On February 18, 2021, Governor Holcomb signed Senate Bill 1, which codified into the Indiana Code civil immunity protections for damages purportedly caused by COVID-19. Section 7 of the law adds new chapters to the Indiana Code, including Chapter 32, “Immunity Related to COVID-19” (hereafter the “Immunity Provision”), which grants civil tort immunity to certain persons^[i] for damages “arising from COVID-19” unless the person’s actions or omissions “constitute gross negligence or willful or wanton misconduct (including fraud and intentionally tortious acts) as proven by clear and convincing evidence.”[ii]

Pursuant to its terms, the Immunity Provision supplements existing sections of the Indiana Code, including the Indiana Medical Malpractice Act, § 34-18-1-1 et seq. (the “MMA”).^[iii]  When considered in conjunction with the MMA, the Immunity Provision bars medical malpractice claims against qualified providers,^[iv] including but not limited to physicians, nurses, doctors, hospitals, and nursing homes, for injuries and damages arising out of the diagnosis and treatment of COVID-19, unless that provider’s actions constituted gross negligence or willful or wanton misconduct. On its face, the Immunity Provision provides broad protection for healthcare providers amidst a global pandemic. However, the Immunity Provision’s gross negligence and willful or wanton misconduct exception raises practical and procedural questions which will almost certainly impede or delay the realization of this protection for qualified providers.[v]

Background on the MMA

Pursuant to the MMA, a plaintiff who wishes to pursue a medical negligence claim against a qualified provider must: (1) present a proposed complaint to the Indiana Department of Insurance for review by a medical review panel; and (2) the medical review panel must render its opinion as to the care provided by the qualified provider, before the plaintiff can proceed with a medical negligence action in state court.^[vi] The purpose of the panel requirement – and the “sole duty” of the medical review panel – is to render an expert opinion as to whether “the evidence supports the conclusion that the defendant[s] acted or failed to act within the appropriate standards of care as charged in the complaint.”^[vii] Until a medical review panel issues an opinion (which can take years), the subject matter jurisdiction of the state court is limited to “preliminarily determining affirmative defenses under Trial Rules, deciding issues of law or fact that may be preliminarily determined under Trial Rule 12(D), and compelling discovery pursuant to Trial Rules 26 through 37, inclusively.”^[viii]

In simpler terms, the MMA provides that a medical review panel must render an expert medical opinion as to whether a qualified provider was negligent when providing treatment to the plaintiff before the plaintiff can proceed in state court. It appears, based on the Immunity Provision’s specific reference to the MMA, that the legislature intended for the MMA (and its procedural prerequisites) to apply to claims of gross negligence or willful or wanton misconduct arising out of COVID-19.[ix] However, the Immunity Provision is silent as to whether, when, and to what extent the panel’s jurisdictional prerequisite comes into play.

The Panel Requirement and Claims of Gross Negligence

The trouble presents in the interaction of the MMA’s panel requirement and the application of the Immunity Provision. Imagine this scenario: a plaintiff files a proposed complaint against a qualified provider alleging that the provider was grossly negligent and/or engaged in willful or wanton misconduct in the treatment of the patient, which purportedly resulted in injuries or death from COVID-19. The Immunity Provision does not bar the claim. However, is a medical review panel obligated to render an expert opinion as to whether the provider complied with the applicable standard of care – the precise conduct which the Immunity Provision is designed to protect – before the claimant is required to produce any evidence to support his allegation of gross negligence or willful or wanton misconduct?

The response, based on the traditional application of the MMA, appears to be “yes,” particularly considering that gross negligence is predicated on a showing of negligence.^[x] However, it seems contrary to the intent of the legislature to require qualified providers to satisfy the jurisdictional prerequisites which apply to a general negligence claim before the plaintiff is required to present evidence of the intent necessary to support a claim for gross negligence or willful or wanton misconduct simply because the plaintiff drafted the proposed complaint to avoid the Immunity Provision.

