Santos Cortez, Fran Cortez, and Norris Choplin Schroeder LLP v. Indiana University Health Inc., Sharon v. Lucich, and Elizabeth Longmuir

FILED
Jul 20 2020, 8:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
David J. Cutshaw Kevin C. Schiferl
Gregory L. Laker Maggie L. Smith
Gabriel A. Hawkins Stephanie V. McGowan
Edward B. Mulligan V Frost Brown Todd, LLC
Cohen & Malad, LLP Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Santos Cortez, Fran Cortez, and July 20, 2020
Norris Choplin Schroeder LLP Court of Appeals Case No.
Appellants-Plaintiffs, 19A-CT-2540
Appeal from the Marion Superior
v. Court
The Honorable Kurt M. Eisgruber,
Indiana University Health Inc., Judge
Sharon V. Lucich, and Elizabeth Trial Court Cause No.
Longmuir, 49D06-1904-CT-15514
Appellees-Plaintiffs.
Brown, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 1 of 20
[1] Santos Cortez (“Santos”), Fran Cortez (“Fran”), and Norris Choplin Schroeder
LLP (“NCS,” and collectively with Santos and Fran, “Plaintiffs”) appeal the
trial court’s grant of a motion to dismiss filed by Indiana University Health, Inc.
(“IU Health”), Sharon V. Lucich, and Elizabeth Longmuir (collectively,
“Defendants”). We affirm.
Facts as Alleged in Complaint
[2] On April 16, 2019, Plaintiffs filed a complaint against Defendants. According
to the complaint, 1 in 2012, Santos was referred to IU Health’s Wound Clinic at
Methodist Hospital for treatment for pressure wounds. Santos received therapy
from various physical therapists employed at IU Health’s Wound Clinic,
including Lucich and Longmuir, on August 8, 16, 20, 23, 27, 29, and 31, 2012.
Sometime between August 29, 2012, and December 2013, Lucich and/or
Longmuir altered certain medical records reflecting the care and treatment
Santos received at the Wound Clinic in August 2012. 2
1
We accept as true the facts alleged in Plaintiffs’ complaint as Plaintiffs appeal from a trial court’s grant of a
pretrial motion to dismiss under Trial Rule 12(B)(1). See State ex rel. Zoeller v. Aisin USA Mfg., Inc., 946 N.E.2d
1148, 1149-1150 (Ind. 2011) (“[B]ecause this is an appeal from a trial court’s grant of a pretrial motion to
dismiss under Trial Rule 12(B)(1), we accept as true the facts alleged in the State’s complaint.”), reh’g denied.
2
The complaint alleged: “After completing and signing her August 16, 2012 Progress Note, Lucich and/or
Longmuir intentionally and improperly altered the records by checking the box ‘Other’ and adding the note:
‘Recommend use of sliding board until clearing buttocks c transfers’”; “After completing and signing her August
20, 2012 Progress Note, Longmuir and/or Lucich intentionally and improperly altered the records by
checking the boxes: ‘Dressing/Topical Application’ and ‘Pressure Relief’ and adding the note: ‘Pressure Relief
ed[ucated] wife + pt about need to do relief @ night. Report not doing 2nd (secondary) to not wanting to get up @
night’.”; “After completing and signing her August 23, 2012 Progress Note, Longmuir and/or Lucich
intentionally and improperly altered the records by checking the boxes ‘Pressure Relief’ and ‘Nutrition’ and
adding the note: ‘Pressure Relief getting OOB [(out of bed)] only for MD appt and continuing to watch things done
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 2 of 20
[3] In 2013, Santos and Fran contacted Attorney Mike Morken regarding a
potential medical malpractice action against IU Health based on the alleged: (1)
failure to have physicians supervising physical therapists at its Wound Clinic;
and (2) failure of the Wound Clinic to refer Santos to a physician when he
showed signs and symptoms of infection. Attorney Morken requested Santos’s
medical records from IU Health regarding Santos’s treatment at the Wound
Clinic in August 2012. On December 10, 2013, IU Health produced the altered
records and failed to inform him that those records had been materially altered
after the fact by Lucich and/or Longmuir.
