Medical Malpractice Or Ordinary Negligence: What’s The Difference?
Do you believe you have been permanently injured as a result of a physician committing malpractice in your care? Is someone you love in a nursing home and suffering from an injury caused by careless acts occurring in the nursing home? What is the difference in medical negligence and ordinary negligence?
In Indiana, before a medical malpractice action may be commenced in a court of law against a health care provider, the Medical Malpractice Act (hereinafter the “Act”) requires that a proposed Complaint be presented to a medical review panel and an opinion rendered. Harts v. Caylor-Nickel Hospital, Inc., 553 N.E.2d 874 (Ind. Ct. App. 1990). However, the Act is not so broad as to subject every patient-provider claim to its coverage. Id. (relying on Winona Memorial Foundation vs. Lomax, 465 N.E.2d 731 (Ind. Ct. App. 1984)).
Acts Which Qualify As “Medical Care” For Purposes Of The Medical Malpractice Act
“Malpractice” is defined by the Act 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. Weldon v. Universal Regents, Inc., 714 N.E.2d 1104, 1105 (Ind. Ct. App. 1999). ‘Health Care is defined as 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. Id. (citing IC §34-18-2-13). Indiana Courts have construed this last phrase to mean “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. ” Collins v. Thakkar, 552 N.E.2d 597, 509 (Ind. Ct. App. 1990).
The Indiana court of appeals has held that it is indisputable that “the [Medical Malpractice Act] Act concerns itself with the behavior or practices of a physician acting in his professional capacity as a provider of medical services.” Id. at 509. Accordingly, acts, even if occurring during the rendition of health care but that are not designed to promote the patient’s health, do not fall within the Act. See Collins, supra, (holding that patient’s action against physician for wrongful abortion, assault and battery, and intentional infliction of emotional distress, did not fall under the Medical Malpractice Act and were within the kinds of factual issues capable of resolution by a jury without application of the standard of care in the local medical community); See also, Doe v. Madison Center Hospital, 652 N.E.2d 101 (Ind. Ct. App. 1995); Murphy v. Mortell, 684 N.E.2d 1185 (Ind. Ct. App. 1997); Midtown Community Mental Health Center v. The Estate of Thomas Gahl, 540 N.E.2d 1259, 1260-1261 (Ind. Ct. App. 1989).
Examples Of Acts Which Were Considered “Ordinary Negligence.”
In Harts v. Caylor-Nickel Hospital, Inc., 553 N.E.2d 874 (Ind. Ct. App. 1990), a patient suffered a hip injury when he fell out of his hospital bed because the bedside railing had not been raised. Id. He sued the hospital on grounds of ordinary negligence. Id. At the trial, the Hospital moved for judgment on the evidence claiming the trial court lacked jurisdiction because the Plaintiff had not presented his case to a Medical Review Panel as required the Act. Id. at 875. The trial court agreed and held that the Plaintiff’s Complaint fell within the purview of the Act. Id. at 877.
On appeal, the Indiana Court of Appeals reversed holding that matters within the common knowledge and experience of the average person, such as maintaining safe premises, do not require expert medical testimony regarding the exercise of reasonable care, and therefore, do not fall within the purview of the Medical Malpractice Act. Id. at 878 (relying on Emig Physicians Physical Therapy Service, Inc., 432 N.E.2d 52, 53 (Ind. Ct. App. 1982)(holding that “when matters at issue are within the common knowledge and experience of the jury, expert testimony regarding the exercise of reasonable care is improper and should be excluded). More specifically, the Court stated: “health care providers who must make up the medical review panel under [the Act] are no more qualified as experts on such matters than the average juror.” Id.
The Hart Court also found it significant that the Plaintiff did not allege “any breach of duty directly associated with medical negligence or [any breach of duty] that was integral to the rendering of medical treatment that would subject his claim to the Medical Malpractice Act.” Id. at 879. Instead, the Plaintiff merely alleged that the “Defendant’s employees failed to properly restrain or secure the side guardrail and their negligence caused [his] fall.” Id.; accord, St. Mary Medical Center v. Bakewell, 938 N.E.2d 820, (Ind. Ct. App. 2010)(patient’s claim she fell in the hospital’s shower due to hospital’s failure to install appropriate handrails and mats was ordinary negligence).
