                                                                              FILED
                                                                         May 06 2019, 8:46 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Neal F. Eggeson, Jr.                                       A. Richard M. Blaiklock
Fishers, Indiana                                           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 Point, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

G.F.,                                                      May 6, 2019
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           18A-PL-2460
        v.                                                 Appeal from the Marion Superior
                                                           Court
St. Catherine Hospital, Inc.,                              The Honorable Timothy Oakes,
Vatsal K. Patel, D.O., and                                 Judge
Indiana Patient’s Compensation                             The Honorable Caryl Dill,
Fund,                                                      Magistrate
Appellees-Defendants.                                      Trial Court Cause No.
                                                           49D02-1801-PL-614



Riley, Judge.


Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019                                   Page 1 of 23
                                 STATEMENT OF THE CASE
[1]   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.


[2]   We reverse and remand.


                                                    ISSUES
[3]   G.F. and the Fund, in separate briefs, present this court with three issues on

      appeal, which we consolidate and restate as:


          (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.


                       FACTS AND PROCEDURAL HISTORY
[4]   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

      Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019          Page 2 of 23
      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.


[5]   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).


[6]   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



      Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019           Page 3 of 23
      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.


[7]   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).


[8]   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 response.


[9]   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

      Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019             Page 4 of 23
               [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.


[10]   G.F. now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                              I. Standard of Review


[11]   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


       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019               Page 5 of 23
       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.


[12]   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

       (Ind. Ct. App. 2004). However, such findings offer a court valuable insight into

       the trial court’s rationale and facilitate appellate review. Id.


[13]   In analyzing a motion for summary judgment, a court may consider only

       properly designated evidence. Indiana Trial Rule 56(C) requires each party to a

       summary judgment motion to designate to the court all parts of pleadings,

       designations, and other matters on which it relies for purposes of the motion.

       Because G.F. and the Fund dispute the timeliness of St. Catherine’s and Dr.

       Patel’s response to G.F.’s motion for summary judgment, we must first resolve

       this procedural threshold issue and determine what designated evidence is

       properly before us prior to turning to the merits of the case.


                                            II. Indiana Trial Rule 56


[14]   As an initial matter, G.F. contends that the trial court erred in allowing St.

       Catherine and Dr. Patel to file a belated response to his motion for summary

       judgment. Trial Rule 56 states, in pertinent part:


               (C) The motion and any supporting affidavits shall be served in
               accordance with the provisions of Rule 5. An adverse party shall

       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019           Page 6 of 23
        have thirty (30) days after service of the motion to serve a
        response and any opposing affidavits . . .


        ****


        (F) Should it appear from the affidavits of a party opposing the
        motion that he cannot for reasons stated present by affidavit facts
        essential to justify his opposition, the court may refuse the
        application for judgment or may order a continuance or permit
        affidavits to be obtained or depositions to be taken or discovery
        to be had or may make such other order as is just.


        ****


        (I) For cause found, the [c]ourt may alter any time limit set forth
        in this rule upon motion made within the applicable time limit.


In HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98-99 (Ind. 2008) (quoting

Borsuk v. Town of St. John, 820 N.E.2d 118, 124 n. 5 (Ind. 2005)), our supreme

court clarified the time limits of T.R. 56 and declared that “[w]hen a

nonmoving party fails to respond to a motion for summary judgment within 30

days by either filing a response, requesting a continuance under T.R. 56(I), or

filing an affidavit under T.R. 56(F), the trial court cannot consider summary

judgment filings of that party subsequent to the 30-day period.” This is “a

bright-line rule . . . which precludes the late filing of responses in opposition to

a motion for summary judgment.” Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d

967, 972 (Ind. 2014). “Now firmly entrenched as an article of faith in Indiana

law, this bright-line rule provides clarity and certainty to an area of the law that

for too long lacked both.” Id.
Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019               Page 7 of 23
[15]   G.F. filed his motion for summary judgment on March 10, 2018. Accordingly,

       St. Catherine and Dr. Patel’s response or request for additional time was due no

       later than April 9, 2018. It was not until April 15, 2018, that St. Catherine and

       Dr. Patel sought leave to respond. As such, pursuant to HomEq’s premise, their

       request should have been denied by the trial court.


