Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 1 of 54

ATTORNEYS FOR APPELLANTS

A. Richard M. Blaiklock 

Wade D. Fulford

Michael D. Heavilon

Lewis Wagner, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

JANE DOE, JOHN DOE I, AND 

JOHN DOE II

Gabriel A. Hawkins

Gregory L. Laker

Cohen & Malad, LLP

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

BOARD OF TRUSTEES OF 

ANONYMOUS HOSPITAL 

Brian L. Park

Norris Cunningham

Michael J. Blinn

Stoll Keenon Ogden PLLC

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

JONATHAN CAVINS

1

Michael D. Conner

Spitzer Herriman Stephenson Holderead 

Conner & Persinger, LLP

Marion, Indiana

1 Although Appellee Jonathan Cavins has not participated in this appeal, he is nevertheless a party on appeal. 

See Ind. Appellate Rule 17(A) (stating that a party of record in the trial court shall be a party on appeal).
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 2 of 54

IN THE

COURT OF APPEALS OF INDIANA

Indiana Department of Insurance 

and Indiana Patient’s 

Compensation Fund,

Appellants-Defendants,

v.

Jane Doe and John Doe I,

individually and as next friends 

and legal guardians of John Doe 

II, an unmarried minor,

Appellees-Plaintiffs,

and

Jonathan Cavins and Board of 

Trustees of Anonymous 

Hospital,

Appellees-Intervenors.

June 2, 2023

Court of Appeals Case No.

22A-CT-1276

Appeal from the

Boone Circuit Court

The Honorable

Lori N. Schein, Judge

Trial Court Case No.

06C01-2108-CT-1016

Opinion by Senior Judge Najam

Judge Foley concurs.

Judge Robb concurs in part and dissents in part with separate opinion.

Najam, Senior Judge.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 3 of 54

Statement of the Case

[1] Appellants, the Indiana Department of Insurance and the Patient’s 

Compensation Fund, bring this interlocutory appeal from the trial court’s denial 

of their motion for summary judgment on a claim for excess damages under the 

Medical Malpractice Act (“the Act”) brought by Jane Doe and John Doe I, 

individually and as next friends and legal guardians of John Doe II, an 

unmarried minor (the “Does”). We conclude that there are no genuine issues 

of material fact and that the Fund is entitled to judgment as a matter of law. 

Accordingly, we reverse and remand with instructions.

Issues

[2] The ultimate question presented is whether the Does have satisfied the statutory 

prerequisites for access to the Patient’s Compensation Fund. In order to answer 

that question, we must address the following issues:

I. Whether a freestanding claim of negligent credentialing 

can exist where the underlying act of negligence does not 

constitute medical malpractice under the Act;

II. Whether the liability of the health care provider as 

admitted and established under Indiana Code section 34-

18-15-3(5) precludes the Fund from disputing the 

compensability of a claim for excess damages;

III. Whether the doctrines of laches and equitable estoppel can 

prevent the Fund from contesting compensability of an 

excess damages claim where the Fund did not intervene 

before the claimant and the health care provider reached a 

settlement agreement to which the Fund is not a party; and
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 4 of 54

IV. Whether this Court’s opinion in Martinez v. Oaklawn 

Psychiatric Center, Inc., 128 N.E.3d 549 (Ind. Ct. App. 

2019), clarified on reh’g, trans. denied, affects the application 

of the Act in this case.

[3] First, we hold that an underlying act of medical malpractice is a necessary 

predicate and condition precedent to a medical credentialing malpractice claim.

[4] Second, we hold that, where the Fund is not a party to a settlement agreement 

between the claimant and the provider and the court must consider the liability 

of the health care provider as “admitted and established,” the Fund is not 

precluded from making an independent determination and may dispute

whether the underlying conduct is compensable under the Act.

[5] Third, we hold that the Fund does not have an affirmative duty to intervene in 

settlement negotiations between a claimant and a provider or to address a claim 

for excess damages until the claim has been filed in court. Before such a claim 

is filed, the doctrines of laches and estoppel, on these facts, are unavailable to 

prevent the Fund from disputing the compensability of an excess damage claim 

under the Act.

[6] And fourth, we conclude that Martinez v. Oaklawn Psychiatric Center, Inc. does not 

affect the resolution of the Does’ claims.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 5 of 54

Facts and Procedural History

[7] Jonathan Cavins was a pediatrician who was convicted of two counts of felony 

child molesting, one count of felony sexual misconduct with a minor, and two 

counts of felony child seduction for his commission of sexual acts on several 

male teenage patients, including John Doe II, while he was employed at 

Anonymous Hospital. Following Cavins’ convictions, the Does filed a medical 

malpractice action against Cavins and the Hospital. The Does reached a 

confidential settlement with the Hospital in an amount sufficient to permit them 

to petition for excess damages from the Patient’s Compensation Fund. The 

settlement, however, is not final but is contingent upon whether the Does 

obtain access to the Fund.

[8] The Does then filed this action for additional compensation from the Fund, and

both the Hospital and Cavins intervened. The Department of Insurance and 

the Fund moved for summary judgment, asserting that the Does’ claims fall 

outside the scope of the Medical Malpractice Act. The trial court denied the 

motion, and the Department of Insurance and the Fund now appeal.2

2 We held oral argument in this case on February 8, 2023.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 6 of 54

Discussion and Decision

Standard of Review

[9] Summary judgment is proper if the evidence shows that there is no genuine 

issue of material fact and that the moving party is entitled to judgment as a 

matter of law. Ind. Trial Rule 56(C); Pike Twp. Educ. Found., Inc. v. Rubenstein, 

831 N.E.2d 1239, 1241 (Ind. Ct. App. 2005). Where, as here, the relevant facts 

are not in dispute, we are presented with a pure question of law for which 

summary judgment disposition is particularly appropriate. Pike Twp. Educ. 

Found., 831 N.E.2d at 1241. We review pure questions of law de novo. Id.

[10] Indiana’s Medical Malpractice Act was enacted in 1975 and dictates the 

statutory procedures for medical malpractice actions. See Ind. Code §§ 34-18-1-

1 to 34-18-18-2. The Act 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 (1998). “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 (1998).

[11] Whether a claim is one of medical malpractice as defined by the Act is a 

question of law to be determined by the court. G.F. v. St. Catherine Hosp., Inc., 

124 N.E.3d 76, 85 (Ind. Ct. App. 2019), trans. denied. To make that 

determination, we look to the substance of a claim. Metz as Next Friend of Metz v. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 7 of 54

Saint Joseph Reg’l Med. Ctr.-Plymouth Campus, Inc., 115 N.E.3d 489, 495 (Ind. Ct. 

App. 2018). The appropriate analysis involves two steps: (1) a determination 

of whether the alleged negligence involves provision of medical services and (2) 

whether the rendering of medical services was to the plaintiff for the plaintiff’s 

benefit. Doe v. Ind. Dep’t of Ins., 194 N.E.3d 1197, 1201 (Ind. Ct. App. 2022), 

trans. denied.

[12] The touchstone of a claim of medical malpractice is the “‘curative or salutary 

conduct of a health care provider acting within his or her professional 

capacity.’” Metz, 115 N.E.3d at 495 (quoting Howard Reg’l Health Sys. v. Gordon, 

952 N.E.2d 182, 185 (Ind. 2011)). Claims that come within the purview of the 

Act must be based on “‘the provider’s behavior or practices while acting in his 

professional capacity as a provider of medical services.’” Metz, 115 N.E.3d at 

495 (quoting Robertson v. Anonymous Clinic, 63 N.E.3d 349, 358 (Ind. Ct. App. 

2016), trans. denied). 

[13] On the other hand, excluded from the Act is conduct “‘unrelated to the 

promotion of a patient’s health or the provider’s exercise of professional 

expertise, skill, or judgment.’” Metz, 115 N.E.3d at 495 (quoting Howard Reg’l 

Health Sys., 952 N.E.2d at 185). Actions of health care providers falling outside 

the scope of the Act are those that are “‘demonstrably unrelated to the 

promotion of the plaintiff’s health or an exercise of the provider’s professional 

expertise, skill, or judgment.’” Id. (quoting Howard Reg’l Health Sys., 952 

N.E.2d at 186). The Act is neither all-inclusive for claims against health care 

providers, nor is it intended to be extended to cases of ordinary negligence. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 8 of 54

G.F., 124 N.E.3d at 84. It was designed to curtail, not expand, liability for 

medical malpractice. Id.

I. Freestanding Claim of Negligent Credentialing

[14] In this appeal, neither the Does nor the Hospital contend that the negligent 

credentialing claim turns on whether a sexual assault constitutes medical 

malpractice.3

 And the Fund argues that the Does’ negligent credentialing claim 

against the Hospital is based on a claim that is not compensable under the Act. 

The Fund discusses our decisions in both Winona Memorial Hospital, Ltd. 

Partnership v. Kuester, 737 N.E.2d 824 (Ind. Ct. App. 2000) and Fairbanks

Hospital v. Harrold, 895 N.E.2d 732 (Ind. Ct. App. 2008), trans. denied, and 

concludes that, without an underlying claim of medical malpractice, a claim of 

negligent credentialing cannot be brought under the Act. More particularly, a 

claim of negligent credentialing cannot proceed under the Act based on just any

act of negligence; rather, the underlying negligence must constitute medical 

malpractice.