One alternative option would be for the medical review panel to issue an opinion as to whether the qualified provider’s conduct constitutes gross negligence or willful or wanton misconduct. This solution is imperfect for multiple reasons. First, the MMA specifically provides the language to be adopted by the panel (depending on its opinion), and none of the enumerated options incorporates the higher standard for gross negligence or willful or wanton misconduct under Indiana law.^[xi],[xii]

Second, the purpose of the panel requirement – to provide an expert medical opinion for issues that are beyond a lay person’s understanding^[xiii] – is not necessary to prove whether the provider acted with the intent necessary to elevate the conduct from general negligence to gross negligence or willful or wanton misconduct. The Indiana Supreme Court has defined gross negligence as “a conscious voluntary act or omission in reckless disregard of the consequences to another party.”^[xiv] Similarly, willful or wanton misconduct in the practice of medicine has been defined by the medical licensing board as “the conscious and intentional doing of a wrongful act or omission of a duty, with reckless indifference to the obligations of the medical profession or the consequences to the rights or feelings of others, including the possibility of patient injury[.]”^[xv] Intent – the element necessary to distinguish negligence from gross negligence and to prove willful or wanton misconduct – is an issue of fact that is commonly interpreted and decided by lay persons. Thus, it does not require expert testimony.^[xvi]

Absent legislative action addressing the procedural problems created by the interplay of the MMA panel jurisdictional prerequisite and the Immunity Provision, the burden of clarifying the appropriate procedure to deal with medical negligence claims against qualified providers that arise out of COVID-19 but are not barred by the Immunity Provision will fall to the Indiana judiciary.

Can The Issue of Intent Be Preliminarily Determined?

Given the above procedural uncertainties, how should a qualified provider respond upon receipt of a proposed complaint that alleges gross negligence or willful or wanton misconduct resulting in injuries arising out of COVID-19 when the plaintiff has offered no evidence of intent? Should the provider proceed with panel proceedings – which would raise additional questions beyond the scope of this article, including whether a “standard” of care can exist when a condition is so novel that it has no recognized treatment or cure – and run the risk that a panel may render an opinion of breach that could require reporting to the licensing board even though the provider cannot be held liable or be subject to professional discipline for that breach absent a showing of intent?

One possible avenue for pre-panel resolution on the merits may be summary judgment via a motion for preliminary determination of law (after the completion of discovery) on the grounds that the plaintiff has failed to present evidence of intent – a necessary element to prove gross negligence or willful or wanton misconduct.^[xvii] Theoretically, the failure by plaintiff to present evidence of intent would result in the inability of the plaintiff – regardless of the outcome of the panel proceeding – to create a genuine issue of material fact and the qualified provider would be entitled to judgment in its favor as a matter of law.^[xviii] If, as analyzed above, the issue of intent does not require medical expert testimony, the court would have subject matter jurisdiction to enter judgment before the panel renders an opinion because an adverse opinion without evidence of intent would be insufficient to overcome a motion for summary judgment.^[xix] However, the bar for overcoming summary judgment is low, particularly for issues of fact that are generally the province of the jury, including intent.^[xx] Accordingly, the Immunity Provision may prove to be an insufficient shield to timely protect qualified providers from baseless claims of gross negligence or willful or wanton misconduct.

The PREP Act

Finally, one may question whether the federal immunity law, the Public Readiness and Emergency Preparedness (“PREP”) Act, 42 U.S.C. § 247d-6d (2021), pre-empts the MMA, giving federal courts jurisdiction over medical negligence claims arising out of COVID-19 and bypassing the panel requirement. While no federal court has considered this issue, federal courts in numerous jurisdictions have determined that the PREP Act does not preempt state court jurisdiction of state law negligence claims, thereby making removal to federal court based on preemption improper. ^[xxi] Accordingly, the PREP Act is unlikely to provide qualified providers relief as to the procedural burden presented in this article.

[i] Ind. Code § 34-30-32-4 defines “person” to mean “(1) an individual; (2) an association; (3) an institution; (4) a corporation; (5) a company; (6) a trust; (7) a limited liability company; (8) a partnership; (9) a political subdivision; (10) a government office, department, division, bureau, or other body of government; (11) a nonprofit corporation; or (12) any other organization or entity.”

[ii] The Immunity Provision applies to tort claims that accrued on or after March 1, 2020 and is set to automatically expire on December 31, 2024. I.C. §§ 34-30-32-1 and 11.

[iii] I.C. § 34-30-32-8(1)(2).

[iv] I.C. § 34-18-2-24.5 defines “qualified provider” to mean “a health care provider that is qualified under this article (or by IC 27-12 before its repeal) by complying with the procedures set forth in IC 34-18-3 (or IC 27-12-3 before its repeal).”

[v] On April 29, 2021, Governor Holcomb signed House Bill 1002 into law as Public Law 166-2021, which, in part, clarifies which injuries arise from COVID-19 (and are therefore protected from liability) and protects health care providers from professional discipline for acts or omissions arising out of COVID-19. See H.B. No. 1002, 1st Reg. Sess. (Ind. 2021). These provisions, like the Immunity Provision, do not include protections for acts or omissions which constitute gross negligence or willful or wanton misconduct and provide no clarification regarding the procedure for claims that are on their face not barred by these immunity provisions.

