Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 1 of 20

ATTORNEYS FOR APPELLANTS

David J. Cutshaw

Gregory L. Laker

Gabriel A. Hawkins

Edward B. Mulligan V

Cohen & Malad, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

Kevin C. Schiferl

Maggie L. Smith

Stephanie V. McGowan

Frost Brown Todd, LLC

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

Santos Cortez, Fran Cortez, and 

Norris Choplin Schroeder LLP

Appellants-Plaintiffs,

v.

Indiana University Health Inc.,

Sharon V. Lucich, and Elizabeth 

Longmuir,

Appellees-Plaintiffs.

July 20, 2020

Court of Appeals Case No.

19A-CT-2540

Appeal from the Marion Superior 

Court

The Honorable Kurt M. Eisgruber, 

Judge

Trial Court Cause No.

49D06-1904-CT-15514

Brown, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 2 of 20

[1] Santos Cortez (“Santos”), Fran Cortez (“Fran”), and Norris Choplin Schroeder 

LLP (“NCS,” and collectively with Santos and Fran, “Plaintiffs”) appeal the 

trial court’s grant of a motion to dismiss filed by Indiana University Health, Inc.

(“IU Health”), Sharon V. Lucich, and Elizabeth Longmuir (collectively, 

“Defendants”). We affirm.

Facts as Alleged in Complaint

[2] On April 16, 2019, Plaintiffs filed a complaint against Defendants. According 

to the complaint,1 in 2012, Santos was referred to IU Health’s Wound Clinic at 

Methodist Hospital for treatment for pressure wounds. Santos received therapy 

from various physical therapists employed at IU Health’s Wound Clinic, 

including Lucich and Longmuir, on August 8, 16, 20, 23, 27, 29, and 31, 2012. 

Sometime between August 29, 2012, and December 2013, Lucich and/or 

Longmuir altered certain medical records reflecting the care and treatment 

Santos received at the Wound Clinic in August 2012.2

1 We accept as true the facts alleged in Plaintiffs’ complaint as Plaintiffs appeal from a trial court’s grant of a 

pretrial motion to dismiss under Trial Rule 12(B)(1). See State ex rel. Zoeller v. Aisin USA Mfg., Inc., 946 N.E.2d 

1148, 1149-1150 (Ind. 2011) (“[B]ecause this is an appeal from a trial court’s grant of a pretrial motion to 

dismiss under Trial Rule 12(B)(1), we accept as true the facts alleged in the State’s complaint.”), reh’g denied. 

2 The complaint alleged: “After completing and signing her August 16, 2012 Progress Note, Lucich and/or 

Longmuir intentionally and improperly altered the records by checking the box ‘Other’ and adding the note: 

‘Recommend use of sliding board until clearing buttocks c transfers’”; “After completing and signing her August 

20, 2012 Progress Note, Longmuir and/or Lucich intentionally and improperly altered the records by 

checking the boxes: ‘Dressing/Topical Application’ and ‘Pressure Relief’ and adding the note: ‘Pressure Relief 

ed[ucated] wife + pt about need to do relief @ night. Report not doing 2nd (secondary) to not wanting to get up @ 

night’.”; “After completing and signing her August 23, 2012 Progress Note, Longmuir and/or Lucich 

intentionally and improperly altered the records by checking the boxes ‘Pressure Relief’ and ‘Nutrition’ and 

adding the note: ‘Pressure Relief getting OOB [(out of bed)] only for MD appt and continuing to watch things done 
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 3 of 20

[3] In 2013, Santos and Fran contacted Attorney Mike Morken regarding a 

potential medical malpractice action against IU Health based on the alleged: (1) 

failure to have physicians supervising physical therapists at its Wound Clinic; 

and (2) failure of the Wound Clinic to refer Santos to a physician when he 

showed signs and symptoms of infection. Attorney Morken requested Santos’s 

medical records from IU Health regarding Santos’s treatment at the Wound 

Clinic in August 2012. On December 10, 2013, IU Health produced the altered 

records and failed to inform him that those records had been materially altered 

after the fact by Lucich and/or Longmuir. 