3 At oral argument, the Fund asserted that “We all seem to agree that what [Cavins] did was not [medical 

malpractice]” and that “We all agree that what he did was not patient treatment.” See

https://mycourts.in.gov/arguments/default.aspx?&id=2717&view=detail&yr=2023&when=2&page=1&co

urt=APP&search=Doe&direction=%20ASC&future=True&sort=&judge=&county=&admin=False&pageSi

ze=20 [https://perma.cc/JJ79-CJ37] (beginning at 4:44 and 19:49). Neither the Does nor the Hospital 

contested those statements. Instead, the Does argued that when considering a negligent credentialing claim, 

it does not matter whether the underlying claim sounds in medical negligence, provided that the medical 

malpractice element of negligent credentialing is satisfied. Likewise, the Hospital argued that even assuming 

for argument’s sake that a sexual assault does not constitute medical malpractice, where the credentialing 

decision is the proximate cause of the underlying tort, there is a viable medical malpractice claim whether or 

not the tort sounds in medical malpractice.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 9 of 54

[15] For their part, the Does allege that the substance of their claim against the 

Hospital constitutes medical malpractice because the credentialing of a doctor, 

which is done by medical professionals, some of whom are required to be 

physicians, is directly related to the provision of health care.

[16] The Hospital agrees with the Does and further contends that, because the act of 

medical credentialing itself is a provision of health care that comes under the 

Act, any underlying tort caused by negligent credentialing will suffice, 

regardless of whether it constitutes medical malpractice. Stated another way, 

regardless of the nature of the misconduct of the credentialed physician, the 

character and nature of the hospital’s credentialing decision remains a decision 

that required the exercise of professional medical expertise, skill, and judgment 

(i.e., an act that constitutes health care under the Act), which brings the action

under the Act. The Hospital claims that Winona “did little more than recognize 

that a negligent credentialing claim is a claim of secondary liability” and, for 

that reason, alleges that Fairbanks misapplied Winona when it relied on Winona

to hold that both the secondary claim of negligent credentialing and the 

underlying act of negligence that gives rise to it must constitute medical 

malpractice. Intervenor Hospital’s Br. p. 11. In addition, the Hospital 

distinguishes Fairbanks from the present case by the fact that it involved the 

negligent supervision of a hospital employee rather than the negligent 

credentialing of a doctor.

[17] In Winona, we held that a claim for negligent credentialing of a doctor is an 

action for malpractice subject to the Act and that “[t]he credentialing process 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 10 of 54

alleged must have resulted in a definable act of medical malpractice that 

proximately caused injury to [the plaintiff] or [the plaintiff] is without a basis to 

bring the suit for negligent credentialing.” 737 N.E.2d at 828. And we said 

that “both alleged negligent acts” are “required to recover (i.e., both the 

credentialing and the malpractice).” Id. (emphasis added).

[18] Eight years later in Fairbanks, we were called upon to decide whether a claim of 

negligent supervision of a hospital employee fell within the Act if the 

underlying tort by the employee was unwanted sexual advances. We deemed 

Winona to be dispositive of the issue and stated:

We thus learn from Winona that a medical malpractice action 

cannot become completely unmoored from the provision of what 

our case law has established is the very essence of health care, 

i.e., “conduct, curative or salutary in nature, by a health care 

provider acting in his or her professional capacity[.]” This is 

especially true where, as here, the patient is required to prove 

more than one layer—or multiple acts—of tortious conduct in 

order to prevail. It is for this reason that the court held in Winona

that it availed the patient nothing to prove that Winona was 

negligent in credentialing the physician in question if the patient 

did not also prove that said physician’s negligence in rendering 

health care services was a proximate cause of the patient’s harm. 

In other words, both allegedly tortious acts that comprised the patient’s 

claim of malpractice must sound in medical malpractice and not merely 

ordinary negligence.

Fairbanks, 895 N.E.2d at 738 (cleaned up) (emphasis added). We therefore 

concluded that both claims—sexual misconduct by Fairbanks’ employee and
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Fairbanks’ negligent supervision of the employee—must sound in medical 

malpractice in order for the action to come within the Act’s purview. Id.

[19] While we acknowledge the distinction between the negligent hiring, training, 

and supervision of a hospital employee and the negligent credentialing of a 

doctor, we conclude that Fairbanks correctly applied Winona and, in any event, 

this distinction does not affect our analysis in this case. And we cannot agree 

with Hospital’s view that any tort will do, that a negligent credentialing claim is 

a freestanding claim, and that “it makes no difference” whether the underlying 

claim sounds in medical negligence. Intervenor Hospital’s Br. p. 15. This is an 

argument that finds no support in our case law; rather, the case law is clear that 

an underlying act of medical malpractice is the predicate and condition 

precedent for a negligent credentialing claim. Indeed, relying on Winona, in 

Martinez v. Park, we succinctly and unambiguously stated that “Without a 

showing of an underlying breach of the standard of care by Dr. Park 

proximately causing Martinez’s injuries, the Healthcare Center cannot be liable 

for the negligent credentialing of him.” 959 N.E.2d 259, 272 (Ind. Ct. App. 

2011).

[20] Just as we did in Fairbanks, we conclude here that “a medical malpractice action 

cannot become completely unmoored from the provision of what our case law 

has established is the very essence of health care . . . .” 895 N.E.2d at 738. 

Thus, we hold once again that negligent credentialing is a secondary claim of 

liability that requires two negligent acts: (1) an underlying act of negligent 

health care by a credentialed physician and (2) negligence by the hospital in 
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credentialing the physician. In order to state a claim that comes within the 

purview of the Act, and thus confer access to the Fund, both acts must 

constitute medical malpractice. A plaintiff cannot assert a claim of negligent 

credentialing to bootstrap and convert a common law negligence claim into 

statutory medical malpractice. In this case, the Does’ claim against the 

Hospital is tantamount to a common law tort of negligent hiring and retention

akin to the claims asserted in Fairbanks. Given that this Court has consistently 

held that sexual misconduct is unrelated to the promotion of a patient’s health 

and does not constitute medical malpractice,4

Cavins’ misconduct here 

constitutes ordinary negligence, not medical malpractice, and thus the Does’ 

secondary claim of negligent credentialing cannot come within the purview of

the Act.

[21] The dissent advocates for a radical departure from Indiana caselaw, which 

makes clear that conduct “‘demonstrably unrelated to the promotion of the 

[patient]’s health’” falls outside the scope of the Act. Metz, 115 N.E.3d at 495

4 See, e.g., Doe, 194 N.E.3d 1197 (tort claim arising from sexual assault by nurse while patient was 

hospitalized did not fall within purview of the Act); Fairbanks, 895 N.E.2d 732 (claims based on hospital 

employee’s unwanted sexual advances toward patient did not to fall under the Act); Grzan v. Charter Hosp. of 

Nw. Ind., 702 N.E.2d 786 (Ind. Ct. App. 1998) (mental health counselor’s conduct of engaging in emotional 

and sexual relationship with patient did not fall within scope of the Act); Murphy v. Mortell, 684 N.E.2d 1185 

(Ind. Ct. App. 1997) (hospital employee’s act of molesting patient did not constitute rendition of health care 

or professional services, was not designed to promote patient’s health, and did not call into question 

employee’s use of skill or expertise as a health care provider; thus, patient’s claim sounded in general 

negligence and did not fall within purview of the Act), trans. denied; Doe by Roe v. Madison Ctr. Hosp., 652 

N.E.2d 101 (Ind. Ct. App. 1995) (coerced sexual intercourse between minor patient and hospital employee 

held not to fall under the Act), trans. dismissed.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 13 of 54

(quoting Howard Reg’l Health Sys., 952 N.E.2d at 186). If adopted, the dissent’s

reasoning would vastly expand liability for statutory medical malpractice claims 

to include criminal acts—a result disavowed by our precedent and clearly not 

contemplated or intended by our legislature. See, e.g., G.F., 124 N.E.3d at 84. 

We decline to take that path.

[22] The dissent cites our holding in Winona that “a claim for negligent credentialing 

of a physician is an action for malpractice subject to the Act” but disregards our 

declaration in the same case that “the Act applies to conduct [that is] curative 

or salutary in nature.” 737 N.E.2d at 828. Here, Cavins’ criminal conduct is 

unrelated to the promotion of the patient’s health and not curative or salutary in 

nature. A sexual assault will not support a medical malpractice claim because a 

sexual assault does not constitute the practice of medicine. Rather, a sexual 

assault is a crime that occupies a different realm than medical negligence. The 

fact that the crime occurs within the context of a doctor-patient relationship 

does not alter the essence of the crime or transform the crime into medical 

malpractice. In this case, the physician’s misconduct cannot be characterized 

as “health care or professional services that were provided, or that should have 

been provided, by a health care provider, to a patient.” See Ind. Code § 34-18-

2-18 (defining “malpractice”). Thus, the sexual assault underlying the claim 

does not satisfy the statutory definition of medical malpractice.

II. Effect of Indiana Code § 34-18-15-3(5)

[23] The Does additionally argue that the Fund cannot challenge their negligent 

credentialing claim against the Hospital because it is “established” as a matter 
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of law as a result of their settlement agreement. To support this argument, the 

Does cite Indiana Code section 34-18-15-3(5) (2017), which provides: “In 

approving a settlement or determining the amount, if any, to be paid from the 

patient’s compensation fund, the court shall consider the liability of the health 

care provider as admitted and established.”

[24] The Does conflate two distinct concepts: “factual compensability” and “legal 

compensability.” In Robertson v. B.O., our Supreme Court distinguished 

between a provider’s underlying liability for negligence (“factual

compensability”) and compensability from the Fund (“legal compensability”). 

