Kho v. Pennington

• Decision Date: 19 September 2007
• Docket Number: No. 72S04-0609-CV-332.,72S04-0609-CV-332.
• Parties: Eusebio KHO, M.D., Appellant (Plaintiff below), v. Deborah PENNINGTON, Findling Garau Germano & Pennington, P.C., and Ruby Miller, Appellees (Defendants below).
• Court: Indiana Supreme Court

875 N.E.2d 208

Eusebio KHO, M.D., Appellant (Plaintiff below), v. Deborah PENNINGTON, Findling Garau Germano & Pennington, P.C., and Ruby Miller, Appellees (Defendants below).

No. 72S04-0609-CV-332.

Supreme Court of Indiana.

September 19, 2007.

Jon R. Pactor, Indianapolis, IN, Attorney for Appellant.

John C. Trimble, Lisa M. Dillman, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellees.

On Petition To Transfer from the Indiana Court of Appeals, No. 72A04-0507-CV-373

DICKSON, Justice.

The Indiana Medical Malpractice Act generally requires that actions for medical negligence against health care providers must first be submitted to and considered by a medical review panel. For limited purposes, the Act permits such actions to be contemporaneously filed in court, provided that the complaint contains no information that would allow the defendant provider(s) to be identified. We hold that the violation of this defendant identity confidentiality provision may be actionable.

In January 2001, Ruby Miller, as personal representative of the Estate of Tracy Merle Lee, deceased, filed with the Indiana Department of Insurance a proposed complaint for damages claiming that medical negligence by a hospital and various physicians and health care providers caused the death of Lee. Under the Indiana Medical Malpractice Act, such a filing triggers proceedings leading to the presentation of the claim to a medical review panel before the cause of action is filed in court.¹ Before any consideration by a medical review panel, however, this medical malpractice claimant also filed her complaint in Scott Circuit Court. After one of the named defendants in that action, Eusebio Kho, M.D., filed a motion for summary judgment alleging that he had not provided medical care to Tracy Merle Lee, the malpractice claimant and her lawyers voluntarily dismissed Dr. Kho from the lawsuit by stipulation.

Dr. Kho subsequently commenced an action against Ruby Miller, the malpractice claimant, her attorney, Deborah K. Pennington, and the attorney's law firm, Findling Garau Germano & Pennington, P.C., seeking damages for "emotional suffering, embarrassment, undue negative publicity, injury to his reputation, and mental distress" resulting from his being falsely named in the malpractice lawsuit, which he claims was filed without probable cause and with malice. Appellant's App'x at 11. The malpractice claimant and her attorneys sought and obtained summary judgment against the doctor. The doctor appealed, claiming: (1) the evidence demonstrates that the patient and her lawyers had neither subjective nor objective probable cause for their allegations of medical malpractice against Dr. Kho, and thus he was entitled to summary judgment on this issue; (2) the lawyers lacked probable cause or any other legal basis to name Dr. Kho in a medical malpractice action filed in court before their claim was considered by a medical review panel; (3) a genuine issue of fact exists regarding the lawyers' malice in naming Dr. Kho in the complaint filed in court; (4) the trial court should have refused the expert affidavit presented in support of summary judgment; (5) separate from the malicious prosecution claim, Dr. Kho had valid independent damage claims for statutory negligence or for a private right of action for a statutory violation; and (6) the lawyers' assertion of res judicata is meritless. The Court of Appeals affirmed the trial court's grant of summary judgment against the doctor. Kho v. Pennington, 846 N.E.2d 1036, 1048 (Ind. Ct.App.2006). We granted transfer to address one issue: whether violation of the defendant identity confidentiality provision of Indiana Code § 34-18-8-7 in the Indiana Medical Malpractice Act may give rise to an action for damages. As to all other issues,² we decline review of the opinion of the Court of Appeals and summarily affirm. Ind. Appellate Rule 58(A)(2).

Independent from his claim of malicious prosecution, the doctor contends the trial court erroneously granted summary judgment in favor of the claimant and her attorneys with respect to the doctor's claims for statutory negligence and for a private right of action arising from their violation of a statutory provision prohibiting the identification of a defendant health care provider in an action filed in court before the claim is submitted to and considered by a medical review panel.³

The Indiana Medical Malpractice Act generally requires that claims seeking more than $15,000 in damages must first be considered by a duly constituted medical review panel before such action is filed in court. Ind.Code § 34-18-8-4 ("section 4"). Section 4 generally prohibits the commencement of an action in court against a health care provider until both "the claimant's proposed complaint has been presented to a medical review panel" and "an opinion is given by the panel." Id. But a conditional exception is provided:

