Professional Negligence Law Reporter

An Indiana appellate court held that a patient’s sexual assault claim against a hospital did not fall under the Indiana Medical Malpractice Act (MMA).

While she was hospitalized for a stroke, Doe was sexually assaulted by a nurse. The nurse was later convicted of battery. Doe sued the hospital and the nurse, alleging sexual battery, vicarious liability, and negligent hiring and retention. Doe settled with the hospital. She then filed a petition against the Indiana Patient’s Compensation Fund, seeking additional compensation. The Fund moved for summary judgment, arguing that Doe’s underlying claims against the hospital and the nurse were not covered under the MMA. The trial court granted the motion.

Affirming, the appellate court noted that the MMA covers claims based on the provision of health care or professional services. The statute is not all-inclusive for claims by patients against health care providers, the court said, noting that the law covers only curative conduct of a health care provider who is acting within his or her professional capacity. Citing case law, the court added that the fact that misconduct occurs in a health care facility is not dispositive of whether the MMA applies. It has consistently held that a health care provider’s sexual misconduct with a patient does not constitute the provision of health care or professional services, the court said.

Applying these principles, the court found that the plaintiff’s allegations do not concern professional services relating to the promotion of her health. The claims also are capable of resolution by a jury without the application of the standard of care, the court said, noting that a medical review panel is not better equipped to address the plaintiff’s claims than an average juror.

Consequently, the court concluded that the plaintiff’s claims do not fall within the purview of the MMA.

Citation: Doe v. Ind. Dep’t of Ins., 2022 WL 3905226 (Ind. Ct. App. Aug. 31, 2022).