Similarly, in Winona Memorial Foundation vs. Lomax, 465 N.E.2d 731 (Ind. Ct. App. 1984), the Court of Appeals again held that a patient correctly brought an ordinary negligence claim against a Hospital for injury suffered when she tripped over a board on the hospital premises because her Complaint did not contain allegations that the injury resulted from malpractice or that the Defendants had failed to render appropriate medical care. Id. at 732. In so holding, the Lomax court stated that the purpose behind the implementation of the Medical Malpractice Act was to diminish the crisis of decreasing availability of medical malpractice insurance and the corresponding threat to the availability of health care to the public. Id. However, when the act complained of is not one of medical negligence, there is no crisis or threat to a hospital’s ability to obtain general liability insurance coverage. Id. See also, Methodist Hospital of Indiana v. Ray, 551 N.E.2d 463 (Ind. 1990)(holding that a complaint alleging that the Defendant Hospital negligently and carelessly caused and permitted its premises to become infested and infected with a deadly virus fell outside the Medical Malpractice Act because it did not contain allegations of “failure of appropriate care” and because its allegations did not relate to any scheme of health care).
Examples Of Acts Which Are Medical Malpractice.
Conversely, in Methodist Hospital v. Rioux, 438 N.E.2d 315 (Ind. Ct. App. 1982), the Court of Appeals held that the plaintiff’s complaint fell within the Act because the Plaintiff had alleged that the hospital negligently failed to provide appropriate medical care to prevent her fall and injury. And, in Putnam County Hospital v. Sells, 619 N.E.2d 968, 971 (Ind. Ct. App. 1993), the Plaintiff alleged that while she was under anesthesia, the hospital staff negligently failed to insure she was properly secured in her hospital bed. Id. She also alleged that the hospital had negligently failed to supervise and train its staff in proper procedures for monitoring patients in the recovery room. Id. Therefore, the Court held that the Complaint sounded in medical negligence and therefore was subject to the Medical Malpractice Act.
The Basis For Your Claim Against A Facility Or Healthcare Provider Is Important.
If your case makes no allegations of failure to render appropriate medical care or negligent training or supervision of nursing personnel for failing to properly carry out a professional skilled nursing decision, then your case may be one that can be pled as one that qualifies as ordinary negligence. The fact that the tortfeasor is a licensed doctor or practical nurse (LPN) or that the event took place inside a healthcare facility or nursing home is not the deciding factor.
The Indiana Court of Appeals has consistently held that the fact the alleged misconduct occurs in a healthcare facility or that the injured party was a patient at a healthcare facility is not dispositive in determining whether a claim sounds in medical malpractice and is subject to the Medical Malpractice Act; instead, the test is whether the claim is based on the provider’s behavior and practices while acting in his professional capacity as a provider of medical services. See Terry v. Community Health Network, Inc., 17 N.E.3d 389 (Ind. Ct. App. 2014); see also, Pluard ex. Rel. Pluard v. Patient’s Compensation Fund, 705 N.E.2d 1035, 1038 (Ind. Ct. App. 1999)(plaintiff’s claim for injury caused when surgical lamp fell from wall while nurse was positioning it immediately prior to surgery stated claim for ordinary negligence and not medical malpractice because the duty to secure the light and the nurse’s duty to position it did not involve a health care decision requiring the exercise of professional skill or judgment); see also, OB-GYN Associates of Northern Indiana, P.C. v. Ransbottom, 885 N.E. 734, transfer denied, 898 N.E.2d 1222 (Ind. Ct. App. 2008)(a cosmetic laser hair removal treatment which caused injury to the plaintiff was not “health care” within the meaning of the Medical Malpractice Act even though the treatment was rendered by a registered nurse because the procedure was cosmetic, the treatment was not recommended or supervised by a physician or conducted under the physician’s auspices, the nurse’s credentials were not necessary to perform the procedure, and the patient could have received the same treatment at another facility such as a beauty salon without the assistance or participation of a licensed health care professional).
Is your case one involving medical malpractice or is it one that involves acts which could qualify as ordinary acts of negligence? Call Havel Law Office today to discuss the facts of your case.