Collins v. Thakkar

• Decision Date: 10 April 1990
• Docket Number: No. 30A01-8911-CV-460,30A01-8911-CV-460
• Citation: 552 N.E.2d 507
• Parties: Kathy COLLINS, Appellant (Plaintiff Below), v. Pravin THAKKAR, M.D., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 507

552 N.E.2d 507

89 A.L.R.4th 877

Kathy COLLINS, Appellant (Plaintiff Below), v. Pravin THAKKAR, M.D., Appellee (Defendant Below).

No. 30A01-8911-CV-460.

Court of Appeals of Indiana,

First District.

April 10, 1990.

Robert W. York, Arthur R. Baxter, Jr., Robert York & Associates, Indianapolis, for appellant.

Robert W. Strohmeyer, Jr., Nana Quay-Smith, Bingham Summers Welsh & Spilman, Indianapolis, for appellee.

ROBERTSON, Judge.

The narrow issue we address in this interlocutory appeal is whether appellant Collin's three count complaint based upon theories of wrongful abortion, assault and battery, and intentional infliction of emotional distress alleges "torts" "based on health care or professional services rendered ... by a health care provider, to a patient." ¹ The trial court dismissed Collins's complaint for want of subject matter jurisdiction pursuant to Ind. Trial Rule 12(B)(1), agreeing with defendant-appellee Thakkar that the allegations of the complaint place its substance with the purview of Indiana's Medical Malpractice Act, IND.CODE 16-9.5-1 et seq., which requires submission of all proposed malpractice complaints to a medical review panel before an action may be initiated against a health care provider in a court of this state. Collins's position is simply that the Act's definition of malpractice does not incorporate the torts alleged in her complaint because her causes of action against Thakkar, though arising during the provision of health care, are not based upon anything Thakkar did in rendering health care or professional services.

Collins alleges in her complaint that after becoming Thakkar's patient in March, 1984, her relationship with him developed into a social relationship involving periodic sexual intercourse. In January, 1988, Collins consulted Thakkar about the possibility that she was pregnant by him and Thakkar agreed to perform an examination of her on January 9, 1988, after ordinary office hours, for purposes of determining whether she was pregnant. Collins alleges further that during the purported examination, Thakkar advised her that she was not pregnant and then, twice, without her consent and over her protest, did some act with the metal instrument inside her as to inflict excruciating pain upon her. Collins alleges that Thakkar intentionally aborted the birthing process of her unborn fetus, of which Thakkar was the father, causing her to miscarry.

With respect to each of the three counts, Collins alleges that Thakkar's wrongful conduct was intentional and the proximate cause of the severe physical and mental injuries she suffered. She seeks both compensatory and punitive damages with respect to each count. Collins has also filed with the Indiana Insurance Commission a complaint of medical malpractice which parrots the factual allegations of her civil complaint.

Thakkar's challenge to the trial court's exercise of jurisdiction over the subject matter of Collins's complaint turns upon the breadth of the statutory definitions of tort, malpractice, and health care. Thakkar concedes that the Act does not encompass every tort claim arising as a consequence of a patient-physician relationship, see, e.g., Midtown Community Mental Health Center v. Estate of Gahl (1989), Ind.App., 540 N.E.2d 1259 (third party claims of negligent care and failure to warn, which were neither derived from patient nor brought for patient's benefit outside scope of Act); Winona Memorial Foundation of Indianapolis v. Lomax (1984), Ind.App., 465 N.E.2d 731; Methodist Hospital of Ind., Inc. v. Ray (1990), Ind.App., 551 N.E.2d 463 (allegations of ordinary premises liability not governed by malpractice legislation), but posits that the Act does include all torts arising during the provision of medical services. Thakkar draws support for this construction from the trilogy of appellate decisions which have spoken to the Act's applicability--Methodist Hospital of Ind., Inc. v. Rioux (1982), Ind.App., 438 N.E.2d 315; Lomax, 465 N.E.2d 731; and, Ogle v. St. John's Hickey Memorial Hospital (1985), Ind.App., 473 N.E.2d 1055, trans. denied--and distinguishes them based upon whether the tort alleged was committed while the patient was receiving medical care.