977 N.E.2d 341, 347 (Ind. 2012). The Court explained that, under Indiana 

Code section 34-18-15-3(5), the question of factual compensability is foreclosed 

when a plaintiff settles with a health care provider. Id. at 347-48. However, 

such a settlement does not preclude the Fund from contesting the legal 

compensability of the claimed injury as one that is not compensable under the 

Act and therefore also not subject to a claim for excess damages from the Fund. 

Id.

[25] In Cutchin v. Ind. Dep’t of Ins., 446 F. Supp. 3d 413, 420-21 (S.D. Ind. 2020), 

rev’d and remanded sub nom. on other grounds, Cutchin v. Beard, 854 F. App’x 86 

(7th Cir. 2021), we find an excellent discussion of the distinction our Supreme 

Court articulated in Robertson. Plaintiff Cutchin attempted the same argument 

as the Does proffer here. After reaching a settlement agreement with providers, 

Cutchin sought excess damages from the Fund. The Fund argued the Act did 

not apply to Cutchin’s claim. Citing the same statutory language as the Does, 
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Cutchin argued the Fund was foreclosed from contesting the applicability of the 

Act and therefore the Fund’s liability for excess damages. He asserted that the 

language of Indiana Code section 34-18-15-3(5) unequivocally establishes the 

Fund’s liability when a health care provider settles a claim with a claimant.

[26] The court rejected Cutchin’s claim and explained that his settlement with the 

provider established the liability of only the health care provider, not the 

liability of the Fund. The court pointed to the plain language of the statute that 

states: “the court shall consider the liability of the health care provider as 

admitted and established.” Ind. Code § 34-18-15-3(5) (emphasis added). The 

court thus distinguished between a challenge to the liability of a health care 

provider, which the Fund cannot do after settlement between the plaintiff and 

the provider, and a challenge to the applicability of the Act, which the Fund 

may do even when a settlement has occurred. Accordingly, the court in Cutchin

concluded that the settlement between Cutchin and the providers did not 

foreclose the Fund from challenging the applicability of the Act and did not 

establish the Fund’s liability. Considering the Does’ argument on this issue, we 

agree with and adopt the reasoning set forth in Cutchin. We therefore conclude 

that the settlement agreement between the Does, the Hospital, and Cavins 

established only the liability of Cavins and the Hospital (per Robertson, the 

“factual compensability”) and does not preclude the Fund from challenging the 

applicability of the Act (per Robertson, the “legal compensability”) to the claims 

of the Does. 
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III. Laches and Estoppel

[27] The Hospital contends the equitable doctrines of laches and estoppel should be 

applied to preclude the Fund from challenging the applicability of the Act to the 

Does’ claim. Particularly, the Hospital alleges the Fund should have contested 

the Does’ claim to excess damages sooner than it did. We cannot agree.

[28] The parties to a medical malpractice claim cannot bind the Fund, a non-party, 

by an adjudication or stipulation establishing the health care provider’s factual 

liability in negligence. As we discussed in Issue II, a settlement establishing a 

provider’s factual liability does not necessarily establish whether the claim is 

covered under the Act or the Fund’s liability for excess damages. Rather, the 

Fund is permitted to make an independent determination of whether a claim for 

excess damages is based upon a claim covered by the Act, and the Fund’s 

responsibility in this regard is not ripe until a claim for excess damages is made. 

See Ind. Code § 34-18-15-3(1) (if plaintiff demands damages in excess of 

provider’s policy limits, plaintiff must file petition in court demanding payment 

from the Fund); -3(2) (petition must contain sufficient information to inform 

parties about nature of claim and amount demanded, and plaintiff must serve 

petition on commissioner (administrator of Fund)); -3(3) (commissioner may 

object to demand); -3(5) (at hearing on petition and objections, court shall hear 

evidence to determine amount, if any, to be paid from the Fund). Until such 

time as a petition demanding payment of damages from the Fund is filed under 

Subsection 34-18-15-3(1), the Fund is not required to participate in settlement of 

the plaintiff’s claim or to intervene in the plaintiff’s action. Accordingly, the 
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Fund cannot be faulted for not having indicated or made an excess damages 

determination before the plaintiff’s petition for excess damages has been filed 

and triggers the Fund’s statutory responsibility to weigh in. It is the plaintiff’s 

burden to show he or she has met the statutory prerequisites under Section 34-

18-15-3 in order to petition the Fund for excess damages. McCarty v. Walsko, 

857 N.E.2d 439, 443 (Ind. Ct. App. 2006).

[29] Although the Hospital raises the defense of laches, it fails to address any of the 

elements that would establish that defense. The Hospital also fails to establish 

its equitable estoppel claim. The Hospital contends that the parties were 

harmed by the Fund’s “after-the-fact challenge to settlement,” that the Fund

had been on notice of the claim for years, and that the settlement agreement 

was reached in “detrimental reliance” on the Fund’s silence, where the Fund

had the “opportunity to intervene and elected not to.” Intervenor Hospital’s Br.

p. 16. The reliance element of estoppel has two parts: (1) reliance in fact and 

(2) right to rely. Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237 (Ind. Ct. 

App. 1998), trans. denied. The parties’ settlement agreement is expressly 

conditioned upon whether the Fund “successfully rejects” the agreement and 

the Does’ petition for excess damages, in which event the agreement “shall be 

null and void.” See Appellants’ App. Vol. IV, p. 48, ¶ 16.1. Having anticipated 

that the Fund could well dispute an excess damages claim, the parties cannot 

now be heard to complain that they relied in fact on the Fund’s silence and 

were blindsided when the Fund did just that. And, as we have said, because the 

Fund had no duty to intervene in the parties’ settlement negotiations, the 
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parties had no right to rely on the Fund’s alleged failure to participate in those 

negotiations.

[30] We conclude, therefore, that the doctrines of laches and estoppel do not apply

on these facts. And where the Fund is not a party to a settlement agreement 

between the claimant and the provider, the Fund has no affirmative duty to 

address a claim for excess damages until a claimant has filed a petition in court 

demanding payment of damages from the Fund.

IV. Application of Martinez v. Oaklawn Psychiatric Center

[31] As we have seen, the ultimate question presented here is whether the Does are 

entitled to claim excess damages from the Fund based upon their negligent 

credentialing claim against the Hospital. In considering that question, the 

parties have addressed whether this Court’s opinion in Martinez v. Oaklawn 

Psychiatric Center affects application of the Act in this case.

[32] Martinez announced a new “current test” for evaluating medical malpractice 

claims based upon the employment law concept of scope of employment and 

the doctrine of respondeat superior. 128 N.E.3d at 558. Specifically, Martinez

stated that the test for whether the Act applies to specific misconduct is 

“whether that misconduct arises naturally or predictably from the relationship 

between the health care provider and patient or from an opportunity provided 

by that relationship.” Id. However, as discussed below, we did not apply that 

test in Martinez, and the holding in Martinez did not deviate from established 
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case law on the scope of the Act. See Doe, 194 N.E.3d at 1204 (stating that “the 

Martinez court essentially applied the accepted and longstanding standard”).

[33] Instead, Martinez reiterated and applied the well-established standard for 

conduct covered by the Act, namely, that “The Act covers ‘curative or salutary 

conduct of a health care provider acting within his or her professional capacity, 

but not conduct unrelated to the promotion of a patient’s health or the 

provider’s exercise of professional expertise, skill, or judgment.’” Id. at 556

(quoting Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 

2014)). We also recognized the long-standing rule that “When deciding 

whether a claim falls under the provisions of the Medical Malpractice Act, we 

are guided by the substance of a claim to determine the applicability of the 

Act.” Martinez, 128 N.E.3d at 556. And we confirmed that in determining 

whether a claim sounds in medical malpractice, “we consider whether the claim 

is based on the provider’s behavior or practices while acting in his professional 

capacity as a provider of medical services.” Id.

[34] In Martinez, the employee’s scope of employment and the employer’s vicarious 

liability were not at issue. Doe, 194 N.E.3d at 1203 n.5. We noted that “[t]he 

parties agree that [the employee] was an employee of Oaklawn, a ‘health care 

provider,’ and when the incident occurred, [the employee] was acting within 

the scope of his employment.” Martinez, 128 N.E.3d at 556. And we 

concluded, “The undisputed record establishes that Oaklawn is a healthcare 

provider and [the employee] is, and was at the time of the incident at issue in 

this case, its employee.” Id. at 562. Thus, the holding in Martinez did not turn 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 20 of 54

on whether or not the residential assistant was employed by Oaklawn, and it 

was also undisputed that the assistant’s conduct “was a part of Oaklawn’s 

provision of healthcare to Martinez.” Id.

[35] Here, just as in Martinez, scope of employment and vicarious liability are not at

issue. We acknowledge, of course, that in a given case, a health care provider’s 

scope of employment may be relevant and potentially dispositive in making an 

employer liability determination under the Act, but this is not the case.

[36] In sum, in Martinez we did not apply the “current test.” Doe, 194 N.E.3d at 

1204. Rather we concluded both that Oaklawn’s employee was acting within 

the scope of his employment with Oaklawn, a health care provider, and that the 

employee’s “attempt to enforce Martinez’s curfew was a part of Oaklawn’s 

provision of healthcare to Martinez.” Martinez, 128 N.E.3d at 562. In other 

words, we held that the alleged medical malpractice fell squarely within the 

well-established purview of the Act. While we stated that we would “apply [the 

current] test to the facts and circumstances of this case” and alluded to “the 

broadened scope of employment set forth in” Cox v. Evansville Police Dep’t, 107 

N.E.3d 453 (Ind. 2018), we did not apply the “current test” to any conduct not 

already within the recognized scope of the Act. Martinez, 128 N.E.3d at 558, 

562. A close reading of Martinez shows that the test was not a factor and was 

not dispositive. Instead, in Martinez we followed—and did not broaden or 

otherwise deviate from—well-established medical malpractice case law. Thus, 

we conclude that the actual holding in Martinez does not affect the application 

of the Act in this case.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 21 of 54

Conclusion

[37] Based upon the foregoing, we hold that an underlying act of medical 

malpractice which is a proximate cause of the patient’s harm is a necessary 

predicate and condition precedent to a medical credentialing malpractice claim. 

