                                                                   Dec 31 2015, 9:15 am




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
John David Hoover                                         Jerry Garau
Michael J. Blinn                                          Garau Germano, P.C.
Hoover Hull Turner LLP                                    Indianapolis, Indiana
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

John Collip, M.D.,                                        December 31, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A05-1501-CT-1
        v.                                                Appeal from the Marion Superior
                                                          Court
Vickie Ratts on behalf of Robert                          The Honorable Theodore M.
A.J. Ratts, deceased, and Little                          Sosin, Judge
Creek Family Health Center,                               Trial Court Cause No.
LLP,                                                      49D02-1012-CT-55368
Appellees-Plaintiffs




Baker, Judge.




Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015                 Page 1 of 17
[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

      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.




      Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 2 of 17
                                                       Facts     1




[4]   Under Indiana law, a nurse practitioner cannot prescribe legend drugs2 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




      1
       We held oral argument on December 3, 2015, in Indianapolis. We thank counsel for both sides for their
      able written and oral presentations.
      2
       “Legend drugs” include “any human drug required by federal law or regulation to be dispensed only by a
      prescription, including finished dosage forms and active ingredients subject to 21 U.S.C. 811 through 812.”
      Ind. Code § 25-26-14-7.
      3
       As noted above, Dr. Collip was required to review at least 5% of Barger’s charts. According to counsel at
      oral argument, he never reviewed a single one; instead, he reviewed a limited selection of her notes.

      Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015                        Page 3 of 17
      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

      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.


      Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 4 of 17
      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

      Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 5 of 17
               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. Duty
[10]   Initially, we note that Dr. Collip spends much of his brief arguing that, in a

       medical malpractice context, if the defendant does not have a physician-patient

       relationship with the plaintiff, then the defendant owed no duty to the plaintiff

       as a matter of law. Dr. Collip maintains that the CPA did not create a

       physician-patient relationship between himself and Ratts. This argument is a

       red herring, as Mother concedes that there is no physician-patient relationship.

       As such, Harper v. Hippensteel, the case primarily relied upon by Dr. Collip, is

       inapposite because the Harper Court determined that the mere existence of a

       CPA does not create a physician-patient relationship. 994 N.E.2d 1233, 1242

       (Ind. Ct. App. 2013). As Mother does not make that argument, Harper does not

       apply to this case. Mother insists that this case sounds in tort and must be

       analyzed under general tort principles, and we agree.




       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 6 of 17
                                       A. Webb v. Jarvis factors
[11]   The seminal case in determining the existence of a duty is our Supreme Court’s

       decision in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991). In Webb, as in the case

       before us, our Supreme Court considered whether a physician had a legal duty

       to a third party to whom he had not provided any medical treatment. Id. at 994

       (person shot by patient for whom doctor had prescribed anabolic steroids

       brought suit against the physician). In analyzing whether a legal duty existed,

       our Supreme Court articulated three factors to consider: (1) the relationship

       between the parties; (2) the reasonable foreseeability of harm to the person who

       was injured; and (3) public policy concerns. Id. at 995.4 The three factors are

       to be balanced together rather than considered to be three distinct and necessary

       elements. Cram v. Howell, 680 N.E.2d 1096, 1097 (Ind. 1997).


                         1. The relationship between the parties
[12]   Here, the only link between Dr. Collip and Ratts was the CPA between Dr.

       Collip and Barger. It is well established, however, that “Indiana Law does not

       preclude liability in tort for personal injury merely because privity is absent.”

       Harper v. Guarantee Auto Stores, 533 N.E.2d 1258, 1262 (Ind. Ct. App. 1989).

       Where privity is absent, “one must have actual knowledge that a third person



       4
         Dr. Collip argues that Webb does not apply because this analysis is limited to “those instances where the
       element of duty has not already been declared or otherwise articulated.” N. Ind. Pub. Serv. Co. v. Sharp, 790
       N.E.2d 462, 465 (Ind. 2003). Dr. Collip returns to his argument that it is well settled that a physician-patient
       relationship is a prerequisite to a duty in a medical malpractice case. Inasmuch as Webb itself involved a
       medical malpractice claim by a third party against a doctor with whom he did not have a physician-patient
       relationship, we do not find Dr. Collip’s argument persuasive.

       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015                           Page 7 of 17
       might reasonably be affected in order to impose a duty.” Webb, 575 N.E.2d at

       996. Furthermore, “we have recognized that a duty may be owed to a

       beneficiary of the consensual relationship, akin to that of a third party

       beneficiary of a contract, where the professional has actual knowledge that the

       services being provided are, in part, for the benefit of such third persons.” Id.


