Duty
[10] Initially, we note that Dr. Collip spends much of his brief arguing that, in a
medical malpractice context, if the defendant does not have a physician-patient
relationship with the plaintiff, then the defendant owed no duty to the plaintiff
as a matter of law. Dr. Collip maintains that the CPA did not create a
physician-patient relationship between himself and Ratts. This argument is a
red herring, as Mother concedes that there is no physician-patient relationship.
As such, Harper v. Hippensteel, the case primarily relied upon by Dr. Collip, is
inapposite because the Harper Court determined that the mere existence of a
CPA does not create a physician-patient relationship. 994 N.E.2d 1233, 1242
(Ind. Ct. App. 2013). As Mother does not make that argument, Harper does not
apply to this case. Mother insists that this case sounds in tort and must be
analyzed under general tort principles, and we agree.
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A. Webb v. Jarvis factors
[11] The seminal case in determining the existence of a duty is our Supreme Court’s
decision in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991). In Webb, as in the case
before us, our Supreme Court considered whether a physician had a legal duty
to a third party to whom he had not provided any medical treatment. Id. at 994
(person shot by patient for whom doctor had prescribed anabolic steroids
brought suit against the physician). In analyzing whether a legal duty existed,
our Supreme Court articulated three factors to consider: (1) the relationship
between the parties; (2) the reasonable foreseeability of harm to the person who
was injured; and (3) public policy concerns. Id. at 995.4 The three factors are
to be balanced together rather than considered to be three distinct and necessary
elements. Cram v. Howell, 680 N.E.2d 1096, 1097 (Ind. 1997).
1. The relationship between the parties
[12] Here, the only link between Dr. Collip and Ratts was the CPA between Dr.
Collip and Barger. It is well established, however, that “Indiana Law does not
preclude liability in tort for personal injury merely because privity is absent.”
Harper v. Guarantee Auto Stores, 533 N.E.2d 1258, 1262 (Ind. Ct. App. 1989).
Where privity is absent, “one must have actual knowledge that a third person
4
Dr. Collip argues that Webb does not apply because this analysis is limited to “those instances where the
element of duty has not already been declared or otherwise articulated.” N. Ind. Pub. Serv. Co. v. Sharp, 790
N.E.2d 462, 465 (Ind. 2003). Dr. Collip returns to his argument that it is well settled that a physician-patient
relationship is a prerequisite to a duty in a medical malpractice case. Inasmuch as Webb itself involved a
medical malpractice claim by a third party against a doctor with whom he did not have a physician-patient
relationship, we do not find Dr. Collip’s argument persuasive.
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might reasonably be affected in order to impose a duty.” Webb, 575 N.E.2d at
996. Furthermore, “we have recognized that a duty may be owed to a
beneficiary of the consensual relationship, akin to that of a third party
beneficiary of a contract, where the professional has actual knowledge that the
services being provided are, in part, for the benefit of such third persons.” Id.
[13] In this case, a physician voluntarily entered into a contract with a nurse
practitioner, pursuant to which he agreed to provide oversight of her
prescriptive practices. The gravamen of such a contract is the protection of the
nurse practitioner’s patients. And indeed, Dr. Collip has admitted that the
services he agreed to provide under the CPA were necessary for the protection
of Barger’s patients. Appellant’s App. p. 153. In other words, he had actual
knowledge that his services were being provided for the benefit of those third
parties and that those third parties might reasonably be affected by the manner
in which he performed his services. Notwithstanding the lack of privity,
therefore, we find that this factor weighs in favor of the existence of a duty.
2. The reasonable foreseeability of harm
to the person injured
[14] In analyzing the foreseeability component of our duty analysis, “we focus on
whether the person actually harmed was a foreseeable victim and whether the
type of harm actually inflicted was reasonably foreseeable.” Webb, 575 N.E.2d
at 996. In other words, we impose a duty only where a reasonably foreseeable
victim is injured by a reasonably foreseeable harm. Id. at 997.