We also hold that, where the Fund is not a party to a settlement agreement 

between the claimant and the provider and the court must consider the liability 

of the health care provider as “admitted and established,” the Fund is not 

precluded from making an independent determination and disputing whether 

the underlying conduct is compensable under the Act. Finally, we conclude 

that the Fund has no affirmative duty to intervene in settlement negotiations 

between the claimant and the provider or to address a claim for excess damages 

until a claimant has filed a petition in court for payment of damages from the 

Fund. Accordingly, we find there are no genuine issues of material fact, and 

the Fund is entitled to judgment as a matter of law.

[38] Reversed and remanded with instructions for the trial court to enter summary 

judgment in favor of the Fund.

Foley, J., concurs.

Robb, J., concurs in part and dissents in part with separate opinion.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 22 of 54

Robb, J., concurring in part and dissenting in part.

[39] I concur in Parts II, III, and IV of the majority opinion. As to Part I, I 

respectfully dissent. The Fund has asked this court to decide, first, if this act of 

sexual abuse of a minor by a doctor that occurred during an appointment with 

the victim patient sounds in medical malpractice and, second, whether a claim 

of negligent credentialing can only occur when the underlying misconduct is 

one of medical malpractice. The Fund takes the position that the Does’ claim 

for excess damages from the Fund cannot stand absent a claim of medical 

malpractice. According to the Fund, Cavins’ sexual abuse of his minor patient 

did not amount to medical malpractice and negligent credentialing is not a 

standalone claim. 

[40] The majority mischaracterizes the dissent’s position in issue one in calling it a 

“radical” departure from Indiana caselaw. --- N.E.2d ---, --- (Ind. Ct. App. 

2023). As explained and demonstrated in detail below, the dissent’s position is 

consistent with other state jurisdictions that have answered the question before 

us. 

[41] As to the second issue, I disagree with the majority’s conclusion that the 

commission of patient sexual abuse by a health care provider during treatment 

of the patient precludes a medical malpractice claim. First, as stated above, we 

believe the caselaw supports the conclusion that this molest sounds in medical 

malpractice and provides the condition precedent that even the majority seeks. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 23 of 54

[42] Second, the majority concedes that negligent credentialing does not require an 

underlying act of medical malpractice misconduct which is consistent with the 

law. And, a claim for negligent credentialing is an action for malpractice 

subject to the Act.5

 Winona Mem’l Hosp., Ltd. P’ship v. Kuester, 737 N.E.2d 824, 

828 (Ind. Ct. App. 2000). Since a negligent-credentialing claim, in and of itself, 

falls within the Act, even if the molest in the instant case is not found to fall 

within the Act, the negligent credentialing is supported by a sufficient act of 

misconduct and the medical malpractice nature of the negligent-credentialing 

claim supports the Appellees’ right to obligate the Fund. 

[43] To prevail, the Fund has to win under both issues. If the Fund loses under 

either, the Fund cannot prevail. However, under the facts and circumstances of 

this case, the Fund loses under both issues because (1) the sexual abuse Cavins 

perpetrated on his young victim was medical malpractice that falls under the 

Act; and (2) as all parties agree, a negligent-credentialing claim is a medical 

malpractice question, but it is not necessary to have an underlying medical 

malpractice claim per se to support a claim for negligent credentialing – a 

nonmedical malpractice bad act can support a negligent-credentialing claim. 

Thus, the Fund’s potential obligation to pay excess damages to the Does is 

supported by both issues. And, the trial court’s determination that the Fund’s 

5 See ¶¶ 18-22, infra, for a discussion of the distinction between the terms “credentialing” and “privileging.” 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 24 of 54

summary judgment motion on a claim for excess damages should be denied is 

supported by the law. 

[44] Because this is a case of first impression, it presents a unique circumstance 

where we are tasked with addressing a negligent-credentialing claim where a 

pediatrician administering a physical examination to a minor – that included 

discussion and instruction on the use of condoms – sexually abused the patient 

by stroking and then placing a condom on the patient’s penis. Prior Indiana 

cases have, in the medical malpractice context, addressed situations where a 

patient was sexually abused by a medical professional while healthcare or 

medical treatment was administered to the patient. However, none of those 

cases quite replicates the facts as presented in the instant case. 

[45] In reaching its determination – that the Does’ negligent-credentialing claim 

against the Hospital fails for lack of an underlying act of medical malpractice as 

a necessary predicate and condition precedent – the majority begins and ends its 

analysis with whether Cavins’ misconduct constitutes medical malpractice. 

And the majority concludes that, based on legal precedent, Cavins’ misconduct 

does not. Therefore, the majority has determined, the negligent-credentialing 

claim fails because there is no underlying medical malpractice on the part of the 

doctor; there are no genuine issues of material fact; the Fund is entitled to 

judgment as a matter of law; and, thus, summary judgment should be entered in 

favor of the Fund. However, with this holding, the majority has essentially 

foreclosed negligent-credentialing claims in every circumstance where sexual 

abuse occurs during medical treatment. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 25 of 54

[46] I begin with the determination that first and foremost, the sexual abuse that 

Cavins perpetrated on his young patient during the physical examination did

constitute medical malpractice. Second, even if the bad act did not rise to the 

level of medical malpractice, the alleged negligent-credentialing claim, 

nevertheless, survives – not as a free-standing claim but based on misconduct on 

the part of the health care provider that results in underlying liability. Thus, it 

is possible that nonmedical misconduct may trigger an inquiry on the part of the 

patient into the credentialing process – in this case, an inquiry into whether the 

Hospital should have extended privileges to Cavins. And because the sexual 

abuse in question falls under the Act, under either issue, supra, the Does’ 

negligent-credentialing claim stands. 

[47] If we approach such claims as the majority instructs, then we risk running afoul 

of the purpose of the Act – that is, to facilitate the adjudication and settlement 

of alleged medical malpractice claims. And we open the door to the risk that 

health care providers will wrongly prevail on summary judgment; viable claims 

of negligent credentialing will be lost; and the real issue presented will never be 

reached.

[48] Additionally, I note that in this case, the confidential settlement reached 

between the Does and the Hospital necessarily eclipsed a summary judgment 

factfinding inquiry that could have uncovered any facts that might support 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 26 of 54

finding that Cavins did in fact commit medical malpractice.6

 However, even 

under these circumstances, the majority posits that, in cases such as this, where 

sexual abuse occurs during medical treatment, there is no set of material facts 

that can bring the Does’ claims under the Act. The majority has cast its net too 

wide because: 

1. The majority assumes, even under circumstances where the development 

of potential material facts has not occurred, that an act of sexual abuse of 

a patient during medical treatment can never amount to medical 

malpractice – a notion which is foundationally unsound because it 

pronounces, ipso facto, that there can never be medical malpractice 

under circumstances where a health care provider commits sexual abuse 

while providing medical treatment. 

2. The majority has made a determination, as a matter of law, that 

henceforth there can be no set of circumstances where a health care 

provider who, during medical treatment, sexually abuses a patient 

commits medical malpractice, and, the majority, essentially, precludes in 

Indiana any such claim from rising to the level of medical malpractice. 

6 The Does and the Hospital are, essentially, aligned on appeal. As the majority notes, the Does reached a 

confidential settlement with the Hospital in an amount sufficient to permit the Does to petition for excess 

damages from the Fund. However, the settlement is not final, as it is contingent upon whether the Does 

obtain access to the Fund.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 27 of 54

[49] Furthermore, according to the majority, a negligent-credentialing claim does 

not require the underlying misconduct to constitute medical malpractice. But 

even absent the majority’s concession, the appropriate conclusion in this case is 

that the trial court properly denied the Fund’s summary judgment motion, and 

the law supports this.

[50] In sum, and as further explained below, the majority’s holding is a bridge too 

far and produces unintended and far-reaching consequences that not only 

undermine the purpose and intent of the Act but also foreclose the possibility 

that in certain circumstances sexual abuse that occurs during medical treatment 

can rise to the level of medical malpractice. 

Purpose of the Act

[51] Since its enactment in 1975, the Act has dictated the statutory procedures 

for medical malpractice actions. See Ind. Code § 34-18-1-1 et seq. “One of the 

principal legislative purposes behind the [Act] . . . was to foster prompt 

litigation of medical malpractice claims.” Ellenwine v. Fairley, 846 N.E.2d 657, 

664 (Ind. 2006). As we reasoned in Sue Yee Lee v. Lafayette Home Hosp.,

Inc., “Viewed from the historical perspective[,] 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 [A]ct.” 410 N.E.2d 

1319, 1324 (Ind. Ct. App. 1980). It is well-settled that a claim for negligent 

credentialing of a physician is an action for malpractice subject to the Act. 

