FOR PUBLICATION
                                                            Sep 25 2013, 9:58 am




ATTORNEY FOR APPELLANTS:                       ATTORNEYS FOR APPELLEE:

JOHN P. NICHOLS                                MICHELE S. BRYANT
Anderson & Nichols                             CRYSTAL SPIVEY WILDEMAN
Terre Haute, Indiana                           Kahn, Dees, Donovan & Kahn, LLP
                                               Evansville, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

STEVEN HARPER and ROSE HARPER                  )
AS CO-PERSONAL REPRESENTATIVES                 )
OF THE ESTATE OF STEVEN HARPER,                )
DECEASED,                                      )
                                               )
      Appellants-Plaintiffs-Respondents,       )
                                               )
             vs.                               )        No. 42A04-1302-MI-95
                                               )
GERRY HIPPENSTEEL, M.D.,                       )
                                               )
      Appellee-Defendant-Petitioner.           )


                       APPEAL FROM THE KNOX SUPERIOR COURT
                          The Honorable W. Timothy Crowley, Judge
                               Cause No. 42D01-1208-MI-14



                                   September 25, 2013


                             OPINION - FOR PUBLICATION


BRADFORD, Judge
                                     CASE SUMMARY

       In October of 2007 and again in April of 2008, Appellee-Defendant-Petitioner Dr.

Gerry Hippensteel and Nurse Practitioner Vonetta Vories (“NP Vories”) entered into an

Indiana Collaborative Practice Agreement for Prescriptive Authority (“CPA”) in which Dr.

Hippensteel agreed to be available to NP Vories for consultation. Steven Harper, Jr.

(“Harper, Jr.”) received medical care and treatment from NP Vories at the Primary Care

Clinic in Vincennes prior to and during November of 2008. Harper, Jr. died on November

26, 2008, after suffering an acute pulmonary embolism and deep venous thrombosis.

       On November 23, 2010, Appellants-Plaintiffs-Respondents Steven Harper, Sr. and

Rose Harper (collectively, “the Harpers”), acting as co-personal representatives of the estate

of Harper, Jr., filed a Proposed Complaint against Dr. Hippensteel with the Indiana

Department of Insurance. In this Proposed Complaint, the Harpers alleged that in 2008, Dr.

Hippensteel was negligent in providing medical care and treatment to Harper, Jr., and that

Harper, Jr. died as a result of Dr. Hippensteel’s negligence. Dr. Hippensteel subsequently

filed a Petition for Preliminary Determination of Law/Motion for Summary Judgment in the

trial court. In this petition/motion, Dr. Hippensteel sought a determination regarding whether

he owed a duty to Harper, Jr. despite the fact that he did not treat Harper, Jr. or participate in

any way in Harper, Jr.’s care or treatment. The Harpers, for their part, argued that Dr.

Hippensteel owed a duty to Harper, Jr. because he entered into a CPA with the treating nurse

practitioner, NP Vories.




                                                2
      Following a hearing, the trial court granted summary judgment in favor of Dr.

Hippensteel. On appeal, the Harpers contend that the trial court erred in granting summary

judgment in favor of Dr. Hippensteel. Concluding that the trial court properly granted

summary judgment in favor of Dr. Hippensteel because he did not owe a duty to Harper, Jr.,

we affirm.

                      FACTS AND PROCEDURAL HISTORY

      At all times relevant to this appeal, Dr. Hippensteel was engaged in the private

practice of medicine in Vincennes. Also at all times relevant to this appeal, NP Vories

worked as a nurse practitioner at the Primary Care Clinic in Vincennes. In October of 2007

and again in April of 2008, Dr. Hippensteel and NP Vories entered into a CPA in which Dr.

Hippensteel agreed to be available to NP Vories for consultation. The CPA provided that Dr.

Hippensteel would review a random 5% sampling of NP Vories’s patient records, including

records of the medications prescribed by NP Vories. The CPA explicitly stated that it was

not intended to serve as a substitute for NP Vories’s independent clinical judgment and did

not place increased liability on Dr. Hippensteel for those decisions made by NP Vories.

      Harper, Jr. received medical care and treatment from NP Vories at the Primary Care

Clinic in Vincennes prior to and during November of 2008. Harper, Jr. died on November

26, 2008, after suffering an acute pulmonary embolism and deep venous thrombosis.