[4] In 2014, Santos and his wife, Fran, retained NCS to pursue a medical
malpractice action against IU Health. In June 2014, NCS filed a proposed
complaint alleging malpractice against IU Health with the Indiana Department
of Insurance. During discovery, Defendants produced the altered records.
[5] On March 23, 2015, IU Health produced transcriptions of the altered records to
Plaintiffs in advance of Lucich and Longmuir’s depositions. According to the
complaint, “[a]t no time during either Lucich’s or Longmuir’s depositions did
they disclose they had altered [Santos’s] medical records to include the notes
about which they testified under oath.” Appellants’ Appendix Volume II at 53.
in therapy. Nutrition. ed[ucated] need to get extra protein, vit[amin] c, etc.’.”; “After completing and signing her
August 29, 2012 Progress Note, Longmuir and/or Lucich intentionally and improperly altered the records by
checking the boxes ‘Pressure Relief’ and ‘Nutrition’ and adding the note: “Pressure Relief: during transfer
watching B heels at night, encouraged pressure relieving bed. Nutrition: reports eating well with extra protein,
drinks boost’.” Appellants’ Appendix Volume II at 46-49.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 3 of 20
[6] On November 26, 2018, NCS received a copy of Santos’s original records
produced by IU Health from Broadspire, an entity involved in Santos’s
worker’s compensation claim with his employer. IU Health provided that copy
of Santos’s records to Broadspire by fax on August 29, 2012. On November 29,
2018, while inspecting the records IU Health had produced to Broadspire,
Plaintiffs discovered that Broadspire’s copy of the records did not include the
altered handwritten notes. A few weeks later, IU Health agreed to resolve
Santos and Fran’s medical malpractice claim. IU Health settled the claim with
the right to proceed against the Patient’s Compensation Fund.
Procedural History
[7] In their complaint filed on April 16, 2019, Plaintiffs alleged: Count I, fraud;
Count II, criminal counterfeiting, forgery, and violation of Crime Victims Relief
Act; and Count III, tort of outrage, perjury, and violation of Ind. Trial Rule 34. 3
On June 10, 2019, Defendants filed a motion to dismiss pursuant to Ind. Trial
Rules 12(B)(1) and 12(B)(6). They asserted that, “should [the trial court] find
that Plaintiffs’ Complaint, in whole or in part, states any claim from which
relief can be granted, [the trial court] lacks subject matter jurisdiction because
the claims in the Complaint sound in negligence” and the complaint is subject
to the prerequisites of Indiana’s Medical Malpractice Act (“MMA”) and should
3
With respect to their claim of perjury and violation of Ind. Trial Rule 34, Plaintiffs state in their reply brief
that Defendants are correct that Indiana does not recognize a standalone cause of action for perjury or
violation of Trial Rule 34 and do not challenge the dismissal of these claims.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 4 of 20
first be presented to the medical review panel. Id. at 74. In their motion,
Defendants requested that the court take judicial notice of the court records
found in Santos Cortez and Fran Cortez v. Indiana University Health, Inc., and
Stephen W. Robertson, Commissioner, Indiana Department of Insurance, as
Administrator of the Indiana Patient’s Compensation Fund, Cause No. 49D05-1706-
CT-22995 (“Cause No. 995”).
[8] In Cause No. 995, the Marion Superior Court entered an April 1, 2019 order
dismissing with prejudice the complaint by Santos and Fran against IU Health
and Stephen W. Robertson, Commissioner, Indiana Department of Insurance,
as Administrator of the Indiana Patient’s Compensation Fund. The order
noted that the case of Santos Cortez and Fran Cortez v. Stephen W. Robertson,
Commissioner of Insurance, State of Indiana, Indiana Department of Insurance,
Patient’s Compensation Fund, Cause No. 49D04-1902-CT-6463 (“Cause No.