[16]   Nevertheless, St. Catherine and Dr. Patel now rely on Marion County Local

       Rule 203(A) to avoid the implementation of the rigid bright-line rule. Marion

       County Local Rule 203(A) provides that “all motions filed with the court shall

       include a brief statement indicating whether opposing party(ies) object to or

       approve of the granting of said motion.” LR49-TR5-203(A). Because G.F.

       failed to indicate in his motion for summary judgment whether St. Catherine

       and Dr. Patel agreed or objected to the motion, Appellees maintain that his

       motion was not properly filed until this defect was cured on April 16, 2018.

       Therefore, St. Catherine and Dr. Patel contend that the 30-day time period to

       file their response to the summary judgment motion commenced on April 16,

       2018 and accordingly, their motion for leave to file a response was timely filed.


[17]   The Indiana Trial Rules specifically authorize the making and amending of

       local rules of court:


               Each local court may from time to time make and amend rules
               governing its practice not inconsistent with these rules. In all
               cases not provided for by rule the local court may regulate its
               practice in any manner not inconsistent with these rules . . .




       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019            Page 8 of 23
       T.R. 81. However, the rules of procedure promulgated by our supreme court

       are binding on all Indiana courts, and no court “can circumvent the rules and

       thereby avoid their application” by promulgating an inconsistent local rule.

       Spudich v. Northern Ind. Public Serv., Co., 745 N.E.2d 281, 286 (Ind. Ct. App.

       2001). A local rule which is inconsistent with the Trial Rules is deemed to be

       without force and effect. Armstrong v. Lake, 447 N.E.2d 1153, 1154 (Ind. Ct.

       App. 1983).


[18]   In State v. Bridenhager, 257 N.E.2d 794, 796 (Ind. 1972), our supreme court

       clarified the test for determining when a procedural rule enacted by statute is

       inconsistent with the trial rules:


               To be “in conflict” with our rules . . ., it is not necessary that the
               statutory rules be in direct opposition to our rule, so that but one
               could stand per se. It is only required that they be incompatible
               to the extent that both could not apply in a given situation.


       In Armstrong, this court held that the same test would apply to a local rule

       alleged to be inconsistent with the trial rules. Armstrong, 447 N.E.2d at 1154.

       Furthermore, when two rules cover the same subject matter and one does so

       generally whether the other does so specifically, the more specific rule prevails.

       Daugherty v. Robinson Farms, Inc. 858 N.E.2d 192, 197 (Ind. Ct. App. 2006),

       trans. denied.


[19]   We recognize that Local Rule 203(A) applies to all motions filed with the

       Marion County trial court, whereas the requirements of T.R. 56 only apply to

       summary judgment motions—and therefore is the more specific rule.

       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019                  Page 9 of 23
       Moreover, St. Catherine and Dr. Patel assume that failure to comply with Local

       Rule 203(A) means that a motion has not been filed or that the filing is exempt

       from any time requirements until the defect has been cured. However, Local

       Rule 203(A) does not specify a consequence or penalty and neither does the

       trial court’s chronological case history indicate that G.F.’s motion for summary

       judgment was not deemed filed for lack of compliance with the Local Rule.

       While Local Rule 203(A) and T.R. 56(I) are not incompatible per se, we find

       that the more specific T.R. 56(I) takes precedence over Local Rule 203(A) and

       the 30-day time period to respond to a motion for summary judgment cannot be

       enlarged or restricted by the application of Local Rule 203(A). 1


[20]   As a result, the trial court abused its discretion by allowing St. Catherine and

