Jatinder K Kansal, M.D. v. Taylor Krieter

• Court: Indiana Court of Appeals
• Decided: July 10, 2023
• Docket: 22A-CT-02646
• Status: Published

Opinion

FILED Jul 10 2023, 8:37 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Margaret M. Christensen Andrew T. Shupp Moncerrat Z. Alvarez Hoeppner Wagner & Evans, LLP Dentons Bingham Greenebaum LLP Valparaiso, Indiana Indianapolis, Indiana Gregory Allen Crisman Allison Elizabeth Pulliam Eichhorn & Eichhorn Hammond, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jatinder K. Kansal, M.D., P.C., July 10, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CT-2646 v. Appeal from the Lake Superior Court Taylor Krieter, The Honorable Appellee-Plaintiff Stephen E. Scheele, Judge Trial Court Cause No. 45D05-1905-CT-564

Opinion by Judge Vaidik Judges Tavitas and Foley concur.

Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 1 of 10 Vaidik, Judge.

Case Summary [1] Taylor Krieter has sued Dr. Jatinder Kansal for battery and intentional

infliction of emotional distress, alleging that he touched her inappropriately

when she was seeing him for allergies and eczema. Taking the position that her

claims are not medical-malpractice claims, Krieter did not present a proposed

complaint to a medical-review panel before going to court, as would be required

under Indiana’s Medical Malpractice Act, Ind. Code art. 34-18. Dr. Kansal

moved to dismiss for lack of subject-matter jurisdiction, arguing that the Act

applies because any sexual misconduct (he denies there was any) occurred

during medical appointments where Dr. Kansal examined and treated Krieter.

The trial court denied Dr. Kansal’s motion. We affirm. The issue isn’t whether

the alleged tortious conduct occurred during the provision of medical care but

whether the conduct itself was part of the provision of medical care. Assuming

sexual misconduct occurred, as we must at this early stage of the case, it was

wholly unrelated to the provision of medical care. Therefore, Krieter is not

claiming medical malpractice, the Medical Malpractice Act doesn’t apply, and

the trial court has subject-matter jurisdiction.

Facts and Procedural History [2] Dr. Kansal is a board-certified Asthma, Allergy, and Immunology specialist. In

2016 and 2017, Krieter saw him several times for allergies and eczema. In 2019,

Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 2 of 10 Krieter sued Dr. Kansal for battery and intentional infliction of emotional

distress, alleging that Dr. Kansal “did inappropriately touch and/or molest” her

while she was his patient. Appellant’s App. Vol. II p. 12.

[3] At her deposition, Krieter offered specifics, including the following. Krieter

went to see Dr. Kansal for treatment of her seasonal allergies, and it was Dr.

Kansal who brought up her eczema and said he needed to examine her skin.

Krieter’s mother was with her at the early appointments, but when her mother

stopped accompanying her, Dr. Kansal’s demeanor and conduct changed. At

various appointments in 2017, Dr. Kansal “cupped” Krieter’s breasts, “rubbed”

her nipples with his fingers, and “rubbed” her buttocks and thighs for fifteen to

twenty seconds. Id. at 125-38. Krieter didn’t always wear a bra, but when she

did, Dr. Kansal sometimes lifted it and touched her breasts. Dr. Kansal always

told Krieter he needed to “check everywhere,” id. at 122, 124, 138, and she

initially took his word for it, but she eventually realized he was touching her in

a sexual way that had nothing to do with medical treatment. During one of the

last visits, Dr. Kansal lifted Krieter’s bra and felt her breasts but didn’t touch her

anywhere else. When Dr. Kansal was alone with Krieter, he spoke to her in a

sexual way and in a different voice than the one he used when others were in

the room. For example, he told her she was a “very pretty girl,” told her she

should shave her legs because men prefer smooth legs, and asked her questions

about her boyfriend, including whether he cared that she worked at Hooters. Id.

at 117, 135, 142.

Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 3 of 10 [4] After Krieter’s deposition, Dr. Kansal moved to dismiss her complaint for lack

of subject-matter jurisdiction under Trial Rule 12(B)(1). He denied any

inappropriate conduct or statements, explained that “[t]horough and complete

whole body skin examinations” were necessary because of Krieter’s severe skin

conditions, and framed Krieter’s claims as complaints about the scope of those

examinations. Id. at 26-48. He argued that such claims are subject to the

Medical Malpractice Act, which provides that a malpractice claim cannot be

commenced in court until the claimant has presented a proposed complaint to a

medical-review panel and the panel has given an opinion. Ind. Code § 34-18-8-

4. Because Krieter did not present her claims to a medical-review panel before

going to court, Dr. Kansal asserted that the trial court lacks subject-matter

jurisdiction. See, e.g., Rossner v. Take Care Health Sys., LLC, 172 N.E.3d 1248,

1255 (Ind. Ct. App. 2021) (noting that a trial court lacks subject-matter

jurisdiction over a malpractice claim that has not been through a medical-

review panel), trans. denied.1

[5] Following briefing and oral argument, the trial court denied Dr. Kansal’s

motion without explanation. Dr. Kansal then sought and received permission

to bring this interlocutory appeal.2

1 In support of his motion, Dr. Kansal submitted an affidavit from Dr. Laura Rogers, who opined that everything Dr. Kansal did with Krieter was medically appropriate. However, Dr. Rogers’s opinion was based entirely on Dr. Kansal’s version of events. She did not consider Krieter’s deposition testimony. Therefore, the affidavit is largely unhelpful in determining whether Krieter’s claims are subject to the Medical Malpractice Act. 2 We held oral argument on May 31, 2023. We thank counsel for their helpful advocacy.

Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 4 of 10 Discussion and Decision [6] Where, as here, a trial court rules on a Trial Rule 12(B)(1) motion to dismiss for

lack of subject-matter jurisdiction based on a paper record and oral argument,

with no evidentiary hearing, our review is de novo. GKN Co. v. Magness, 744

N.E.2d 397, 401 (Ind. 2001). While a court deciding a motion to dismiss for

failure to state a claim under Trial Rule 12(B)(6) can consider only the

allegations in the plaintiff’s complaint, a court deciding a 12(B)(1) motion “may

consider not only the complaint, but also any affidavits or other evidence

presented and submitted on the issue of subject matter jurisdiction.” Martinez v.

Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549, 555 (Ind. Ct. App. 2019), clarified

on reh’g, 131 N.E.3d 777, trans. denied.

[7] Dr. Kansal renews his argument that Krieter’s claims are medical-malpractice

claims subject to the Medical Malpractice Act, that she was therefore required

to present a proposed complaint to a medical-review panel before going to

court, and that because she failed to do so the trial court lacks subject-matter

jurisdiction. The Act defines “malpractice” 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.” I.C. § 34-18-2-18.

We must decide, then, whether Krieter’s claims are “based on health care or

professional services that were provided, or that should have been provided, by

a health care provider, to a patient.” We hold they are not.

Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 5 of 10 [8] As Dr. Kansal notes, we have held that a claim is subject to the Medical

Malpractice Act if (1) the alleged tortious conduct “involves provision of

medical services” and (2) “the rendering of medical services is to the plaintiff

for the plaintiff’s benefit.” Anonymous Hosp., Inc. v. Doe, 996 N.E.2d 329, 334

(Ind. Ct. App. 2013), trans. denied. Dr. Kansal argues both prongs are satisfied

here because the conduct at issue occurred “during the provision of medical

services” and “in the course of scheduled medical appointments” meant to

benefit Krieter. Appellant’s Br. pp. 26-31. But the question isn’t whether the

alleged conduct occurred “during” the provision of medical services. The

question is whether the alleged tortious conduct itself “involves” the provision

of medical services. Krieter claims that she went to see Dr. Kansal for medical

treatment and that at some point during the appointments Dr. Kansal’s conduct

would transition from examination for medical purposes to groping for sexual

purposes. This detour to sexual groping, if it occurred, was not medical care

and did not “involve” medical care.

[9] This conclusion is consistent with other well-established principles in this area.

As we recently explained:

The MMA is not all-inclusive for claims by patients against healthcare providers nor is it intended to extend to cases of ordinary negligence. Rather, it covers only curative or salutary conduct of a health care provider acting within his or her professional capacity and not conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment. The fact that the alleged misconduct occurred in a healthcare facility, or that the injured party was a patient at the facility, is not dispositive of whether the MMA Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 6 of 10 applies. Instead, we must look to the substance of the claim and determine whether it is based on the provider’s behavior or practices while acting in his or her professional capacity as a provider of medical services.

A case sounds in ordinary negligence where the factual issues are capable of resolution by a jury without application of the standard of care prevalent in the local medical community. By contrast, a claim falls under the MMA where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship. Thus, acts or omissions of a health care provider unrelated or outside the provider’s role as a health care professional are outside the reach of the MMA.

Doe v. Ind. Dep’t of Ins., 194 N.E.3d 1197, 1200-01 (Ind. Ct. App. 2022) (cleaned

up), trans. denied. Sexual groping is not “curative or salutary conduct.” It is

“conduct unrelated to the promotion of a patient’s health or the provider’s

exercise of professional expertise, skill, or judgment.”

[10] Our holding is also consistent with this Court’s other decisions addressing

sexual-misconduct claims against healthcare providers. We have repeatedly

held that such claims are not subject to the Medical Malpractice Act. See Ind.

Dep’t of Ins. v. Doe, --- N.E.3d ---, No. 22A-CT-1276, 2023 WL 3768429 (Ind. Ct.