      On November 23, 2010, the Harpers, acting as co-personal representatives of the

Estate of Harper, Jr., filed a Proposed Complaint against Dr. Hippensteel with the Indiana

Department of Insurance. In this Proposed Complaint, the Harpers alleged that in 2008, Dr.



                                            3
Hippensteel was negligent in providing medical care and treatment to Harper, Jr., and that

Harper, Jr. died as a result of Dr. Hippensteel’s negligence. The medical review panel of the

Indiana Department of Insurance has yet to issue an opinion relating to any alleged

negligence on behalf of Dr. Hippensteel.

        Dr. Hippensteel subsequently filed a Petition for Preliminary Determination of

Law/Motion for Summary Judgment in the trial court.                     In this petition/motion, Dr.

Hippensteel sought a determination regarding whether he owed a duty to Harper, Jr. despite

the fact that he did not treat Harper, Jr. or participate in any way in Harper, Jr.’s care or

treatment. The Harpers, for their part, argued that Dr. Hippensteel owed a duty to Harper, Jr.

because he entered into a CPA with the treating nurse practitioner, NP Vories. Following a

hearing, the trial court granted summary judgment in favor of Dr. Hippensteel, determining

that Dr. Hippensteel did not have a physician-patient relationship with Harper, Jr., and did

not owe a duty to Harper, Jr. “solely because [he] had executed a [CPA]” with NP Vories.

Appellants’ App. p. 5. This appeal follows.

                                DISCUSSION AND DECISION

        Initially, we note that in medical malpractice cases such as the case at bar, a trial court

has only limited jurisdiction prior to the submission of an expert opinion by a medical review

panel. Dixon v. Siwy, 661 N.E.2d 600, 605 (Ind. Ct. App. 1996). This limited jurisdiction

includes the jurisdiction to rule upon issues not preserved for the medical review panel1

which can be preliminary determined under a Trial Rule 12 motion to dismiss or a Trial Rule


        1
           Issues preserved for the medical review panel include those pertaining to whether the defendant
failed to meet the requisite standard of care in treating the patient. See Dixon, 661 N.E.2d at 605.

                                                    4
56 motion for summary judgment. Id. at 606. Where, as here, the trial court is asked to

determine whether, given a seemingly undisputed set of facts, a physician-patient relationship

existed, the question is a legal question for the court and is not reserved for the medical

review panel. Id. at 607.

                     I. Whether the Trial Court Erred in Granting
                    Summary Judgment in Favor of Dr. Hippensteel

       The Harpers contend that the trial court erred in granting summary judgment in favor

of Dr. Hippensteel because Dr. Hippensteel breached a duty owed to Harper, Jr. In making

this claim, the Harpers concede that Dr. Hippensteel did not provide treatment to or

participate in the care or treatment of Harper, Jr. The Harpers argue, however, that Dr.

Hippensteel nevertheless engaged in a physician-patient relationship with Harper, Jr. because

he entered into a CPA with NP Vories. Dr. Hippensteel argues on appeal that he had no duty

to Harper, Jr. because he did not participate in Harper, Jr.’s care or treatment, and also

because the CPA that he entered into with NP Vories did not create a physician-patient

relationship between himself and any of NP Vories’s patients.

                                  A. Standard of Review

               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. In reviewing a motion for
       summary judgment, this Court stands in the shoes of the trial court. This Court
       must liberally construe all designated evidentiary matter in favor of the non-
       moving party and resolve any doubt against the moving party. Even if it
       appears that the non-moving party will not succeed at trial, summary judgment
       is inappropriate where material facts conflict or undisputed facts lead to
       conflicting inferences. The existence of a genuine issue of material fact shall
       not be ground for reversal on appeal unless such fact was designated to the
       trial court and is included in the record.


                                              5
Stryczek v. Methodist Hosps., Inc., 656 N.E.2d 553, 554 (Ind. Ct. App. 1995).

                B. Whether Dr. Hippensteel Owed a Duty to Harper Jr.

       The Harpers’ claims against Dr. Hippensteel are premised on a theory of negligence.

In order to recover under a theory of negligence, a plaintiff must establish three elements:

       (1) a duty on the part of the defendant to conform his conduct to a standard of
       care arising from his relationship with the plaintiff, (2) a failure of the
       defendant to conform his conduct to the requisite standard of care required by
       the relationship, and (3) an injury to the plaintiff proximately caused by the
       breach.

Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991). In the instant appeal, we need consider

only the first element relating to the existence of a duty. The question of whether the

defendant owed a duty to another is a question of law. See id.

                            1. Physician-Patient Relationship

       In medical malpractice cases, the duty owed by a physician arises from the physician-

patient relationship.

       Thus, a physician-patient relationship is a legal prerequisite to a medical
       malpractice cause of action. See [Dixon, 661 N.E.2d at 607.] Additionally,
       that duty arises from the contractual relationship entered into between the
       doctor and patient. Walker v. Rinck, 604 N.E.2d 591, 594 (Ind. 1992).
       Generally, where a doctor does not treat, see, or in any way participate in the
       care or diagnosis of the plaintiff-patient … a doctor-patient relationship will
       not be found to exist. Dixon, 661 N.E.2d at 607. As noted in Dixon, our
       research has revealed “no authority for the proposition that a physician-patient
       relationship may be established without the physician performing some
       affirmative act with regard to the patient and without the physician’s
       knowledge.” Id. In the absence of a physician-patient relationship, there can
       be no liability on the part of the defendant physician, and the entry of summary
       judgment is appropriate. Id.

Miller v. Martig, 754 N.E.2d 41, 46 (Ind. Ct. App. 2001).


                                              6
       With respect to Harper, Jr., Dr. Hippensteel averred that he never saw Harper, Jr. as a

patient, and that he did not ever speak with NP Vories concerning Harper, Jr. Dr.

Hippensteel did not review any of Harper, Jr.’s medical records prior to the initiation of the

instant action. Dr. Hippensteel averred that he did not make any recommendations to Harper,

Jr. or any of his health care providers regarding his condition or any course of treatment. Dr.

Hippensteel also averred that he did not participate in any course of Harper, Jr.’s treatment

and had no involvement whatsoever with his medical care. Dr. Hippensteel further averred

that he “had never heard of [Harper, Jr.] until two years after he died when [Dr. Hippensteel]

was named as a Defendant in a Proposed Complaint filed with the Indiana Department of

Insurance by the Personal Representatives of his Estate.” Appellants’ App. p. 15. The

Harpers do not appear to dispute any of these facts. Moreover, NP Vories did not work for

Dr. Hippensteel, but rather worked for the Primary Care Clinic which appears to be owned

and operated by Good Samaritan Hospital.

       Upon review, we conclude that these seemingly undisputed facts demonstrate that, in

the traditional sense, Dr. Hippensteel was not engaged in a physician-patient relationship

with Harper Jr., as he did not perform any affirmative act with regard to Harper, Jr. As such,

we further conclude that, generally, Dr. Hippensteel did not owe a duty to Harper, Jr. See

Miller, 754 N.E.2d at 46; Dixon, 661 N.E.2d at 607. However, we must next turn our

attention to the question of whether a physician-patient relationship exists solely because the

physician entered into a CPA with the treating nurse practitioner.

         a. Overview of the Practice of Advanced Practice Nurses in Indiana



                                              7
       In determining whether Dr. Hippensteel could be found to have engaged in a

physician-patient relationship with Harper, Jr. by way of the CPA entered into between Dr.

Hippensteel and NP Vories, we find it helpful to provide an overview of Indiana law relating

to the practice of advanced practice nurses and nurse practitioners in Indiana.

       “Advanced practice nurse” means a registered nurse holding a current license
       in Indiana who:
       (1) has obtained additional knowledge and skill through a formal, organized
       program of study and clinical experience, or its equivalent, as determined by
       the board;
       (2) functions in an expanded role of nursing at a specialized level through the
       application of advanced knowledge and skills to provide healthcare to
       individuals, families, or groups in a variety of settings, including, but not
       limited to:
              (A) homes;
              (B) institutions;
              (C) offices;
              (D) industries;
              (E) schools;
              (F) community agencies;
              (G) private practice;
              (H) hospital outpatient clinics; and
              (I) health maintenance organizations; and
       (3) makes independent decisions about the nursing needs of clients.