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[15] A nurse practitioner, while a highly qualified medical professional, is not a
physician. Barger did not go to medical school or participate in a residency
program. As such, our legislature has determined that nurse practitioners may
prescribe legend drugs only when under the supervision of a physician. One of
the apparent reasons for this policy, which we infer from the language of the
relevant statutes, was to ensure the safety of the patients of nurse practitioners.
If the supervising physician fails to adequately perform his or her oversight
duties, it is eminently foreseeable that the nurse practitioner’s patients could
suffer harm.
[16] Indeed, in this case, Dr. Collip admitted that his failure to adequately supervise
Barger, including his failure to review her charts as required by the CPA, could
result in harm befalling her patients. Appellant’s App. p. 45. Ratts, as one of
her patients, was a reasonably foreseeable victim of Dr. Collip’s alleged
negligence. And the harm that befell Ratts—death as a partial result of mixed
drug of intoxication—is precisely the type of harm one would expect to occur if
Dr. Collip had negligently performed his obligations under the CPA.
Consequently, we find that this factor weighs in favor of a duty.
3. Public policy
[17] As observed by the Webb Court, “‘Duty is not sacrosanct in itself, but is only an
expression of the sum total of those considerations of policy which lead the law
to say that the plaintiff is entitled to protection.’” 575 N.E.2d at 997 (quoting
Prosser & Keeton on Torts § 53 (5th ed. 1984)).
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[18] As with any piece of legislation, there are multiple policy reasons that our
General Assembly has decided to enact the set of laws at issue in this case. To
provide the public with greater access to affordable healthcare, the legislature
has authorized nurse practitioners5 to provide medical services to their patients.
Ind. Code ch. 25-23-1; 848 Ind. Admin. Code 4-2-1. But as noted above, as
nurse practitioners are not physicians, the legislature has determined that
physician oversight is required. More specifically, the General Assembly has
required that if a nurse practitioner seeks to prescribe legend drugs, he or she
must fulfill a number of conditions. We infer from the language of the relevant
statutes that one of the purposes behind these conditions is to ensure the safety
of the patients of nurse practitioners. 848 I.A.C. 5-1-1. Among those
conditions is a requirement that the nurse practitioner:
[s]ubmit[] proof of collaboration with a licensed practitioner in
the form of a written practice agreement that sets forth the
manner in which the advanced practice nurse and licensed
practitioner will cooperate, coordinate, and consult with each
other in the provision of health care to patients. Practice
agreements shall be in writing and shall also set forth provisions
for the type of collaboration between the advanced practice nurse
and the licensed practitioner and the reasonable and timely
review by the licensed practitioner of the prescribing practices of
5
“Nurse practitioners” is part of a broader category defined as “advanced practice nurses.” Ind. Code § 25-
23-1-1(b). We limit our discussion to nurse practitioners here because that is the only category of advanced
practice nurses at issue in this case, but our analysis applies equally to the other types of advanced practice
nurses enumerated in the statutory definition.
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the advanced practice nurse. Specifically, the written practice
agreement shall contain at least the following information:
(A) Complete names, home and business addresses, zip codes,
and telephone numbers of the licensed practitioner and the
advanced practice nurse.
(B) A list of all other offices or locations besides those listed in
clause (A) where the licensed practitioner authorized the
advanced practice nurse to prescribe.
(C) All specialty or board certifications of the licensed
practitioner and the advanced practice nurse.
(D) The specific manner of collaboration between the licensed
practitioner and the advanced practice nurse, including
how the licensed practitioner and the advanced practice
nurse will:
(i) work together;
(ii) share practice trends and responsibilities;
(iii) maintain geographic proximity; and
(iv) provide coverage during absence, incapacity,
infirmity, or emergency by the licensed practitioner.
(E) A description of what limitation, if any, the licensed
practitioner has placed on the advanced practice nurse’s
prescriptive authority.