6463”), remained pending. 4
4
In Cause No. 6463, Santos and Fran filed a Petition for Payment of Excess Damages from the Patient’s
Compensation Fund in the Marion Superior Court on February 15, 2019. On October 10, 2019, Santos and
Fran filed a Petition for Court Ordered Approval of Settlement Agreement and Release. Id. The Settlement
Agreement and Release attached to the petition states:
Notwithstanding any provision hereinabove, the parties expressly agree that this Settlement
Agreement and Release is expressly limited to the claims arising from the medical care and
treatment provided to Santos Cortez by the Defendants in August 2012, and expressly
excludes any claims associated with Petitioners’ and their attorneys’ claims arising out of
other conduct engaged in by Indiana University Health, Inc., and/or its employees, which
claims are not governed by the Indiana Medical Malpractice Act, as those claims are
alleged in Santos Cortez, Fran Cortez and Norris Choplin Schroeder LLP, vs. Indiana University
Health, Inc., Sharon V. Lucich and Elizabeth A. Longmuir, Cause No. 49D06-1904-CT-015514,
which claims are expressly reserved under this agreement.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 5 of 20
[9] On July 22, 2019, the trial court held a hearing on Defendants’ motion to
dismiss. On October 11, 2019, the court entered a ten-page order granting
Defendants’ motion which provides in part:
CONCLUSIONS OF LAW
A. Medical Malpractice Act
*****
Plaintiffs’ Complaint states that “[t]his case arises out of
Defendants’ intentional and fraudulent alteration of medical
records reflecting the care and treatment they provided to
Plaintiff Santos Cortez so as to defeat a medical malpractice
claim that the Cortezes brought against [IU Health]” (Compl. ¶
1). Plaintiffs explicitly link the MMA action to the activity
alleged under this cause. They lay out four (4) specific instances
of document alteration (Compl. ¶ 16-24) that form the core of the
Complaint. Plaintiffs concede that the facts involving the altered
records are rooted firmly in the MMA case, but they contend that
the settlement documents released Defendants “for medical
negligence only, excluding the medical records issue.” (Pltffs’
Motion to Strike filed July 16, 2019 ¶ 10.)
Plaintiffs argue that the claims are so egregious that they should
fall beyond the purview of the MMA. As a policy matter,
Plaintiffs assert that the MMA is insufficient to deter future
fraudulent acts and/or criminal acts of Defendants. To redress
these concerns, Plaintiffs argue for the right to invoke private
October 10, 2019 Petition for Court Ordered Approval of Settlement Agreement and Release at 10. On
October 15, 2019, the court entered an order granting the petition, approving the release, and ordering “the
Commissioner, in his capacity as Administrator of the Indiana Patient’s Compensation Fund . . . to authorize
a cash payment from the Indiana Patient’s Compensation Fund to Santos Cortez and Fran Cortez, in the
amount of Nine Hundred Fifty Thousand Dollars ($950,000.00).” October 15, 2019 Order in Cause No.
6463.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 6 of 20
rights of action in addition to the remedies already provided
under the MMA.
B. Indiana Code: Title 25
Private rights of action to deter future fraudulent behavior may
be appropriate, but when possible, Indiana case law has deferred
to available statutory remedies. Howard Reg’l Health Sys. v.
Gordon, 952 N.E.2d 182 (Ind. 2011) addresses the maintenance of
health records (see I.C. § 16-39-7–Maintenance of Health
Records, X-rays, and Other Tests), a matter similarly situated to
this case. “Surely the skillful, accurate, and ongoing
maintenance of test and treatment records bears strongly on
subsequent treatment and diagnosis of patients. It is a part of
what patients expect from health care providers. It is difficult to
contemplate that such a service falls outside the [Medical
Malpractice] Act.” Id. at 186. A private party may not usually
enforce rights under a statute designed to protect the public in
general and which contains an enforcement provision. Id. at 187
(quoting, Estate of Cullop v. State, 821 N.E.2d 403 (Ind. Ct. App.
