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Collip v. Ratts

Court of Appeals of Indiana

December 31, 2015

John Collip, M.D., Appellant-Defendant,
Vickie Ratts on behalf of Robert A.J. Ratts, deceased, and Little Creek Family Health Center, LLP, Appellees-Plaintiffs

Page 608

          Appeal from the Marion Superior Court. The Honorable Theodore M. Sosin, Judge. Trial Court Cause No. 49D02-1012-CT-55368.

         ATTORNEYS FOR APPELLANT: John David Hoover, Michael J. Blinn, Hoover Hull Turner LLP, Indianapolis, Indiana.

         ATTORNEY FOR APPELLEE: Jerry Garau, Garau Germano, P.C., Indianapolis, Indiana.

         Baker, Judge. Riley, J., and Bailey, J., concur.


Page 609

          Baker, Judge.

         [¶1] Dr. John Collip had a contractual relationship with Dena Barger, who is a nurse practitioner and owns her own medical practice. Pursuant to their Collaborative Practice Agreement (CPA), Dr. Collip was to collaborate with Barger and oversee her prescriptive authority. Specifically, he was to review at least 5% of her charts on a weekly basis to evaluate her prescriptive practices. On March 30, 2009, Robert Ratts, one of Barger's patients, died as a partial result of mixed drug intoxication.

         [¶2] Dr. Collip brings this interlocutory appeal challenging the trial court's order

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granting partial summary judgment in favor of Vickie Ratts, Ratts's mother, on her medical malpractice claim. The trial court held as a matter of law that Dr. Collip had a duty to Ratts even though he had never treated Ratts as a patient.

         [¶3] The Indiana General Assembly has enacted a complex and detailed statutory scheme that authorizes nurse practitioners to provide medical services. We infer from the language of the statute that one of the purposes of this legislation was to provide the public with greater access to affordable healthcare. The legislature also sought to ensure the safety of the public by requiring that when prescribing legend drugs, nurse practitioners must be overseen by a licensed physician. We hold as a matter of law that physicians who undertake this responsibility owe a duty to the nurse practitioner's patients to fulfill their contractual obligations with reasonable care. We affirm and remand.


         [¶4] Under Indiana law, a nurse practitioner cannot prescribe legend drugs[2] without a collaborative practice agreement with a licensed physician. Dr. Collip and Barger entered into the CPA in 2006. Pursuant to the CPA, Barger practiced under the direction and supervision of Dr. Collip; Barger paid Dr. Collip for his oversight. Dr. Collip admitted that he knew that if he failed to do what was required of him under the CPA, Barger's patients could be placed in danger. He knew that he was obligated to ensure that Barger was providing appropriate care, including prescriptive care, to her patients. Although Dr. Collip had no ownership interest in, or employment affiliation with Barger's clinic, his name appeared with Barger's at the top of the clinic's preprinted prescription forms and on clinic stationery.

         [¶5] The CPA required Dr. Collip to review at least 5% of Barger's charts on a weekly basis and to document Barger's prescribing practices. Dr. Collip admittedly never complied with these requirements. He did engage in a limited review of Barger's notes,[3] and this review caused him to become concerned about the amount of narcotics that Barger was prescribing to her patients. He suggested that she attend a narcotic-prescribing seminar and occasionally commented on the combination or amounts of medications she was prescribing. Dr. Collip did not follow up regarding the seminar. He knew that he held the " keys to the drugstore" for Barger and that if he terminated the CPA, she would no longer be permitted to prescribe drugs at all. Appellant's App. p. 153. Dr. Collip did not take any steps to terminate the CPA.

         [¶6] In addition to the CPA with Barger, Dr. Collip had collaborative practice agreements with eleven to twelve other nurse practitioners. He was also working ninety hours per week as a family practice physician.

         [¶7] Ratts, a patient of Barger, was a high-risk patient with a history of depression, suicide attempts, and polysubstance abuse. From January through March

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2009, Barger prescribed multiple medications for Ratts, including Lortab (a combination of hydrocodone and acetaminophen), methadone, Wellbutrin, lithium, and Xanax. Ratts died on March 30, 2009, and an autopsy revealed that the cause of his death was acute bronchopneumonia complicating mixed drug interaction. Dr. Collip never treated Ratts, never saw Ratts in consultation or in any other circumstances, and never received or reviewed any of Ratts's medical records before this litigation.

         [¶8] On October 24, 2013, Vickie Ratts (Mother) filed an amended complaint against Dr. Collip, Barger, and Barger's clinic. On September 11, 2014, Mother filed a motion for partial summary judgment against Dr. Collip; the motion argued solely that Dr. Collip owed a duty to Ratts as a matter of law. Dr. Collip filed a cross-motion for summary judgment, arguing that, as a matter of law, he did not owe a duty to Ratts. Following briefing and oral argument, the trial court issued an order on December 9, 2014, summarily granting Mother's summary judgment motion and denying Dr. Collip's cross-motion. The trial court found that its decision was a case of first impression and sua sponte certified the order for interlocutory appeal. Dr. Collip now appeals.

         Discussion and Decision

         I. Standard of Review

         [¶9] Our standard of review on summary judgment is well established:

We review summary judgment de novo, applying the same standard as the trial court: " Drawing all reasonable inferences in favor of . . . the non-moving parties, summary judgment is appropriate 'if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). " A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to " demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue," at which point the burden shifts to the nonmovant to " come forward with contrary evidence" showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And " [a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court." McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Although summary judgment is rarely appropriate in negligence cases, the existence of duty is generally a matter of law for the courts to decide. E.g., King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003).

         II. ...

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