Court of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 1 of 54 A TTORNEY S FOR A PPELLANT S A. Richard M. Blaiklock Wade D. Fulford Michael D. Heavilon Lewis Wagner, LLP Indianapolis, Indiana A TTORNEY S FOR A PPELLEES J ANE D OE , J OHN D OE I , AND J OHN D OE II Gabriel A. Hawkins Gregory L. Laker Cohen & Malad, LLP Indianapolis, Indiana
A TTORNEY S FOR A PPELLEE B OARD OF T RUSTEES OF A NONYMOUS H OSPITAL Brian L. Park Norris Cunningham Michael J. Blinn Stoll Keenon Ogden PLLC Indianapolis, Indiana
A TTORNEY FOR A PPELLEE J ONATHAN C AVINS 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

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- 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 , Appellant s -

Defendant s

,

v.


### Jane Doe and John Doe I , individually and as next friends and legal guardians of John Doe II, an unmarried minor, Appellee s -

Plaintiff s

, and 

### Jonathan Cavins and Board of Trustees of Anonymous Hospital , Appellee s - Intervenors

. June 2, 2023 Court of Appeals Ca se No. 22A

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- 1276 Appeal from the Boone Circuit Court
The Honorable Lori N. Schein, Judge
Trial Court Case No. 06C01

- 2108

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- 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

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- 1276 | June 2, 2023 Page 3 of 54 

# Statement of the Case

[1] Appellants, t he 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
p rerequisites for access to the Patient’s Compensation Fund. In order to answer that question, we must address the following issues:

I. W hether a freestanding claim of negligent credentialing
can exist where the underlying act of negligence does not consti tute 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 ; II I

. 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 part y ; andCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 4 of 54 I V

. 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 , a ffects 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] S econd, we hold that , where the Fund is not a party to a settlement agreement between the claimant a nd 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 disput e 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, t he 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. doe s not affect the resolution of the Does’ claims.Court of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 5 of 54 

## Facts and Procedural History

[7] Jonathan Cavins wa s 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 th em 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

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- 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 disput e, we are presented with a pure question of law for which summary judgment disposition is partic ularly appropriate. Pike Twp. Educ. Found. , 831 N.E.2d at 1241

. We review pure question s 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 §§ 3 4

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- 1

- 1 to 34

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- 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 determinatio n, we look to the substance of a claim. Metz as Next Friend of Metz v.Court of Appeals of Indiana | Opinion 22A

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- 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 (In d. 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 Clini c , 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

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- 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 wh ether a sexual assault constitutes medical malpractice. 3 And t he Fund argues that the Does’ negligent credentialing claim against the Hospital is based on a claim that is not compensable under the Act

. T he Fund discusses our decisions in both Winona Memorial Hosp ital , Ltd.
P

artner ship 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 conclude s that, without an underlying claim of medical malpractice, a clai m 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 4:4 4 and 19:49 ). Neither the Does nor the Hospital contested those statement s . 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 me dical malpractice element of negligent credentialing is satisfied. L ikewise, the Hospital a rgued that even assuming for argument’s sake that a sexual assault d oes 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

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- 1276 | June 2, 2023 Page 9 of 54 [15] For their part , the Does allege that the substance of their claim against the Hospital constitute s medical malpractice because the credentialing of a doctor , which is done by medical professionals , some of whom are required to be physicians, i s directly related to the provision of health care

.

[16] T he 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 credentialin g 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 bring s the action under the Act. T he Hospital claims that Winona “did little m ore 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 unde rlying act of negligence that gives rise to it must constitute medical malpractice. Intervenor Hospital’s Br. p. 11. In addition, t he Hospital distinguishes Fairbanks from the pr esent case by the fact that it involved the negligent supervision of a hospi tal 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 processCourt of Appeals of Indiana | Opinion 22A

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- 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

. A nd we said that “ both alleged neg ligent acts” are “req uire d to recover (i.e., both the credentialing and the malpractice).” Id. (emphasis added).

[18] Eight years later i n Fairbanks , we were called upon to decide whether a claim of negligent supervision of a hospital employee f e ll 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 patie nt 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 andCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 11 of 54 Fairbanks’ negligent supervision of the employee

— m ust sound in medical malpractice in order for the action to come within the Act ’ s purview. Id.