Winona, 737 N.E.2d at 828. And with any complaint alleging medical 

malpractice, the plaintiff’s action begins under the premise that the health care 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 28 of 54

provider’s misconduct falls within the Act until a medical review panel or a 

court determines otherwise.7

 

[52] However, as a prerequisite to filing suit in court, the Act generally requires 

claimants to file a proposed complaint with a medical review panel. Ind. Code 

§ 34-18-8-4. The complaint is then reviewed by the panel, which provides an 

expert opinion about whether the claim involves malpractice, thus ensuring that 

in cases where a party seeks recovery from the Fund, it is only those cases that 

appropriately fall within the confines and further the purpose of the Act that 

remain viable.8 Ind. Code § 34-18-10-22. The Act limits recovery against 

7 The elements of a medical malpractice claim are: (1) the medical provider owed a duty to the plaintiff; (2) 

the medical provider failed to conform his or her conduct to the requisite standard of care; and (3) an injury 

to the plaintiff resulted from that failure. Glon v. Mem’l Hosp. of S. Bend, Inc., 111 N.E.3d 232, 239 (Ind. Ct. 

App. 2018), trans. denied. The plaintiff must present expert medical testimony establishing: (1) the applicable 

standard of care required by Indiana law; (2) how the defendant medical provider breached that standard of 

care; and (3) that the medical provider’s negligence in doing so was the proximate cause of the injuries 

complained of. Id.

8 Although limited exceptions apply, generally speaking, an action against a health care provider may not be 

commenced in an Indiana court before (1) the complaint has been presented to a medical review panel and 

(2) an opinion is given by the panel. Ind. Code § 34-18-8-4. “‘When a medical review panel renders an 

opinion in favor of the physician, the plaintiff must come forward with expert medical testimony to rebut the 

panel’s opinion . . . .’” Overshiner v. Hendricks Reg’l Health, 119 N.E.3d 1124, 1132 (Ind. Ct. App. 2019)

(quoting Robertson v. Bond, 779 N.E.2d 1245, 1249 (Ind. Ct. App. 2002), trans. denied), trans denied. “Because 

of the complex nature of medical diagnosis and treatment, expert testimony is generally required to establish 

the applicable standard of care.” Desai v. Croy, 805 N.E.2d 844, 850 (Ind. Ct. App. 2004) (citing Simms v.

Schweikher, 651 N.E.2d 348, 349-50 (Ind. Ct. App. 1995)), trans denied. “If medical expert opinion is not in 

conflict regarding whether the physician’s conduct met the requisite standard of care, there are no genuine 

triable issues.” Id.

In limited instances, however, expert opinion evidence may not be required because the doctrine of res ipsa 

loquitur applies. This doctrine recognizes that the circumstances surrounding an injury may be such as to 

raise a presumption, or at least permit an inference, of negligence on the part of the defendant, despite 

the medical review panel’s opinion to the contrary. St. Mary’s Ohio Valley Heart Care, LLC v. Smith, 112 

N.E.3d 1144, 1150 (Ind. Ct. App. 2018), trans. denied.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 29 of 54

covered medical providers and allows any excess damages to be paid out of the 

Fund. Ind. Code § 34-18-14-3.

Duty Hospital Owes to Patients 

[53] Hospitals owe their patients a duty to exercise reasonable care in rendering 

hospital services, which includes a duty to safeguard the welfare of 

its patients from harm inflicted by third persons. See generally 41 

C.J.S. Hospitals § 35. The essence of the general duty of care owed to patients 

by a hospital is to provide patients with an environment where their health and 

safety needs can best be addressed. Id. A broad general duty of care can 

include numerous specific activities, such as compliance with applicable 

hospital administration standards, the existence of an adequate quality 

assurance program, and the proper training and supervision of hospital staff. Id. 

[54] Regarding the tort of negligent credentialing, “[a] hospital always has a duty to 

exercise reasonable care in granting privileges to physicians.” Rieder v. Segal, 

959 N.W.2d 423, 429 (Iowa 2021). As noted in Brookins v. Mote, where the 

Montana Supreme Court recognized negligent credentialing as a valid cause of 

action in Montana, 

[T]he rise of the “modern hospital” imposed a duty on hospitals 

to take steps to ensure patient safety in the process of 

accreditation and granting privileges: 

[T]he integration of a modern hospital becomes readily 

apparent as the various boards, reviewing committees, and 

designation of privileges are found to rest on a structure 

designed to control, supervise, and review the work within 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 30 of 54

the hospital. The standards of hospital accreditation . . . 

demonstrate that the medical profession and other 

responsible authorities regard it as both desirable and 

feasible that a hospital assume certain responsibilities for 

the care of the patient.

2012 MT 283 at ¶ 58, 367 Mont. 193, 211, 292 P.3d 347, 360 (2012) (quoting

Hull v. N. Val. Hosp., 159 Mont. 375, 389, 498 P.2d 136, 143 (1972)). 

[55] A hospital’s governing board “is the supreme authority in the hospital[,]” and 

that board is responsible for the management, operation, and control of 

the hospital; the appointment, reappointment, and assignment of privileges to 

members of the medical staff; and establishment of requirements for 

appointments to and continued service on the hospital’s medical staff. Ind. 

Code § 16-21-2-5. Under Indiana Code section 16-21-2-7, the medical staff of a 

hospital is responsible to the governing board for the following:

(1) The clinical and scientific work of the hospital.

(2) Advice regarding professional matters and policies.

(3) Review of the professional practices in the hospital for the 

purpose of reducing morbidity and mortality and for the 

improvement of the care of patients in the hospital, including the 

following:

(A) The quality and necessity of care provided.

(B) The preventability of complications and deaths 

occurring in the hospital.

 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 31 of 54

Credentialing and Extending Hospital Privileges to Physicians

[56] Another way in which hospitals protect patients from harm is through the 

credentialing and privileging processes. In this case, the parties to this appeal 

use the terms “credentialing” and “privileging” interchangeably. However, our 

focus here is on privileging, not credentialing. And although the terms are 

closely related, they do refer to distinct concepts, but that distinction has not 

been used by the parties to this appeal in any of their arguments. 

“Credentialing” refers to the process of determining whether a doctor is 

qualified to be on the medical staff. See, e.g., Hall v. Jennie Edmundson Mem’l

Hosp., 812 N.W.2d 681, 683 n.1 (Iowa 2012). “Privileging” refers to the 

determination by the hospital as to which specific procedures a doctor will be 

allowed to perform within the hospital. Id.

[57] More specifically, credentialing is the process in which a physician’s credentials 

are verified; is a way to confirm that the physician graduated from medical 

school and received their certification; and ensures that a physician has a 

license to practice medicine in their specialty and in their state. Justin Nabity, 

Hospital Credentialing: What to Expect as a Physician (Nov. 4, 2022), 

https://physiciansthrive.com/hospital-credentialing/ [https://perma.cc/J993-

S2BC] (last visited May 15, 2023). Credentialing is important because it is the 

healthcare industry’s best way to protect patients by ensuring that patients 

receive high-quality care from physicians who have met state licensure and 

certification requirements. Id. Credentialing is the first step in gaining 

employment as a physician and is a prerequisite for obtaining privileges. Id. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 32 of 54

And physicians must go through the process of credentialing before they can 

apply for hospital privileges. Id.

[58] Privileges, on the other hand, permit physicians to treat and perform certain 

procedures on patients, and without those privileges, a physician cannot treat 

patients in a hospital setting. Id. The privileging process centers on the 

physician’s scope of practice related specifically to patient care and ensures that 

a physician has experience and competency in their specialty or area of 

medicine. Id. 

[59] Simply put, medical credentialing allows healthcare practices to confirm the 

qualifications of their healthcare professionals, while privileging ensures that 

physicians have the experience and clinical competency necessary, within their 

area of medicine, to care for patients. The Privileging Puzzle: Requirements for 

Providers and Organization (Jan. 10, 2023), 

https://www.healthstream.com/resource/blog/the-privileging-puzzlerequirements-for-providers-and-organizations [https://perma.cc/Q5MN-44FH] 

(last visited May 15, 2023). And to protect patients, hospitals must adhere to 

complex and lengthy credentialing and privileging processes to screen 

physicians, verify their ability to practice, and determine which procedures and 

services a physician is competent to perform and deliver. Jan Laws, Federal 

Regulations & Other Standards for Credentialing and Privileging (May 17, 2021), 

https://www.symplr.com/blog/federal-regulations-other-standards-forcredentialing-and-privileging [https://perma.cc/S2KT-U2UB] (last visited May 

15, 2023). Although details of the credentialing and privileging processes vary 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 33 of 54

depending upon the hospital, location, medical specialties, and particular 

circumstances involved, the processes typically involve numerous steps, such 

as: 

Providing and keeping updated contact information for all 

providers on staff;

Providing a checklist of credentialing information required of 

physicians applying for privileges at a facility or practice site;

Requiring peer references and checking those references;

Performing background checks and verifying accuracy with listed 

references, former employers, federal agencies, state licensing 

boards, medical associations, and specialty certification boards;

Investigating details of any malpractice claims; 

Submitting the credentialing application to the facility’s 

governing body for final review and a decision on whether to 

approve the application for privileges.

Medical Staff Credentialing, Privileges & Peer Review, 

https://www.komahonylaw.com/medical-staff-credentialing-privileges-peerreview/ [https://perma.cc/A3TD-5NXY] (last visited May 15, 2023). 

[60] Together, credentialing and privileging ensure patients have access to safe and 

reliable care. The Privileging Puzzle: Requirements for Providers and Organization

(Jan. 10, 2023), https://www.healthstream.com/resource/blog/the-privilegingpuzzle-requirements-for-providers-and-organizations
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 34 of 54

[https://perma.cc/Q5MN-44FH] (last visited May 15, 2023). Improper 

privileging and credentialing can lead to patient harm and lawsuits. Jan Laws, 

Federal Regulations & Other Standards for Credentialing and Privileging (May 17, 

2021), https://www.symplr.com/blog/federal-regulations-other-standards-forcredentialing-and-privileging [https://perma.cc/S2KT-U2UB] (last visited May 

15, 2023). 

