                                                                        FILED
                                                                    Jul 20 2020, 8:43 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANTS                                    ATTORNEYS FOR APPELLEES
David J. Cutshaw                                            Kevin C. Schiferl
Gregory L. Laker                                            Maggie L. Smith
Gabriel A. Hawkins                                          Stephanie V. McGowan
Edward B. Mulligan V                                        Frost Brown Todd, LLC
Cohen & Malad, LLP                                          Indianapolis, Indiana
Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Santos Cortez, Fran Cortez, and                             July 20, 2020
Norris Choplin Schroeder LLP                                Court of Appeals Case No.
Appellants-Plaintiffs,                                      19A-CT-2540
                                                            Appeal from the Marion Superior
        v.                                                  Court
                                                            The Honorable Kurt M. Eisgruber,
Indiana University Health Inc.,                             Judge
Sharon V. Lucich, and Elizabeth                             Trial Court Cause No.
Longmuir,                                                   49D06-1904-CT-15514
Appellees-Plaintiffs.




Brown, Judge.


Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                           Page 1 of 20
[1]   Santos Cortez (“Santos”), Fran Cortez (“Fran”), and Norris Choplin Schroeder

      LLP (“NCS,” and collectively with Santos and Fran, “Plaintiffs”) appeal the

      trial court’s grant of a motion to dismiss filed by Indiana University Health, Inc.

      (“IU Health”), Sharon V. Lucich, and Elizabeth Longmuir (collectively,

      “Defendants”). We affirm.


                                         Facts as Alleged in Complaint

[2]   On April 16, 2019, Plaintiffs filed a complaint against Defendants. According

      to the complaint, 1 in 2012, Santos was referred to IU Health’s Wound Clinic at

      Methodist Hospital for treatment for pressure wounds. Santos received therapy

      from various physical therapists employed at IU Health’s Wound Clinic,

      including Lucich and Longmuir, on August 8, 16, 20, 23, 27, 29, and 31, 2012.

      Sometime between August 29, 2012, and December 2013, Lucich and/or

      Longmuir altered certain medical records reflecting the care and treatment

      Santos received at the Wound Clinic in August 2012. 2




      1
       We accept as true the facts alleged in Plaintiffs’ complaint as Plaintiffs appeal from a trial court’s grant of a
      pretrial motion to dismiss under Trial Rule 12(B)(1). See State ex rel. Zoeller v. Aisin USA Mfg., Inc., 946 N.E.2d
      1148, 1149-1150 (Ind. 2011) (“[B]ecause this is an appeal from a trial court’s grant of a pretrial motion to
      dismiss under Trial Rule 12(B)(1), we accept as true the facts alleged in the State’s complaint.”), reh’g denied.
      2
        The complaint alleged: “After completing and signing her August 16, 2012 Progress Note, Lucich and/or
      Longmuir intentionally and improperly altered the records by checking the box ‘Other’ and adding the note:
      ‘Recommend use of sliding board until clearing buttocks c transfers’”; “After completing and signing her August
      20, 2012 Progress Note, Longmuir and/or Lucich intentionally and improperly altered the records by
      checking the boxes: ‘Dressing/Topical Application’ and ‘Pressure Relief’ and adding the note: ‘Pressure Relief
      ed[ucated] wife + pt about need to do relief @ night. Report not doing 2nd (secondary) to not wanting to get up @
      night’.”; “After completing and signing her August 23, 2012 Progress Note, Longmuir and/or Lucich
      intentionally and improperly altered the records by checking the boxes ‘Pressure Relief’ and ‘Nutrition’ and
      adding the note: ‘Pressure Relief getting OOB [(out of bed)] only for MD appt and continuing to watch things done


      Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                                     Page 2 of 20
[3]   In 2013, Santos and Fran contacted Attorney Mike Morken regarding a

      potential medical malpractice action against IU Health based on the alleged: (1)

      failure to have physicians supervising physical therapists at its Wound Clinic;

      and (2) failure of the Wound Clinic to refer Santos to a physician when he

      showed signs and symptoms of infection. Attorney Morken requested Santos’s

      medical records from IU Health regarding Santos’s treatment at the Wound

      Clinic in August 2012. On December 10, 2013, IU Health produced the altered

      records and failed to inform him that those records had been materially altered

      after the fact by Lucich and/or Longmuir.


