from the Marion Superior Court The Honorable Timothy Oakes,
Judge, The Honorable Caryl Dill, Magistrate Trial Court Cause
ATTORNEY FOR APPELLANT Neal F. Eggeson, Jr. Fishers, Indiana
ATTORNEYS FOR APPELLEES A. Richard M. Blaiklock Wade D.
Fulford Lewis Wagner, LLP Indianapolis, Indiana Michael A.
Sarafin Johnson & Bell, P.C. Crown Point, Indiana Sharon
L. Stanzione Alan M. Kus Johnson & Bell, P.C. Crown
OF THE CASE
Appellant-Plaintiff, G.F., and
Appellee/Cross-Appellant-Defendant, the Indiana Patient's
Compensation Fund (the Fund), appeal the trial court's
summary judgment in favor of Appellees-Defendants, St.
Catherine Hospital, Inc. (St. Catherine), and Vatsal K.
Patel, D.O. (Dr. Patel), concluding that, as a matter of law,
the Indiana Medical Malpractice Act (MMA) applies to
G.F.'s claim against Dr. Patel.
We reverse and remand.
G.F. and the Fund, in separate briefs, present this court
with three issues on appeal, which we consolidate and restate
(1) Whether the trial court erred by allowing St. Catherine
and Dr. Patel to file a response to G.F.'s motion for
summary judgment outside the time period specified in Indiana
Trial Rule 56; and
(2) Whether the MMA applies to claims involving negligent
dissemination of protected health information.
AND PROCEDURAL HISTORY
On June 5, 2015, G.F. received in-patient treatment at St.
Catherine for pneumonia-related symptoms. While G.F. was
being visited by a co-worker, Dr. Patel entered the room.
With the co-worker in the room, Dr. Patel informed G.F. that
his "CD4 count is low . . . you need to see your
infectious disease doctor as soon as you can!"
(Appellant's App. Vol. II, p. 12). Because G.F.'s
visitor had a prior family experience with HIV, she
immediately understood the implication of Dr. Patel's
communication to G.F. As soon as Dr. Patel exited the room,
G.F.'s co-worker voiced her understanding of Dr.
Patel's statement: as her step-brother had died from
HIV/AIDS, she recognized the inferences of discussing CD4
counts with an infectious disease doctor. Four days later,
Dr. Patel phoned G.F. to apologize for what he said in front
of G.F.'s co-worker. Dr. Patel had assumed the co-worker
was G.F.'s fiancée.
As a result of what she learned on June 5, 2015, G.F.'s
co-worker has severed all ties with G.F. Though G.F. and his
co-worker had been good friends prior to this incident, she
now no longer calls or visits G.F., she does not return
G.F.'s calls, and she even refuses to acknowledge his
existence at work. Suggesting that the word is out at his
workplace, G.F. observed that other co-workers now
"change their path when they see [G.F.] heading in their
directions." (Appellant's App. Vol. II, p. 38).
On August 20, 2015, G.F. filed his Proposed Complaint for
medical malpractice against St. Catherine and Dr. Patel with
the Indiana Department of Insurance [IDOI], in its capacity
of the Fund. Five months later, on January 21, 2016, G.F.
filed an anonymous Complaint for damages against St.
Catherine and Dr. Patel with the Lake County Circuit Court.
On March 4, 2016, St. Catherine and Dr. Patel moved to
dismiss the Lake County action for failing to state a claim
upon which relief can be granted. On April 27, 2016, the Lake
County Circuit Court denied the motion to dismiss.
On October 19, 2017, the medical review panel rendered a
split decision. The panel found no breach of standard of care
in favor of St. Catherine. As to Dr. Patel, the panel
concluded that G.F.'s allegations hinged upon "a
material issue of fact not requiring expert opinion, bearing
on liability for consideration by the court or jury."
(Appellant's App. Vol. II, pp. 71-73).
On January 6, 2018, G.F. initiated an action for declaratory
judgment against St. Catherine, Dr. Patel, and the Fund in
Marion County Superior Court, seeking a declaration of law
that his claims fell outside the ambit of the MMA. On March
10, 2018, G.F. moved for summary judgment on his declaratory
judgment claims, and the Fund joined in the motion on June 1,
2018. St. Catherine and Dr. Patel failed to respond to
G.F.'s motion for summary judgment within the time
allotted by Indiana Trial Rule 56(C); St. Catherine and Dr.
Patel sought leave to respond on April 15, 2018. On April 17,
2018, the trial court permitted the filing of a belated
On October 3, 2018, following a hearing, the trial court
issued its findings of fact and conclusions thereon, denying
G.F.'s motion for declaratory judgment and concluding in
pertinent part that:
[G.F.'s] claim involves health care that was provided by
a physician, working in his professional capacity as a
provider of medical services, to a patient, within the
confines of a hospital, in furtherance and promotion of
[G.F.'s] health. Further, the [c]ourt finds that [G.F.]
willfully and voluntarily subjected his claim to the
requirements and restrictions outlined within the MMA,
proceeded through the entirety of the medical review panel
process, and obtained a medical review panel opinion in
accordance with the MMA. Thus, because [G.F.] has willingly
and voluntarily subjected himself to the MMA the [c]ourt
thereby rejects his contention that his claim is not governed
by the MMA, finds that it is one of medical malpractice,
governed by the requirements and restrictions of the MMA, and
thereby DENIES [G.F.'s] [m]otion for [s]ummary [j]udgment
in its entirety.
G.F. now appeals. Additional facts will be provided as