848 Ind. Admin. Code 4-1-3(a).

       The three (3) categories of advanced practice nurses as defined in IC 25-23-
       1-1[2] are as follows:

       2
         Indiana Code section 25-23-1-1(b) provides as follows:
       “Advanced practice nurse” means:
                (1) a nurse practitioner;
                (2) a certified nurse midwife; or
                (3) a clinical nurse specialist;
       who is a registered nurse qualified to practice nursing in a specialty role based upon the
       additional knowledge and skill gained through a formal organized program of study and
       clinical experience, or the equivalent as determined by the board, which does not limit but
       extends or expands the function of the nurse which may be initiated by the client or provider
       in settings that shall include hospital outpatient clinics and health maintenance organizations.


                                                      8
        (1) Nurse practitioner as defined in section 4 of this rule (848 IAC 4-1-4).
        (2) Certified nurse-midwife as defined in 848 IAC 3-1.
        (3) Clinical nurse specialist as defined in section 5 of this rule (848 IAC 4-
        1-5).

848 Ind. Admin. Code 4-1-3(b).

        In the instant matter, NP Vories was a nurse practitioner.

        “Nurse practitioner” means an advanced practice nurse who provides advanced
        levels of nursing client care in a specialty role, who meets the requirements of
        an advanced practice nurse as outlined in section 3 of this rule (848 IAC 4-1-
        3), and who has completed any of the following:
        (1) A graduate program offered by a college or university accredited by the
        Commission on Recognition of Postsecondary Accreditation which prepares
        the registered nurse to practice as a nurse practitioner and meets the
        requirements of section 6 of this rule (848 IAC 4-1-6).
        (2) A certificate program offered by a college or university accredited by the
        Commission on Recognition of Postsecondary Accreditation which prepares
        the registered nurse to practice as a nurse practitioner and meets the
        requirements of section 6 of this rule (848 IAC 4-1-6). Nurse practitioners
        who complete a certificate program must be certified and maintain certification
        as a nurse practitioner by a national organization which requires a national
        certifying examination.
        (3) Prior to the promulgation of this article (848 IAC 4), the following:
                (A) A formal organized program of study and clinical experience which
        prepares the registered nurse to practice as a nurse practitioner.
                (B) The required program of study at a time when there was no
        credentialing or certification process available in the specialty area of the
        program of study.

848 Ind. Admin. Code 4-1-4(a). “‘NP’ means nurse practitioner and are the designated

authorized initials to be used by the nurse practitioner.” 848 Ind. Admin. Code 4-1-4(b).

        A nurse practitioner shall perform as an independent and interdependent member

of a health team.3 The following are standards for each nurse practitioner:


        3
            “‘Health team’ means a group of health care providers which may, in addition to health care
practitioners, include the patient/client, family, and any significant others.” 848 Ind. Admin. Code 2-1-3.


                                                    9
(1) Assess clients by using advanced knowledge and skills to:
        (A) identify abnormal conditions;
        (B) diagnose health problems;
        (C) develop and implement nursing treatment plans;
        (D) evaluate patient outcomes; and
        (E) collaborate with or refer to a practitioner, as defined in IC 25-23-1-
19.4, in managing the plan of care.
(2) Use advanced knowledge and skills in teaching and guiding clients and
other health team members.
(3) Use appropriate critical thinking skills to make independent decisions,
commensurate with the autonomy, authority, and responsibility of a nurse
practitioner.
(4) Function within the legal boundaries of their advanced practice area and
shall have and utilize knowledge of the statutes and rules governing their
advanced practice area, including the following:
        (A) State and federal drug laws and regulations.
        (B) State and federal confidentiality laws and regulations.
        (C) State and federal medical records access laws.
(5) Consult and collaborate with other members of the health team as
appropriate to provide reasonable client care, both acute and ongoing.
(6) Recognize the limits of individual knowledge and experience, and consult
with or refer clients to other health care providers as appropriate.
(7) Retain professional accountability for any delegated intervention, and
delegate interventions only as authorized by IC 25-23-1 and this title (848
IAC).
(8) Maintain current knowledge and skills in the nurse practitioner area.
(9) Conduct an assessment of clients and families which may include health
history, family history, physical examination, and evaluation of health risk
factors.
(10) Assess normal and abnormal findings obtained from the history, physical
examination, and laboratory results.
(11) Evaluate clients and families regarding development, coping ability, and
emotional and social well-being.
(12) Plan, implement, and evaluate care.
(13) Develop individualized teaching plans with each client based on health
needs.
(14) Counsel individuals, families, and groups about health and illness and
promote attention to wellness.
(15) Participate in periodic or joint evaluations of service rendered, including,
but not limited to, the following:
        (A) Chart reviews.
        (B) Client evaluations.