[4]   In 2014, Santos and his wife, Fran, retained NCS to pursue a medical

      malpractice action against IU Health. In June 2014, NCS filed a proposed

      complaint alleging malpractice against IU Health with the Indiana Department

      of Insurance. During discovery, Defendants produced the altered records.


[5]   On March 23, 2015, IU Health produced transcriptions of the altered records to

      Plaintiffs in advance of Lucich and Longmuir’s depositions. According to the

      complaint, “[a]t no time during either Lucich’s or Longmuir’s depositions did

      they disclose they had altered [Santos’s] medical records to include the notes

      about which they testified under oath.” Appellants’ Appendix Volume II at 53.




      in therapy. Nutrition. ed[ucated] need to get extra protein, vit[amin] c, etc.’.”; “After completing and signing her
      August 29, 2012 Progress Note, Longmuir and/or Lucich intentionally and improperly altered the records by
      checking the boxes ‘Pressure Relief’ and ‘Nutrition’ and adding the note: “Pressure Relief: during transfer
      watching B heels at night, encouraged pressure relieving bed. Nutrition: reports eating well with extra protein,
      drinks boost’.” Appellants’ Appendix Volume II at 46-49.

      Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                                      Page 3 of 20
[6]   On November 26, 2018, NCS received a copy of Santos’s original records

      produced by IU Health from Broadspire, an entity involved in Santos’s

      worker’s compensation claim with his employer. IU Health provided that copy

      of Santos’s records to Broadspire by fax on August 29, 2012. On November 29,

      2018, while inspecting the records IU Health had produced to Broadspire,

      Plaintiffs discovered that Broadspire’s copy of the records did not include the

      altered handwritten notes. A few weeks later, IU Health agreed to resolve

      Santos and Fran’s medical malpractice claim. IU Health settled the claim with

      the right to proceed against the Patient’s Compensation Fund.


                                                  Procedural History

[7]   In their complaint filed on April 16, 2019, Plaintiffs alleged: Count I, fraud;

      Count II, criminal counterfeiting, forgery, and violation of Crime Victims Relief

      Act; and Count III, tort of outrage, perjury, and violation of Ind. Trial Rule 34. 3

      On June 10, 2019, Defendants filed a motion to dismiss pursuant to Ind. Trial

      Rules 12(B)(1) and 12(B)(6). They asserted that, “should [the trial court] find

      that Plaintiffs’ Complaint, in whole or in part, states any claim from which

      relief can be granted, [the trial court] lacks subject matter jurisdiction because

      the claims in the Complaint sound in negligence” and the complaint is subject

      to the prerequisites of Indiana’s Medical Malpractice Act (“MMA”) and should




      3
       With respect to their claim of perjury and violation of Ind. Trial Rule 34, Plaintiffs state in their reply brief
      that Defendants are correct that Indiana does not recognize a standalone cause of action for perjury or
      violation of Trial Rule 34 and do not challenge the dismissal of these claims.


      Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                                      Page 4 of 20
      first be presented to the medical review panel. Id. at 74. In their motion,

      Defendants requested that the court take judicial notice of the court records

      found in Santos Cortez and Fran Cortez v. Indiana University Health, Inc., and

      Stephen W. Robertson, Commissioner, Indiana Department of Insurance, as

      Administrator of the Indiana Patient’s Compensation Fund, Cause No. 49D05-1706-

      CT-22995 (“Cause No. 995”).


[8]   In Cause No. 995, the Marion Superior Court entered an April 1, 2019 order

      dismissing with prejudice the complaint by Santos and Fran against IU Health

      and Stephen W. Robertson, Commissioner, Indiana Department of Insurance,

      as Administrator of the Indiana Patient’s Compensation Fund. The order

      noted that the case of Santos Cortez and Fran Cortez v. Stephen W. Robertson,

      Commissioner of Insurance, State of Indiana, Indiana Department of Insurance,

      Patient’s Compensation Fund, Cause No. 49D04-1902-CT-6463 (“Cause No.