(a) Notwithstanding section 4 of this chapter, beginning July 1, 1999, a claimant may commence an action in court for malpractice at the same time the claimant's proposed complaint is being considered by a medical review panel. In order to comply with this section, the:

(1) complaint filed in court may not contain any information that would allow a third party to identify the defendant;

(2) claimant is prohibited from pursuing the action; and

(3) court is prohibited from taking any action except setting a date for trial, an action under IC 34-18-8-8 [dismissal of action for failure to prosecute], or an action under IC 34-18-11 [preliminary determination of affirmative defense or issue of law or fact; discovery];

until section 4 of this chapter has been satisfied.

(b) Upon satisfaction of section 4 of this chapter, the identifying information described in subsection (a)(1) shall be added to the complaint by the court.

Ind.Code § 34-18-8-7 (emphasis added).

The malpractice complaint filed in Scott Circuit Court repeatedly and explicitly named Dr. Kho and the other defendant health care providers. The trial court's initial order granting summary judgment against the doctor did not provide details. But its order denying the doctor's subsequent motion to correct error included consolidated findings of fact and conclusions of law, among which were findings: (a) that Indiana Code § 34-18-8-7 [the defendant identity confidentiality requirement] "provides for no manner of relief to a doctor improperly named in a malpractice suit"; (b) that it "fails to set out a manner of relief for someone such as Kho [the doctor] who has within that statute clearly been improperly named in a malpractice suit"; and (c) that "Miller and Pennington [the malpractice claimant and her lawyers] did violate the provisions of I.C. 34-18-8-7," but "the violation of that statute does not relieve Kho from proving the elements of his malicious prosecution claim." Appellant's App'x at 7.

We address the doctor's appellate contention that the summary judgment erroneously precluded his theories asserting "a private right of action and statutory negligence" arising from the violation of the identity confidentiality provision in Indiana Code § 34-18-8-7(a)(1) by the malpractice claimant and her lawyers. Appellant's Br. at 25.

The malpractice claimant and her lawyers respond that (a) the statutory identity confidentiality provision "is a purely procedural statute that does not create a substantive cause of action," Appellees' Br. at 15, and (b) the doctor's claim is "disingenuous" because the statutory provision does not guarantee anonymity in light of other sources by which the identity of a defendant health care provider may be discovered, id. at 19.

Indiana courts have a long and continuous history of recognizing negligence actions for statutory violations. City of Indianapolis v. Garman, 848 N.E.2d 1087, 1088 (Ind.2006) (violation of statutory duty requiring operation of emergency vehicles with due regard for the safety of all persons); Patrick v. Miresso, 848 N.E.2d 1083, 1087 (Ind.2006) (same); City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222, 1234-1235 (Ind. 2003) (violation of gun registration laws); Canfield v. Sandock, 563 N.E.2d 1279, 1283 (Ind.1990) (violation of statutory duties of pedestrians); Clipp v. Weaver, 451 N.E.2d 1092, 1094 (Ind.1983) (violation of statutory standard of care owed by boat operators); Corey v. Smith, 233 Ind. 452, 455, 120 N.E.2d 410, 411-12 (1954) (violation of statute prohibiting certain types of farm animals from running at large on the highway or other people's property); Northern Indiana Transit, Inc. v. Burk, 228 Ind. 162, 172, 89 N.E.2d 905, 909 (1950) (violation of statute regulating standing or parking of vehicles); Indiana & Chicago Coal Co. v. Neal, 166 Ind. 458, 460, 77 N.E. 850, 850 (1906) (acknowledging "the general rule": "In every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of the wrong done to him contrary to said law.").⁴ The violation of a duty fixed or prescribed by statute is often described as negligence per se. New York Cent. R.R. Co. v. Glad, 242 Ind. 450, 457, 179 N.E.2d 571, 574 (1962); Larkins v. Kohlmeyer, 229 Ind. 391, 398, 98 N.E.2d 896, 899 (1951); Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 600, 106 N.E. 365, 368 (1914). As recently explained by the Court of Appeals, the unexcused violation of a statutory duty constitutes negligence per se "if the statute or ordinance is intended to protect the class of persons in which the plaintiff is included and to protect against the risk of the type of harm which has occurred as a result of its violation." Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 986 (Ind.Ct.App.1999) (citing French v. Bristol Myers Co., 574 N.E.2d 940, 943 (Ind.Ct.App.1991), trans. denied), trans. denied; see also State v. Snyder, 732 N.E.2d 1240, 1244 (Ind.Ct.App.2000...