FILED Sep 28 2020, 8:41 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James E. Ayers Rori L. Goldman Wernle Ristine & Ayers Brandais H. Hagerty Crawfordsville, Indiana Elizabeth H. Knotts Hill Knotts & Goldman Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard Jernagan, September 28, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-PL-41 v. Appeal from the Marion Superior Court Indiana University Health a/k/a The Honorable Patrick J. Dietrick, Indiana University Health ACO, Judge Inc., Trial Court Cause No. Appellee-Plaintiff. 49D12-1507-PL-23961
Riley, Judge.
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 1 of 20 STATEMENT OF THE CASE [1] Appellant/Cross-Appellee-Plaintiff, Richard Jernagan (Jernagan), appeals the
trial court’s summary judgment in favor of Appellee/Cross-Appellant-
Defendant, Indiana University Health a/k/a Indiana University Health Aco,
Inc. (IU Health), concluding that no genuine issue of material fact exists that
the anesthesiologist assisting in the surgical procedure was an independent
contractor and not an IU Health’s employee.
[2] We reverse.
ISSUE [3] Jernagan presents this court with four issues, which we consolidate and restate
as the following single issue: Whether the delivery of a business card during the
surgical registration procedure is sufficient to satisfy the meaningful notice
requirement informing the patient that the doctor performing the medical
procedure is an independent contractor, as required under Sword v. NKC
Hospitals, Inc., 714 N.E.2d 142 (Ind. 1999).
[4] On Cross-Appeal, IU Health presents one issue, which we restate as: Whether
Jernagan’s response to IU Health’s motion for summary judgment should be
stricken as untimely.
FACTS AND PROCEDURAL HISTORY [5] On March 8, 2011, Jernagan underwent spine surgery performed by Stephen
M. Ritter, M.D. (Dr. Ritter), at the IU Health North campus. The
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 2 of 20 anesthesiology during the surgery was scheduled to be done by Michael Miller,
M.D. (Dr. Miller), who was a partner with Anesthesia Consultants of
Indianapolis. Jernagan was considered a high-risk surgical patient because of
several underlying health issues.
[6] On the day of his surgery, Jernagan presented at guest services for registration.
Mary Mosby (Mosby), IU Health’s guest relations representative, registered
Jernagan and handed him Dr. Miller’s business card, which stated Dr. Miller’s
name, employer, and contact information, and whom Mosby identified as the
anesthesiologist assisting Dr. Ritter with the surgical procedure. Mosby did not
advise Jernagan that Dr. Miller was an independent contractor and not an
employee of IU Health. Prior to the surgery, Jernagan met briefly with Dr.
Miller who explained the procedure. During the surgery, Jernagan experienced
a sudden drop in blood pressure from excessive blood loss, causing a cardiac
arrest. Jernagan required cardiac resuscitation and was admitted to the
intensive care unit following resuscitation. Immediately post-surgery, Dr.
Miller met with Jernagan’s family and answered their questions about the
procedure. Three weeks after the surgery, Jernagan’s grandson emailed Dr.
Miller with the request to contact Jernagan’s wife to discuss further what had
happened during the surgical procedure. On April 21, 2011, Jernagan’s spouse
contacted Dr. Miller directly with questions about her husband’s surgery. Dr.
Miller called Jernagan’s wife and answered questions about her husband’s
prognosis.
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 3 of 20 [7] On March 4, 2013, Jernagan submitted his proposed Complaint to the Indiana
Department of Insurance alleging medical malpractice by Dr. Ritter and IU
Health. Although Jernagan named an anesthesiologist in his proposed
Complaint, he submitted an incorrect name. On April 20, 2015, the convened
medical review panel issued an opinion favoring Dr. Ritter and IU Health,
concluding that, “[t]he evidence does not support the conclusion that any of the
Defendants failed to comply with the appropriate standard of care as charged in
the Complaint.” (Appellant’s App. Vol. II, pp. 38-43). The panel did not
address the conduct of the incorrectly named anesthesiologist or any other
anesthesiologist.
[8] On July 17, 2015, Jernagan filed his Complaint against Dr. Ritter and IU
Health, alleging that the hospital staff “failed to monitor the amount of blood
being lost” by Jernagan. (Appellant’s App. Vol. II, p. 20). With respect to IU
Health, Jernagan claimed specifically that the nurses failed to properly monitor
and document the amount of blood lost during the surgery, they failed to notify
Dr. Ritter of this amount, and they placed a canister of blood in a location that
was not visible to Dr. Ritter. On September 30, 2015, the trial court dismissed
Dr. Ritter at Jernagan’s request. Also on that same day, IU Health filed a
motion for summary judgment and designation of evidence. In response to IU
Health’s motion, Jernagan offered the affidavit of Stephen Paschall, M.D. (Dr.