       Dr. Patel to file a belated response to G.F.’s motion for summary judgment and




       1
         It should be noted that in a further effort to bring their designated evidence in front of the trial court, St.
       Catherine and Dr. Patel filed a cross-motion for summary judgment on May 2, 2018. However, in its Order
       of October 3, 2018, the trial court only ruled on G.F.’s motion for summary judgment and declared “the
       cross-motion for summary judgment filed by [Dr. Patel and St. Catherine] [] moot.” (Appellants App. Vol.
       II, p. 11). Dr Patel and St. Catherine do not appeal the trial court’s conclusion that their cross-motion for
       summary judgment is moot. Moreover, even if the cross-motion was properly before us for consideration,
       our conclusion that St. Catherine and Dr. Patel cannot designate evidence outside the time-period designated
       in T.R. 56 would not be altered. In Life v. Tucker Co., Inc., 948 N.E.2d 346, 351 (Ind. Ct. App. 2011), Life
       filed a belated response to Tucker’s motion for summary judgment, as well as a motion for partial summary
       judgment against Tucker which included the same arguments and designated evidence as in the belated
       response. We concluded that
                [w]hile we certainly acknowledge that Trial Rule 56(a) allows for claimants to move for partial
                summary judgment “at any time after the expiration of twenty days from the commencement of the
                action or after service of a motion for summary judgment by the adverse party,” the Lifes may not
                be permitted to bypass established rules of trial procedure by cloaking their response in another
                procedural mechanism. Doing so would render meaningless Trial Rule 56(C)’s time limit of thirty
                days and allow litigants to respond to summary judgment motions at their leisure so long as they
                also included their own motion.
       Id.

       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019                                    Page 10 of 23
       designate evidence in support thereof. Accordingly, we will consider only the

       evidence designated by G.F. and the Fund in reviewing the trial court’s

       summary judgment in favor of St. Catherine and Dr. Patel.


              III. Application of MMA on Dissemination of Protected Health Information


[21]   Since its enactment in 1975, the MMA has dictated the statutory procedures for

       medical malpractice actions. See I.C. § 34-18-1-1 et seq. The MMA is not all-

       inclusive for claims against healthcare providers, nor is it intended to be

       extended to cases of ordinary negligence. Peters v. Cummins Mental Health, Inc.,

       790 N.E.2d 572, 576 (Ind. Ct. App. 2003). Instead, the MMA was designed to

       curtail, not expand, liability for medical malpractice. Atterholt v. Herbst, 902

       N.E.2d 220, 223 (Ind. 2009). As such, the MMA is in derogation of common

       law and should be narrowly construed. Patel v. Barker, 742 N.E.2d 29, 31 (Ind.

       Ct. App. 2001).


[22]   Similar to other statutes in derogation of the common law, the MMA is to be

       strictly construed against imposing any limitations upon a claimant’s right to

       bring suit. Peters, 790 N.E.2d at 576. When the legislature enacts a statute in

       derogation of the common law, courts presume that the legislature is aware of

       the common law, and that the legislature does not intend to make any change

       beyond what is declared in express terms or by unmistakable implication.

       Weldon v. Universal Reagents, Inc., 714 N.E.2d 1104, 1107-08 (Ind. Ct. App.

       1999).




       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019           Page 11 of 23
[23]   By limiting provider liability, the MMA makes healthcare more affordable and

       accessible to patients throughout Indiana. McCarty v. Sanders, 805 N.E.2d 894,

       899 (Ind. Ct. App. 2004). “The obvious purpose of the [MMA] was to protect

       health care providers from malpractice claims . . . not to create new and

       additional causes of action. Were it to create a separate cause of action it

       would increase the incidence of such claims rather than protect against them.”

       Breece v. Lugo, 800 N.E.2d 224, 227-28 (Ind. Ct. App. 2003). In Johnson v. St.

       Vincent Hospital, Inc., 404 N.E.2d 585, 589 (Ind. 1980), overruled on different

       grounds by In re Stephens, 867 N.E.2d 148 (Ind. 2007), our supreme court noted

       that the MMA was a legislative response to escalating problems in the medical

       malpractice insurance industry and was passed to address the rapidly escalating

       costs to physicians of malpractice insurance, the near unavailability of such

       coverage to physicians engaged in certain high risk specialties, and because

       “[h]ealth care providers had become fearful of the exposure to malpractice

       claims and at the same time were unable to obtain adequate malpractice

       insurance at reasonable prices.” Id. at 589. The MMA created “voluntary

       state-sponsored liability insurance for doctors and other health care providers,

       created a patient compensation fund, took measures to prevent injuries to

       patients through the negligence of health care providers, and subjected

       negligence claims against health care providers to special controls limiting

       patient remedies.” Id. at 590. Whether the case is one of medical malpractice

       as defined by the MMA is a question of law to be determined by the court.