2005)[, reh’g denied]). “Whether a statute creates a private right of
action is a question of law for the court.” Id.Here, Defendant IU Health was required to maintain the records,
but the gravamen of the case is the alteration of health records by
Defendants Lucich and Longmuir. They are health care
providers subject to, not only the MMA, but to disciplinary
sanctions governing providers[’] licensure, registration or
certification under Indiana Code Title 25. (see I.C. § 25-1-9;
specifically, I.C. § 25-1-9-4(a)(1)(B) concerning disciplinary
action by the governing board when a practitioner has “engaged
in fraud or material deception in the course of professional
services or activities”). Since the legislature has provided
statutory enforcement mechanisms within both the MMA and
Title 25, a private right of action does not exist against Lucich
and Longmuir in this instance.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 7 of 20
THEREFORE, Defendants’ Motion to Dismiss is GRANTED
as to Defendants Lucich and Longmuir.
Appellant’s Appendix Volume II at 178-181. With respect to Ind. Trial Rule
12(B)(6), the court found that “under the facts and circumstances known to the
parties on the date of the settlement of the Medical Malpractice Action, res
judicata applies to all three counts alleged.” Id. at 183. It found that alteration
of evidence such as medical records constitutes spoliation and that first-party
spoliation claims have been rejected. Id. at 184. The court’s order also states:
3. Standing of NCS
“[S]tanding focuses on whether the complaining party is the
proper person to invoke the court’s power.” State ex rel. Steinke v.
Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005) (quotation
omitted), trans. denied. “The main purpose of standing is to
insure [sic] that the party before the court has a substantive right
to enforce the claim that is being made in the litigation.” Schulz
v. State, 731 N.E.2d 1041, 1044 (Ind. Ct. App. 2000) (citing Pence
v. State, 652 N.E.2d 486, 487 (Ind. 1995)[, reh’g denied])[, trans.
denied]. Here, NCS represented the Cortezes in the Medical
Malpractice Action. (Compl. ¶ 28).
Indiana Code § 34-18-2-22 provides in pertinent part: “Derivative
claims include the claim of a parent or parents, guardian, trustee,
child, relative, attorney, or any other representative of the patient
including claims for loss of services, loss of consortium, expenses,
and other similar claims.” (emphasis added.) In Indiana Patient’s
Compensation Fund v. Wolfe, 735 N.E.2d 1187, 1192 (Ind. Ct.
App. 2000), [trans. denied,] this Court determined that the
statutory definition of “patient” included only “a person who
receives or should have received health care.” Too, “any
derivative claim that might arise from the malpractice committed
on the patient is included within that patient’s claim.” Id. Any
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 8 of 20
expenses or damages incurred by NCS in prosecution of the
Medical Malpractice Action is solely a matter of the contract
between NCS and the Cortezes.
THEREFORE, NCS lacks standing and is dismissed as a party.
Id. at 184-185. In November 2019, the court granted Defendants’ motion to
correct clerical error clarifying that it intended to state that IU Health,
Longmuir, and Lucich were each dismissed pursuant to Ind. Trial Rule
12(B)(1).
Discussion
[10] The dispositive issue is whether the trial court erred in determining it did not
have subject matter jurisdiction. Plaintiffs cite Howard Reg’l Health Sys. v.
Gordon, 952 N.E.2d 182 (Ind. 2011), and state that, if their claims were simply
predicated upon the destruction of medical records, then Defendants’ assertion
that they must present their claims to a medical review panel prior to bringing
suit would be accurate. Appellants’ Brief at 24. They argue that they do not
contend Defendants simply failed to maintain Santos’s records, but rather that
Defendants “proffered altered medical records in conjunction with perjured
testimony in an attempt to support a contrived contributory negligence
defense.” Id. They assert that, “[i]n contrast to the mere maintenance of
medical records, the fraudulent alteration of records and facilitation of perjury
have nothing to do with ‘curative or salutary conduct’ or the ‘exercise of
professional expertise, skill, or judgment’ and are, instead, actions decidedly
unrelated to healthcare,” the MMA is not applicable, and the trial court had
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 9 of 20
subject matter jurisdiction over their claims. Id. They also argue that “policy
considerations also favor reversal because, if this Court affirms the trial court,
nothing will deter other unscrupulous providers from perpetrating similar
frauds.” Id. at 28.
