Cortez v. Ind. Univ. Health Inc.

• Decision Date: 20 July 2020
• Docket Number: Court of Appeals Case No. 19A-CT-2540
• Parties: Santos CORTEZ, Fran Cortez, and Norris Choplin Schroeder LLP, Appellants-Plaintiffs, v. INDIANA UNIVERSITY HEALTH INC., Sharon V. Lucich, and Elizabeth Longmuir, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

151 N.E.3d 332

Santos CORTEZ, Fran Cortez, and Norris Choplin Schroeder LLP, Appellants-Plaintiffs,

v.INDIANA UNIVERSITY HEALTH INC., Sharon V. Lucich, and Elizabeth Longmuir, Appellees-Plaintiffs.

Court of Appeals Case No. 19A-CT-2540

Court of Appeals of Indiana.

Filed July 20, 2020

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

Brown, Judge.

[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

[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.

[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 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

[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 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.

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,

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