       Weldon, 714 N.E.2d at 1107.


       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019            Page 12 of 23
[24]   Indiana courts have developed an analytical framework for determining

       whether the MMA applies to a certain claim. Courts look to the substance of a

       claim, not the manner in which the conduct is framed in a pleading by the

       claimant. Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d 101, 104 (Ind. Ct. App.

       1995). To fall within the purview of the MMA, a provider’s conduct must be

       undertaken in the interest of, or for the benefit of, the patient’s health. In other

       words, the conduct must be “curative or salutary in nature or effect” for the

       person claiming patient status under the MMA. Collins v. Thakkar, 552 N.E.2d

       507, 510 (Ind. Ct. App. 1990). The curative or salutary conduct must be

       directed toward the person to whom the provider owes a duty of care. See

       Peters, 790 N.E.2d at 577. Conversely, the MMA does not apply to conduct

       “unrelated to the promotion of a patient’s health or the provider’s exercise of

       profession expertise, skill, or judgment.” Howard Reg’l Health Sys. v. Gordon, 952

       N.E.2d 182, 185 (Ind. 2011).


[25]   Given the limiting language of the MMA, not every negligent act or omission

       by a health care provider constitutes medical malpractice. Putnam Co. Hosp. v.

       Sells, 619 N.E.2d 968, 970 (Ind. Ct. App. 1993). A medical malpractice claim

       under the Act exists only when the substance of the claim involves a causal

       connection between the negligence and the nature of the provider/patient

       relationship. Doe by Roe, 652 N.E.2d at 103. General negligence can occur

       during the course of ongoing medical treatment if the negligent act itself does

       not involve curative or salutary conduct, the promotion of the patient’s health,

       or the exercise of professional expertise, skill, or judgment. See, e.g., Thomas v.

       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019           Page 13 of 23
       Deitsch, 743 N.E.2d 1218, 1220-21 (Ind. Ct. App. 2001) (no medical malpractice

       where doctor allowed inebriated patient to leave office and patient was arrested

       on way home from doctor’s office for operating while inebriated); Hart v. Caylor-

       Nickel Hosp. Inc., 553 N.E.2d 874, 879 (Ind. Ct. App. 1990) (allegation that a

       bed rail properly raised by health care provider, but which gave way under

       plaintiff’s weight after turning himself in bed was outside the MMA); Collins v.

       Thakkar, 552 N.E.2d 507, 510-11 (Ind. Ct. App. 1990), trans. denied (no medical

       malpractice where a doctor performed an abortion on a patient without her

       consent). Recently, this court addressed the difference between ordinary

       negligence and medical malpractice which would fall under the purview of the

       MMA, as follows:


               A case sounds in ordinary negligence [rather than medical
               negligence] where the factual issues are capable of resolution by a
               jury without application of the standard of care prevalent in the
               local medical community. By contrast a claim falls under the
               [MMA] where there is a causal connection between the conduct
               complained of and the nature of the patient-health care provider
               relationship.


       Metz as Next Friend of Metz v. Saint Joseph Reg’l Med. Center-Plymouth Campus, Inc.,

       115 N.E.3d 489, 495 (Ind. Ct. App. 2018) (quoting Terry v. Cmty. Health Network,

       Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 2014)) (internal citations omitted).


[26]   Relying on this framework, G.F. and the Fund contend that the trial court erred

       when it concluded that G.F.’s claim against Dr. Patel fell within the purview of

       the MMA. G.F. does not contend that the statement by Dr. Patel led to an


       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019          Page 14 of 23
       inaccurate diagnosis, improper treatment, or bodily injury; rather, G.F. claims

       that the communication resulted in emotional harm and an irreparable loss of

       privacy. Characterizing Dr. Patel’s disclosure of G.F.’s confidential health care

       information to a third party as neither curative nor salutary to G.F., G.F. and

       the Fund maintain that the claim against Dr. Patel sounds in ordinary

       negligence. In response, St. Catherine and Dr. Patel assert that Dr. Patel’s

       communication of laboratory results to G.F., as well as the recommendation of

       follow-up care, were directly related to tests performed in furtherance of G.F.’s

       care and treatment and occurred while Dr. Patel was acting in his professional

       capacity. As such, they posit that Dr. Patel’s conduct falls squarely within the

       purview of the MMA.


