Riley Bennett Egloff Magazine July Magazine | Page 5

When the Act Does Not Apply: Ordinary Negligence
Not all allegations of negligence against a qualified health care provider fall within the scope of the Act. 7 Premises
liability actions, which involve allegations of the failure to maintain areasonably safe premises, are matters of
ordinary rather than medical negligence because they are unrelated to the provision of health care. Accordingly,
the Act does not apply to premises liability claims, even when the plaintiff is a patient and the defendant is his
or her health care provider. 8 The Court’s opinion in Sells is helpful for clarifying the subtle distinction between a
claim for medical negligence and one for ordinary negligence.
In Sells, the Court distinguished the facts before it from those in the matter of Harts v. Caylor-Nickel Hospital,
Inc., which also involved a patient who had suffered injuries after falling from a hospital bed. In Caylor-Nickel,
the hospital did have bedrails in place on the patient’s bed. However, the patient fell from his hospital bed
when the guardrail collapsed as he attempted to use it for support. The patient subsequently filed a complaint
against the hospital alleging that the “direct and proximate cause of the fall of Plaintiff was the negligence of the
Defendants.” The patient also filed an affidavit which specifically alleged ordinary negligence and not medical
negligence. 9 The Court of Appeals held that the tenor of the patient’s complaint supported an allegation of
ordinary negligence, as the patient did not allege any “breach of duty directly associated with medical care” that
would have subjected his claim to the Act. 10
Other cases in Indiana similarly refused to apply the Act in cases where the patient alleged injury as a result of the
condition of hospital premises as opposed to the manner in which health care was provided. See, for example,
Winona Memorial Foundation of Indianapolis v. Lomax, wherein the plaintiff sued the hospital for injuries
sustained after tripping on a protruding floorboard while leaving a dressing room area without the assistance
of any hospital employees. 11 The plaintiff’s complaint did not allege that the injury resulted from malpractice or
that the hospital failed to render appropriate medical care, and the patient had not received medical treatment
prior to or at the time of her fall. 12 Accordingly, the Act did not apply. See also Pluard v. Patients Compensation
Fund, 13 wherein a newborn suffered injuries after a surgical lamp detached from the wall and fell on his head. The
plaintiff’s allegations were deemed to arise from ordinary rather than medical negligence because the injury was
caused by the lamp’s detachment from the wall (an issue of premises liability), and not the medical provider’s
judgment in positioning of the lamp. 14
Why Does it Matter?
Having a general understanding of when the Act applies is important for a few reasons. First, a court lacks
subject matter jurisdiction over claims for medical negligence until after a Medical Review Panel has issued its
written opinion. Thus, where a patient files a medical negligence claim against a qualified health care provider
and fails to simultaneously file a proposed complaint with the Indiana Department of Insurance, the patient’s
court complaint may be subject to dismissal for a lack of subject matter jurisdiction. Subject matter jurisdiction
challenges cannot be waived and may be raised even for the first time on appeal. 15
Secondly, if the claim sounds in medical negligence as opposed to ordinary negligence the qualified provider will
be entitled to the protections afforded health care providers by the Act. Those protections include, but are not
limited to the following: the requirement that the provider’s anonymity be maintained in any court pleadings
pending an opinion of the Medical Review Panel; the right to have the provider’s care reviewed by an impartial
Medical Review Panel prior to the patient being allowed to proceed in court; the application of contributory
fault whereby any fault allocated to Plaintiff bars Plaintiff’s recovery 16 ; and perhaps most significantly, limitations
on damages. Specifically, the Act limits the amount a plaintiff may recover for injuries sustained as a result of
medical negligence that occurred after June 30, 2017 and before July 1, 2019, to $1,650,000, of which $400,000
would be paid by the health care provider with the remainder paid by the patient’s compensation fund. The
provider’s share of its exposure could be further limited through the purchase of an annuity in an amount that
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