[11] Defendants argue that Plaintiffs’ claims fall within the purview of the MMA
and they consequently must bring their claims before the medical review panel
and the trial court lacks subject matter jurisdiction until that condition
precedent has been satisfied. They assert Plaintiffs’ attempt to distinguish
Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182 (Ind. 2011), fails because the
alleged acts all stem from the maintenance of the medical records which the
Indiana Supreme Court has declared falls within the definition of malpractice.
[12] In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial
court may consider not only the complaint and motion but also any affidavits or
evidence submitted in support. GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind.
2001). The standard of appellate review for such a motion depends on what
occurred in the trial court, and on “(i) whether the trial court resolved disputed
facts; and (ii) if the trial court resolved disputed facts, whether it conducted an
evidentiary hearing or ruled on a ‘paper record.’” Id. at 401. We review de
novo a trial court’s ruling on a motion to dismiss where, as here, the facts
before the court are disputed and the trial court rules on a paper record. Id.
Under such circumstances a court of review is in as good a position as the trial
court to determine whether the court has subject matter jurisdiction. Id.
Although the trial court held a hearing on the motion to dismiss, the hearing
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 10 of 20
was simply an oral argument as the parties presented no evidence and no
witnesses were sworn. Accordingly, we apply a de novo standard of review
based on the paper record before us.
[13] The MMA requires the presentation of the proposed complaint to a medical
review panel before an action may be commenced in a court in Indiana. Metz as
Next Friend of Metz v. Saint Joseph Reg’l Med. Ctr.-Plymouth Campus, Inc., 115
N.E.3d 489, 494 (Ind. Ct. App. 2018) (citing Ind. Code § 34-18-8-4).
“Essentially, the [MMA] grants subject matter jurisdiction over medical
malpractice actions first to the medical review panel, and then to the trial
court.” Id. (quoting H.D. v. BHC Meadows Hospital, Inc., 884 N.E.2d 849, 853
(Ind. Ct. App. 2008), reh’g denied, trans. denied; and citing B.R. ex rel. Todd v.
State, 1 N.E.3d 708, 713 (Ind. Ct. App. 2013) (“Simply said, the [MMA] grants
subject matter jurisdiction over medical malpractice actions first to the medical
review panel, and then to the trial court.”), trans. denied). See also Eads v. Cmty.
Hosp., 932 N.E.2d 1239, 1246 (Ind. 2010) (holding that the MMA “requires that
claims for medical malpractice that are recognized under tort law and
applicable statutes be pursued through the procedures of the MMA”) (citing
Chamberlain v. Walpole, 822 N.E.2d 959, 963 (Ind. 2005)).
[14] The MMA defines “malpractice” as “a tort or breach of contract based on
health care or professional services that were provided, or that should have been
provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18. Ind.
Code § 34-18-2-22 provides:
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 11 of 20
“Patient” means an individual who receives or should have
received health care from a health care provider, under a
contract, express or implied, and includes a person having a
claim of any kind, whether derivative or otherwise, as a result of
alleged malpractice on the part of a health care provider.
Derivative claims include the claim of a parent or parents,
guardian, trustee, child, relative, attorney, or any other
representative of the patient including claims for loss of services,
loss of consortium, expenses, and other similar claims.
The Indiana Supreme Court has held that “[t]he effect of this provision is
merely to require that any person who has a ‘derivative claim’ for medical
malpractice follow the requirements of the MMA in filing a proposed complaint
with the Insurance Commissioner, etc.” Chamberlain, 822 N.E.2d at 963.
“Health care” is “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.” Ind.
Code § 34-18-2-13.
[15] The Indiana Supreme Court has held:
Indiana courts understand the [MMA] to cover “curative or
salutary conduct of a health care provider acting within his or her
professional capacity,” Murphy v. Mortell, 684 N.E.2d 1185, 1188
(Ind. Ct. App. 1997), [trans. denied,] but not conduct “unrelated to
the promotion of a patient’s health or the provider’s exercise of
professional expertise, skill, or judgment.” Collins v. Thakkar, 552
N.E.2d 507, 510 (Ind. Ct. App. 1990)[, trans. denied].
Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011). “To
determine whether the [MMA] is applicable, the court looks to the substance of
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 12 of 20
a claim.” Id. (citing Van Sice v. Sentany, 595 N.E.2d 264 (Ind. Ct. App. 1992)).
“[R]egardless of what label a plaintiff uses, claims that boil down to a ‘question
of whether a given course of treatment was medically proper and within the
appropriate standard’ are the ‘quintessence of a malpractice case.’” Id. (quoting
Van Sice, 595 N.E.2d at 267). “By contrast, to fall outside the Malpractice Act a
health care provider’s actions must be demonstrably unrelated to the promotion
of the plaintiff’s health or an exercise of the provider’s professional expertise,
skill, or judgment.” Id. at 186.
[16] We find Howard Reg’l Health Sys. v. Gordon instructive. In that case, Lisa
Gordon was admitted to Howard County Community Hospital in labor. Id. at
184. Dr. Richard A. Gard had provided Lisa’s prenatal care. Id. He delivered
Jacob Gordon by caesarian section after determining the baby was in a breech
position, on January 7, 1999. Id. Sometime thereafter it became apparent that
Jacob suffered from numerous serious disorders. Id. The Gordons believed
that Jacob’s conditions may have been caused by substandard medical care at
the time of his birth. Id. Counsel for Lisa first requested medical records from
the Hospital in December 2003 and then in 2004. Id. Counsel made additional
requests after it became apparent there were gaps in the medical records turned
over. Id.
[17] In 2005, the Gordons filed a complaint for damages with the Indiana
Department of Insurance as required by the MMA. Id. The complaint named
Howard Regional as the sole defendant and alleged that one of the hospital
nurses did not conform to the applicable standard of medical care, causing
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 13 of 20
damage to Jacob. Id. In March 2006, the Gordons filed a motion to compel
discovery. Id. The Hospital filed affidavits dated June 5, 2006, stating that
some of the records could not be located. Id. The missing records included
nursing and narrative notes. Id.
[18] The Gordons filed an amended complaint against the Hospital, named three
additional defendants, and included in part Count I, medical negligence against
Howard Regional, and Count II, third-party spoliation of evidence against
Howard Regional. Id.
[19] The Gordons moved for partial summary judgment against Howard Regional
with respect to Count II, the third-party spoliation claim. Id. In support, they
tendered the affidavit of a neonatologist stating she could not determine
whether the standard of care was met because of the missing medical records.
Id. at 184-185. After a hearing, the trial court granted the Gordons partial
summary judgment and authorized an interlocutory appeal by Howard
Regional. Id. at 185. Howard Regional appealed, and another panel of this
Court affirmed. Id.
[20] On transfer, the Indiana Supreme Court addressed two threshold questions:
whether the Gordons’ spoliation claim fell within the general scope of the
MMA and whether Indiana’s statute on maintenance of health records statute
created a private right of action. Id. The Court held:
Splitting out separate actions by a provider has usually been held
contrary to the Act. In determining that both the activity of
credentialing and medical malpractice should be reviewed
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 14 of 20
together under the Act, the Court of Appeals explained the
landscape well:
Viewed from the historical perspective we believe the
conclusion is inescapable that our General Assembly
intended that all actions the underlying basis for
which is alleged medical malpractice are subject to
the act. [T]he obvious purpose of the act is to
provide some measure of protection to health care
providers from malpractice claims, and to preserve
the availability of the professional services of
physicians and other health care providers in the
communities and thereby protect the public health
and well-being[.]
Winona Mem’l Hosp., LP v. Kuester, 737 N.E.2d 824, 828 (Ind. Ct.
App. 2000) (quoting Sue Yee Lee v. Lafayette Home Hosp., Inc., 410
N.E.2d 1319, 1324 (Ind. Ct. App. 1980)).[ 5]
Id. at 186.