[27]   In a previous case, we have held that claims alleging negligent dissemination or

       communication of patients’ confidential health information against a heath care

       provider were not governed by the MMA. In H.D. v. BHC Meadows Hosp., Inc.,

       884 N.E.2d 849, 851-52 (Ind. Cr. App. 2008), reh’g denied, trans. denied, a

       therapist at an in-patient psychiatric facility faxed the plaintiff’s diagnosis and

       the fact of her hospitalization to the plaintiff’s high school where the fax was

       viewed by school administrators and students, even though the plaintiff’s

       parents and the defendant had signed a confidentiality agreement that the

       information of plaintiff’s treatment was not to be disclosed to her school

       counselor. After the plaintiff filed suit for negligence and invasion of privacy,

       the hospital moved to dismiss the case on the grounds that plaintiff had omitted

       to present her claims to a medical panel. Id. at 852. Following the trial court’s


       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019            Page 15 of 23
       dismissal of the lawsuit because it was not brought under the MMA, the court

       of appeals unanimously reversed the trial court. Id. at 852. Framing the

       question as “whether a health care provider’s negligent or reckless

       dissemination of a patient’s confidential information to members of the general

       public comes within the purview of the [MMA],” this court analyzed the

       language of the MMA discussing whether each of three separate

       communications from the therapist to the plaintiff’s school counselor was sent

       for the purpose of providing health care or professional services for the patient.

       Id. Discarding two communications as being surveys which had not been sent

       for the purpose of healthcare or providing services and therefore could not

       constitute medical malpractice, the court of appeals determined that a third

       faxed communication had been sent for the “dual purpose of providing health

       care or professional services.” Id. at 854. This particular message, sent by the

       therapist to the school counselor and faxed to a machine located in the general

       secretarial pool in the main office, read as follows:


               Thanks for referral. Addressing issues of depressional stress.
               Doing well, withdrawn and anxious @ times. Please call @ . . .
               to discuss issues.
               Thanks again.

       Id. at 851-52.


[28]   Starting our analysis from BHC Meadows Hospital’s argument, we reasoned as

       follows:


               [The Hospital] argues that “[t]he reasonableness of [the
               t]herapist’s decision to communicate with [the school c]ounselor

       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019          Page 16 of 23
        and share confidential information during the course of [the
        t]herapist’s treatment constitutes the quintessential exercise of
        judgment in rendering professional services in caring for
        [plaintiff] and her serious, suicidal ideation.” We would agree
        with this statement on its face; however, what has been
        represented by [the plaintiffs] is much more than a confidential
        communication between a therapist and a counselor. It is
        undisputed that the therapist sent private, confidential
        information to the fax machine of a high school without knowing
        who had access to the machine. Indeed, we have doubts as to
        whether the [plaintiffs] would have experienced any injury had
        the therapist directly and privately communicated with H.D.’s
        school counselor who was already aware of her suicide note,
        although such communication would still have been in
        contravention of the [plaintiffs’] explicit wishes. For this reason,
        we conclude that the more appropriate question to answer is
        whether a health care provider’s negligent or reckless
        dissemination of a patient’s confidential information to members
        of the general public comes within the purview of the [MMA].


Id. at 854. Next, we concluded that the primary purpose of the MMA was to

address difficulties health care providers were experiencing in obtaining

professional liability insurance coverage. Nevertheless, we noted that the

general claim asserted by the plaintiffs sounded in common law negligence and

the purpose of the MMA would not be served by extending its provisions to the

claim under consideration. Id. at 855. Accordingly, the court concluded that

“the [plaintiffs] have articulated claims of ordinary negligence and similar

claims; we are particularly persuaded that an average juror is well equipped to

consider those claims.” Id. at 856.




Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019           Page 17 of 23
[29]   A more recent case from the Northern District of the United States District

       Court, interpreting Indiana’s MMA, reached a similar result. In Reed v. Rodarte,

       2013 WL 594107 (N.D. Ind. 2013), Reed was injured during his employment.

       Rodarte—wrongly—diagnosed Reed with a sexually transmitted disease and

       informed Reed’s employer that this was not a work-related injury. Id. In filing

       his Complaint, Reed focused on the perceived violation of his privacy rights

       under HIPAA, state privacy laws, and state defamation laws. Id. Rodarte

       moved for a dismissal of the Complaint, alleging that the claim fell within the

       MMA. Id. The federal court reviewed the provisions of the Act, and Indiana

       case law pertaining to the issue of the scope of coverage, acknowledging that

       the MMA “extends to seemingly administrative tasks that are intricately related

       to patient care” because “the skillful, accurate, and ongoing maintenance of test

       and treatment records bears strongly on subsequent treatment and diagnosis of

       patients.” Id. (quoting Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 186

       (Ind. 2011)). However, “Indiana courts have declined to extend the [MMA] to

       cover lawsuits stemming from unauthorized communications by a health care

       provider to third parties regarding the patients’ medical conditions.” Id.

       Relying on BHC Meadows Hospital, the federal court reasoned that “[u]nlike

       memorializing medical observations in a chart or authorizing a patient’s

       commitment, sharing a patient’s medical condition with a third party requires

       no ‘professional expertise, skill or judgment.’” Id. (quoting Collins, 552 N.E.2d

       at 510).




       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019         Page 18 of 23
[30]   Turning to the case at hand, G.F. does not contend that Dr. Patel’s statement

       led to an inaccurate diagnosis or improper treatment. Rather, in his Complaint,

       G.F. articulated his claims as to “whether the [MMA] applies to claims

       involving: the violation of a patient’s medical confidentiality; [and] the

       negligent or intentional disclosure of protected health information[.]”

       (Appellant’s App. Vol. II, p. 24). The fact that Dr. Patel’s statement was

       uttered in a facility that provides health care does not, by itself, make G.F.’s

       claim fall within the purview of the MMA. Doe ex rel. Roe, 652 N.E.2d at 104.

       Nor does the fact that G.F. was a patient of Dr. Patel create such a claim.

       Collins, 552 N.E.2d at 511. Instead, the test is based on the provider’s behavior

       or practices while “acting in his professional capacity as a provider of medical

       services.” Id. at 510. Based on these parameters, we cannot conclude that

       G.F.’s claims are within the boundaries of the MMA.


[31]   As in BHC Meadows Hospital, where the confidential information was directed at

       the school counselor, but instead was read by the secretarial and administrative

       staff of the school; likewise, here, the communication by Dr. Patel had the dual

       effect of providing medical information to G.F., while at the same time, an

       inadvertent broadcast disclosed confidential information to the visitor, a third

       party. It is this disclosure of confidential information that is the focus of G.F.’s

       claim; not the services provided by Dr. Patel. At no point did the broadcast of

       confidential information to the third party constitute a health care treatment to

       G.F., nor did Dr. Patel’s statement of G.F.’s HIV status to a third party have a

       curative or salutary effect on G.F. Furthermore, as in BHC Meadows Hospital


       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019           Page 19 of 23
       and Rodarte, we do not determine expert testimony to be necessary as “an

       average juror is equally equipped” to consider the elements of a state law

       privacy claim. See BHC Meadows Hospital, 884 N.E.2d at 856. Accordingly,

       G.F.’s Complaint, as it pertains to the negligent or intentional disclosure of

       protected health information, is not subject to the limitations of the MMA.


[32]   St. Catherine and Dr. Patel now maintain that, because G.F. filed his case both

       by a proposed complaint for medical malpractice with the IDOI, and also by an

       anonymous Complaint for damages in the Lake County Circuit Court, he

       thereby elected to file his case as a medical malpractice claim and should not

       now be permitted to argue that it is not governed by the MMA. Relying on

       Cmty Hospitals of Ind., Inc., v. Aspen Ins. UK Ltd, 113 N.E.3d 636 (Ind. Ct. App.