[19] W hile 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 no t 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

a n underlying act of medical malp ractice 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. Par k 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 med ical mal practice 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 inCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 12 of 54 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 agai nst the Hospital is tant amount to a common law tort of negligent hiring and retention akin to the claims asserted in Fairbanks

. G iven 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 can not come w ithin 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 hea lth 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 withi n 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

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- 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 disreg ards 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

natu re. 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

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- 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

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- 3(5)

[23] The Does additionally argue that the Fund cannot challenge their negligen t credentialing claim against the Hospital because it is “established” as a matterCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 14 of 54 of law as a result of their settlement agreement. To support this argument, the Does cite Indiana Code section 34

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- 3(5) (2017), which provides: “In approving a settle ment 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

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- 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 con testing the legal compensability of the claim ed injury as one that is not compensable under the Act and the refore also not subject to a claim for excess damages from the Fund. Id.

[25] I n 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 th e distinction our Supreme Court articulated in Robertson

. P laintiff Cutchin attempted the same argument as th e 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,Court of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 15 of 54 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

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- 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 t he statute that states: “the court shall consider the liability of the health care provider as admitted and established.” Ind. Code § 34

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- 3(5) (emphasis added). The court thus distinguished between a challeng e to the liability of a health care
prov ider, which the F und cannot do after settlement between the plaintiff and the provider, and a challeng e 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 settle ment 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 Cu tchin . 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 t he applicability of the Act (per Robertson , the “legal compensability”) to the claims of the Does.Court of Appeals of Indiana | Opinion 22A

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### I II. Laches and Estoppel

[27] T he Hospital contends the equitable doctrine s of laches and estoppel should be applied to preclude the Fund from challenging the applicability of the Act to the
Does’ claim

. Particularly, t he Hospital alleges the Fund should have contested the Does’ claim to excess damages sooner tha n 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. A s we discussed in Issue I I , a settlement establishing a provider’s factual liabil ity does not necessarily establish whether the claim is covered under the Act or the Fund’s liability for excess damages. Rather, t he 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 responsib i lity in this regard is not ripe until a claim for excess damages is made.
See Ind. Code § 34

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- 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 ( administ rator of Fund ) ) ; - 3(3) ( co mmissioner may object to d emand);

- 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
S ub section 34

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- 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, theCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 17 of 54 Fund cannot be faulted for not h aving 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 pr erequisites under Section 34

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- 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 fail s to address any of the elements that would establish that defense. The Hospital also fail s 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 Fun d had the “opportunity to intervene and elected not to.” Intervenor Hospital ’s Br

. p. 16. The relianc e element of estoppel has two p arts : (1) reliance in fact and (2) right to rel y
. 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 “succ essfully rejects” the agreement and the Does’ petition for excess damages, in which even t the agreement “shall be null and void.” See Appellants’ App. Vol. IV, p. 48 , ¶ 16.1. Having anti cipated 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 int ervene in the parties’ settlement negotiations, theCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 18 of 54 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 t he 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.



### I V
. A pplication 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 consi dering that question, the parties have addressed whether this Court’s opinion in Martinez v. Oaklawn Psychiatric Center affect s application of the Act in this case

.

[32] Martinez announced a new “ current test ” for evaluating medical malpractice claims based upo n 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, a s discussed below, we did not apply that test in Martinez , and the holding in Martinez did not deviate from establishedCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 19 of 54 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 55 6

. 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 note d 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 turnCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 20 of 54 on whether or not the residential assistant was employed by Oakl a wn, and it was also und isputed 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 a re not a t 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 th is 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 cur few 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 broadene d 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 Ma rtinez 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

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- 1276 | June 2, 2023 Page 21 of 54 

## Conclusion

[37] Based upon the foregoing, w e 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 cl aimant 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 a s 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

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- 1276 | June 2, 2023 Page 22 of 54 

### Robb, J., concurring in part and diss enting 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 ha ve 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 m alpractice 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 circumst ances 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 malpractic e 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 , f or a discussion of the distinction between the terms “credentialing” and “privileging.”Court of Appeals of Indiana | Opinion 22A

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- 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 impres sion, 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 abu sed 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 trea tment 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 underl ying 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 judg ment 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 nonmed ical 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 medi cal 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 t hat 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 supportCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 26 of 54 finding that Cavins did in fact commit medical malpra ctice. 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 dete rmination, 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 suff icient 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 unint ended 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 o ur Genera l 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 act ion 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 careCourt of Appeals of Indiana | Opinion 22A

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- 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, a s 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, t hus 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 result ed from that failure. Glon v. Mem’l Hosp. of S. Bend, Inc. , 111 N.E.3d 232, 23 9 (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 A lthough limited exceptions apply, generally speaking, a n 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 th e 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, d espite 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

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- 1276 | June 2, 2023 Page 29 of 54 co vered 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

. T he essence of the general duty of care owed to patients by a hospital is to provide patients with an environment where their health a nd 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 not ed 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
accr editation 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 w ork withinCourt of Appeals of Indiana | Opinion 22A

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- 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 p atient.