App. June 2, 2023); Doe, 194 N.E.3d 1197; Fairbanks Hosp. v. Harrold, 895

N.E.2d 732 (Ind. Ct. App. 2008), trans. denied; Grzan v. Charter Hosp. of Nw. Ind.,

702 N.E.2d 786, 792 (Ind. Ct. App. 1998); Murphy v. Mortell, 684 N.E.2d 1185

Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 7 of 10 (Ind. Ct. App. 1997), trans. denied; Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d

101 (Ind. Ct. App. 1995), reh’g denied.3

[11] Dr. Kansal contends this case is like Popovich v. Danielson, 896 N.E.2d 1196

(Ind. Ct. App. 2008), trans. denied, a case that didn’t involve claims of sexual

misconduct. There, the plaintiff sued a doctor for battery, claiming he was

rough with her at the hospital after a car accident, apparently because he

believed she was drunk. Specifically, the plaintiff alleged that the doctor spoke

rudely to her, refused her pain medication, and then “grabbed [her] by her ankle

and in a quick, jerky and rough manner lifted her leg straight in the air over her

body and pierced the open flesh with a needle causing excruciating pain from

her broken ribs, the embedded glass cuts and bruises to her chest and

abdomen[.]” Id. at 1199. We held that, notwithstanding the plaintiff’s allegation

that the doctor acted maliciously, the claim was covered by the Medical

Malpractice Act because the doctor’s alleged battery “occurred while he was

evaluating [the plaintiff’s] injuries, as he had been called to the hospital to do,

and thus is based on the provider’s behavior or practices while acting in his

professional capacity as a provider of medical services.” Id. at 1202 (cleaned

up). In a footnote, we added that the plaintiff’s description of the doctor’s

3 In some of these cases, the patients argued that their sexual-misconduct claims were covered by the Medical Malpractice Act, hoping to access the Patient’s Compensation Fund established by the Act. See Doe, --- N.E.3d ---, No. 22A-CT-1276, 2023 WL 3768429; Doe, 194 N.E.3d 1197; Murphy, 684 N.E.2d 1185. We have rejected the argument regardless of who was making it. The only exception we have recognized is when a psychologist, psychiatrist, or other mental-health professional mishandles the “transference phenomenon” and has a sexual relationship with a patient. See, e.g., Dillon v. Callaway, 609 N.E.2d 424 (Ind. Ct. App. 1993), trans. denied. Dr. Kansal does not argue that exception applies here.

Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 8 of 10 conduct “suggests he displayed ‘poor bedside manner’ or was insensitive in his

treatment of [the plaintiff]—the reasonableness of which is to be determined by

the medical review panel; however, we cannot say his conduct was so ‘wanton

and gratuitous’ as to fall outside the Malpractice Act.” Id. at 1202 n.2.

[12] We find Popovich distinguishable. There, the patient alleged that the actual

examination and treatment were too rough. As Krieter puts it, “The substance

of the allegations was that [the doctor] inappropriately treated Popovich’s

injuries – in short, classic medical malpractice allegations.” Appellee’s Br. p. 20.

Here, on the other hand, Krieter alleges that Dr. Kansal ceased treatment all

together and shifted to groping her for his own sexual gratification. If true, that

conduct went far beyond “poor bedside manner” or mere insensitivity.

[13] We add a caveat. At oral argument, Dr. Kansal’s attorney told us that Dr.

Kansal denies the alleged touching at the core of Krieter’s claims—cupping her

breasts, rubbing her nipples, and rubbing her buttocks for fifteen to twenty

seconds at a time. But if he was admitting that touching and arguing it was

medically appropriate, the Medical Malpractice Act might apply. Krieter

conceded as much at the hearing on the motion to dismiss. Tr. pp. 25, 29, 35-

36. With certain medical specialties, the line between medical touching and

sexual touching can be blurry. Doctors often have to touch patients in sensitive

areas and in uncomfortable ways, and a patient could misinterpret proper

medical touching as inappropriate sexual touching. In a case where the doctor

and the patient agree as to the touching that occurred but disagree as to the

purpose of the touching, application of the Act and presentation to a medical-

Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 9 of 10 review panel might be appropriate. But this isn’t such a case, so we leave that

issue for another day.

[14] Ultimately, we agree with Krieter’s characterization of this case:

The question for the jury is [] straightforward and purely factual – did Kansal grope [Krieter’s] breasts and buttocks as she describes or not? If he did, this was a sexual assault, not the provision of medical services. If he did not, then [Krieter’s] claim fails regardless of whether Kansal’s conduct met the standard of care for eczema treatment.

Appellee’s Br. pp. 20-21. This is a “he said, she said” credibility fight that

would not benefit from consideration by a medical-review panel. The factual

issue is “capable of resolution by a jury without application of the standard of

care prevalent in the local medical community.” Doe, 194 N.E.3d at 1200.

Therefore, Krieter’s claims are not subject to the Medical Malpractice Act, and

the trial court did not err by denying Dr. Kansal’s motion to dismiss.

[15] Affirmed.

Tavitas, J., and Foley, J., concur.

Court of Appeals of Indiana | Opinion 22A-CT-2646 | July 10, 2023 Page 10 of 10