[21] With that background in mind, the Court held:
The Gordons’ underlying claim in Count II alleges medical
malpractice because the “[m]aintenance of health records by
providers” is so closely entwined with health care and because
5
The Court included a footnote which stated:
Parents contended their trial court complaint represented an independent action for
damages outside the purview of the Act. The parents believed their claim for the loss of
services of their child and for medical expenses was outside the Act because they were
never patients of the defendant health care providers, either under the statutory definition
or under recognized definitions of the term, and they were not suing in representative
capacity. The court held the parents’ right of action was derived from a claim of medical
malpractice and thus covered by the Act. Sue Yee Lee, 410 N.E.2d at 1324.
952 N.E.2d at 186 n.2.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 15 of 20
records in general are so important to a medical review panel’s
assessment of whether the appropriate standard of care was met.
Ind. Code §§ 16-39-7-1, 34-18-10-22(a). The Gordons rightly
acknowledge how important health care records are for “the
nature and quality of the health care provided, for billing
purposes, and peer review.” (Appellee’s Br. at 16.) (emphasis
added)[.] Surely the skillful, accurate, and ongoing maintenance
of test and treatment records bears strongly on subsequent
treatment and diagnosis of patients. It is a part of what patients
expect from health care providers. It is difficult to contemplate
that such a service falls outside the Act.
Id.[22] The Court then addressed “the Gordons’ contention that the statute on
maintenance of health records creates a private right of action separate from
the” MMA and the Gordons’ argument that subsection (d) “implicitly
recognizes that there is civil liability on the part of a healthcare provider if it
violates Ind. Code § 16-39-7-1.” 6 Id. The Court concluded that “neither the
6
Ind. Code § 16-39-7-1 is titled “Maintenance of health care records by providers” and provides:
(a) As used in this section, “provider” means the following:
*****
(8) A physical therapist.
*****
(13) A hospital or facility licensed under IC 16-21-2 or IC 12-25 or described in IC
12-24 or IC 12-29.
(b) A provider shall maintain the original health records or microfilms of the records for at
least seven (7) years.
(c) A provider who violates subsection (b) commits an offense for which a board may
impose disciplinary sanctions against the provider under the law that governs the provider’s
licensure, registration, or certification under this title or IC 25.
(d) A provider is immune from civil liability for destroying or failing to maintain a health
record in violation of this section if the destruction or failure to maintain the health record
occurred in connection with a disaster emergency as declared by the governor under IC 10-
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 16 of 20
rules of statutory construction nor the history of the enactment lead to the idea
that Section 1(d) confers a private remedy for the Gordons.” Id. at 188.
[23] The Court then discussed first-party and third-party spoliation claims. 7 Id. The
Court clarified that first-party spoliation refers to the spoliation of evidence by a
party to the principal litigation and third-party spoliation refers to spoliation by
a non-party. Id. The Court observed that it answered two certified questions in
Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005), and limited its
answers in that case to first-party spoliation. Id. The Court held:
Our decision in Gribben to forgo recognizing a distinct cause of
action for first-party spoliation likewise comports with the
approach of many courts that have instead addressed such
allegations in the underlying litigation through sanctions,
including adverse inference instructions and other mechanisms.
See Cedars-Sinai Med. Ctr. v. Superior Court (Bowyer), 18 Cal.4th 1,
74 Cal.Rptr.2d 248, 954 P.2d 511, 517 (1998) (“[T]here are a
number of nontort remedies that seek to punish and deter the
intentional spoliation of evidence. Chief among [which] is the
evidentiary inference that evidence which one party has
destroyed or rendered unavailable was unfavorable to that
party.”); see also Leon v. IDX Sys. Corp., 464 F.3d 951, 958, 960-63
(9th Cir. 2006) (affirming dismissal against party for bad faith
destruction of relevant evidence); cf. Ind. Trial Rule 37 (a court
14-3-12 or other disaster, unless the destruction or failure to maintain the health record was
due to negligence by the provider.