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 ser vice 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 qu ality and necessity of care provided.
(B) The preventability of complications and deaths occurring in the hospital

.Court of Appeals of Indiana | Opinion 22A

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- 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

c redentialing 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, t hey 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, credentia ling 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 a nd 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 requir ements. 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

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- 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] Privil eges, 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 practic e 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, m edical 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),
htt ps://www.healthstream.com/resource/blog/the

- privileging

- puzzle

requirements

- 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 pro cedures 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

- for

credentialing

- and

- p rivileging [ https://perma.cc/S2KT

- U2UB ] (last visited May 15, 2023)

. Although details of the credentialing and privileging processes varyCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 33 of 54 depending upon the hospital, location, m edical 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

- peer review/ [ 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.c om/resource/blog/the

- privileging

puzzle

- requirements

- for

- providers

- and

- organizationsCourt 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 credential ing 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

- for

credentialing

- 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 credential ing 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 m edical 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 mi sconduct 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 malpract ice” 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

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- 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 Cavin s, 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 creden tialing 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

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- 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 squarel y 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 ine xtricably 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 becau se 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 r epresentative 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 H ospital are, essentially, aligned on appeal.Court of Appeals of Indiana | Opinion 22A

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- 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 7 08, 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

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- 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
pra ctices 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 s alutary 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 profes sional 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 theCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 39 of 54 Medical Malpractice Act where there is a causal co nnection between the conduct complained of and the nature of the patient

health 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 top ics 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 pedia trician’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 knowCourt of Appeals of Indiana | Opinion 22A

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- 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 Appella nt’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 procee ded 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 t o 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 ab use 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. , 3 69 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 med ical purpose for a genital examination, a claim can fall within medicalCourt of Appeals of Indiana | Opinion 22A

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- 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 an d 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 malprac tice 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 T he Asbury court found that injuries sustained in a sexual assault that took place during a gynecological examination were covered as injuries caused by the “prov iding 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

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- 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 malpract ice 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 c ramping but had not yet menstruated. Chunmuang touched the patient inappropriately and sexually assaulted her during the examination. The patient did not return for a follow

up visit with Chunmuang because he had made her “feel dirty.” 151 N.J. at 84, 6 98 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 cou rt 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 Co urt 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 injurie s 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

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- 1276 | June 2, 2023 Page 43 of 54 intertwined with the professional s ervices 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 l iability, 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 questio n” 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 ‘m edical 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 occurr ed 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

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- 1276 | June 2, 2023 Page 44 of 54 and, thus, committed malpractice. Simply p ut, 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
Cav ins’ 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 c are 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 testim ony 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. S ee Syfu v. Quinn , 826 N.E.2d 699, 703 (Ind. Ct. App. 2005)

.Court of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 45 of 54 Inc. v. McKenzie , 185 N.E.3d 368, 375 (Ind. 20 22) (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 Car e 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); an d (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 negligent

credentialing claims.

[79] The predica te 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 docto r 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 doc tor. 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 no t the patient’s treating physician.Court of Appeals of Indiana | Opinion 22A

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- 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 physici an 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

- credent ialing 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 n ot exist) (internal citation omitted).Court of Appeals of Indiana | Opinion 22A

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- 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 comm itting 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 abo ut 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 unsupp orted 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 th e 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

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- 1276 | June 2, 2023 Page 48 of 54 [86] If, as the majority instructs, we limit our approach in determining negligent

credentialing claims to whether the underlying misconduct must constitute medical malpractice, we examine the misconduct through too narrow a lens, which can result in circumstan ces where potentially successful negligent

credentialing 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 constit utes 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 f ree - 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 o f 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

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- 1276 | June 2, 2023 Page 49 of 54 

### Floodgates to Litigation

[89] Approaching negligent

- credentialing claims by first examining the underlying alleged misconduct, no twithstanding 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. Catherin e 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 under lying 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 li mits 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 asser ts 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 andCourt of Appeals of Indiana | Opinion 22A

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- 1276 | June 2, 2023 Page 50 of 54 requir ing, 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 train ing 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 exp ert. 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 su ch 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 negligent

credentialing claims, e xpert 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 witho ut 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

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- 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 ne cessity 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 establ ish 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. Miseric ordia 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 agr ee 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 3 61

- 62 (internal quotation marks and citation omitted.)Court of Appeals of Indiana | Opinion 22A

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- 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 i f we present negligent

credentialing 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 exper t testimony essentially sets the bar for negligent

credentialing 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 v ery core of what Cavins, asCourt of Appeals of Indiana | Opinion 22A

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- 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 th e 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

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- 1276 | June 2, 2023 Page 54 of 54 [99] Therefore, I would affirm the tr ial court’s denial of summary judgment. In all other respects, I concur with the majority opinion.