[4] In 2014, Santos and his wife, Fran, retained NCS to pursue a medical 

malpractice action against IU Health. In June 2014, NCS filed a proposed 

complaint alleging malpractice against IU Health with the Indiana Department 

of Insurance. During discovery, Defendants produced the altered records. 

[5] On March 23, 2015, IU Health produced transcriptions of the altered records to 

Plaintiffs in advance of Lucich and Longmuir’s depositions. According to the 

complaint, “[a]t no time during either Lucich’s or Longmuir’s depositions did 

they disclose they had altered [Santos’s] medical records to include the notes 

about which they testified under oath.” Appellants’ Appendix Volume II at 53. 

in therapy. Nutrition. ed[ucated] need to get extra protein, vit[amin] c, etc.’.”; “After completing and signing her 

August 29, 2012 Progress Note, Longmuir and/or Lucich intentionally and improperly altered the records by 

checking the boxes ‘Pressure Relief’ and ‘Nutrition’ and adding the note: “Pressure Relief: during transfer 

watching B heels at night, encouraged pressure relieving bed. Nutrition: reports eating well with extra protein, 

drinks boost’.” Appellants’ Appendix Volume II at 46-49.
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[6] On November 26, 2018, NCS received a copy of Santos’s original records 

produced by IU Health from Broadspire, an entity involved in Santos’s

worker’s compensation claim with his employer. IU Health provided that copy 

of Santos’s records to Broadspire by fax on August 29, 2012. On November 29, 

2018, while inspecting the records IU Health had produced to Broadspire, 

Plaintiffs discovered that Broadspire’s copy of the records did not include the 

altered handwritten notes. A few weeks later, IU Health agreed to resolve 

Santos and Fran’s medical malpractice claim. IU Health settled the claim with 

the right to proceed against the Patient’s Compensation Fund. 

Procedural History

[7] In their complaint filed on April 16, 2019, Plaintiffs alleged: Count I, fraud; 

Count II, criminal counterfeiting, forgery, and violation of Crime Victims Relief 

Act; and Count III, tort of outrage, perjury, and violation of Ind. Trial Rule 34.3

On June 10, 2019, Defendants filed a motion to dismiss pursuant to Ind. Trial 

Rules 12(B)(1) and 12(B)(6). They asserted that, “should [the trial court] find 

that Plaintiffs’ Complaint, in whole or in part, states any claim from which 

relief can be granted, [the trial court] lacks subject matter jurisdiction because 

the claims in the Complaint sound in negligence” and the complaint is subject 

to the prerequisites of Indiana’s Medical Malpractice Act (“MMA”) and should 

3 With respect to their claim of perjury and violation of Ind. Trial Rule 34, Plaintiffs state in their reply brief 

that Defendants are correct that Indiana does not recognize a standalone cause of action for perjury or 

violation of Trial Rule 34 and do not challenge the dismissal of these claims. 
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first be presented to the medical review panel. Id. at 74. In their motion, 

Defendants requested that the court take judicial notice of the court records 

found in Santos Cortez and Fran Cortez v. Indiana University Health, Inc., and 

Stephen W. Robertson, Commissioner, Indiana Department of Insurance, as 

Administrator of the Indiana Patient’s Compensation Fund, Cause No. 49D05-1706-

CT-22995 (“Cause No. 995”).

[8] In Cause No. 995, the Marion Superior Court entered an April 1, 2019 order 

dismissing with prejudice the complaint by Santos and Fran against IU Health 

and Stephen W. Robertson, Commissioner, Indiana Department of Insurance, 

as Administrator of the Indiana Patient’s Compensation Fund. The order 

noted that the case of Santos Cortez and Fran Cortez v. Stephen W. Robertson, 

Commissioner of Insurance, State of Indiana, Indiana Department of Insurance, 

Patient’s Compensation Fund, Cause No. 49D04-1902-CT-6463 (“Cause No. 