Paschall), an emergency medicine physician. On January 11, 2016, the trial
court conducted a hearing on IU Health’s motion for summary judgment. At
the hearing, Jernagan contended that IU Health was vicariously liable for the
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 4 of 20 acts of Dr. Miller on the theory of apparent agency and pursuant to Sword and
its progeny. See Sword v. NKC Hospitals, Inc., 714 N.E.2d 142 (Ind. 1999). On
March 16, 2016, the trial court denied summary judgment.
[9] Additional evidence was developed, and more discovery occurred prior to IU
Health filing a second motion for summary judgment on January 15, 2019,
asserting that Sword precluded its liability. Jernagan requested and was granted
two enlargements of time until April 7, 2019. On March 15, 2019, IU Health
filed a joint motion for continuance of trial, which was granted by the trial court
with the matter set for a telephonic scheduling conference on March 22, 2019.
During the scheduling conference, the trial court’s bailiff consulted with both
counsel to set a new trial date. Immediately prior to the conference, the
attorneys for the parties had conferred and agreed to extend Jernagan’s
response deadline to May 8, 2019. The parties informed the bailiff during the
scheduling conference of their verbal agreement and Jernagan’s intent to seek
an extension of time. A jacket entry on the Chronological Case Summary
(CCS) was created that same day, which stated:
Parties by counsel. Parties have stipulated to extending deadline on response to the pending [m]otion for [s]ummary [j]udgment to May 8, 2019. The [c]ourt has scheduled hearing on the pending [m]otion for [s]ummary [j]udgment on May 21, 2019 at 11:00 a.m. The [c]ourt also schedules the [f]inal [p]re-[t]rial [c]onference on February 24, 2020 at 11 a.m. and the [j]ury [t]rial to begin on March 17, 2020 at 9:00 a.m. Defendant’s [c]ounsel will circulate an order on the [s]ummary [j]udgment [d]eadline and [t]rial [d]ate to submit to the [c]ourt. SEND NOTICE.
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 5 of 20 (Appellee’s App. Vol. II, p. 23). On April 9, 2019, IU Health’s counsel emailed
Jernagan’s counsel reminding him that he needed to file a motion requesting a
formal order to extend the deadline to submit his response to IU Health’s
motion for summary judgment. Jernagan did not file a motion to extend his
April 7th, 2019 deadline. On May 8, 2019, Jernagan filed his response to IU
Health’s motion for summary judgment, as well as a designation of evidence
which included affidavits by Dr. Paschall and Jernagan. IU Health moved to
strike the response as untimely, which was denied by the trial court, finding:
The CCS entry of March 22, 2019, documents the [c]ourt’s [o]rder extending time to respond to the [m]otion for [s]ummary [j]udgment to May 8, 2019, as set out therein and that CCS entry reports the order. The directive to the Defendant to circulate the [o]rder was meant to separately express the [o]rder stated in the CCS entry. Plaintiff’s response dated May 8, 2019 was timely.
(Appellee’s App. Vol. II, p. 105).
[10] On August 12, 2019, the trial court conducted a hearing on IU Health’s motion
for summary judgment. On September 27, 2019, the trial court granted
summary judgment, concluding that “by providing [Jernagan] with Dr. Miller’s
business card at check-in prior to surgery, [IU Health] sufficiently notified
[Jernagan] that it was not the provider of anesthesia care” and therefore IU
Health was not vicariously liable pursuant to Sword. (Appellant’s App. Vol. II,
p. 186). With respect to Jernagan’s claim related to the nursing staff, the trial
court concluded that IU health was entitled to summary judgment because
Jernagan had “failed to identify any expert to testify that IU Health, through
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 6 of 20 the actions or conduct of its nursing staff, breached the applicable standard of
care.” (Appellant’s App. Vol. II, p. 187).
[11] Jernagan now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION CROSS-APPEAL
[12] As IU Health presents us with a threshold procedural issue in its Cross-Appeal,
we will address this claim first. IU Health contends that the trial court abused
its discretion when it denied IU Health’s motion to strike Jernagan’s response
to its motion for summary judgment as untimely. IU Health maintains that
Jernagan’s failure to seek and be granted a formal extension of his deadline to
file a response by the trial court is fatal to his submission as the CCS entry was
not an order, nor did it memorialize an order granting Jernagan an extension of
time.