The Parties’ Arguments on Appeal

[61] In the instant case, the Fund argues, essentially, that the act of negligently 

credentialing a doctor (read, negligently privileging a doctor) who then sexually 

assaults a minor does not transform an otherwise common-law-negligence case 

into one of statutory medical malpractice.9

 The Fund maintains that Cavins’ 

misconduct did not amount to medical malpractice and negligent credentialing 

is not a standalone claim. So, according to the Fund, without an underlying 

claim of medical malpractice, the Does’ claim of negligent credentialing cannot 

stand. The Fund argues that unless the underlying misconduct is within the 

Act, the question of privileges and credentialing has no merit.

[62] The majority states that “neither the Does nor the Hospital contend that the 

negligent-credentialing claim turns on whether a sexual assault constitutes 

medical malpractice” and that neither party contests the Fund’s statement at 

9 Having noted the distinction between the terms “credentialing” and “privileging,” I use the term 

“credentialing” as the parties do to avoid any confusion regarding the parties’ respective arguments. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 35 of 54

oral argument that the parties all “seem to agree that what [Cavins] did was not 

[medical malpractice].” --- N.E.2d at --- n.3. I disagree with the majority’s 

characterization of the Does’ and the Hospital’s arguments. The Does argue 

their negligent-credentialing claim survives because the substance of their claim 

sounds in malpractice and is inextricably linked to medical care. According to 

the Does: (1) it was negligence on the part of the Hospital to credential Cavins; 

(2) the credentialing of Cavins was the proximate cause of the injury to John 

Doe II; and (3) in order to determine whether red flags existed that should have 

alerted the Hospital’s credentialing board to not credential Cavins, expert 

medical testimony is needed to explain Cavins’ duties and obligations and the 

intricacies of the different medical procedures Cavins was authorized to 

perform at the Hospital.

[63] The Hospital argues that because it was required to engage in a credentialing 

process, and because the Does allege the Hospital did so negligently, then 

Cavins’ misconduct falls within the Act – even though the same misconduct, if 

perpetrated by a nonmedical person, would not fall within the Act. The 

Hospital maintains that it does not matter what kind of misconduct occurs on 

the part of the doctor, so long as some sort of underlying liability exists. And 

when a claim against the Hospital invokes a credentialing decision, any 

misconduct on the doctor’s part falls under the Act because the misconduct, no 

matter the type, does not alter a hospital’s credentialing duty. In other words, 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 36 of 54

because the granting of hospital credentials is a decision made by doctors who 

are reviewing other doctors, that sort of decision falls squarely within the Act.10

Cavins’ Misconduct Constitutes Medical Malpractice

[64] In determining whether Cavins’ misconduct – that is, his sexual abuse of John 

Doe II during the examination – amounted to medical malpractice, the facts 

and circumstances of this case lead to a positive answer. In the instant case, the 

record clearly establishes that, for purposes of the Act, John Doe II was a 

patient, and both Cavins and the Hospital were health care providers. And it is 

not disputed that Cavins committed a bad act. But as to the question of 

whether Cavins’ misconduct constitutes medical malpractice, I part ways with 

the majority and maintain that it does. Not only was Cavins treating John Doe 

II at the time the sexual abuse occurred, but the sexual abuse was so 

inextricably intertwined and so closely connected to the examination and to 

why John Doe II was being treated by Cavins such that the misconduct was 

inseparable from the medical care that was provided during the physical 

examination of John Doe II. And because of this close connection between the 

medical care administered and the underlying misconduct, that misconduct 

rises to the level of medical malpractice. I explain in greater detail below.

[65] The Act, by its plain terms, applies only to “a patient or the representative of a

patient who has a claim for bodily injury or death on account of malpractice.” 

10 As we noted in footnote 2, supra, the Does and the Hospital are, essentially, aligned on appeal.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 37 of 54

Lake Imaging, LLC v. Franciscan All., Inc., 182 N.E.3d 203, 207 (Ind. 2022)

(quoting Ind. Code § 34-18-8-1). “Malpractice” is 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. As explained in B.R. ex rel. Todd v. State,

A “patient” is “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.” [Ind. 

Code] § 34-18-2-22. And “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.

1 N.E.3d 708, 713 (Ind. Ct. App. 2013), trans. denied.

11

 Relevant to this case, 

Indiana Code section 34-18-2-14(1) defines “health care provider” as “[a]n 

individual, . . . a limited liability company [or a] corporation . . . licensed or 

legally authorized by this state to provide health care or professional services as 

a physician [or a ] . . . hospital[.]” 

[66] However, when deciding whether a claim falls under the provisions of the Act, 

“we are guided by the substance of a claim to determine the applicability of the

Act.” Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d 101, 104 (Ind. Ct. App. 

11 The Act does not define the term “professional services.” 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 38 of 54

1995). And the “fact that the alleged misconduct occurs in a healthcare 

facility” or that “the injured party was a patient at the facility” is not dispositive 

in determining whether the claim sounds in medical malpractice. Madison Ctr.,

Inc. v. R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006), trans. denied. 

Rather, “the test is whether the claim is based on the provider’s behavior or 

practices while acting in [its] professional capacity as a provider of medical 

services.” Id. (quotation marks omitted). 

[67] As our Supreme Court noted in Howard Reg’l Health Sys. v. Gordon, 

Indiana courts understand the Malpractice Act 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), 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). . . .

[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.” [Van Sice v. Sentany, 595

N.E.2d 264, 267 (Ind. Ct. App. 1992).]

952 N.E.2d 182, 185 (Ind. 2011).

[68] We have also noted that: 

A case sounds in ordinary negligence [rather than medical 

malpractice] where the factual issues are capable of resolution by 

a jury without application of the standard of care prevalent in the 

local medical community. By contrast, a claim falls under the 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 39 of 54

Medical Malpractice Act where there is a causal connection 

between the conduct complained of and the nature of the patienthealth care provider relationship. 

B.R. ex rel. Todd, 1 N.E.3d at 714-15 (citations omitted).

[69] Cavins, at that time a licensed and credentialed practicing physician offering 

pediatric services, had been administering healthcare to John Doe II since John 

Doe II was an infant. Cavins had seen John Doe II in the past for yearly 

physical examinations. 

[70] The practice group to which Cavins belonged used the recommended practices 

of the American Academy of Pediatrics (“AAP”) to guide the physicians 

through the various health stages of children. One of the AAP recommended 

practices was to discuss various topics with adolescents twelve and older who 

were near to or entering puberty, including: drugs and alcohol, puberty, abuse, 

sexually-transmitted diseases, safe sex, and condoms. And it was acceptable by 

AAP standards to discuss condoms and even demonstrate the proper use of a 

condom on an object, such as a banana. See Cavins v. State, 20A-CR-1213, 2021

WL 221156, at *1 (Ind. Ct. App. Jan. 22, 2021), trans. denied. 

[71] When the sexual abuse occurred, John Doe II, then twelve years old, was 

visiting the pediatrician’s office for a physical examination that would 

determine whether John Doe II was fit to play sports at his school. The 

physical examination included a hernia test, which necessitated Cavins to touch 

John Doe II’s testicles and penis, as well as a discharge test, where Cavins ran 

his fingers down the shaft of John Doe II’s penis. John Doe II did not know 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 40 of 54

the purpose of the tests, but he was not upset by the administration of the hernia 

test because Cavins had performed the test before. See Appellant’s Appendix, 

Volume II at 242-45. And there existed a legitimate medical purpose for Cavins 

to touch John Doe II’s genitalia. However, Cavins, under the guise of 

providing John Doe II with sex education and information regarding condom 

use, then proceeded to stroke John Doe II’s penis; place a condom on the boy’s 

penis; remove the condom; then, using a paper towel, wipe off the boy’s penis. 

And this underlying misconduct was at the very core of what Cavins, as John 

Doe II’s pediatrician, was supposed to do – that is, provide health care or 

professional services in the form of a routine physical examination. At just 

twelve years old, John Doe II’s ability to distinguish between when the 

legitimate part of the physical examination ended and the sexual abuse began, 

let alone prevent the abuse, was limited. 

[72] Other states have found that sexual abuse that occurs during medical treatment 

constitutes medical malpractice. For example, in Doe 56, et al. v. Mayo Clinic 

Health System – Eau Claire Clinic, Inc., 369 Wis.2d 351, 880 N.W.2d 681 (2016), 

the Wisconsin Supreme Court reasoned that, generally speaking, where minor 

patients are sexually assaulted by their doctor during a genital examination 

(that is, where the doctor physically manipulated boys’ penises), the sexual 

assault is an intentional act that should be pursued as an intentional tort in the 

civil or criminal area and not under a claim of medical malpractice. The 

Wisconsin Supreme Court added, however, that “[w]hen there exists . . . a 

legitimate medical purpose for a genital examination, a claim can fall within medical 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 41 of 54

malpractice.” Doe 56, 369 Wis.2d at 357, 880 N.W.2d at 684 (emphasis added)12

; 

see also J.W. v. B.B., 2005 WI App 125, ¶ 10-11, 284 Wis.2d 493, 501, 700 

N.W.2d 277, 281 (Ct. App. 2005) (finding that digital-rectal prostate 

examinations done as part of a pre-employment physical properly fell within the 

confines of medical malpractice where the physician had a legitimate medical 

purpose or reason for the alleged inappropriate touching). 

[73] St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 720 P.2d 540 (App. 