6463”), remained pending.4

 

4 In Cause No. 6463, Santos and Fran filed a Petition for Payment of Excess Damages from the Patient’s 

Compensation Fund in the Marion Superior Court on February 15, 2019. On October 10, 2019, Santos and 

Fran filed a Petition for Court Ordered Approval of Settlement Agreement and Release. Id. The Settlement 

Agreement and Release attached to the petition states: 

Notwithstanding any provision hereinabove, the parties expressly agree that this Settlement 

Agreement and Release is expressly limited to the claims arising from the medical care and 

treatment provided to Santos Cortez by the Defendants in August 2012, and expressly 

excludes any claims associated with Petitioners’ and their attorneys’ claims arising out of 

other conduct engaged in by Indiana University Health, Inc., and/or its employees, which 

claims are not governed by the Indiana Medical Malpractice Act, as those claims are 

alleged in Santos Cortez, Fran Cortez and Norris Choplin Schroeder LLP, vs. Indiana University 

Health, Inc., Sharon V. Lucich and Elizabeth A. Longmuir, Cause No. 49D06-1904-CT-015514, 

which claims are expressly reserved under this agreement.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 6 of 20

[9] On July 22, 2019, the trial court held a hearing on Defendants’ motion to 

dismiss. On October 11, 2019, the court entered a ten-page order granting 

Defendants’ motion which provides in part:

CONCLUSIONS OF LAW

A. Medical Malpractice Act

* * * * *

Plaintiffs’ Complaint states that “[t]his case arises out of 

Defendants’ intentional and fraudulent alteration of medical 

records reflecting the care and treatment they provided to 

Plaintiff Santos Cortez so as to defeat a medical malpractice 

claim that the Cortezes brought against [IU Health]” (Compl. ¶ 

1). Plaintiffs explicitly link the MMA action to the activity 

alleged under this cause. They lay out four (4) specific instances 

of document alteration (Compl. ¶ 16-24) that form the core of the 

Complaint. Plaintiffs concede that the facts involving the altered 

records are rooted firmly in the MMA case, but they contend that 

the settlement documents released Defendants “for medical 

negligence only, excluding the medical records issue.” (Pltffs’ 

Motion to Strike filed July 16, 2019 ¶ 10.)

Plaintiffs argue that the claims are so egregious that they should 

fall beyond the purview of the MMA. As a policy matter, 

Plaintiffs assert that the MMA is insufficient to deter future 

fraudulent acts and/or criminal acts of Defendants. To redress 

these concerns, Plaintiffs argue for the right to invoke private 

October 10, 2019 Petition for Court Ordered Approval of Settlement Agreement and Release at 10. On 

October 15, 2019, the court entered an order granting the petition, approving the release, and ordering “the 

Commissioner, in his capacity as Administrator of the Indiana Patient’s Compensation Fund . . . to authorize 

a cash payment from the Indiana Patient’s Compensation Fund to Santos Cortez and Fran Cortez, in the 

amount of Nine Hundred Fifty Thousand Dollars ($950,000.00).” October 15, 2019 Order in Cause No. 

6463. 
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 7 of 20

rights of action in addition to the remedies already provided 

under the MMA.

B. Indiana Code: Title 25

Private rights of action to deter future fraudulent behavior may 

be appropriate, but when possible, Indiana case law has deferred 

to available statutory remedies. Howard Reg’l Health Sys. v. 

Gordon, 952 N.E.2d 182 (Ind. 2011) addresses the maintenance of 

health records (see I.C. § 16-39-7–Maintenance of Health 

Records, X-rays, and Other Tests), a matter similarly situated to 

this case. “Surely the skillful, accurate, and ongoing 

maintenance of test and treatment records bears strongly on 

subsequent treatment and diagnosis of patients. It is a part of 

what patients expect from health care providers. It is difficult to

contemplate that such a service falls outside the [Medical 

Malpractice] Act.” Id. at 186. A private party may not usually 

enforce rights under a statute designed to protect the public in 

general and which contains an enforcement provision. Id. at 187 

(quoting, Estate of Cullop v. State, 821 N.E.2d 403 (Ind. Ct. App. 

2005)[, reh’g denied]). “Whether a statute creates a private right of 

action is a question of law for the court.” Id. 