[13] Indiana Trial Rule 56(C) provides that a party opposing a motion for summary
judgment has thirty days after service of the motion to serve a response and any
opposing affidavits. Trial courts are authorized to “alter any time limit set forth
in this rule upon motion made by the applicable time limit,” if cause is found. T.R.
56(I). Our supreme court has explained that the following “bright line rule”
applies to this situation: “[W]here a nonmoving party fails to respond within
thirty days by either (1) filing affidavits showing issues of material fact, (2) filing
his own affidavit under Rule 56(F) indicating why the facts necessary to justify
his opposition are unavailable, or (3) requesting an extension of time in which Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 7 of 20 to file his response under 56(I), the trial court lacks discretion to permit that
party to thereafter file a response. In other words, “a trial court may exercise
discretion and alter time limits under 56(I) only if the nonmoving party has responded or
sought an extension within thirty days filed for summary judgment.” HomEq Servicing
Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008) (quoting Desai v. Croy, 805 N.E.2d
844, 849 (Ind. Ct. App. 2004) (emphasis in original)).
[14] In Booher v. Sheeram, LLC, 937 N.E.2d 392, 394 (Ind. Ct. App. 2010), the
Boohers twice sought and received extensions to respond to Hampton Inn’s
summary judgment motion. When their second extension was about to expire,
they contacted Hampton Inn to explain that they needed three more weeks. Id.
Hampton Inn indicated that it would not oppose a third extension of time. Id.
The Boohers, however, failed to file a request with the trial court for a third
extension before their deadline passed. Id. Relying on the bright line rule set
forth by our supreme court in HomEq Servicing Corp, this court concluded that
the trial court was without discretion to accept the late-filed documents. Id. at
395.
[15] Although Jernagan was granted two extensions like Booher, when Jernagan
needed a third extension collegiality and cooperation between the parties
prompted a CCS entry indicating that the “[p]arties have stipulated to
extending deadline on response to the pending [m]otion for [s]ummary
[j]udgment to May 8, 2019,” with “Defendant’s [c]ounsel [] circulat[ing] an
order on the [s]ummary [j]udgment [d]eadline and [t]rial [d]ate to submit to the
[c]ourt.” (Appellee’s App. Vol. II, p. 23). In City of Indianapolis v. Hicks, 932
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 8 of 20 N.E.2d 227 (Ind. Ct. App. 2010), we analyzed a CCS entry in the confines of a
challenge to a nunc pro tunc order granting a motion to correct error. The nunc
pro tunc order granting a motion to correct error was signed by the magistrate on
the line titled “Judge.” Id. at 229. A CCS entry of the same date stated, “Court
approves granting Plaintiff’s motion to correct error and denying Defendant’s
City of Indianapolis, motion to dismiss.” Id. Another separate CCS entry of
the same date stated, “Jacket entry: Plaintiff’s motion to correct error granted.
See entry. Reinstate file to open.” Id. Because there was no separate order by
the judge approving the magistrate’s decision, only the jacket entry and the
CCS entries, the City challenged the ruling claiming that it had no legal effect as
it was only signed by the magistrate. Id. at 229-30. After the City’s challenge,
the trial judge issued a nunc pro tunc order granting the motion to correct error,
which was signed by both the magistrate and the trial judge. Id. at 230. On
appeal, we observed that the purpose of a nunc pro tunc entry is to memorialize
something previously done and we noted that for the trial court to properly use
a nunc pro tunc order, there needs to be a written memorial showing that the trial
judge had actually approved the magistrate’s decision. Id. We found that the
CCS entries indicated actions taken by the trial judge and its entries
“presumably exist contemporaneously with the actions they described.” Id.
The court concluded, “[a]s nothing in the record specifically contradicts the trial
court’s . . . statements in the CCS that the court approved granting Hick’s
motion to correct error, we conclude these entries are sufficient written
memorial that [the trial judge] timely approved [the magistrate’s]
recommendation.” Id. at 233. Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 9 of 20 [16] Although Hicks was premised on a nunc pro tunc order, its reasoning is
persuasive and we reach a similar conclusion with respect to Indiana Trial Rule
56. Our supreme court’s bright line rule enunciated in HomEq Servicing Corp.
allows a party to “request an extension of time in which to file his response
under 56(I)[.]” HomEq Servicing Corp., 883 N.E.2d at 98. Without further
specifying the appropriate format of the request, we note that a verbal request
was made as memorialized in the CCS entry of March 22, 2019, indicating that
“Parties have stipulated to extending deadline on response to the pending
[m]otion for [s]ummary [j]udgment to May 8, 2019.” (Appellee’s App. Vol. II,
p. 23). In the entry, “Defendant’s [c]ounsel” was ordered to circulate an order
including the new summary judgment deadline. (Appellee’s App. Vol. II, p.