      6463”), remained pending. 4




      4
       In Cause No. 6463, Santos and Fran filed a Petition for Payment of Excess Damages from the Patient’s
      Compensation Fund in the Marion Superior Court on February 15, 2019. On October 10, 2019, Santos and
      Fran filed a Petition for Court Ordered Approval of Settlement Agreement and Release. Id. The Settlement
      Agreement and Release attached to the petition states:
              Notwithstanding any provision hereinabove, the parties expressly agree that this Settlement
              Agreement and Release is expressly limited to the claims arising from the medical care and
              treatment provided to Santos Cortez by the Defendants in August 2012, and expressly
              excludes any claims associated with Petitioners’ and their attorneys’ claims arising out of
              other conduct engaged in by Indiana University Health, Inc., and/or its employees, which
              claims are not governed by the Indiana Medical Malpractice Act, as those claims are
              alleged in Santos Cortez, Fran Cortez and Norris Choplin Schroeder LLP, vs. Indiana University
              Health, Inc., Sharon V. Lucich and Elizabeth A. Longmuir, Cause No. 49D06-1904-CT-015514,
              which claims are expressly reserved under this agreement.



      Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                                 Page 5 of 20
[9]   On July 22, 2019, the trial court held a hearing on Defendants’ motion to

      dismiss. On October 11, 2019, the court entered a ten-page order granting

      Defendants’ motion which provides in part:


              CONCLUSIONS OF LAW

              A. Medical Malpractice Act

                                                      *****

              Plaintiffs’ Complaint states that “[t]his case arises out of
              Defendants’ intentional and fraudulent alteration of medical
              records reflecting the care and treatment they provided to
              Plaintiff Santos Cortez so as to defeat a medical malpractice
              claim that the Cortezes brought against [IU Health]” (Compl. ¶
              1). Plaintiffs explicitly link the MMA action to the activity
              alleged under this cause. They lay out four (4) specific instances
              of document alteration (Compl. ¶ 16-24) that form the core of the
              Complaint. Plaintiffs concede that the facts involving the altered
              records are rooted firmly in the MMA case, but they contend that
              the settlement documents released Defendants “for medical
              negligence only, excluding the medical records issue.” (Pltffs’
              Motion to Strike filed July 16, 2019 ¶ 10.)

              Plaintiffs argue that the claims are so egregious that they should
              fall beyond the purview of the MMA. As a policy matter,
              Plaintiffs assert that the MMA is insufficient to deter future
              fraudulent acts and/or criminal acts of Defendants. To redress
              these concerns, Plaintiffs argue for the right to invoke private




      October 10, 2019 Petition for Court Ordered Approval of Settlement Agreement and Release at 10. On
      October 15, 2019, the court entered an order granting the petition, approving the release, and ordering “the
      Commissioner, in his capacity as Administrator of the Indiana Patient’s Compensation Fund . . . to authorize
      a cash payment from the Indiana Patient’s Compensation Fund to Santos Cortez and Fran Cortez, in the
      amount of Nine Hundred Fifty Thousand Dollars ($950,000.00).” October 15, 2019 Order in Cause No.
      6463.

      Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                              Page 6 of 20
        rights of action in addition to the remedies already provided
        under the MMA.

                                   B. Indiana Code: Title 25

        Private rights of action to deter future fraudulent behavior may
        be appropriate, but when possible, Indiana case law has deferred
        to available statutory remedies. Howard Reg’l Health Sys. v.
        Gordon, 952 N.E.2d 182 (Ind. 2011) addresses the maintenance of
        health records (see I.C. § 16-39-7–Maintenance of Health
        Records, X-rays, and Other Tests), a matter similarly situated to
        this case. “Surely the skillful, accurate, and ongoing
        maintenance of test and treatment records bears strongly on
        subsequent treatment and diagnosis of patients. It is a part of
        what patients expect from health care providers. It is difficult to
        contemplate that such a service falls outside the [Medical
        Malpractice] Act.” Id. at 186. A private party may not usually
        enforce rights under a statute designed to protect the public in
        general and which contains an enforcement provision. Id. at 187
        (quoting, Estate of Cullop v. State, 821 N.E.2d 403 (Ind. Ct. App.
        2005)[, reh’g denied]). “Whether a statute creates a private right of
        action is a question of law for the court.” Id.