1986), involved a gynecologist who was accused of improperly manipulating his 

patients during gynecological examinations. See 720 P.2d at 541. In Asbury, the 

Arizona Court of Appeals addressed the question of whether a physician’s 

sexual assault of a patient was covered by malpractice insurance, 

acknowledging that, generally, sexual assault by a physician on a patient is not 

covered by malpractice insurance. However, the court adopted an exception to 

that rule for sexual assaults that are “intertwined with and inseparable from the 

services provided.” Asbury, 149 Ariz. at 567, 720 P.2d at 542.

13

 

12 Ultimately, the Wisconsin Supreme Court in Doe 56 determined that the minor patients and their parents 

could maintain an action for medical malpractice against the physician and the medical clinic and that a 

three-year statute of limitations period applicable to the causes of action began to run from the date the 

physician last touched the patients’ genitals during an examination. Doe 56, et al. v. Mayo Clinic Health System 

– Eau Claire Clinic, Inc., 369 Wis.2d 351, 880 N.W.2d 681 (2016).

13 The Asbury court found that injuries sustained in a sexual assault that took place during a gynecological 

examination were covered as injuries caused by the “providing or withholding of professional services.” St.

Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 566, 720 P.2d 540, 541 (App. 1986) (internal quotation 

marks omitted). The court rejected the argument that the alleged acts of improper clitoral manipulation 

during the gynecological examination were unprofessional and, therefore, not covered by malpractice 

insurance. Id.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 42 of 54

[74] In Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 698 A.2d 9 (1997), another case 

addressing whether a physician’s sexual assault of a patient was covered by 

malpractice insurance, a seventeen-year-old female was sexually assaulted 

during a gynecological examination performed by Chunmuang, the attending 

physician. Specifically, the patient had made an appointment to see 

Chunmuang because she was experiencing monthly cramping but had not yet 

menstruated. Chunmuang touched the patient inappropriately and sexually 

assaulted her during the examination. The patient did not return for a followup visit with Chunmuang because he had made her “feel dirty.” 151 N.J. at 84, 

698 A.2d at 10. And, while she continued to experience cramping and had not 

yet menstruated, she was not able to seek medical assistance from another 

gynecologist because of the emotional distress that resulted from her 

examination by Chunmuang.14

[75] The court in Chunmuang reasoned that based on the malpractice insurance 

policy language, the court “[did] not find it necessary to rely on the reasoning in 

Asbury that a sexual assault during a gynecological examination is more 

14 The issue addressed by the New Jersey Supreme Court in Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 698 

A.2d 9 (1997), was whether an exclusion from coverage in a medical malpractice insurance policy for “injury 

resulting from [the physician’s] performance of a criminal act” insulates the insurer from liability for 

compensatory damages awarded to the insured’s patient in an action based on a sexual assault by the insured 

physician in the course of a gynecological examination. 151 N.J. at 82, 698 A.2d at 10. The court held that

“claims based on injuries caused by a physician’s criminal conduct are properly excluded from coverage 

under the policy at issue. [The insurance carrier] is not responsible to [the patient] for the damages she 

suffered as a result of Chunmuang’s sexual assault.” 151 N.J. at 100, 698 A.2d at 19. The court remanded 

the matter to afford the patient “the opportunity on remand to produce proof of damages caused by 

Chunmuang’s malpractice that is separable from his criminal conduct.” 151 N.J. at 101, 698 A.2d at 19.
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 43 of 54

intertwined with the professional services sought than a sexual assault in the 

course of another type of physical examination.” 151 N.J. at 97, 698 A.2d at 

18. The court added, “[W]e do not find it necessary to rely on Asbury to find 

that the acts that are the basis of Chunmuang’s civil liability, in addition to 

being criminal, also constituted malpractice that would be covered by the policy 

were it not for the criminal-acts exclusion.” 151 N.J. at 97, 698 A.2d at 18

(emphasis added). The court then determined that “the important question” 

was “simply whether a substantial nexus exists between the context in which 

the acts complained of occurred and the professional services sought.” Id. And 

the court found it had “no difficulty in concluding that [Chunmuang’s bad] acts 

constituted a ‘medical incident’ as defined by Chunmuang’s malpractice policy” 

because the acts complained of by the patient “took place in Chunmuang’s office in 

the course of what he represented to be a medical examination[, and t]hose acts were 

possible only because the patient entrusted herself to the physician’s care for the 

purpose of receiving diagnosis and treatment for a medical problem.” 151 N.J. 

at 97-98, 698 A.2d at 18 (emphasis added). 

[76] In the case before us, as in Doe 56, J.W., Asbury, and Chunmuang, supra, there 

was no distinct separation between the treatment Cavins administered to John 

Doe II and the sexual abuse Cavins perpetrated on the patient. While Cavins 

had a legitimate medical purpose for touching John Doe II’s genitalia, the 

sexual abuse occurred as part and parcel of a physical examination that was 

improperly administered and departed from accepted standards of health care. 

Cavins, under the guise of a proper examination, sexually abused the patient, 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 44 of 54

and, thus, committed malpractice. Simply put, during a legitimate 

examination, Cavins departed from medically accepted practices thereby 

injuring the patient and committing medical malpractice. What the majority, in 

our case, fails to recognize is that, essentially, John Doe II was injured by 

Cavins’ failure to administer a proper physical examination. 

[77] And to the extent that the majority argues a lay jury, without the aid of expert 

medical testimony, could determine whether Cavins’ misconduct was 

malpractice, the doctrine of res ipsa loquitur is an accepted exception to the 

need for expert testimony and that not every act that a lay jury might find 

appalling or, at first blush, tangential to medical treatment, falls outside the 

scope of the Act.15

 I recognize that not all claims against health care providers 

constitute medical malpractice, but we have such a case before us. Claims 

sounding in ordinary negligence attributed to misconduct on the part of the 

health care provider may not rise to the level of medical malpractice. And 

simply because a bad act occurs in a doctor’s office that, in and of itself, does 

not bring the bad act within the confines of medical malpractice. See Madison

Ctr., Inc., 853 N.E.2d at 1288. However, the majority has eliminated from the 

confines of the Act all acts of sexual abuse that occur during medical treatment 

under every set of circumstances and in every context. I am not convinced that 

in Indiana, this is the intended purpose of the Act. See Cmty. Health Network,

15 Expert testimony is not required when the factfinder can understand that a health care provider’s conduct 

fell below the applicable standard of care without technical input from an expert witness. See Syfu v. Quinn,

826 N.E.2d 699, 703 (Ind. Ct. App. 2005). 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 45 of 54

Inc. v. McKenzie, 185 N.E.3d 368, 375 (Ind. 2022) (noting, “[The Act] is in 

derogation of the common law and should be strictly construed against 

imposing limitations on a claimant’s right to bring suit.”). 

A Negligent-Credentialing Claim Can Be Supported By Other Misconduct 

Committed By A Health Care Provider

[78] As noted initially, with negligent-credentialing claims, there are two 

components, pursuant to the Act: (1) an underlying claim of misconduct within 

the physician-patient relationship that might rise to medical malpractice (as it 

does here); and (2) underlying misconduct that should have affected the 

hospital’s credentialing of the physician. Yet, regarding these components, as I 

will further explain below, there can be no free-standing, standalone negligentcredentialing claims. 

[79] The predicate claim for a negligent-credentialing action has an additional 

criterion: it must be based upon a bad act or misconduct that is directly related to 

the patient-physician relationship – specifically, a direct relationship between 

the patient and the doctor in light of the doctor’s capacity as a doctor – that 

results in underlying liability. For example, a negligent-credentialing claim 

would not exist if no bad act had been inflicted upon that specific patient within 

the relationship with that specific doctor.16

 

16 This is to say, for example, a patient of a hospital cannot bring a negligent-credentialing claim against the 

hospital based upon a chance encounter with a physician who has privileges at the hospital but is not the 

patient’s treating physician. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 46 of 54

[80] To be clear, it is not necessary that two separate acts of misconduct occur. 

Instead, just one underlying bad act can trigger an inquiry into the credentialing 

of the doctor. Again, I emphasize that the conduct that gives rise to the cause 

of action must be at least tangentially related to the services the physician 

performed. 

[81] For purposes of the components as applied to the instant case, I acknowledge 

that first and foremost, there must be some relationship between the patient and 

the physician and the alleged misconduct on the physician’s part. And, I note, 

this factor further narrows the group of viable negligent-credentialing claims 

and, therefore, would not open the floodgates to baseless litigation. 

[82] Such negligent-credentialing claims will necessarily allege some misconduct on 

the part of the physician that proximately caused a patient’s alleged injury. If 

this were not so, any alleged bad act on the part of physician might lead to a 

claim of negligent credentialing. In other words, if there is no direct connection 

between the alleged misconduct and the relationship that exists, at that time, 

between the patient and the physician – in the doctor’s capacity as a doctor –

then the alleged misconduct would not support a negligent-credentialing claim 

or trigger an inquiry into whether a hospital should have extended privileges to 

the doctor. See, e.g., Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 546 (Tex. 

2004) (noting, without negligent treatment, a negligent credentialing claim 

could not exist) (internal citation omitted). 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 47 of 54

[83] It is important to note there are a number of nonmedical occurrences that 

could/should cause a hospital to reconsider credentialing this doctor, such as 

touching someone inappropriately at a social gathering or committing theft. 

But because these activities do not involve a relationship to the doctor as a 

doctor performing conduct tangentially related to the services for which the 

victim interacted with the doctor, these claims are outside the instant case.

