FILED
                                                                               Oct 08 2020, 8:30 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brett T. Clayton                                           Christopher Gambill
Katherine M. Haire                                         Katherine Gambill
Reminger Co., LPA                                          Wagner, Crawford & Gambill
Indianapolis, Indiana                                      Terre Haute, Indiana

                                                           ATTORNEY FOR AMICUS CURIAE
                                                           INDIANA TRIAL LAWYERS
                                                           ASSOCIATION
                                                           Jerry Garau
                                                           Garau Germano, P.C.
                                                           Indianapolis, Indiana



                                             IN THE
      COURT OF APPEALS OF INDIANA

Anonymous Hospital,                                        October 8, 2020
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           20A-CT-393
        v.                                                 Interlocutory Appeal from the Vigo
                                                           Superior Court
Mason Spencer,                                             The Honorable Lakshmi Reddy,
Appellee-Respondent,                                       Judge
                                                           Trial Court Cause No.
and                                                        84D02-1907-CT-5142

Steve Robertson, Commissioner of
The Indiana Department of
Insurance, and Doug Hill, Medical
Review Panel Chair,




Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020                          Page 1 of 15
      Third Party Respondents.




      Crone, Judge.


                                               Case Summary
[1]   The medical review panel (MRP) stage of a medical malpractice proceeding is

      an informal process that parties must participate in within the medical

      malpractice framework. The narrow single issue presented in this interlocutory

      appeal is whether a vicarious liability theory of recovery against a hospital is

      preserved at this informal stage of the proceedings regarding conduct of

      physicians not named in the proposed medical malpractice complaint and for

      which the statute of limitations has now run to add them as parties. Mason

      Spencer spent twenty-five days in Anonymous Hospital (the Hospital)

      undergoing multiple procedures and being cared for and treated by numerous

      individuals, including physicians. He later filed a proposed medical malpractice

      complaint alleging that he suffered injuries and damages as a result of

      negligence and malpractice on the part of the Hospital. When, more than a

      year later, Spencer tendered his MRP submission that included assertions of


      Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020        Page 2 of 15
      vicarious liability for the physicians that treated him, the Hospital requested a

      preliminary determination of law or definitive ruling from the trial court.

      Specifically, the Hospital requested that the court strike the allegations of

      vicarious liability, and except the conduct of any physicians from the MRP’s

      review because no physicians are named in the proposed complaint, nor were

      they identified during initial discovery, and the statute of limitations has

      expired. The trial court reviewed Indiana case law and initially granted the

      Hospital’s petition, concluding that Spencer was precluded from proceeding

      with his vicarious liability claims. However, the court later reversed course and

      granted Spencer’s motion to reconsider, concluding that current Indiana law

      does not preclude those claims from proceeding at the MRP stage, and even

      thereafter under appropriate circumstances. We agree that the vicarious

      liability claims against the Hospital may be presented to and considered by the

      MRP, and therefore affirm the trial court’s grant of Spencer’s motion to

      reconsider.


                                  Facts and Procedural History
[2]   Spencer is a mentally disabled young man who suffers from Pierre Robbins

      Syndrome, a congenital condition that results in a smaller than typical lower

      jaw, a tongue that falls back into the throat, and difficulty breathing. On May

      21, 2016, then eighteen-year-old Spencer was brought to the emergency

      department of the Hospital by his parents with complaints of nausea, vomiting,

      and diarrhea. He was subsequently discharged and directed to follow up with

      his family doctor. On May 23, 2016, Spencer’s family doctor directed him to

      Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020         Page 3 of 15
      return to the Hospital’s emergency department, where he was seen and

      diagnosed with community acquired pneumonia and thrombocytopenia (low

      blood platelet count). Spencer was later admitted to the Hospital’s intensive

      care unit for respiratory insufficiency, and was intubated. Spencer’s admission

      to the Hospital continued for twenty-five days and finally ended when he was

      transferred to Riley Children’s Hospital for further care on June 15, 2016.


