from the Marion Superior Court. The Honorable Theodore M.
Sosin, Judge. Trial Court Cause No. 49D02-1012-CT-55368.
FOR APPELLANT: John David Hoover, Michael J. Blinn, Hoover
Hull Turner LLP, Indianapolis, Indiana.
FOR APPELLEE: Jerry Garau, Garau Germano, P.C., Indianapolis,
Judge. Riley, J., and Bailey, J., concur.
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
Dr. Collip brings this interlocutory appeal challenging the
trial court's order
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
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.
Under Indiana law, a nurse practitioner cannot prescribe
legend drugs 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
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, 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.
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.
Ratts, a patient of Barger, was a high-risk patient with a
history of depression, suicide attempts, and polysubstance
abuse. From January through March
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.
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.
Standard of Review
Our standard of review on summary judgment is well
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).