(F) A description of the time and manner of the licensed
practitioner’s review of the advanced practice nurse’s
prescribing practices. The description shall include
provisions that the advanced practice nurse must submit
documentation of the advanced practice nurse’s
prescribing practices to the licensed practitioner within
seven (7) days. Documentation of prescribing practices
shall include, but not be limited to, at least a five percent
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(5%) random sampling of the charts and medications
prescribed for patients.
(G) A list of all other written practice agreements of the
licensed practitioner and the advanced practice nurse.
(H) The duration of the written practice agreement between
the licensed practitioner and the advanced practice nurse.
848 I.A.C. 5-1-1(a)(7).
[19] It is evident that the General Assembly has carefully compiled a detailed list of
requirements that a collaborative practice agreement must fulfill. It is likewise
evident that one of the reasons that our legislature requires nurse practitioners
to comply with such rigorous standards is to ensure the safety of patients for
whom they will be prescribing legend drugs. In other words, the General
Assembly has created statutory mechanisms to ensure that those drugs are
provided safely and responsibly, under the oversight of a licensed physician. To
put it more plainly, the primary public policy underlying the requirement of
collaborative practice agreements is to protect and ensure the safety of the
public.
[20] Dr. Collip argues that doctors who enter into a CPA do not owe a duty to the
patients of the nurse practitioner. To adopt this position would be to
incentivize physicians to put their proverbial blinders on. Not only would they
have no incentive to oversee the nurse practitioner’s work in a responsible
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manner, they would have an incentive not to do so.6 For if they could say, as
Dr. Collip argues so strenuously and repeatedly herein, that they did not see the
chart of a particular patient who is harmed as a result of alleged malpractice,
then they would bear no responsibility whatsoever for the harm befalling that
patient. They would feel free to adopt Dr. Collip’s approach, which involved
entering into eleven to twelve CPAs while also maintaining a 90-hour-per-week
medical practice. This result is clearly not what the General Assembly intended
when it enacted this legislation.
[21] We can only assume that the legislature did not intend for physicians
participating in CPAs to be mere rubber stamps or for physicians to be able to
perform their contractual obligations carelessly—or to ignore them altogether—
with no consequences. Instead, the General Assembly enacted a statutory
scheme ensuring that physicians will provide meaningful oversight, with an
apparent end goal of protecting the safety of the public. It is readily apparent
that public policy weighs strongly in favor of holding that physicians owe a duty
to the nurse practitioner’s patients pursuant to a CPA.
[22] According to Dr. Collip, if we hold that doctors have a duty under these
circumstances, it would “upset the long-settled relationship between physicians
and nurse-practitioners statewide, and could deter physicians from entering or
6
Dr. Collip argues that the incentive to comply with the contract would be the threat of the nurse practitioner
enforcing her contractual rights against the physician. It seems ludicrous to expect that a nurse practitioner
would bring a lawsuit demanding greater supervision by the physician; moreover, we question what damages
the nurse practitioner could possibly claim. We do not find this to be a persuasive argument.
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continuing such relationships. This outcome would frustrate legislative
objectives concerning access to primary health care through the use of
independent physician extenders such as nurse-practitioners.” Appellant’s Br.
p. 16-17. We disagree. To put it plainly, we are in no way holding that doctors
are the guarantors of the nurse practitioners pursuant to a CPA. We simply
hold that doctors have a duty to the patients of the nurse practitioners of
reasonable care in fulfilling the doctor’s obligations under the CPA. If a doctor
complied with his or her review and oversight obligations—for example, if the
physician actually reviews the percentage of charts required by the CPA—and
sees nothing troubling, and one of the patients is harmed by the negligence of
the nurse practitioner, the doctor has not breached the duty to that patient.
[23] All three of the Webb v. Jarvis factors weigh strongly in favor of the imposition
of a duty. Consequently, we hold as a matter of law that a physician who
enters into a CPA with a nurse practitioner has a duty of reasonable care to the
nurse practitioner’s patients in fulfilling his or her obligations under the CPA.