Here, Defendant IU Health was required to maintain the records, 

but the gravamen of the case is the alteration of health records by 

Defendants Lucich and Longmuir. They are health care 

providers subject to, not only the MMA, but to disciplinary 

sanctions governing providers[’] licensure, registration or 

certification under Indiana Code Title 25. (see I.C. § 25-1-9; 

specifically, I.C. § 25-1-9-4(a)(1)(B) concerning disciplinary 

action by the governing board when a practitioner has “engaged 

in fraud or material deception in the course of professional 

services or activities”). Since the legislature has provided 

statutory enforcement mechanisms within both the MMA and 

Title 25, a private right of action does not exist against Lucich 

and Longmuir in this instance. 
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 8 of 20

THEREFORE, Defendants’ Motion to Dismiss is GRANTED 

as to Defendants Lucich and Longmuir.

Appellant’s Appendix Volume II at 178-181. With respect to Ind. Trial Rule 

12(B)(6), the court found that “under the facts and circumstances known to the 

parties on the date of the settlement of the Medical Malpractice Action, res 

judicata applies to all three counts alleged.” Id. at 183. It found that alteration 

of evidence such as medical records constitutes spoliation and that first-party 

spoliation claims have been rejected. Id. at 184. The court’s order also states:

3. Standing of NCS

“[S]tanding focuses on whether the complaining party is the 

proper person to invoke the court’s power.” State ex rel. Steinke v. 

Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005) (quotation 

omitted), trans. denied. “The main purpose of standing is to 

insure [sic] that the party before the court has a substantive right 

to enforce the claim that is being made in the litigation.” Schulz 

v. State, 731 N.E.2d 1041, 1044 (Ind. Ct. App. 2000) (citing Pence 

v. State, 652 N.E.2d 486, 487 (Ind. 1995)[, reh’g denied])[, trans. 

denied]. Here, NCS represented the Cortezes in the Medical 

Malpractice Action. (Compl. ¶ 28).

Indiana Code § 34-18-2-22 provides in pertinent part: “Derivative 

claims include the claim of a parent or parents, guardian, trustee, 

child, relative, attorney, or any other representative of the patient 

including claims for loss of services, loss of consortium, expenses, 

and other similar claims.” (emphasis added.) In Indiana Patient’s 

Compensation Fund v. Wolfe, 735 N.E.2d 1187, 1192 (Ind. Ct. 

App. 2000), [trans. denied,] this Court determined that the 

statutory definition of “patient” included only “a person who 

receives or should have received health care.” Too, “any 

derivative claim that might arise from the malpractice committed 

on the patient is included within that patient’s claim.” Id. Any 
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expenses or damages incurred by NCS in prosecution of the 

Medical Malpractice Action is solely a matter of the contract 

between NCS and the Cortezes.

THEREFORE, NCS lacks standing and is dismissed as a party.

Id. at 184-185. In November 2019, the court granted Defendants’ motion to 

correct clerical error clarifying that it intended to state that IU Health, 

Longmuir, and Lucich were each dismissed pursuant to Ind. Trial Rule 

12(B)(1).

Discussion

[10] The dispositive issue is whether the trial court erred in determining it did not 

have subject matter jurisdiction. Plaintiffs cite Howard Reg’l Health Sys. v. 

Gordon, 952 N.E.2d 182 (Ind. 2011), and state that, if their claims were simply 

predicated upon the destruction of medical records, then Defendants’ assertion 

that they must present their claims to a medical review panel prior to bringing 

suit would be accurate. Appellants’ Brief at 24. They argue that they do not 

contend Defendants simply failed to maintain Santos’s records, but rather that 

Defendants “proffered altered medical records in conjunction with perjured 

testimony in an attempt to support a contrived contributory negligence 

defense.” Id. They assert that, “[i]n contrast to the mere maintenance of 

medical records, the fraudulent alteration of records and facilitation of perjury 

have nothing to do with ‘curative or salutary conduct’ or the ‘exercise of 

professional expertise, skill, or judgment’ and are, instead, actions decidedly 

unrelated to healthcare,” the MMA is not applicable, and the trial court had 
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 10 of 20

subject matter jurisdiction over their claims. Id. They also argue that “policy 

considerations also favor reversal because, if this Court affirms the trial court, 

nothing will deter other unscrupulous providers from perpetrating similar 

frauds.” Id. at 28.