Certainly, each of these cases shares the common element identified by Thakkar. After all, the Act applies to claims of "malpractice", i.e. "tort[s] ... based upon health care or professional services rendered, ..." and defines "health care" as "any act, or treatment performed or furnished ... during the patient's medical care, treatment or confinement." Yet, our holdings in these decisions do not preclude the narrower ground espoused by Collins, that the Act applies solely to tort claims based on the rendering or failure to render health care or professional services. Indeed, although none of these decisions speaks directly to the issue raised by Collins's complaint, namely, whether certain deliberate wrongs committed by a health care provider during the rendering of medical care or treatment are "health care" or "professional services rendered" within the meaning of the statute, the cases can be read consistently with each other as standing for the proposition that the Act includes within its scope only those claims for damages originating from the giving of or failure to give appropriate health care or professional services. ²

We are therefore led back to the Act itself for guidance as to its intended scope. In construing the Act, we will presume the legislature intended the language of the Act to be applied in a logical manner, consistent with the legislation's underlying goals and policy. Detterline v. Bonaventura (1984), Ind.App., 465 N.E.2d 215, 218, trans. denied. Words in a single section of the statute will be construed with due regard for all other sections of the Act and with regard for legislative intent to carry out the spirit and purpose of the Act. Id.

The definitions pertinent to our inquiry are as follows:

(h) 'Malpractice' means any tort or breach of contract based on health care or professional services rendered, or which should have been rendered by a health care provider, to a patient.

(g) 'Tort' means any legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another.

(i) 'Health care' means any act or treatment 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.

I.C. 16-9.5-1-1(g), (h), (i) (1988). ³

Notably, the definitions of "malpractice" and "health care" address the conduct of a "health care provider" as it relates to a patient. For our purposes, a "health care provider" is an individual "licensed or legally authorized by this state to provide health care or professional services as a physician ..." Indisputably then, the Act concerns itself with the behavior or practices of a physician acting in his professional capacity as a provider of medical services. Conversely, acts or omissions of a health care provider unrelated or outside the provider's role as a health care professional are not the Act's aim.

The Act's reach is also circumscribed in part by the language "for, to, or on behalf of a patient" contained in the definition of health care. Again, the language, read with due regard to the subject matter, suggests actions undertaken in the interest of or for the benefit of the patient's health, i.e. conduct engaged in by a physician which is curative or salutary in nature or effect. Acts or practices committed with something other than such a remedial purpose would again be excluded by implication. The text of the Act itself thus leads one to conclude that the General Assembly intended to exclude from the legislation's purview conduct of a provider unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill or judgment.

Such a construction of "health care or professional services rendered" conforms with both the Act's historical objective, to protect the public's vital interest in the availability of the professional services of physicians and other health care providers, Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374, 404 N.E.2d 585, 589, and the design of the legislation as a means of effectuating that end. As we reiterated in Lomax and again in Gahl, the Act was a precisely tailored response to the difficulties encountered by health care providers in obtaining professional liability insurance; it is not related to the sort of liability a provider is exposed to generally, whether that be liability arising as a consequence of the condition of the health care provider's premises or a criminal act. The legislature's establishment of a medical review panel, the sole purpose of which is to provide an expert determination on the question of whether a provider complied with the appropriate standard of care, suggests that the scope of the Act is likewise confined to actions premised upon the exercise of professional judgment. See, Ray, at 468-69.

Collins alleges the purposeful use of medical instruments in such a manner as to cause a miscarriage and concomitant pain to the patient, without the patient's consent and despite her protests. Under such circumstances, the conduct described is both wanton and gratuitous. In no way can it logically be said that the legislature intended such behavior to constitute the rendition of health care or professional services. ⁴ The acts as alleged, although plainly occurring during the rendition of health care, were not designed to promote the patient's health. Neither do they call into question Thakkar's use of the skill or expertise required of...