B. Section 324A
[24] We feel compelled to address the parties’ arguments with respect to section
324A of the Restatement (Second) of Torts even though it was not raised at the
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trial court.7 Section 324A of the Restatement (Second) of Torts, which Indiana
has adopted, reads as follows:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of a third person or his things, is subject to liability
to the third person for physical harm resulting from his failure to
exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the
risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the third person, or
(c) the harm is suffered because of reliance of the other
or the third person upon the undertaking.
See Light v. NIPSCO Indus., Inc., 747 N.E.2d 73, 75 (Ind. Ct. App. 2001)
(observing that “our decisions have equated Indiana law with the provisions of
Restatement (Second) of Torts, § 324A”). Section 324A “applies to any
undertaking to render services resulting in physical harm to third persons where
there is negligence in the manner of performance . . . .” Harper, 533 N.E.2d at
1262 n.3 (emphasis original).
7
Dr. Collip insists that Mother has waived this argument because she did not raise it before the trial court,
but it is well established that “an appellate court reviewing a challenged trial court summary-judgment ruling
is restricted neither to the claims and arguments presented at trial nor the rationale of the trial court’s ruling.”
Carson v. Palombo, 18 N.E.3d 1036, 1041 (Ind. Ct. App. 2014).
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[25] In this case, Dr. Collip voluntarily undertook to enter into the CPA and
perform the duties required by that agreement. Specifically, he undertook a
duty to direct and supervise Barger in her practice, including her prescribing
practices. He did not undertake this duty gratuitously; he was paid for his
services. Dr. Collip acknowledged that the services he agreed to provide under
the CPA were necessary for the protection of Barger’s patients. Consequently,
“[t]here is no question that Dr. Collip’s failure to exercise reasonable care in
performing his duties under the CPA increased the risk of physical harm to
Barger’s patients.” Appellee’s Br. p. 10. Dr. Collip’s mere status as a physician
does not exempt him from section 324A, because while the Indiana Medical
Malpractice Act gives qualified healthcare providers certain privileges, it did not
make them immune from the application of Indiana’s common law.
[26] Dr. Collip highlights two recent cases from our Supreme Court that, in his
view, require us to rule in his favor. He directs our attention to Yost v. Wabash
College, in which our Supreme Court held that an actor’s liability does not
extend beyond the undertaking and that a defendant had not assumed a duty to
a third party with respect to the behavior of other actors where “the specific
undertaking did not extend to actual oversight and control over the behavior” of
the other actors. 3 N.E.3d 509, 521 (Ind. 2014); see also Smith v. Delta Tau Delta,
Inc., 9 N.E.3d 154 (Ind. 2014) (holding that because evidence did not establish a
duty on the part of the national fraternity to directly supervise and control the
actions of the local fraternity and its members, it did not have a duty to ensure
the safety of the freshman pledges).
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[27] Yost and Smith require us to define the scope of the undertaking to determine
whether there was a duty. Here, the scope of a physician’s undertaking when
entering into a CPA is to comply with the terms of the contract to protect the
safety of the nurse practitioner’s patients. In other words, it is readily apparent
that Dr. Collip’s “specific undertaking” did, in fact, extend to the safety of
Barger’s patients. We again note that this holding does not render Dr. Collip
the guarantor of Barger’s medical practices; instead, it merely requires him to
fulfill his duty of reasonable care in complying with the CPA. Therefore,
whether we analyze the duty question under Webb v. Jarvis or under section
324A, the answer is the same—Dr. Collip had a duty to Ratts as a matter of
law. We express no opinion as to the remaining elements Mother must prove
to prevail on her complaint, as those must be considered by a factfinder.
[28] The judgment of the trial court is affirmed and remanded for further
proceedings.
Riley, J., and Bailey, J., concur.
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