[11] Defendants argue that Plaintiffs’ claims fall within the purview of the MMA 

and they consequently must bring their claims before the medical review panel 

and the trial court lacks subject matter jurisdiction until that condition 

precedent has been satisfied. They assert Plaintiffs’ attempt to distinguish 

Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182 (Ind. 2011), fails because the 

alleged acts all stem from the maintenance of the medical records which the 

Indiana Supreme Court has declared falls within the definition of malpractice.

[12] In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial 

court may consider not only the complaint and motion but also any affidavits or 

evidence submitted in support. GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind. 

2001). The standard of appellate review for such a motion depends on what 

occurred in the trial court, and on “(i) whether the trial court resolved disputed 

facts; and (ii) if the trial court resolved disputed facts, whether it conducted an 

evidentiary hearing or ruled on a ‘paper record.’” Id. at 401. We review de 

novo a trial court’s ruling on a motion to dismiss where, as here, the facts 

before the court are disputed and the trial court rules on a paper record. Id. 

Under such circumstances a court of review is in as good a position as the trial 

court to determine whether the court has subject matter jurisdiction. Id. 

Although the trial court held a hearing on the motion to dismiss, the hearing 
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was simply an oral argument as the parties presented no evidence and no 

witnesses were sworn. Accordingly, we apply a de novo standard of review 

based on the paper record before us. 

[13] The MMA requires the presentation of the proposed complaint to a medical 

review panel before an action may be commenced in a court in Indiana. Metz as 

Next Friend of Metz v. Saint Joseph Reg’l Med. Ctr.-Plymouth Campus, Inc., 115 

N.E.3d 489, 494 (Ind. Ct. App. 2018) (citing Ind. Code § 34-18-8-4). 

“Essentially, the [MMA] grants subject matter jurisdiction over medical 

malpractice actions first to the medical review panel, and then to the trial 

court.” Id. (quoting H.D. v. BHC Meadows Hospital, Inc., 884 N.E.2d 849, 853 

(Ind. Ct. App. 2008), reh’g denied, trans. denied; and citing B.R. ex rel. Todd v. 

State, 1 N.E.3d 708, 713 (Ind. Ct. App. 2013) (“Simply said, the [MMA] grants 

subject matter jurisdiction over medical malpractice actions first to the medical 

review panel, and then to the trial court.”), trans. denied). See also Eads v. Cmty. 

Hosp., 932 N.E.2d 1239, 1246 (Ind. 2010) (holding that the MMA “requires that 

claims for medical malpractice that are recognized under tort law and 

applicable statutes be pursued through the procedures of the MMA”) (citing 

Chamberlain v. Walpole, 822 N.E.2d 959, 963 (Ind. 2005)).

[14] The MMA defines “malpractice” as “a tort or breach of contract based on 

health care or professional services that were provided, or that should have been 

provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18. Ind. 

Code § 34-18-2-22 provides: 
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 12 of 20

“Patient” means an individual who receives or should have 

received health care from a health care provider, under a 

contract, express or implied, and includes a person having a 

claim of any kind, whether derivative or otherwise, as a result of 

alleged malpractice on the part of a health care provider. 

Derivative claims include the claim of a parent or parents, 

guardian, trustee, child, relative, attorney, or any other 

representative of the patient including claims for loss of services, 

loss of consortium, expenses, and other similar claims.

The Indiana Supreme Court has held that “[t]he effect of this provision is 

merely to require that any person who has a ‘derivative claim’ for medical 

malpractice follow the requirements of the MMA in filing a proposed complaint 

with the Insurance Commissioner, etc.” Chamberlain, 822 N.E.2d at 963.

“Health care” is “an act or treatment performed or furnished, or that should 

have been performed or furnished, by a health care provider for, to, or on behalf 

of a patient during the patient’s medical care, treatment, or confinement.” Ind. 

Code § 34-18-2-13. 

[15] The Indiana Supreme Court has held:

Indiana courts understand the [MMA] to cover “curative or 

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

professional capacity,” Murphy v. Mortell, 684 N.E.2d 1185, 1188 

(Ind. Ct. App. 1997), [trans. denied,] but not conduct “unrelated to 

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

professional expertise, skill, or judgment.” Collins v. Thakkar, 552 

N.E.2d 507, 510 (Ind. Ct. App. 1990)[, trans. denied]. 

Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011). “To 

determine whether the [MMA] is applicable, the court looks to the substance of 
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a claim.” Id. (citing Van Sice v. Sentany, 595 N.E.2d 264 (Ind. Ct. App. 1992)). 

“[R]egardless of what label a plaintiff uses, claims that boil down to a ‘question 

of whether a given course of treatment was medically proper and within the 

appropriate standard’ are the ‘quintessence of a malpractice case.’” Id. (quoting 

Van Sice, 595 N.E.2d at 267). “By contrast, to fall outside the Malpractice Act a 

health care provider’s actions must be demonstrably unrelated to the promotion 

of the plaintiff’s health or an exercise of the provider’s professional expertise, 

skill, or judgment.” Id. at 186. 

[16] We find Howard Reg’l Health Sys. v. Gordon instructive. In that case, Lisa 

Gordon was admitted to Howard County Community Hospital in labor. Id. at 

184. Dr. Richard A. Gard had provided Lisa’s prenatal care. Id. He delivered 

Jacob Gordon by caesarian section after determining the baby was in a breech 

position, on January 7, 1999. Id. Sometime thereafter it became apparent that 

Jacob suffered from numerous serious disorders. Id. The Gordons believed 

that Jacob’s conditions may have been caused by substandard medical care at 

the time of his birth. Id. Counsel for Lisa first requested medical records from 

the Hospital in December 2003 and then in 2004. Id. Counsel made additional 

requests after it became apparent there were gaps in the medical records turned 

over. Id. 

[17] In 2005, the Gordons filed a complaint for damages with the Indiana 

Department of Insurance as required by the MMA. Id. The complaint named 

Howard Regional as the sole defendant and alleged that one of the hospital 

nurses did not conform to the applicable standard of medical care, causing 
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 14 of 20

damage to Jacob. Id. In March 2006, the Gordons filed a motion to compel 

discovery. Id. The Hospital filed affidavits dated June 5, 2006, stating that 

some of the records could not be located. Id. The missing records included 

nursing and narrative notes. Id. 

[18] The Gordons filed an amended complaint against the Hospital, named three 

additional defendants, and included in part Count I, medical negligence against 

Howard Regional, and Count II, third-party spoliation of evidence against 

Howard Regional. Id.

[19] The Gordons moved for partial summary judgment against Howard Regional 

with respect to Count II, the third-party spoliation claim. Id. In support, they 

tendered the affidavit of a neonatologist stating she could not determine 

whether the standard of care was met because of the missing medical records. 

Id. at 184-185. After a hearing, the trial court granted the Gordons partial 

summary judgment and authorized an interlocutory appeal by Howard 

Regional. Id. at 185. Howard Regional appealed, and another panel of this 

Court affirmed. Id.

[20] On transfer, the Indiana Supreme Court addressed two threshold questions: 

whether the Gordons’ spoliation claim fell within the general scope of the 

MMA and whether Indiana’s statute on maintenance of health records statute 

created a private right of action. Id. The Court held:

Splitting out separate actions by a provider has usually been held 

contrary to the Act. In determining that both the activity of 

credentialing and medical malpractice should be reviewed 
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together under the Act, the Court of Appeals explained the 

landscape well:

Viewed from the historical perspective we believe the 

conclusion is inescapable that our General Assembly 

intended that all actions the underlying basis for 

which is alleged medical malpractice are subject to 

the act. [T]he obvious purpose of the act is to 

provide some measure of protection to health care 

providers from malpractice claims, and to preserve 

the availability of the professional services of 

physicians and other health care providers in the 

communities and thereby protect the public health 

and well-being[.]

Winona Mem’l Hosp., LP v. Kuester, 737 N.E.2d 824, 828 (Ind. Ct.

App. 2000) (quoting Sue Yee Lee v. Lafayette Home Hosp., Inc., 410 

N.E.2d 1319, 1324 (Ind. Ct. App. 1980)).[5]

Id. at 186.