        Here, Defendant IU Health was required to maintain the records,
        but the gravamen of the case is the alteration of health records by
        Defendants Lucich and Longmuir. They are health care
        providers subject to, not only the MMA, but to disciplinary
        sanctions governing providers[’] licensure, registration or
        certification under Indiana Code Title 25. (see I.C. § 25-1-9;
        specifically, I.C. § 25-1-9-4(a)(1)(B) concerning disciplinary
        action by the governing board when a practitioner has “engaged
        in fraud or material deception in the course of professional
        services or activities”). Since the legislature has provided
        statutory enforcement mechanisms within both the MMA and
        Title 25, a private right of action does not exist against Lucich
        and Longmuir in this instance.



Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020          Page 7 of 20
        THEREFORE, Defendants’ Motion to Dismiss is GRANTED
        as to Defendants Lucich and Longmuir.


Appellant’s Appendix Volume II at 178-181. With respect to Ind. Trial Rule

12(B)(6), the court found that “under the facts and circumstances known to the

parties on the date of the settlement of the Medical Malpractice Action, res

judicata applies to all three counts alleged.” Id. at 183. It found that alteration

of evidence such as medical records constitutes spoliation and that first-party

spoliation claims have been rejected. Id. at 184. The court’s order also states:


                                       3. Standing of NCS

        “[S]tanding focuses on whether the complaining party is the
        proper person to invoke the court’s power.” State ex rel. Steinke v.
        Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005) (quotation
        omitted), trans. denied. “The main purpose of standing is to
        insure [sic] that the party before the court has a substantive right
        to enforce the claim that is being made in the litigation.” Schulz
        v. State, 731 N.E.2d 1041, 1044 (Ind. Ct. App. 2000) (citing Pence
        v. State, 652 N.E.2d 486, 487 (Ind. 1995)[, reh’g denied])[, trans.
        denied]. Here, NCS represented the Cortezes in the Medical
        Malpractice Action. (Compl. ¶ 28).

        Indiana Code § 34-18-2-22 provides in pertinent part: “Derivative
        claims include the claim of a parent or parents, guardian, trustee,
        child, relative, attorney, or any other representative of the patient
        including claims for loss of services, loss of consortium, expenses,
        and other similar claims.” (emphasis added.) In Indiana Patient’s
        Compensation Fund v. Wolfe, 735 N.E.2d 1187, 1192 (Ind. Ct.
        App. 2000), [trans. denied,] this Court determined that the
        statutory definition of “patient” included only “a person who
        receives or should have received health care.” Too, “any
        derivative claim that might arise from the malpractice committed
        on the patient is included within that patient’s claim.” Id. Any
Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020          Page 8 of 20
               expenses or damages incurred by NCS in prosecution of the
               Medical Malpractice Action is solely a matter of the contract
               between NCS and the Cortezes.

               THEREFORE, NCS lacks standing and is dismissed as a party.


       Id. at 184-185. In November 2019, the court granted Defendants’ motion to

       correct clerical error clarifying that it intended to state that IU Health,

       Longmuir, and Lucich were each dismissed pursuant to Ind. Trial Rule

       12(B)(1).


                                                      Discussion

[10]   The dispositive issue is whether the trial court erred in determining it did not

       have subject matter jurisdiction. Plaintiffs cite Howard Reg’l Health Sys. v.

       Gordon, 952 N.E.2d 182 (Ind. 2011), and state that, if their claims were simply

       predicated upon the destruction of medical records, then Defendants’ assertion

       that they must present their claims to a medical review panel prior to bringing

       suit would be accurate. Appellants’ Brief at 24. They argue that they do not

       contend Defendants simply failed to maintain Santos’s records, but rather that

       Defendants “proffered altered medical records in conjunction with perjured

       testimony in an attempt to support a contrived contributory negligence

       defense.” Id. They assert that, “[i]n contrast to the mere maintenance of

       medical records, the fraudulent alteration of records and facilitation of perjury

       have nothing to do with ‘curative or salutary conduct’ or the ‘exercise of

       professional expertise, skill, or judgment’ and are, instead, actions decidedly

       unrelated to healthcare,” the MMA is not applicable, and the trial court had


       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020             Page 9 of 20
       subject matter jurisdiction over their claims. Id. They also argue that “policy

       considerations also favor reversal because, if this Court affirms the trial court,

       nothing will deter other unscrupulous providers from perpetrating similar

       frauds.” Id. at 28.