[84] However, there is conduct that would not fall within the medical malpractice 

statute, yet it causes injury to a person and is so related to the doctor-patient 

relationship that it supports a claim of negligent credentialing, such as:

• Spreading malicious gossip about a patient to people without a medical 

need to know;

• Revealing personal and private information to people without a medical 

need to know;

• Failing to follow basic hospital safety protocols such as securing bed rails 

after an examination; 

• Embracing unsupported medical treatment theories that delay a person’s 

appropriate and proper treatment.

[85] As such, it is imperative that we examine the physician’s misconduct from a 

global perspective and in the complete context of the circumstances that gave 

rise to the misconduct. We should examine together the relationship between 

the misconduct that occurred and the result of that misconduct in light of 

whether the misconduct should have affected the hospital’s credentialing of the 

physician. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 48 of 54

[86] If, as the majority instructs, we limit our approach in determining negligentcredentialing claims to whether the underlying misconduct must constitute 

medical malpractice, we examine the misconduct through too narrow a lens, 

which can result in circumstances where potentially successful negligentcredentialing claims may be improvidently denied.

[87] Therefore, when presented with a negligent-credentialing claim, instead of 

merely focusing on the underlying misconduct to determine whether the 

misconduct constitutes medical malpractice per se, the proper approach is to first 

determine whether there is any underlying alleged misconduct which should 

bear on the hospital’s decision whether to extend hospital privileges to the 

physician.

[88] So, in sum, there can be no free-standing, standalone claim for negligent 

credentialing. However, I reiterate that there are two components to determine 

negligent-credentialing claims, pursuant to the Act: (1) an underlying claim of 

misconduct that might rise to medical malpractice; and (2) underlying 

misconduct that should have affected the hospital’s credentialing of the 

physician. Thus, in the case before us, even if Cavins’ misconduct does not rise 

to the level of medical malpractice, it is clear that the conduct arose due to the 

patient’s direct relationship with the physician; and, therefore, it is possible that

the misconduct may trigger on the patient’s part an inquiry into whether the 

Hospital should have extended privileges to Cavins. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 49 of 54

Floodgates to Litigation

[89] Approaching negligent-credentialing claims by first examining the underlying 

alleged misconduct, notwithstanding whether or not the conduct amounts to 

medical malpractice per se, does not expand the Act’s application and does not 

create a separate, standalone cause of action that would increase the number of 

such claims. See, e.g., G.F. v. St. Catherine Hosp., Inc., 124 N.E.3d 76, 84-85 (Ind. 

Ct. App. 2019), trans. denied. 

[90] Without question, for a negligent-credentialing claim to survive, there still must 

be underlying misconduct and proximate causation between the negligent 

credentialing and the underlying conduct. Furthermore, this approach does not 

conflict with the purpose of the Act or that of a medical review panel – that is, 

to “encourage the mediation and settlement of claims and [to] discourage the 

filing of unreasonably speculative lawsuits.” Johnson v. St. Vincent Hosp.,

Inc., 273 Ind. 374, 388-89, 404 N.E.2d 585, 595 (1980), overruled on other grounds

by In re Stephens, 867 N.E.2d 148 (Ind. 2007). It is this approach that remains 

faithful to the Act’s purpose.

[91] Importantly, this approach limits rather than opens the floodgates to or 

encourages a plethora of baseless, speculative negligent-credentialing claims or 

claims that attempt to bootstrap and convert common-law-negligence claims 

into statutory medical malpractice, as the majority asserts has occurred in the 

case before us. On the contrary, adopting this approach facilitates expediency 

in adjudicating negligent-credentialing claims and encourages mediation and 

settlement by involving a medical review panel early in the matter and 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 50 of 54

requiring, when appropriate, expert medical testimony to prove or disprove the 

negligent-credentialing claims. It is clear that medical credentialing requires 

consideration of the multi-faceted factors that trained medical professionals 

have based on their training and education that lay people do not possess.

Expert Medical Testimony is Necessary in Deciding Negligent-Credentialing 

Claims

[92] Additionally, I note that the credentialing process is a medical decision that 

commonly requires explanation by a medical expert. Generally, the process is 

beyond the scope of the common knowledge of ordinary laypersons. And it is 

not reasonable to believe that a layperson would be familiar with a hospital’s 

credentialing process – a complex process involving numerous steps such as 

screening physicians, verifying physicians’ ability to practice, and determining 

which procedures and services a physician is competent to perform and deliver. 

After all, it is medical experts who make the credentialing decisions.17

 See Ind. 

Code §§ 16-21-2-5, -7. And, consequently, in the larger context of negligentcredentialing claims, expert testimony is required to establish the standard of 

17 But cf. Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549 (Ind. Ct. App. 2019), clarified on reh’g, 131 

N.E.3d 777, trans. denied, 140 N.E.3d 286 (Ind. 2020) (David, J., dissenting) (concluding, where residential 

assistant in group home caused injury to plaintiff’s leg that resulted in plaintiff’s death, “I believe a lay jury 

could assess whether [the residential assistant’s] actions were tortious or not without applying a medical 

standard of care. Whether [the residential assistant] was negligent is not something beyond the knowledge of 

the jury and I’m not sure what a panel of healthcare providers could make clear here.”). However, I note 

that the facts and circumstances in the case before us differ significantly from those in Martinez. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 51 of 54

care the hospital owed the patient and how the hospital breached the standard 

of care. 

[93] Regarding the necessity of expert testimony in negligent-credentialing cases, the 

Montana Supreme Court observed in Brookins, the following: 

It has been noted that “[a]ll courts that have looked at the 

question have concluded that expert testimony is necessary to 

establish the standard of care owed by a hospital, or whether the 

hospital has been negligent.” Benjamin J. Vernia, Tort Claim for

Negligent Credentialing of Physician, 98 A.L.R. 5th 533, 553 (2002)

(internal citation omitted). The courts that have already 

addressed this question have reasoned that the process through 

which a hospital credentials a doctor to use its facilities is outside 

the knowledge of a common person. See e.g. Johnson v.

Misericordia Cmty. Hosp., 99 Wis.2d 708, 301 N.W.2d 156, 172 

(1981) (“[S]ince the procedures ordinarily employed by hospitals 

in evaluating applications for staff privileges are not within the 

realm of the ordinary experience of mankind . . . expert 

testimony was required to prove the same.”); Neff v. Johnson

Meml. Hosp., 93 Conn.App. 534, 889 A.2d 921, 928 (2006) (“we 

hold that the parameters of a hospital’s judgment in credentialing 

its medical staff is not within the grasp of ordinary jurors.”).

* * * 

We agree with other courts that the process of physician 

credentialing can be complicated and that the reasonable care a 

hospital must undertake in credentialing a doctor is not readily 

ascertainable by a layman.

2012 MT at ¶ 62, 367 Mont. at 213, 292 P.3d at 361-62 (internal quotation 

marks and citation omitted.)
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 52 of 54

[94] Simply put, the knowledge of the credentialing process necessary to determine 

negligent-credentialing claims is outside of the purview of non-doctors and 

nonmedical professionals. And I proffer that if we present negligentcredentialing claims to a jury absent expert testimony, we potentially open the 

door to visceral reactions by the jury to conduct on the part of the doctor that 

may have no effect on the hospital’s decision to credential the doctor, e.g., 

seemingly innocuous gossip about someone not associated with the doctor’s 

office or regarding a patient. 

[95] If we follow the majority’s approach in determining negligent-credentialing 

claims, we thwart the Act’s broader purpose of fostering the prompt litigation 

of medical malpractice claims. See, e.g., Ellenwine, 846 N.E.2d at 666. By not

requiring expert testimony regarding the credentialing decision – that is, 

testimony provided by the medical professionals who made the credentialing 

decision in the first place – we run the risk of opening the floodgates to 

litigation. The lack of expert testimony essentially sets the bar for negligentcredentialing claims too low, leading to drawn out litigation and a reduction in 

settlements. See, e.g., Lake Imaging, LLC, 182 N.E.3d at 210. And, above all, we 

risk inviting outcomes where health care providers wrongly prevail on summary 

judgment, resulting in the loss of a plaintiff’s viable claim of negligent 

credentialing.

Conclusion

[96] In conclusion, Cavins’ sexual abuse of John Doe II constitutes medical 

malpractice because the misconduct was at the very core of what Cavins, as 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 53 of 54

John Doe II’s attending physician, was supposed to do – that is, perform a 

physical examination on John Doe II. Finding this conduct falls within the Act 

defeats the Fund’s objection. However, whether or not Cavins’ misconduct, or 

any alleged misconduct, constitutes medical malpractice is irrelevant to 

accessing the Act under a negligent-credentialing claim. While any number of 

bad acts on a doctor’s part can affect credentialing, a negligent-credentialing 

claim falls under the Act, ordinarily requiring an opinion by a medical review 

panel and, ultimately, expert testimony to decide the claim. And, at the end of 

the day, there still must be proximate causation between the negligent 

credentialing and the underlying misconduct. So, even if the majority is correct 

(and even if the trial court had determined) that, in the instant case, the sexual 

abuse does not constitute medical malpractice, that conclusion is not dispositive 

of the Does’ negligent-credentialing claim against the Hospital and does not 

remove the claim from the scope of the Act. 

[97] Furthermore, I caution that following the majority’s approach invites the risk 

that some legitimate negligent-credentialing claims will be prematurely disposed 

of on summary judgment. I believe we have been presented with just such a 

case. 

[98] And, finally, I posit that had the matter before us been addressed as I suggest, 

this litigation might have been resolved by a full and final settlement of the 

matter. 
Court of Appeals of Indiana | Opinion 22A-CT-1276 | June 2, 2023 Page 54 of 54

[99] Therefore, I would affirm the trial court’s denial of summary judgment. In all 

other respects, I concur with the majority opinion.