[13]   In this case, a physician voluntarily entered into a contract with a nurse

       practitioner, pursuant to which he agreed to provide oversight of her

       prescriptive practices. The gravamen of such a contract is the protection of the

       nurse practitioner’s patients. And indeed, Dr. Collip has admitted that the

       services he agreed to provide under the CPA were necessary for the protection

       of Barger’s patients. Appellant’s App. p. 153. In other words, he had actual

       knowledge that his services were being provided for the benefit of those third

       parties and that those third parties might reasonably be affected by the manner

       in which he performed his services. Notwithstanding the lack of privity,

       therefore, we find that this factor weighs in favor of the existence of a duty.


                      2. The reasonable foreseeability of harm
                               to the person injured
[14]   In analyzing the foreseeability component of our duty analysis, “we focus on

       whether the person actually harmed was a foreseeable victim and whether the

       type of harm actually inflicted was reasonably foreseeable.” Webb, 575 N.E.2d

       at 996. In other words, we impose a duty only where a reasonably foreseeable

       victim is injured by a reasonably foreseeable harm. Id. at 997.


       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 8 of 17
[15]   A nurse practitioner, while a highly qualified medical professional, is not a

       physician. Barger did not go to medical school or participate in a residency

       program. As such, our legislature has determined that nurse practitioners may

       prescribe legend drugs only when under the supervision of a physician. One of

       the apparent reasons for this policy, which we infer from the language of the

       relevant statutes, was to ensure the safety of the patients of nurse practitioners.

       If the supervising physician fails to adequately perform his or her oversight

       duties, it is eminently foreseeable that the nurse practitioner’s patients could

       suffer harm.


[16]   Indeed, in this case, Dr. Collip admitted that his failure to adequately supervise

       Barger, including his failure to review her charts as required by the CPA, could

       result in harm befalling her patients. Appellant’s App. p. 45. Ratts, as one of

       her patients, was a reasonably foreseeable victim of Dr. Collip’s alleged

       negligence. And the harm that befell Ratts—death as a partial result of mixed

       drug of intoxication—is precisely the type of harm one would expect to occur if

       Dr. Collip had negligently performed his obligations under the CPA.

       Consequently, we find that this factor weighs in favor of a duty.


                                             3. Public policy
[17]   As observed by the Webb Court, “‘Duty is not sacrosanct in itself, but is only an

       expression of the sum total of those considerations of policy which lead the law

       to say that the plaintiff is entitled to protection.’” 575 N.E.2d at 997 (quoting

       Prosser & Keeton on Torts § 53 (5th ed. 1984)).


       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 9 of 17
[18]   As with any piece of legislation, there are multiple policy reasons that our

       General Assembly has decided to enact the set of laws at issue in this case. To

       provide the public with greater access to affordable healthcare, the legislature

       has authorized nurse practitioners5 to provide medical services to their patients.

       Ind. Code ch. 25-23-1; 848 Ind. Admin. Code 4-2-1. But as noted above, as

       nurse practitioners are not physicians, the legislature has determined that

       physician oversight is required. More specifically, the General Assembly has

       required that if a nurse practitioner seeks to prescribe legend drugs, he or she

       must fulfill a number of conditions. We infer from the language of the relevant

       statutes that one of the purposes behind these conditions is to ensure the safety

       of the patients of nurse practitioners. 848 I.A.C. 5-1-1. Among those

       conditions is a requirement that the nurse practitioner:

                [s]ubmit[] proof of collaboration with a licensed practitioner in
                the form of a written practice agreement that sets forth the
                manner in which the advanced practice nurse and licensed
                practitioner will cooperate, coordinate, and consult with each
                other in the provision of health care to patients. Practice
                agreements shall be in writing and shall also set forth provisions
                for the type of collaboration between the advanced practice nurse
                and the licensed practitioner and the reasonable and timely
                review by the licensed practitioner of the prescribing practices of




       5
        “Nurse practitioners” is part of a broader category defined as “advanced practice nurses.” Ind. Code § 25-
       23-1-1(b). We limit our discussion to nurse practitioners here because that is the only category of advanced
       practice nurses at issue in this case, but our analysis applies equally to the other types of advanced practice
       nurses enumerated in the statutory definition.

       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015                          Page 10 of 17
        the advanced practice nurse. Specifically, the written practice
        agreement shall contain at least the following information:


        (A)      Complete names, home and business addresses, zip codes,
                 and telephone numbers of the licensed practitioner and the
                 advanced practice nurse.

        (B)      A list of all other offices or locations besides those listed in
                 clause (A) where the licensed practitioner authorized the
                 advanced practice nurse to prescribe.