[11]   Defendants argue that Plaintiffs’ claims fall within the purview of the MMA

       and they consequently must bring their claims before the medical review panel

       and the trial court lacks subject matter jurisdiction until that condition

       precedent has been satisfied. They assert Plaintiffs’ attempt to distinguish

       Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182 (Ind. 2011), fails because the

       alleged acts all stem from the maintenance of the medical records which the

       Indiana Supreme Court has declared falls within the definition of malpractice.


[12]   In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial

       court may consider not only the complaint and motion but also any affidavits or

       evidence submitted in support. GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind.

       2001). The standard of appellate review for such a motion depends on what

       occurred in the trial court, and on “(i) whether the trial court resolved disputed

       facts; and (ii) if the trial court resolved disputed facts, whether it conducted an

       evidentiary hearing or ruled on a ‘paper record.’” Id. at 401. We review de

       novo a trial court’s ruling on a motion to dismiss where, as here, the facts

       before the court are disputed and the trial court rules on a paper record. Id.

       Under such circumstances a court of review is in as good a position as the trial

       court to determine whether the court has subject matter jurisdiction. Id.

       Although the trial court held a hearing on the motion to dismiss, the hearing

       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020            Page 10 of 20
       was simply an oral argument as the parties presented no evidence and no

       witnesses were sworn. Accordingly, we apply a de novo standard of review

       based on the paper record before us.


[13]   The MMA requires the presentation of the proposed complaint to a medical

       review panel before an action may be commenced in a court in Indiana. Metz as

       Next Friend of Metz v. Saint Joseph Reg’l Med. Ctr.-Plymouth Campus, Inc., 115

       N.E.3d 489, 494 (Ind. Ct. App. 2018) (citing Ind. Code § 34-18-8-4).

       “Essentially, the [MMA] grants subject matter jurisdiction over medical

       malpractice actions first to the medical review panel, and then to the trial

       court.” Id. (quoting H.D. v. BHC Meadows Hospital, Inc., 884 N.E.2d 849, 853

       (Ind. Ct. App. 2008), reh’g denied, trans. denied; and citing B.R. ex rel. Todd v.

       State, 1 N.E.3d 708, 713 (Ind. Ct. App. 2013) (“Simply said, the [MMA] grants

       subject matter jurisdiction over medical malpractice actions first to the medical

       review panel, and then to the trial court.”), trans. denied). See also Eads v. Cmty.

       Hosp., 932 N.E.2d 1239, 1246 (Ind. 2010) (holding that the MMA “requires that

       claims for medical malpractice that are recognized under tort law and

       applicable statutes be pursued through the procedures of the MMA”) (citing

       Chamberlain v. Walpole, 822 N.E.2d 959, 963 (Ind. 2005)).


[14]   The MMA defines “malpractice” as “a tort or breach of contract based on

       health care or professional services that were provided, or that should have been

       provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18. Ind.

       Code § 34-18-2-22 provides:



       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020           Page 11 of 20
               “Patient” means an individual who receives or should have
               received health care from a health care provider, under a
               contract, express or implied, and includes a person having a
               claim of any kind, whether derivative or otherwise, as a result of
               alleged malpractice on the part of a health care provider.
               Derivative claims include the claim of a parent or parents,
               guardian, trustee, child, relative, attorney, or any other
               representative of the patient including claims for loss of services,
               loss of consortium, expenses, and other similar claims.


       The Indiana Supreme Court has held that “[t]he effect of this provision is

       merely to require that any person who has a ‘derivative claim’ for medical

       malpractice follow the requirements of the MMA in filing a proposed complaint

       with the Insurance Commissioner, etc.” Chamberlain, 822 N.E.2d at 963.

       “Health care” is “an act or treatment performed or furnished, or that should

       have been performed or furnished, by a health care provider for, to, or on behalf

       of a patient during the patient’s medical care, treatment, or confinement.” Ind.

       Code § 34-18-2-13.


[15]   The Indiana Supreme Court has held:


               Indiana courts understand the [MMA] to cover “curative or
               salutary conduct of a health care provider acting within his or her
               professional capacity,” Murphy v. Mortell, 684 N.E.2d 1185, 1188
               (Ind. Ct. App. 1997), [trans. denied,] but not conduct “unrelated to
               the promotion of a patient’s health or the provider’s exercise of
               professional expertise, skill, or judgment.” Collins v. Thakkar, 552
               N.E.2d 507, 510 (Ind. Ct. App. 1990)[, trans. denied].

       Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011). “To

       determine whether the [MMA] is applicable, the court looks to the substance of


       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020          Page 12 of 20
       a claim.” Id. (citing Van Sice v. Sentany, 595 N.E.2d 264 (Ind. Ct. App. 1992)).

       “[R]egardless of what label a plaintiff uses, claims that boil down to a ‘question

       of whether a given course of treatment was medically proper and within the

       appropriate standard’ are the ‘quintessence of a malpractice case.’” Id. (quoting

       Van Sice, 595 N.E.2d at 267). “By contrast, to fall outside the Malpractice Act a

       health care provider’s actions must be demonstrably unrelated to the promotion

       of the plaintiff’s health or an exercise of the provider’s professional expertise,

       skill, or judgment.” Id. at 186.


[16]   We find Howard Reg’l Health Sys. v. Gordon instructive. In that case, Lisa

       Gordon was admitted to Howard County Community Hospital in labor. Id. at

       184. Dr. Richard A. Gard had provided Lisa’s prenatal care. Id. He delivered

       Jacob Gordon by caesarian section after determining the baby was in a breech

       position, on January 7, 1999. Id. Sometime thereafter it became apparent that

       Jacob suffered from numerous serious disorders. Id. The Gordons believed

       that Jacob’s conditions may have been caused by substandard medical care at

       the time of his birth. Id. Counsel for Lisa first requested medical records from

       the Hospital in December 2003 and then in 2004. Id. Counsel made additional

       requests after it became apparent there were gaps in the medical records turned

       over. Id.


[17]   In 2005, the Gordons filed a complaint for damages with the Indiana

       Department of Insurance as required by the MMA. Id. The complaint named

       Howard Regional as the sole defendant and alleged that one of the hospital

       nurses did not conform to the applicable standard of medical care, causing
       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020          Page 13 of 20
       damage to Jacob. Id. In March 2006, the Gordons filed a motion to compel

       discovery. Id. The Hospital filed affidavits dated June 5, 2006, stating that

       some of the records could not be located. Id. The missing records included

       nursing and narrative notes. Id.


[18]   The Gordons filed an amended complaint against the Hospital, named three

       additional defendants, and included in part Count I, medical negligence against

       Howard Regional, and Count II, third-party spoliation of evidence against

       Howard Regional. Id.


[19]   The Gordons moved for partial summary judgment against Howard Regional

       with respect to Count II, the third-party spoliation claim. Id. In support, they

       tendered the affidavit of a neonatologist stating she could not determine

       whether the standard of care was met because of the missing medical records.

       Id. at 184-185. After a hearing, the trial court granted the Gordons partial

       summary judgment and authorized an interlocutory appeal by Howard

       Regional. Id. at 185. Howard Regional appealed, and another panel of this

       Court affirmed. Id.


[20]   On transfer, the Indiana Supreme Court addressed two threshold questions:

       whether the Gordons’ spoliation claim fell within the general scope of the

       MMA and whether Indiana’s statute on maintenance of health records statute

       created a private right of action. Id. The Court held:


               Splitting out separate actions by a provider has usually been held
               contrary to the Act. In determining that both the activity of
               credentialing and medical malpractice should be reviewed
       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020       Page 14 of 20
                  together under the Act, the Court of Appeals explained the
                  landscape well:

                           Viewed from the historical perspective we believe the
                           conclusion is inescapable that our General Assembly
                           intended that all actions the underlying basis for
                           which is alleged medical malpractice are subject to
                           the act. [T]he obvious purpose of the act is to
                           provide some measure of protection to health care
                           providers from malpractice claims, and to preserve
                           the availability of the professional services of
                           physicians and other health care providers in the
                           communities and thereby protect the public health
                           and well-being[.]

                  Winona Mem’l Hosp., LP v. Kuester, 737 N.E.2d 824, 828 (Ind. Ct.
                  App. 2000) (quoting Sue Yee Lee v. Lafayette Home Hosp., Inc., 410
                  N.E.2d 1319, 1324 (Ind. Ct. App. 1980)).[ 5]


       Id. at 186.