23). We agree with the trial court’s analysis that “[t]he directive to the
Defendant to circulate the [o]rder was meant to separately express the [o]rder
stated in the CCS entry.” (Appellee’s App. Vol. II, p. 105). Accordingly, as
Jernagan requested the trial court to extend his deadline to file his response to
IU Health’s motion for summary judgment pursuant to the directives of HomEq
Servicing Corp., which was granted by the trial court, we conclude that
Jernagan’s response was timely and will not be stricken. Any other result under
these circumstances would elevate form over substance, which we decline to
do.
APPEAL
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 10 of 20 [17] Turning to the merits of the appeal, we will address whether Dr. Miller should
be characterized as an independent contractor under the holding of Sword v.
NKC Hospitals, Inc., 714 N.E.2d 142 (Ind. 1999).
I. Standard of Review
[18] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if
it helps to prove or disprove an essential element of the plaintiff’s cause of
action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an
opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.
Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant
of summary judgment has the burden of persuading this court that the trial
court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.
[19] We observe that, in the present case, the trial court entered findings of fact and
conclusions of law thereon in support of its judgment. Generally, special
findings are not required in summary judgment proceedings and are not binding
on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 11 of 20 (Ind. Ct. App. 2004). However, such findings offer a court valuable insight into
the trial court’s rationale and facilitate appellate review. Id.
II. The Sword Doctrine
[20] Jernagan contends that the trial court erred by granting summary judgment to
IU Health as there is a genuine issue of material fact whether the delivery of a
business card during the surgical registration procedure is sufficient to satisfy
the meaningful notice requirement informing the patient that the doctor
performing the medical procedure is an independent contractor, pursuant to
Sword v. NKC Hospitals, Inc., 714 N.E.2d 142 (Ind. 1999).
[21] As the role of the modern hospital has evolved, so has the reality of modern
hospital care. Hospitals have become big business, competing with each other
for health care dollars, and engaging in expensive advertising campaigns to
persuade potential patients to seek treatment at a specific hospital. Patients are
generally unaware of the status of the various medical professionals working
there, and it would be natural and logical to assume that these professionals are
employees of the hospital. However, hospitals not only employ physicians,
surgeons, nurses, and other health care workers, they also appoint physicians
and surgeons to their hospital staff as independent contractors. As such, the
realities of modern hospital care raise a serious question regarding the
responsibility of a hospital when a physician who is an independent contractor
renders presumed negligent health care.
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 12 of 20 [22] Our supreme court first addressed this issue twenty years ago in its seminal
decision in Sword v. NKC Hospitals, Inc., 714 N.E.2d 142 (Ind. 1999). In Sword,
the plaintiff was in labor at the hospital and although she had previously
decided on pain relief via epidural injection she did not know who would
administer it. Id. at 145. During labor, an anesthesiologist discussed the
epidural but was called out of the room prior to commencing the procedure. Id.
A second anesthesiologist administered the epidural. Id. In the months
following the birth of her child, Sword began experiencing symptoms she
alleged were due to the negligent placement of the epidural. Id. Sword sought
to hold the hospital vicariously liable for the independent contractor
anesthesiologist’s negligent placement of the epidural. Id. Our supreme court
commenced its analysis by noting that “[v]icarious liability is indirect legal
responsibility.” Id. at 147. “It is a legal fiction by which a court can hold a
party legally responsible for the negligence of another, not because the party did
anything wrong but rather because of the party’s relationship to the
wrongdoer.” Id. Turning to the hospital setting, the Sword court mentioned
that “Indiana courts have long followed the general rule that hospitals could not
be held liable for the negligent actions of independent contractor physicians. []
[B]ecause hospitals are corporations and corporations could not legally practice
medicine, the doctrine of respondeat superior could not be applied[.]” Id. at 149.
However, referring to the persuasive jurisprudence of our sister states, the
supreme court observed that “courts no longer allow hospitals to use their
inability to practice medicine as a shield to protect themselves from liability.”