        (C)      All specialty or board certifications of the licensed
                 practitioner and the advanced practice nurse.

        (D)      The specific manner of collaboration between the licensed
                 practitioner and the advanced practice nurse, including
                 how the licensed practitioner and the advanced practice
                 nurse will:

                 (i)      work together;
                 (ii)     share practice trends and responsibilities;
                 (iii)    maintain geographic proximity; and
                 (iv)     provide coverage during absence, incapacity,
                          infirmity, or emergency by the licensed practitioner.

        (E)      A description of what limitation, if any, the licensed
                 practitioner has placed on the advanced practice nurse’s
                 prescriptive authority.

        (F)      A description of the time and manner of the licensed
                 practitioner’s review of the advanced practice nurse’s
                 prescribing practices. The description shall include
                 provisions that the advanced practice nurse must submit
                 documentation of the advanced practice nurse’s
                 prescribing practices to the licensed practitioner within
                 seven (7) days. Documentation of prescribing practices
                 shall include, but not be limited to, at least a five percent


Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015        Page 11 of 17
                        (5%) random sampling of the charts and medications
                        prescribed for patients.

               (G)      A list of all other written practice agreements of the
                        licensed practitioner and the advanced practice nurse.

               (H)      The duration of the written practice agreement between
                        the licensed practitioner and the advanced practice nurse.


       848 I.A.C. 5-1-1(a)(7).


[19]   It is evident that the General Assembly has carefully compiled a detailed list of

       requirements that a collaborative practice agreement must fulfill. It is likewise

       evident that one of the reasons that our legislature requires nurse practitioners

       to comply with such rigorous standards is to ensure the safety of patients for

       whom they will be prescribing legend drugs. In other words, the General

       Assembly has created statutory mechanisms to ensure that those drugs are

       provided safely and responsibly, under the oversight of a licensed physician. To

       put it more plainly, the primary public policy underlying the requirement of

       collaborative practice agreements is to protect and ensure the safety of the

       public.


[20]   Dr. Collip argues that doctors who enter into a CPA do not owe a duty to the

       patients of the nurse practitioner. To adopt this position would be to

       incentivize physicians to put their proverbial blinders on. Not only would they

       have no incentive to oversee the nurse practitioner’s work in a responsible




       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 12 of 17
       manner, they would have an incentive not to do so.6 For if they could say, as

       Dr. Collip argues so strenuously and repeatedly herein, that they did not see the

       chart of a particular patient who is harmed as a result of alleged malpractice,

       then they would bear no responsibility whatsoever for the harm befalling that

       patient. They would feel free to adopt Dr. Collip’s approach, which involved

       entering into eleven to twelve CPAs while also maintaining a 90-hour-per-week

       medical practice. This result is clearly not what the General Assembly intended

       when it enacted this legislation.


[21]   We can only assume that the legislature did not intend for physicians

       participating in CPAs to be mere rubber stamps or for physicians to be able to

       perform their contractual obligations carelessly—or to ignore them altogether—

       with no consequences. Instead, the General Assembly enacted a statutory

       scheme ensuring that physicians will provide meaningful oversight, with an

       apparent end goal of protecting the safety of the public. It is readily apparent

       that public policy weighs strongly in favor of holding that physicians owe a duty

       to the nurse practitioner’s patients pursuant to a CPA.


[22]   According to Dr. Collip, if we hold that doctors have a duty under these

       circumstances, it would “upset the long-settled relationship between physicians

       and nurse-practitioners statewide, and could deter physicians from entering or




       6
         Dr. Collip argues that the incentive to comply with the contract would be the threat of the nurse practitioner
       enforcing her contractual rights against the physician. It seems ludicrous to expect that a nurse practitioner
       would bring a lawsuit demanding greater supervision by the physician; moreover, we question what damages
       the nurse practitioner could possibly claim. We do not find this to be a persuasive argument.

       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015                         Page 13 of 17
       continuing such relationships. This outcome would frustrate legislative

       objectives concerning access to primary health care through the use of

       independent physician extenders such as nurse-practitioners.” Appellant’s Br.

       p. 16-17. We disagree. To put it plainly, we are in no way holding that doctors

       are the guarantors of the nurse practitioners pursuant to a CPA. We simply

       hold that doctors have a duty to the patients of the nurse practitioners of

       reasonable care in fulfilling the doctor’s obligations under the CPA. If a doctor

       complied with his or her review and oversight obligations—for example, if the

       physician actually reviews the percentage of charts required by the CPA—and

       sees nothing troubling, and one of the patients is harmed by the negligence of

       the nurse practitioner, the doctor has not breached the duty to that patient.