[21]   With that background in mind, the Court held:


                  The Gordons’ underlying claim in Count II alleges medical
                  malpractice because the “[m]aintenance of health records by
                  providers” is so closely entwined with health care and because




       5
           The Court included a footnote which stated:

                  Parents contended their trial court complaint represented an independent action for
                  damages outside the purview of the Act. The parents believed their claim for the loss of
                  services of their child and for medical expenses was outside the Act because they were
                  never patients of the defendant health care providers, either under the statutory definition
                  or under recognized definitions of the term, and they were not suing in representative
                  capacity. The court held the parents’ right of action was derived from a claim of medical
                  malpractice and thus covered by the Act. Sue Yee Lee, 410 N.E.2d at 1324.
       952 N.E.2d at 186 n.2.

       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                                   Page 15 of 20
                  records in general are so important to a medical review panel’s
                  assessment of whether the appropriate standard of care was met.
                  Ind. Code §§ 16-39-7-1, 34-18-10-22(a). The Gordons rightly
                  acknowledge how important health care records are for “the
                  nature and quality of the health care provided, for billing
                  purposes, and peer review.” (Appellee’s Br. at 16.) (emphasis
                  added)[.] Surely the skillful, accurate, and ongoing maintenance
                  of test and treatment records bears strongly on subsequent
                  treatment and diagnosis of patients. It is a part of what patients
                  expect from health care providers. It is difficult to contemplate
                  that such a service falls outside the Act.


       Id.


[22]   The Court then addressed “the Gordons’ contention that the statute on

       maintenance of health records creates a private right of action separate from

       the” MMA and the Gordons’ argument that subsection (d) “implicitly

       recognizes that there is civil liability on the part of a healthcare provider if it

       violates Ind. Code § 16-39-7-1.” 6 Id. The Court concluded that “neither the




       6
           Ind. Code § 16-39-7-1 is titled “Maintenance of health care records by providers” and provides:

                  (a) As used in this section, “provider” means the following:
                                                               *****
                            (8) A physical therapist.
                                                               *****
                            (13) A hospital or facility licensed under IC 16-21-2 or IC 12-25 or described in IC
                            12-24 or IC 12-29.
                  (b) A provider shall maintain the original health records or microfilms of the records for at
                  least seven (7) years.
                  (c) A provider who violates subsection (b) commits an offense for which a board may
                  impose disciplinary sanctions against the provider under the law that governs the provider’s
                  licensure, registration, or certification under this title or IC 25.
                  (d) A provider is immune from civil liability for destroying or failing to maintain a health
                  record in violation of this section if the destruction or failure to maintain the health record
                  occurred in connection with a disaster emergency as declared by the governor under IC 10-


       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                                    Page 16 of 20
       rules of statutory construction nor the history of the enactment lead to the idea

       that Section 1(d) confers a private remedy for the Gordons.” Id. at 188.


[23]   The Court then discussed first-party and third-party spoliation claims. 7 Id. The

       Court clarified that first-party spoliation refers to the spoliation of evidence by a

       party to the principal litigation and third-party spoliation refers to spoliation by

       a non-party. Id. The Court observed that it answered two certified questions in

       Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005), and limited its

       answers in that case to first-party spoliation. Id. The Court held:


                Our decision in Gribben to forgo recognizing a distinct cause of
                action for first-party spoliation likewise comports with the
                approach of many courts that have instead addressed such
                allegations in the underlying litigation through sanctions,
                including adverse inference instructions and other mechanisms.
                See Cedars-Sinai Med. Ctr. v. Superior Court (Bowyer), 18 Cal.4th 1,
                74 Cal.Rptr.2d 248, 954 P.2d 511, 517 (1998) (“[T]here are a
                number of nontort remedies that seek to punish and deter the
                intentional spoliation of evidence. Chief among [which] is the
                evidentiary inference that evidence which one party has
                destroyed or rendered unavailable was unfavorable to that
                party.”); see also Leon v. IDX Sys. Corp., 464 F.3d 951, 958, 960-63
                (9th Cir. 2006) (affirming dismissal against party for bad faith
                destruction of relevant evidence); cf. Ind. Trial Rule 37 (a court




                14-3-12 or other disaster, unless the destruction or failure to maintain the health record was
                due to negligence by the provider.

       7
        “Spoliation consists of ‘[t]he intentional destruction, mutilation, alteration, or concealment of evidence,
       usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the
       party responsible.’” Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000) (quoting BLACK’S LAW
       DICTIONARY 1409 (7th ed. 1999)).