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 13 of 20 Id. As such, the court officially adopted the Restatement (Second) of Torts
section 429 as Indiana’s test to determine apparent agency in the hospital
setting:
[A] trier of fact must focus on the reasonableness of the patient’s belief that the hospital or its employees were rendering health care. This ultimate determination is made by considering the totality of the circumstances, including the actions or inactions of the hospital, as well as any special knowledge the patient may have about the hospital’s arrangements with its physicians. We conclude that a hospital will be deemed to have held itself out as the provider of care unless it gives notice to the patient that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital. A hospital generally will be able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission.
Id. at 152. Applying the test, the supreme court focused on the lack of evidence
in the record indicating that Sword was placed on notice that the
anesthesiologist was an independent contractor and the fact that Sword did not
know who would administer the epidural until just before the procedure. Id.
The Sword court noted counsel’s reference to a document titled “Condition of
Admission and Authorization for Treatment,” which counsel asserted informed
Sword that her physician was not liable for any acts of the practicing physician.
Id. at 152 n.16. The document was not in the record, but our supreme court
observed that, assuming the references were correct, it was far from clear that
this document would constitute sufficient notice of the relationship between the
hospital and the physician. Id. “In fact, it was likely insufficient notice if it is
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 14 of 20 the sole source of notice and if the plaintiff did not read or sign that form until
she arrived at the hospital in active labor.” Id. Based on the totality of these
facts, the court concluded that genuine material issues of fact were in dispute as
to whether the anesthesiologist was an apparent or ostensible agent of the
hospital. Id.
[23] More recently this court applied the Sword doctrine in Helms v. Rudicel, 986
N.E.2d 302 (Ind. Ct. App. 2013). There, on multiple occasions, the patient
signed forms that said “many” of the physicians and other health care providers
were independent contractors. Id. at 311. The Helms court concluded that the
notice “referred only to ‘many’ of the health care providers at the clinic, leaving
the patient to guess as to which ones are and which ones are not hospital
employees.” Id. “In light of the Sword requirement that the hospital tell the
patient it is not the provider of care and that the care is provided by a physician
who is an independent contractor and not subject to the control and supervision
of the hospital, the court held that there was a genuine issue regarding whether
the consent form provided meaningful notice.” Id. at 313-14. See also Ford v.
Jawaid, 52 N.E.3d 874, 881 (Ind. Ct. App. 2016) (the patient registration form,
which provided, that “I acknowledge that the health care professionals who
attend to me, including but not limited to anesthesiologists, radiologists,
pathologists, emergency room physicians, and provide and perform such
medical and surgical care, tests, procedures, drugs and other services and
supplies may be independent contractors and not employees or agents of Floyd
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 15 of 20 Memorial Hospital and Health Services” presented genuine issues of material
fact whether the notice was meaningful).
[24] In satisfaction of its meaningful notice requirement, IU Health points to Dr.
Miller’s business card provided to Jernagan by Mosby at check-in. Mosby
affirmed that she merely handed the business card to Jernagan without any
further explanation as to Dr. Miller’s employment status. IU Health contends
that the business card sufficiently identified Dr. Miller as the anesthesiologist
performing the procedure, and “Anesthesia Consultants of Indianapolis” as Dr.
Miller’s employer. (Appellee’s App. Vol. II, p. 42). Claiming that “it is
common knowledge that a person’s place of employment is identified on their
business card, along with the business logo,” IU Health encourages us to give
Jernagan “more credit” that he realized at check-in that Dr. Miller was not an
employee of IU Health. (Appellee’s Br. p. 22). However, we cannot conclude
that a sole business card, handed without more to an undoubtedly already
anxious surgical patient at check-in, conclusively affirms that Dr. Miller was
not an employee of IU Health or that the practice group is his employer. The
record reflects that Dr. Miller himself rejected the label of employee, and
pointed out that he was a partner in the practice group. As such, the business
card merely indicates an affinity relationship but does not more closely specify
or define that relationship.
[25] Similarly, IU Health’s “Consent for Procedure form” recites that the patient
“understands and agrees that: [] Medical staff other than the Treating
Practitioner may be part of my procedure. [] The Anesthesiologist or Treating
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 16 of 20 Practitioner may be part of my procedure.” (Appellant’s App. Vol. II, p. 180).
Nowhere does the form characterize Dr. Miller as an independent contractor,
let alone indicate a possibility that Dr. Miller may not be an employee of IU
Health.