7
“Spoliation consists of ‘[t]he intentional destruction, mutilation, alteration, or concealment of evidence,
usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the
party responsible.’” Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000) (quoting BLACK’S LAW
DICTIONARY 1409 (7th ed. 1999)).
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may sanction a party, including dismissal of a claim or defense,
for failing to comply with a discovery order).
Id. at 189. The Court further held:
Our decision in Gribben rested partly on similar analysis. In
declining to recognize first-party spoliation claims we concluded,
Notwithstanding the important considerations
favoring the recognition of an independent tort of
spoliation by parties to litigation, we are persuaded
that these are minimized by existing remedies and
outweighed by the attendant disadvantages. We thus
determine the common law of Indiana to be that, if
an alleged tortfeasor negligently or intentionally
destroys or discards evidence that is relevant to a tort
action, the plaintiff in the tort action does not have an
additional independent cognizable claim against the
tortfeasor for spoliation of evidence under Indiana
law.
Gribben, 824 N.E.2d at 355. We did acknowledge that fairness
and integrity of outcome and deterrence might require a separate
tort remedy against persons who are not parties to the principal
litigation, but as the certified question did not necessitate
examination of third-party spoliation, we did not address it
further.
The following year in Glotzbach v. Froman, we first considered
whether an employee could sue his employer in tort, outside the
Worker’s Compensation Act, for loss of evidence about his injury
on the job, evidence said to be needed for litigation against the
maker of a pump that exploded at the worksite. 854 N.E.2d 337(Ind. 2006). We concluded the disadvantages in first-party
spoliation militated against recognizing a third-party claim in
that setting:
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Proving damages in a third-party spoliation claim
becomes highly speculative and involves a lawsuit in
which the issue is the outcome of another
hypothetical lawsuit. The jury must somehow find
all the elements of a product liability case,
immediately determining whether a product defect
caused the injury, as opposed to inadequate
maintenance, or other intervening events. The jury
would be asked to determine what the damages
would have been had the evidence been produced
and what the collectibility of these damages would
have been. We think this exercise often could
properly be described as “guesswork.”
Id. at 341 (citing Petrik v. Monarch Printing Corp., 150 Ill.App.3d
248, 103 Ill.Dec. 774, 501 N.E.2d 1312, 1320 (1986)).
Necessarily working from the background of Gribben and
Glotzbach, and our observation that fairness and integrity of
outcome might sometime require recognizing such a claim, the
Gordons urge that theirs is an instance warranting an
independent tort for third-party spoliation. The theory runs like
this: when it comes time to prove the Gordons’ claim against Dr.
Gard, the Hospital’s loss of medical records hinders their ability
to pursue a claim against Dr. Gard. Thus, they say, the Hospital
is a third party against whom a separate tort for spoliation is
needed. The Hospital, of course, is also a first-party defendant.
We conclude that splitting up the defendants, and the counts
against them, blurs the distinction between actual defendants and
others who may possess evidence but are not parties to the
litigation. What the Gordons’ case presents is really a claim for
first-party spoliation, carrying the same advantages and
disadvantages we weighed in Gribben and Glotzbach.
Id. at 190.
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[24] The Court observed that the MMA “generally requires that actions for medical
negligence against health care providers must first be submitted to, and an
opinion given by, a medical review panel before commencing an action in
court.” Id. at 191 (citing Ind. Code § 34-18-8-4). The Court held that the
Hospital was entitled to summary judgment on the claim of spoliation because
the Court declined to recognize the count as representing a separate cause of
action. Id.[25] Based upon the Indiana Supreme Court’s opinion in Gordon, we conclude that
the maintenance of health care records in this case including their alteration
prior to the filing of the proposed complaint alleging malpractice against IU
Health fall within the scope of the MMA. Plaintiffs did not submit these claims
to a medical review panel. Accordingly, we affirm the trial court’s grant of
Defendants’ motion to dismiss. 8
[26] Affirmed.
Najam, J., and Kirsch, J., concur.
8
Because we affirm on the basis of Ind. Trial Rule 12(B)(1), we need not address Plaintiffs’ arguments
regarding Ind. Trial Rule 12(B)(6).
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