       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                                 Page 17 of 20
        may sanction a party, including dismissal of a claim or defense,
        for failing to comply with a discovery order).


Id. at 189. The Court further held:


        Our decision in Gribben rested partly on similar analysis. In
        declining to recognize first-party spoliation claims we concluded,

                 Notwithstanding the important considerations
                 favoring the recognition of an independent tort of
                 spoliation by parties to litigation, we are persuaded
                 that these are minimized by existing remedies and
                 outweighed by the attendant disadvantages. We thus
                 determine the common law of Indiana to be that, if
                 an alleged tortfeasor negligently or intentionally
                 destroys or discards evidence that is relevant to a tort
                 action, the plaintiff in the tort action does not have an
                 additional independent cognizable claim against the
                 tortfeasor for spoliation of evidence under Indiana
                 law.

        Gribben, 824 N.E.2d at 355. We did acknowledge that fairness
        and integrity of outcome and deterrence might require a separate
        tort remedy against persons who are not parties to the principal
        litigation, but as the certified question did not necessitate
        examination of third-party spoliation, we did not address it
        further.

        The following year in Glotzbach v. Froman, we first considered
        whether an employee could sue his employer in tort, outside the
        Worker’s Compensation Act, for loss of evidence about his injury
        on the job, evidence said to be needed for litigation against the
        maker of a pump that exploded at the worksite. 854 N.E.2d 337
        (Ind. 2006). We concluded the disadvantages in first-party
        spoliation militated against recognizing a third-party claim in
        that setting:


Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020            Page 18 of 20
                 Proving damages in a third-party spoliation claim
                 becomes highly speculative and involves a lawsuit in
                 which the issue is the outcome of another
                 hypothetical lawsuit. The jury must somehow find
                 all the elements of a product liability case,
                 immediately determining whether a product defect
                 caused the injury, as opposed to inadequate
                 maintenance, or other intervening events. The jury
                 would be asked to determine what the damages
                 would have been had the evidence been produced
                 and what the collectibility of these damages would
                 have been. We think this exercise often could
                 properly be described as “guesswork.”

        Id. at 341 (citing Petrik v. Monarch Printing Corp., 150 Ill.App.3d
        248, 103 Ill.Dec. 774, 501 N.E.2d 1312, 1320 (1986)).

        Necessarily working from the background of Gribben and
        Glotzbach, and our observation that fairness and integrity of
        outcome might sometime require recognizing such a claim, the
        Gordons urge that theirs is an instance warranting an
        independent tort for third-party spoliation. The theory runs like
        this: when it comes time to prove the Gordons’ claim against Dr.
        Gard, the Hospital’s loss of medical records hinders their ability
        to pursue a claim against Dr. Gard. Thus, they say, the Hospital
        is a third party against whom a separate tort for spoliation is
        needed. The Hospital, of course, is also a first-party defendant.

        We conclude that splitting up the defendants, and the counts
        against them, blurs the distinction between actual defendants and
        others who may possess evidence but are not parties to the
        litigation. What the Gordons’ case presents is really a claim for
        first-party spoliation, carrying the same advantages and
        disadvantages we weighed in Gribben and Glotzbach.


Id. at 190.


Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020             Page 19 of 20
[24]   The Court observed that the MMA “generally requires that actions for medical

       negligence against health care providers must first be submitted to, and an

       opinion given by, a medical review panel before commencing an action in

       court.” Id. at 191 (citing Ind. Code § 34-18-8-4). The Court held that the

       Hospital was entitled to summary judgment on the claim of spoliation because

       the Court declined to recognize the count as representing a separate cause of

       action. Id.


[25]   Based upon the Indiana Supreme Court’s opinion in Gordon, we conclude that

       the maintenance of health care records in this case including their alteration

       prior to the filing of the proposed complaint alleging malpractice against IU

       Health fall within the scope of the MMA. Plaintiffs did not submit these claims

       to a medical review panel. Accordingly, we affirm the trial court’s grant of

       Defendants’ motion to dismiss. 8


[26]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       8
         Because we affirm on the basis of Ind. Trial Rule 12(B)(1), we need not address Plaintiffs’ arguments
       regarding Ind. Trial Rule 12(B)(6).


       Court of Appeals of Indiana | Opinion 19A-CT-2540 | July 20, 2020                               Page 20 of 20