[3]   During his stay at the Hospital, Spencer allegedly developed bed sores, skin

      deterioration, a dislocated jaw, and several other ailments. Spencer filed his

      proposed complaint against the Hospital with the commissioner of the Indiana

      Department of Insurance on October 3, 2017. The complaint alleged in

      pertinent part:


              3. That [the Hospital] provided healthcare to [Spencer] on May
              21, 2016, and thereafter.

              4. That at all relevant times herein [the Hospital] held
              themselves out as being capable of making proper diagnosis and
              treatment of medical conditions and diseases and invited the
              public, including [Spencer], to engage their services for
              remuneration to be charged by them.

              5. That as a direct and proximate result of the acts of negligence
              and malpractice on the part of [the Hospital], Spencer suffered
              damages and losses.


      Appellant’s App. Vol. 2 at 27. Written discovery ensued, and the parties

      thereafter agreed to and formed an MRP consisting of three Indiana healthcare

      providers. On July 2, 2019, Spencer timely tendered his evidentiary submission


      Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020           Page 4 of 15
      to the MRP. The submission included allegations that the Hospital should be

      held vicariously liable for the negligent acts committed by the various

      physicians, as well as other hospital employees and/or agents, who treated

      Spencer during his hospitalization.


[4]   On July 22, 2019, the Hospital invoked the jurisdiction of the trial court

      through a motion for preliminary determination of law or discovery sanctions.

      The Hospital sought a definitive ruling or discovery sanctions striking Spencer’s

      vicarious liability claims involving physician negligence, for which the Hospital

      claimed it had no notice. Specifically, the Hospital complained that the statute

      of limitations had expired, so the unnamed physicians could not be added as

      parties.


[5]   The trial court held oral argument on the Hospital’s motion on September 30,

      2019. Thereafter, the trial court issued its order granting the Hospital’s motion.

      The trial court stated that it believed, based upon current Indiana case law, that

      Spencer’s failure to name specific physicians in his proposed complaint and/or

      during initial discovery was fatal to any claims of vicarious liability on the

      Hospital’s part, and therefore that he is prohibited from proceeding with these

      claims before the MRP. Accordingly, the trial court instructed in its order:


              The best remedy appears to be to order that the Medical Review
              Panel is only charged with reviewing the conduct of Hospital
              employees, agents, and representatives, except for physician
              conduct since no physicians were named in the proposed
              complaint and/or identified during discovery. This will require
              that Patient amend/modify its Submission or that the Medical
              Review Panel Chairman instruct the Panelists to limit their
      Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020        Page 5 of 15
              review and analysis to Hospital employees and staff, except for
              any physicians.


      Appellant’s App. Vol. 2 at 149-50.


      Spencer thereafter filed a motion to reconsider. On November 14, 2019, the

      trial court granted the motion to reconsider in light of its determination that, in

      its prior order, it had misinterpreted this Court’s opinions in Columbus Regional

      Hospital v. Amburgey, 

976 N.E.2d 709

(Ind. Ct. App. 2012), trans. denied (2013)

      and Helms v. Rudicel, 

986 N.E.2d 302

(Ind. Ct. App. 2013), trans. denied.

      Accordingly, the trial court ruled that Spencer “may proceed with his

      arguments and allegations of physician negligence (even if those physicians

      were not named in the proposed Complaint) in his submission to be evaluated

      by the [MRP].” Appellant’s App. Vol. 2 at 170.


[6]   The Hospital filed a motion to certify the issue for interlocutory appeal. The

      trial court granted the motion for certification following oral argument, noting,

      “I think my last order is probably a correct recitation of the current law … [but]

      the best thing is [to] let an Appellate Court decide now.” Tr. Vol. 2 at 56. This

      Court accepted jurisdiction on March 19, 2020, and this appeal ensued.


                                      Discussion and Decision
[7]   Indiana’s Medical Malpractice Act (the Act), enacted in 1975, dictates the

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

      et seq. Pursuant to the Act, a party to a malpractice action may request the

      appropriate trial court to “preliminarily determine an…issue of law or fact.”

      Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020        Page 6 of 15
      Ind. Code § 34-18-11-1(a)(1). The trial court has jurisdiction to entertain a

      motion filed under this chapter only during that time after a proposed

      complaint is filed with the commissioner under this article but before the MRP

      gives the panel’s written opinion under Indiana Code Section 34-18-10-22. Ind.

      Code § 34-18-11-1(c). A preliminary-determination proceeding is unique in

      nature but is inextricably linked to the larger medical malpractice case as a

      mechanism to decide threshold issues. Ramsey v. Moore, 

959 N.E.2d 246

, 253

      (Ind. 2012).


[8]   The Hospital contends that the trial court erred in denying its motion for

      preliminary determination and granting Spencer’s motion to reconsider and

      determining that Spencer may proceed with his allegations of physician

      negligence/vicarious liability in his submission to be evaluated by the MRP,

      even if those physicians were not named in the proposed complaint or during

      initial discovery, and the statute of limitations has expired to join them to the

      case or add them as non-parties. Specifically, the Hospital argues that the trial

      court erred in interpreting Indiana case law which formed the basis for the

      court’s decision. A trial court’s interpretation of statutes and/or case law is a

      question of law to which this Court owes no deference. Harlett v. St. Vincent

      Hosps. & Health Servs., 

748 N.E.2d 921

, 924 (Ind. Ct. App. 2001), trans. denied.




      Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020        Page 7 of 15
      Accordingly, our appellate review of the trial court’s determination here is de

      novo. 1


[9]   We begin by underscoring that this case is simply at the MRP stage. Before a

      plaintiff may pursue a malpractice complaint in court against a qualified

      healthcare provider, the Act requires the plaintiff to present a proposed

      complaint to an MRP, and the MRP must give its opinion as to whether the

      provider breached the standard of care. See Ind. Code § 34-18-8-4. Our

      supreme court has emphasized that the MRP process is intended to be

      “informal” and “limited.” Johnson v. St. Vincent Hosp., 

273 Ind. 374

, 390, 

404 N.E.2d 585

, 596 (1980), overruled on other grounds by In re Stephens, 

867 N.E.2d 148

(Ind. 2007), and abrogated on other grounds by Collins v. Day, 

644 N.E.2d 72

      (Ind. 1994). Indeed, the Johnson court noted there is little likelihood that a

      plaintiff “will incorrectly estimate the steps that should be taken in procuring

      and presenting evidence and authorities to the panel, and should he do so there

      is little or no risk that he will be harmed thereby.” Id. at 

391, 404 N.E.2d at 596

.


      1
        Both parties suggest that our standard of review of the trial court’s preliminary determination of law is
      abuse of discretion. However, in addition to being presented with a pure legal question regarding the
      interpretation of Indiana case law on appeal, we emphasize that, although the trial court heard arguments
      from the parties, the court acknowledged that it did “not have any actual evidence before it to make a
      decision.” Appellant’s App. Vol. 2 at 149. Our standard of review of a trial court’s decision depends on
      whether the court “resolved disputed facts, and if so, whether the trial court conducted an evidentiary hearing
      or ruled on a paper record.” Popovich v. Danielson, 

896 N.E.2d 1196

, 1201 (Ind. Ct. App. 2008), trans. denied
      (2009). Where, as here, the court neither conducted an evidentiary hearing nor resolved any disputed facts,
      our appellate review is de novo.

Id. This is different

from the grant or denial of a pretrial motion on
      evidentiary issues, an adjunct of the trial court’s inherent power to admit and exclude evidence, the standard
      of review for which is abuse of discretion. Butler ex rel. Estate of Butler v. Kokomo Rehab. Hosp., Inc., 

744 N.E.2d 1041

, 1046 (Ind. Ct. App. 2001), trans. denied. Regardless, as we further discuss later, we would find no abuse
      of discretion in this case.

      Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020                                     Page 8 of 15
[10]   In Griffith v. Jones, 

602 N.E.2d 107

(Ind. 1992), our supreme court reiterated the

       informal nature of the MRP process and further explained the trial court’s very

       limited role when asked to make preliminary determinations at this stage:


               In view of the fact that the legislature clearly intended for the
               medical review panel to function in an informal manner in
               rendering its expert medical opinion, we believe that the
               legislature did not simultaneously intend to empower trial courts
               to dictate to the medical review panel concerning either the
               content of the panel’s opinion or the manner in which the panel
               arrives at its opinion, or the matters that the panel may consider
               in arriving at its opinion. In other words, the grant of power to
               the trial court to preliminarily determine matters is to be
               narrowly construed.

Id. at 110. [11]

  This Court recently emphasized, and our supreme court agreed, that to treat the

       MRP process as something more than it is would wholly defeat its purposes:


               It is intended to be informal and limited; it is also intended to
               place little to no risk on the participants. If plaintiffs were
               required to present each and every possible theory of negligence
               to the MRP, and were bound by those allegations, then plaintiffs
               would be required to conduct full and complete discovery long
               before the litigation even began. This would create barriers of
               expense and time that would be insurmountable for most, if not
               all, potential plaintiffs, and the cost of the process would also be
               borne by the defendants. We do not believe that our Legislature
               intended such a result in creating the MRP process.


       McKeen v. Turner, 

61 N.E.3d 1251

, 1261 (Ind. Ct. App. 2016), opinion adopted

       and incorporated by reference in 

71 N.E.3d 833

(Ind. 2017).

       Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020         Page 9 of 15
[12]   Having clarified the informal nature of the MRP process, we now consider the

       general theory of liability asserted by Spencer in his proposed complaint.

       Specifically, Spencer alleged that the Hospital held itself out “as being capable

       of making proper diagnosis and treatment of medical conditions and diseases

       and invited the public, including [Spencer], to engage their services for

       remuneration to be charged by them” and that “as a direct and proximate result

       of the acts of negligence and malpractice on the part of [the Hospital], Spencer

       suffered damages and losses.” Appellant’s App. Vol. 2 at 28. Under our broad

       principles of notice pleading, see Miller v. Mem’l Hosp. of S. Bend, Inc., 

679 N.E.2d 1329

, 1332 (Ind. 1997) (a plaintiff “essentially need only plead the operative

       facts involved in the litigation”), this allegation falls squarely within our

       supreme court’s decision in Sword v. NKC Hospitals, Inc., 

714 N.E.2d 142

(Ind.

       1999), in which the court addressed vicarious liability of a hospital for the

       actions of individual physicians based upon the theory of apparent or ostensible

       agency.

Id. at 147.

The court in Sword observed, “In the area of hospital

       liability, there has been an ongoing movement by courts to use apparent or

       ostensible agency as a means by which to hold hospitals vicariously liable for

       the negligence of some independent contractor physicians.”

Id. at 150.

       Ultimately, the Sword court adopted the formulation of apparent or ostensible

       agency set forth in the Restatement (Second) of Torts Section 429, which

       provides:


               One who employs an independent contractor to perform services
               for another which are accepted in the reasonable belief that the
               services are being rendered by the employer or by his servants, is

       Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020         Page 10 of 15
               subject to liability for physical harm caused by the negligence of
               the contractor in supplying such services, to the same extent as
               though the employer were supplying them himself or by his
               servants.

Id. at 149.

The court held:


               Under Section 429, as we read and construe it, a trier of fact must
               focus on the reasonableness of the patient’s belief that the
               hospital or its employees were rendering health care. This
               ultimate determination is made by considering the totality of the
               circumstances, including the actions or inactions of the hospital,
               as well as any special knowledge the patient may have about the
               hospital’s arrangements with its physicians. We conclude that a
               hospital will be deemed to have held itself out as the provider of
               care unless it gives notice to the patient that it is not the provider
               of care and that the care is provided by a physician who is an
               independent contractor and not subject to the control and
               supervision of the hospital. A hospital generally will be able to
               avoid liability by providing meaningful written notice to the
               patient, acknowledged at the time of admission. Under some
               circumstances, such as in the case of a medical emergency,
               however, written notice may not suffice if the patient had an
               inadequate opportunity to make an informed choice.