       2018), they contend that G.F. is estopped from arguing his case should proceed

       pursuant to ordinary negligence principles.


[33]   In Aspen, this court interpreted our supreme court opinion in Manley v. Sherer,

       992 N.E.2d 670 (Ind. 2013), and concluded that once plaintiffs have filed a

       proposed complaint with the Department of Insurance and received an

       unfavorable opinion of the medical panel, they no longer can contend that the

       MMA is not applicable to their claim. Aspen, 113 N.E.3d at 644. In Manley,

       the plaintiff was injured in a head on collision with Zehr, who had lost

       consciousness while driving due to medications prescribed by her physician, Dr.

       Sherer. Manley, 992 N.E.2d at 672. In evaluating the parties’ respective

       summary judgment arguments, our supreme court mentioned that the Manleys

       “filed their proposed complaint with the [IDOI] but at no time did they ever file

       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019          Page 20 of 23
       their complaint in court.” Id. at 673. It also observed that the Manleys, in their

       opposition to Sherer’s summary judgment motion, had argued that their claims

       were not subject to the MMA because Manley was not a patient of Sherer and

       thus her claim was not for medical malpractice subject to the special

       occurrence-based statute of limitation. Id. at 674. Before addressing the merits

       of the statute of limitations issue, the supreme court stated,


               We preliminarily reject the plaintiffs’ claim that their action
               against Dr. Sherer and his medical group is not governed by the
               [MMA]. The plaintiffs have treated it otherwise by filing their
               proposed complaint with the [IDOI] as required by the [MMA].
               They may not now contend the [MMA] and its time limitation
               do not apply to their claim.


       Id.


[34]   We find the interpretation of Manley by this court in Preferred Prof’l Ins. Co. v.

       West, 23 N.E.3d 716 (Ind. Ct. App. 2014), trans. denied, to be more persuasive.

       In West, we considered the supreme court’s “remarks to be a comment

       particular to the facts and circumstances of the Manley case, not a statement of

       law.” Id at 732. The West court reasoned that


               We do not find that the West’s decision to simultaneously file
               complaints in the St. Joseph Circuit Court and the IDOI, likely
               done to avoid any potential statute of limitations issues, is
               problematic or that it thereby prevented them from pursuing a
               determination that the MMS did not apply to their claims. [The
               Fund] is in agreement, stating that plaintiffs, meaning the Wests
               or any others, may not decide that a case is one of medical
               malpractice simply by filing it as such, as that determination is

       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019            Page 21 of 23
               for the courts to make. As we have recognized, it is the
               substance of a claim, not its caption, which determined whether
               compliance with the MMA is necessary.


       Id. The West court’s interpretation of Manley is more in line with current

       precedents, in which a court determines whether the case is one of medical

       malpractice as defined by the MMA as a question of law by looking at the

       substance of the parties’ claims. Weldon, 714 N.E.2d at 1107; Doe by Roe, 652

       N.E.2d at 104. See also Fairbanks Hosp. v. Harrold, 895 N.E.2d 732, 738 (Ind. Ct.

       App. 2008), trans. denied, (after medical panel found for plaintiff, court of

       appeals affirmed the trial court’s determination that the MMA did not cover

       Harrold’s claims). Accordingly, we conclude that G.F. was not estopped from

       pursuing a determination that the MMA did not apply to his claims.


[35]   We reverse the trial court’s conclusion that G.F.’s allegations constitute claims

       of medical malpractice subject to the applicability of the MMA. Therefore, its

       summary judgment in favor of St. Catherine and Dr. Patel was clearly

       erroneous. We remand for further proceedings in accordance with this opinion.


                                              CONCLUSION
[36]   Based on the foregoing, we hold that 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. We also

       hold that the MMA is not applicable to claims involving negligent

       dissemination of protected health information and thus the trial court erred in

       granting summary judgment to St. Catherine and Dr. Patel.

       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019           Page 22 of 23
[37]   Reversed and remanded for further proceedings.
[38]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 18A-PL-2460 | May 6, 2019   Page 23 of 23