[vi] Ramsey v. Moore, 959 N.E.2d 246, 250 (Ind. 2012).

[vii] I.C. § 34-18-10-22.

[viii] Griffith v. Jones, 602 N.E.2d 107, 110 (Ind. 1992); see also I.C. § 34-18-11-1.

[ix] This conclusion is further supported by a provision in House Enrolled Act 1002 which provides that claimants who have a personal injury or wrongful death claim that arises out of COVID-19 but is not barred by the provision (because the act or omission constitutes gross negligence, willful or wanton misconduct, or intentional misrepresentation) must “comply with all of the provisions of IC 34-18 (medical malpractice act).” H.B. No. 1002, at § 13.

[x] York v. Fredrick, 947 N.E.2d 969, 977-78 (Ind. Ct. App. 2011).

[xi]   I.C. § 34-18-1-22 provides:

(a) The panel has the sole duty to express the panel’s expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint.

(b) After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty (30) days, give one (1) or more of the following expert opinions, which must be in writing and signed by the panelists:

(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.

(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.

(3) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.

(4) The conduct complained of was or was not a factor of the resultant damages. If so, whether the plaintiff suffered:

(A) any disability and the extent and duration of the disability; and

(B) any permanent impairment and the percentage of the impairment.

[xii] N. Ind. Pub. Serv. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003) (stating, “the level of conduct amounting to a breach,” when comparing general negligence to gross negligence, “is quite different.”).

[xiii] Griffith, 602 N.E.2d at 110.

[xiv] Sharp, 790 N.E.2d at 465 (emphasis added and internal citations omitted).

[xv] Med. Licensing Bd. v. Ward, 449 N.E.2d 1129, 1139 (Ind. Ct. App. 1983).

[xvi] I.C. § 34-18-10-22; see Sharp, 790 N.E.2d at 466 (leaving the determination of whether a party acted with gross negligence “by engaging in a conscious, voluntary act or omission in reckless disregard for the consequences” for the jury to decide); see also Putnam Cnty. Hosp. v. Sells, 619 N.E.2d 968, 970 (Ind. Ct. App. 1993) (internal citations omitted) (finding that claims of ordinary negligence, such as premises liability claims, rather than medical negligence claims are not subject to the provisions of the MMA or its procedural prerequisites, because claims of ordinary negligence “are within the common knowledge and experience of the average person [and] health care providers are no more qualified as experts on such matters than the average juror”); see also Nasser v. St. Vincent Hosp. & Health Servs., 926 N.E.2d 43, 48 (Ind. Ct. App. 1999).

[xvii] Dermatology Associates, P.C. v. White, 67 N.E.3d 1173 (Ind. Ct. App. 2017) (demonstrating that the standard for summary judgment motions presented on a motion for preliminary determination of law is the same as for any other motion for summary judgment); Giles v. Anonymous Physician I, 13 N.E.3d 504, 510 (Ind. Ct. App. 2014) (noting that a movant is entitled to summary judgment if it can negate at least one essential element of the non-movant’s claims); I.C. § 34-18-11-1; Ind. Trial Rule 56.

[xviii] White, 67 N.E.3d at 1173); Giles, 13 N.E.3d at 510.

[xix] See Sells, 619 N.E.2d at 970; Giles, 13 N.E.3d at 510 (noting that the trial court has jurisdiction under the MMA, before the panel issues its opinion, to rule upon issues of law or fact not preserved for the medical review panel that can be preliminarily determined under a T.R. 56(C) motion for summary judgment).

[xx] Sharp, 790 N.E.2d at 466-67 (holding that matters that are generally questions of fact for the jury can be questions of law “where the facts are undisputed and only a single inference can be drawn from those facts”); Patterson v. Grace, 661 N.E.2d 580 (Ind. Ct. App 1996) (intent of the parties in contracts is question of fact), Berghoff v. McDonald, 87 Ind. 549 (1882) (question of intent in fraud claim is question of fact).

[xxi] See Estate of Maglioli v. Andover Subacute Rehab. Ctr., 478 F. Supp. 3d 518 (D.N.J. 2020); Dupervil v. All. Health Operations, LLC, 2021 U.S. Dist. LEXIS 20257 (E.D.N.Y. 2021); Estate of Judith Joy Jones v. St. Jude Operating Co., 2021 U.S. Dist. LEXIS 43876 (D. Or. 2021); Gunter v. CCRC OPCO-Freedom Square, LLC, 2020 U.S. Dist. Lexis 201622 (M.D. Fla. 2020).

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Posted on May 7, 2021, by Katie R. Osborne