Id. at 152

(internal citations omitted). “[I]f the patient has no special knowledge

       regarding the arrangement the hospital has made with its physicians, and if

       there is no reason that the patient should have known of these employment

       relationships, then reliance is presumed.”

Id. [13]

  Here, contrary to its repeated assertions, the Hospital was clearly on notice

       from the proposed complaint that Spencer was making allegations of vicarious

       liability, including physician negligence, as “proper diagnosis and treatment of
       Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020         Page 11 of 15
       medical conditions and diseases” is performed only by or at the direction of

       individual physicians. 2 While none of the factfinding necessary to determine

       the agency relationship or lack thereof between the Hospital and the various

       physicians who treated Spencer has occurred at this juncture, the issue becomes

       whether Spencer’s failure to individually name or identify those physicians

       prior to the running of the statute of limitations is fatal to his claim. Other

       panels of this Court have made it abundantly clear that it is not.


[14]   In Columbus Regional Hospital v. Amburgey, 

976 N.E.2d 709

(Ind. Ct. App. 2012),

       trans. denied (2013), a medical malpractice plaintiff sought to hold the defendant

       hospital liable for the acts of independent contractor physicians, arguing that

       the hospital failed to provide the plaintiff’s decedent with the notice required by

       Sword.

Id. at 711.

The hospital argued that the plaintiff had failed to name the

       physicians individually in the proposed complaint and, because the statute of

       limitations had since run and extinguished any possible individual liability on

       the part of the independent contractor physicians, it likewise extinguished any

       possible vicarious liability on the part of the hospital.

Id. at 713.

The Amburgey

       court rejected this argument and instead was persuaded by the conclusions of




       2
         The Hospital directs us to Butler v. Kokomo Rehab. Hosp., Inc., 

744 N.E.2d 1041

(Ind. Ct. App. 2001), in
       which a panel of this Court affirmed a trial court’s grant of a hospital’s motion for preliminary ruling
       foreclosing any claim against the hospital based upon the alleged negligence of an individual physician
       because the hospital argued that it did not have sufficient notice, based upon the proposed complaint, of any
       apparent agency claim. Butler is factually distinguishable and unpersuasive. Indeed, in agreeing with the trial
       court that the hospital was not on notice of any vicarious liability claim, we emphasized that the Butler
       plaintiffs had not only narrowed their claim against the hospital in an amended complaint, the plaintiffs had
       in fact, entered into a settlement agreement with the physician and specifically withdrew any claim against
       the hospital with regard to that physician.

Id. at 1047.

       Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020                               Page 12 of 15
       some of our sister states in determining that the running of a statute of

       limitations with respect to a physician or physicians does not preclude a

       complaint against a hospital on a theory of vicarious liability and apparent

       authority.

Id. at 716.

In Helms v. Rudicel, 

986 N.E.2d 302

(Ind. Ct. App. 2013),

       trans. denied, we relied on Amburgey and similarly concluded that an employer

       could be held vicariously liable for medical malpractice even though the statute

       of limitations barred suit against the employee. Specifically, the Helms court

       held that a healthcare facility could be “vicariously liable for the acts of its

       apparent agents even if the agents are individually immune from suit.”

Id. at 312. [15]

  In this case, we agree with the trial court that, based upon these rulings,

       Spencer’s failure to name or identify any physicians individually prior to the

       running of the statute of limitations is not fatal to his vicarious liability claims

       against the Hospital. In other words, Spencer may proceed with his arguments

       and allegations of physician negligence/vicarious liability in his submission to

       the MRP even though those physicians are not named in the proposed

       complaint and are now individually immune from suit.