[21] With that background in mind, the Court held:

The Gordons’ underlying claim in Count II alleges medical 

malpractice because the “[m]aintenance of health records by 

providers” is so closely entwined with health care and because 

5 The Court included a footnote which stated:

Parents contended their trial court complaint represented an independent action for 

damages outside the purview of the Act. The parents believed their claim for the loss of 

services of their child and for medical expenses was outside the Act because they were 

never patients of the defendant health care providers, either under the statutory definition 

or under recognized definitions of the term, and they were not suing in representative 

capacity. The court held the parents’ right of action was derived from a claim of medical 

malpractice and thus covered by the Act. Sue Yee Lee, 410 N.E.2d at 1324.

952 N.E.2d at 186 n.2.
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records in general are so important to a medical review panel’s 

assessment of whether the appropriate standard of care was met. 

Ind. Code §§ 16-39-7-1, 34-18-10-22(a). The Gordons rightly 

acknowledge how important health care records are for “the 

nature and quality of the health care provided, for billing 

purposes, and peer review.” (Appellee’s Br. at 16.) (emphasis 

added)[.] Surely the skillful, accurate, and ongoing maintenance 

of test and treatment records bears strongly on subsequent 

treatment and diagnosis of patients. It is a part of what patients 

expect from health care providers. It is difficult to contemplate 

that such a service falls outside the Act.

Id.

[22] The Court then addressed “the Gordons’ contention that the statute on 

maintenance of health records creates a private right of action separate from 

the” MMA and the Gordons’ argument that subsection (d) “implicitly 

recognizes that there is civil liability on the part of a healthcare provider if it 

violates Ind. Code § 16-39-7-1.”6

 Id. The Court concluded that “neither the 

6 Ind. Code § 16-39-7-1 is titled “Maintenance of health care records by providers” and provides:

(a) As used in this section, “provider” means the following:

* * * * *

(8) A physical therapist.

* * * * *

(13) A hospital or facility licensed under IC 16-21-2 or IC 12-25 or described in IC 

12-24 or IC 12-29.

(b) A provider shall maintain the original health records or microfilms of the records for at 

least seven (7) years.

(c) A provider who violates subsection (b) commits an offense for which a board may 

impose disciplinary sanctions against the provider under the law that governs the provider’s 

licensure, registration, or certification under this title or IC 25.

(d) A provider is immune from civil liability for destroying or failing to maintain a health 

record in violation of this section if the destruction or failure to maintain the health record 

occurred in connection with a disaster emergency as declared by the governor under IC 10-
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rules of statutory construction nor the history of the enactment lead to the idea 

that Section 1(d) confers a private remedy for the Gordons.” Id. at 188. 

[23] The Court then discussed first-party and third-party spoliation claims.7 Id. The 

Court clarified that first-party spoliation refers to the spoliation of evidence by a 

party to the principal litigation and third-party spoliation refers to spoliation by 

a non-party. Id. The Court observed that it answered two certified questions in 

Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005), and limited its 

answers in that case to first-party spoliation. Id. The Court held:

Our decision in Gribben to forgo recognizing a distinct cause of 

action for first-party spoliation likewise comports with the 

approach of many courts that have instead addressed such 

allegations in the underlying litigation through sanctions, 

including adverse inference instructions and other mechanisms. 

See Cedars-Sinai Med. Ctr. v. Superior Court (Bowyer), 18 Cal.4th 1, 

74 Cal.Rptr.2d 248, 954 P.2d 511, 517 (1998) (“[T]here are a 

number of nontort remedies that seek to punish and deter the 

intentional spoliation of evidence. Chief among [which] is the 

evidentiary inference that evidence which one party has 

destroyed or rendered unavailable was unfavorable to that 

party.”); see also Leon v. IDX Sys. Corp., 464 F.3d 951, 958, 960-63 

(9th Cir. 2006) (affirming dismissal against party for bad faith 

destruction of relevant evidence); cf. Ind. Trial Rule 37 (a court 

14-3-12 or other disaster, unless the destruction or failure to maintain the health record was 

due to negligence by the provider.

7 “Spoliation consists of ‘[t]he intentional destruction, mutilation, alteration, or concealment of evidence, 

usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the 

party responsible.’” Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000) (quoting BLACK’S LAW 

DICTIONARY 1409 (7th ed. 1999)).
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 18 of 20

may sanction a party, including dismissal of a claim or defense, 

for failing to comply with a discovery order).