[23]   All three of the Webb v. Jarvis factors weigh strongly in favor of the imposition

       of a duty. Consequently, we hold as a matter of law that a physician who

       enters into a CPA with a nurse practitioner has a duty of reasonable care to the

       nurse practitioner’s patients in fulfilling his or her obligations under the CPA.


                                            B. Section 324A
[24]   We feel compelled to address the parties’ arguments with respect to section

       324A of the Restatement (Second) of Torts even though it was not raised at the




       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 14 of 17
trial court.7 Section 324A of the Restatement (Second) of Torts, which Indiana

has adopted, reads as follows:


         One who undertakes, gratuitously or for consideration, to render
         services to another which he should recognize as necessary for
         the protection of a third person or his things, is subject to liability
         to the third person for physical harm resulting from his failure to
         exercise reasonable care to protect his undertaking, if


                   (a)      his failure to exercise reasonable care increases the
                            risk of such harm, or


                   (b)      he has undertaken to perform a duty owed by the
                            other to the third person, or


                   (c)      the harm is suffered because of reliance of the other
                            or the third person upon the undertaking.


See Light v. NIPSCO Indus., Inc., 747 N.E.2d 73, 75 (Ind. Ct. App. 2001)

(observing that “our decisions have equated Indiana law with the provisions of

Restatement (Second) of Torts, § 324A”). Section 324A “applies to any

undertaking to render services resulting in physical harm to third persons where

there is negligence in the manner of performance . . . .” Harper, 533 N.E.2d at

1262 n.3 (emphasis original).




7
  Dr. Collip insists that Mother has waived this argument because she did not raise it before the trial court,
but it is well established that “an appellate court reviewing a challenged trial court summary-judgment ruling
is restricted neither to the claims and arguments presented at trial nor the rationale of the trial court’s ruling.”
Carson v. Palombo, 18 N.E.3d 1036, 1041 (Ind. Ct. App. 2014).

Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015                             Page 15 of 17
[25]   In this case, Dr. Collip voluntarily undertook to enter into the CPA and

       perform the duties required by that agreement. Specifically, he undertook a

       duty to direct and supervise Barger in her practice, including her prescribing

       practices. He did not undertake this duty gratuitously; he was paid for his

       services. Dr. Collip acknowledged that the services he agreed to provide under

       the CPA were necessary for the protection of Barger’s patients. Consequently,

       “[t]here is no question that Dr. Collip’s failure to exercise reasonable care in

       performing his duties under the CPA increased the risk of physical harm to

       Barger’s patients.” Appellee’s Br. p. 10. Dr. Collip’s mere status as a physician

       does not exempt him from section 324A, because while the Indiana Medical

       Malpractice Act gives qualified healthcare providers certain privileges, it did not

       make them immune from the application of Indiana’s common law.


[26]   Dr. Collip highlights two recent cases from our Supreme Court that, in his

       view, require us to rule in his favor. He directs our attention to Yost v. Wabash

       College, in which our Supreme Court held that an actor’s liability does not

       extend beyond the undertaking and that a defendant had not assumed a duty to

       a third party with respect to the behavior of other actors where “the specific

       undertaking did not extend to actual oversight and control over the behavior” of

       the other actors. 3 N.E.3d 509, 521 (Ind. 2014); see also Smith v. Delta Tau Delta,

       Inc., 9 N.E.3d 154 (Ind. 2014) (holding that because evidence did not establish a

       duty on the part of the national fraternity to directly supervise and control the

       actions of the local fraternity and its members, it did not have a duty to ensure

       the safety of the freshman pledges).


       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 16 of 17
[27]   Yost and Smith require us to define the scope of the undertaking to determine

       whether there was a duty. Here, the scope of a physician’s undertaking when

       entering into a CPA is to comply with the terms of the contract to protect the

       safety of the nurse practitioner’s patients. In other words, it is readily apparent

       that Dr. Collip’s “specific undertaking” did, in fact, extend to the safety of

       Barger’s patients. We again note that this holding does not render Dr. Collip

       the guarantor of Barger’s medical practices; instead, it merely requires him to

       fulfill his duty of reasonable care in complying with the CPA. Therefore,

       whether we analyze the duty question under Webb v. Jarvis or under section

       324A, the answer is the same—Dr. Collip had a duty to Ratts as a matter of

       law. We express no opinion as to the remaining elements Mother must prove

       to prevail on her complaint, as those must be considered by a factfinder.


[28]   The judgment of the trial court is affirmed and remanded for further

       proceedings.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015   Page 17 of 17