[26] Consistent with the nature of modern-day hospital facilities and the holding of
Sword and its progeny, we conclude that there is a genuine issue of material fact
whether the business card can be considered as meaningful written notice to
Jernagan, acknowledged at the time of admission, that Dr. Miller was an
independent contractor. 1
III. Vicarious Liability
[27] Because Jernagan did not include Dr. Miller in his proposed Complaint brought
before the medical review panel, IU Health now contends that Jernagan is
using the vicarious liability process to “cure a failure to properly name Dr.
Miller as a defendant in the first place.” (Appellee’s Br. p. 32).
[28] The Medical Malpractice Act awards protections to health care providers and
an opportunity to defend their care before a medical review panel prior to being
subjected to any possible legal determination of malpractice and liability for
damages in state court. See I.C. § 34-10-1. It is a direct legal responsibility,
1 In so far as IU Health claims that we should consider Jernagan’s family contacting Dr. Miller by email and Dr. Miller’s response as an acknowledgment that Jernagan was aware of Dr. Miller’s independent contractor status, we note that the apparent authority doctrine is based on manifestations by the principal, i.e., IU Health, and not the agent. Helms, 986 N.E.2d at 310.
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 17 of 20 placing the liability on the medical professional. On the other hand,
“[v]icarious liability is indirect legal responsibility.” Sword, 714 N.E.2d at 147.
Pursuant to this legal fiction, a party can be held legally responsible for the
negligence of another because of the party’s relationship to the wrongdoer. Id.
Our supreme court in Sword expressly adopted the formulation of apparent or
ostensible agency, as one form of vicarious liability, set forth in the Restatement
(Second) of Torts Section 429. Id. at 152. The court held that, under Section
429,
One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.
Id. at 149. Therefore, given the Sword analysis, vicarious liability claims do not
fall within the purview of the medical review panel or the Medical Malpractice
Act. See also Helms, 986 N.E.2d at 305 n.1 (addressing a vicarious liability claim
by way of a motion for preliminary determination); Columbus Regional Hosp. v.
Amburgey, 976 N.E.2d 709 (Ind. Ct. App.2012) (discussing a vicarious liability
claim against a hospital after the statute of limitations had run against the
physicians), trans. denied. Accordingly, as the medical review panel’s procedure
is a legal construction solely used in medical malpractice claims, we conclude
that Jernagan did not need to file a proposed Complaint with respect to Dr.
Miller to the medical review panel prior to commencing a vicarious liability
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 18 of 20 claim against IU Health. As there is a genuine issue of material fact whether
IU Health can be held vicariously liable pursuant to the Sword doctrine, we
reverse the trial court’s grant of summary judgment to IU Health on this issue.
IV. Nurses’ Liability
[29] In its summary judgment, the trial court concluded that due to Jernagan’s lack
of expert witness testimony to contradict the medical review panel on the care
of the nursing staff, IU Health was entitled to judgment on those claims.
Although Jernagan did not contest the trial court’s conclusion in his appellate
brief, he raised the issue in his reply brief after the claim was mentioned by IU
Health in its appellate brief, alleging that Jernagan had waived the issue of the
nurses’ liability by failing to raise it on appeal. The law is well-settled that
grounds for error may only be framed in an appellant’s initial brief and if
addressed for the first time in the reply brief—as was the case here—they are
waived. 2 Monroe Guar. Ins. Corp. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind.
2005).
2 Although we waive Jernagan’s claim with respect to nursing care, we note that his claim never took centerstage in these proceedings, and was, at times, wholly ignored. In his response to IU Health’s motion for summary judgment, Jernagan only advanced some vague and conclusory statements, while at the hearing, Jernagan raised no argument that created a genuine issue of material fact with regard to the nursing care. In his subsequent motion to correct error following the summary judgment, Jernagan raised no challenge based on this issue and during the hearing on his motion to correct error, Jernagan stated that he “didn’t think it was an issue in the summary judgment.” (Tr. p. 47).
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 19 of 20 CONCLUSION [30] Based on the foregoing, we conclude that a genuine issue of material fact exists
whether the delivery of a business card during the surgical registration
procedure is sufficient to satisfy the meaningful notice requirement informing
the patient that the doctor performing the medical procedure is an independent
contractor. On Cross-Appeal, we conclude that Jernagan’s response to IU
Health’s motion for summary judgment was timely.
[31] Reversed.
[32] May, J. and Altice, J. concur
Court of Appeals of Indiana | Opinion 20A-PL-41 | September 28, 2020 Page 20 of 20