Id. at 189. The Court further held:

Our decision in Gribben rested partly on similar analysis. In 

declining to recognize first-party spoliation claims we concluded,

Notwithstanding the important considerations 

favoring the recognition of an independent tort of 

spoliation by parties to litigation, we are persuaded 

that these are minimized by existing remedies and 

outweighed by the attendant disadvantages. We thus 

determine the common law of Indiana to be that, if 

an alleged tortfeasor negligently or intentionally 

destroys or discards evidence that is relevant to a tort 

action, the plaintiff in the tort action does not have an 

additional independent cognizable claim against the 

tortfeasor for spoliation of evidence under Indiana 

law.

Gribben, 824 N.E.2d at 355. We did acknowledge that fairness 

and integrity of outcome and deterrence might require a separate 

tort remedy against persons who are not parties to the principal 

litigation, but as the certified question did not necessitate 

examination of third-party spoliation, we did not address it 

further.

The following year in Glotzbach v. Froman, we first considered 

whether an employee could sue his employer in tort, outside the 

Worker’s Compensation Act, for loss of evidence about his injury 

on the job, evidence said to be needed for litigation against the 

maker of a pump that exploded at the worksite. 854 N.E.2d 337 

(Ind. 2006). We concluded the disadvantages in first-party 

spoliation militated against recognizing a third-party claim in 

that setting:
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Proving damages in a third-party spoliation claim 

becomes highly speculative and involves a lawsuit in 

which the issue is the outcome of another 

hypothetical lawsuit. The jury must somehow find 

all the elements of a product liability case, 

immediately determining whether a product defect 

caused the injury, as opposed to inadequate 

maintenance, or other intervening events. The jury 

would be asked to determine what the damages 

would have been had the evidence been produced 

and what the collectibility of these damages would 

have been. We think this exercise often could 

properly be described as “guesswork.”

Id. at 341 (citing Petrik v. Monarch Printing Corp., 150 Ill.App.3d 

248, 103 Ill.Dec. 774, 501 N.E.2d 1312, 1320 (1986)).

Necessarily working from the background of Gribben and 

Glotzbach, and our observation that fairness and integrity of 

outcome might sometime require recognizing such a claim, the 

Gordons urge that theirs is an instance warranting an 

independent tort for third-party spoliation. The theory runs like 

this: when it comes time to prove the Gordons’ claim against Dr. 

Gard, the Hospital’s loss of medical records hinders their ability 

to pursue a claim against Dr. Gard. Thus, they say, the Hospital 

is a third party against whom a separate tort for spoliation is 

needed. The Hospital, of course, is also a first-party defendant.

We conclude that splitting up the defendants, and the counts 

against them, blurs the distinction between actual defendants and 

others who may possess evidence but are not parties to the 

litigation. What the Gordons’ case presents is really a claim for 

first-party spoliation, carrying the same advantages and 

disadvantages we weighed in Gribben and Glotzbach.

Id. at 190.
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020 Page 20 of 20

[24] The Court observed that the MMA “generally requires that actions for medical 

negligence against health care providers must first be submitted to, and an 

opinion given by, a medical review panel before commencing an action in 

court.” Id. at 191 (citing Ind. Code § 34-18-8-4). The Court held that the 

Hospital was entitled to summary judgment on the claim of spoliation because 

the Court declined to recognize the count as representing a separate cause of 

action. Id.

[25] Based upon the Indiana Supreme Court’s opinion in Gordon, we conclude that 

the maintenance of health care records in this case including their alteration 

prior to the filing of the proposed complaint alleging malpractice against IU 

Health fall within the scope of the MMA. Plaintiffs did not submit these claims 

to a medical review panel. Accordingly, we affirm the trial court’s grant of 

Defendants’ motion to dismiss.8

[26] Affirmed.

Najam, J., and Kirsch, J., concur. 

8 Because we affirm on the basis of Ind. Trial Rule 12(B)(1), we need not address Plaintiffs’ arguments 

regarding Ind. Trial Rule 12(B)(6).