[16]   We note that we are concerned, as is counsel for amicus curiae, the Indiana

       Trial Lawyers Association, by the Hospital’s attempt to so severely, and we

       think unjustifiably, limit Spencer’s claims against it before the case has even been




       Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020          Page 13 of 15
presented to the MRP. 3 The Hospital waxes poetic about being prejudicially

misled by what it characterizes as a “threadbare” proposed complaint and “bait-

and-switch” initial discovery responses. Reply Br. at 6, 8. 4 We remind the

Hospital that, in the words of Karen Carpenter, “We’ve only just begun.” 5 The

Hospital has yet to even craft its own submission to the MRP, and it has ample

notice and opportunity to respond to all alleged instances of negligence,

physician or otherwise, presented by Spencer in his submission. 6 Thereafter,

there is still much to be sorted out if and when this case finds its way to a

courtroom. Indeed, at trial, it is well settled that Spencer can proceed with

“any theories of alleged malpractice during litigation” so long as “(1) the

proposed complaint encompasses the theories, and (2) the evidence relating to

those theories was before the MRP.” 

McKeen, 71 N.E.3d at 834

(quoting

McKeen, 61 N.E.3d at 1262

). This would include any claims of negligence,




3
  Because the Act is in derogation of the common law, it must be strictly construed against limitations on a
claimant’s right to bring suit. Preferred Prof’l Ins. Co. v. West, 

23 N.E.3d 716

, 726-27 (Ind. Ct. App. 2014),
trans. denied.
4
  Among its claims of prejudice, the Hospital asserts that it has been deprived of the ability “to assert a non-
party defense against” the unnamed physicians. Appellant’s Br. at 19. However, the Indiana Comparative
Fault Act, which replaced the common law defense of contributory negligence with a system for providing
for the reduction of a plaintiff's recovery in proportion to the plaintiff’s fault, “expressly exempted medical
malpractice claims from its ambit[.]” Indiana Dept. of Ins. v. Everhart, 

960 N.E.2d 129

, 138 (Ind. 2012); see
Palmer v. Comprehensive Neurologic Services, P.C., 

864 N.E.2d 1093

, 1099-1100 (Ind. Ct. App. 2007), trans.
denied. Accordingly, the non-party defense created by the Comparative Fault Act, is unavailable in medical
malpractice cases. Wilson v. Lawless, 

64 N.E.3d 838

, 846 (Ind. Ct. App. 2016), trans. denied (2017). The
Hospital has not been deprived of something it never had in the first place.
5
    CARPENTERS, CLOSE TO YOU (A&M Records 1970).
6
 We note that the Hospital has in its possession the identity of each individual, including each physician,
who attended to Spencer while he was a patient at the Hospital, as well as a record of the care provided.

Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020                                  Page 14 of 15
       raised or not raised to the MRP, that meet these two requirements. These are

       considerations for the trial court at a later date.


[17]   In sum, the trial court properly determined that Spencer is not barred from

       proceeding with his arguments and allegations of vicarious liability/physician

       negligence in his submission to be evaluated by the MRP. 7 The trial court’s

       order denying the Hospital’s motion for preliminary determination of law and

       granting Spencer’s motion to reconsider is affirmed.


[18]   Affirmed.


       Robb, J., and Brown, J., concur.




       7
         To the extent that the Hospital suggests that the question is not whether Spencer is precluded from
       presenting vicarious liability claims to the MRP, but whether he should be precluded from doing so as a
       discovery sanction, we note that the trial court specifically determined that such a sanction was unwarranted
       under the circumstances. Appellant’s App. Vol. 2 at 170. We presume that in determining appropriate
       discovery sanctions, a trial court will “act in accord with what is fair and equitable in each case,” and thus we
       will reverse a decision only if it “is clearly against the logic and effect of the facts and circumstances before
       the court, or if the trial court has misinterpreted the law.” Wright v. Miller, 

989 N.E.2d 324

, 330 (Ind. 2013).
       “The conduct and equities will vary with each case, and we thus generally leave that determination to the
       sound discretion of the trial courts.”

Id. We find no

abuse of discretion here.

       Court of Appeals of Indiana | Opinion 20A-CT-393 | October 8, 2020                                 Page 15 of 15