                                       10
              (C) Outcome statistics.
       (16) Conduct and apply research findings appropriate to the area of practice.
       (17) Participate, when appropriate, in the joint review of the plan of care.

848 Ind. Admin. Code 4-2-1.

       An advanced practice nurse, including a nurse practitioner, may be authorized to

prescribe legend drugs, including controlled substances, if the advanced practice nurse

completes a number of requirements.          848 Ind. Admin. Code 5-1-1. One of these

requirements is that the advanced practice nurse submits 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. 848 Ind. Admin. Code 5-

1-1(7). “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

the advanced practice nurse.” 848 Ind. Admin. Code 5-1-1(7).

               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;


                                               11
                      (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 (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 Ind. Admin. Code 5-1-1(7).

b. Whether Dr. Hippensteel Had a Physician-Patient Relationship with Harper, Jr.
             by Means of the CPA He Entered into with NP Vories

       In the instant matter, Dr. Hippensteel agreed to enter into a CPA with NP Vories. The

CPA read, in relevant part, as follows:

       Manner of Collaboration:
            a.     The [advanced practice nurse] shall be permitted to prescribe
                   legend drugs appropriate for conditions, which the [advanced
                   practice nurse] may treat pursuant to the [advanced practice
                   nurse]’s scope of practice.
            b.     The [advanced practice nurse] will provide professional services
                   in collaboration with above said physician.
            c.     The [advanced practice nurse] will work in collaboration and
                   consultation with above said physician as appropriate to provide
                   reasonable patient care. The [advanced practice nurse] may
                   provide the professional services, including but not limited to
                   the following: assess clients by using advanced knowledge and
                   skills; diagnose health problems; develop and implement
                   treatment plans; make independent decisions commensurate
                   with autonomy, authority and responsibility of a nurse


                                               12
                    practitioner; evaluate clients, plan, implement, and evaluate
                    care; and develop teaching plans.
             d.     This Agreement shall not be construed as limiting, in any way or
                    to any extent, the scope of practice authority provided to the
                    [advanced practice nurse] pursuant to Ind. Admin. Codes.
             e.     The [advanced practice nurse] will practice within the same
                    geographic area as the physician and physician shall be available
                    for consultation by telephone.
             f.     In the event that physician is absent due to incapacity, vacation,
                    infirmity, emergency, etc., physician shall arrange for another
                    qualified physician to collaborate with the [advanced practice
                    nurse] during his absence.
       Limitations: Physician has placed no limitations on the [advanced practice
                    nurse] prescriptive authority.
       Physician Review: The [advanced practice nurse] will submit documentation
                    of her prescribing practice to physician every seven days. Such
                    documentation shall include, but not be limited to, at least a five
                    (5) percent random sampling of the records and medications
                    prescribed for patients.
                                           ****
       Independent Judgment:       This Agreement is not intended to serve as a
                    substitute for the independent judgment of the [advanced
                    practice nurse] based on the specific needs of the patient, and
                    this Agreement does not place increased liability on the
                    physician for those decisions made by the [advanced practice
                    nurse].

Appellants’ App. pp. 21-22 (emphases added).

       Our review of the CPA indicates that pursuant to the terms of the CPA, Dr.

Hippensteel agreed to be available to NP Vories by telephone for consultation, if needed, and

NP Vories agreed to submit a random 5% sample of her treatment files to Dr. Hippensteel for

review on a weekly basis. NP Vories had the authority to assess clients, diagnose health

problems, develop and implement treatment plans, and evaluate care, and the CPA placed no

limits on NP Vories’s prescriptive authority. The CPA indicates that it does not serve as a

substitute for NP Vories’s independent judgment based on the specific needs of her patients.


                                             13
Importantly, the CPA also explicitly states that the CPA does not place increased liability on

Dr. Hippensteel for decisions made by NP Vories.

       Because the CPA explicitly states that its terms do not place any increased liability on

Dr. Hippensteel for decisions made by NP Vories, and indicates that NP Vories had the

independent authority to treat patients as she saw fit, we cannot conclude that Dr.

Hippensteel entered into a physician-patient relationship with each of NP Vories’s patients

merely because he entered into a CPA with NP Vories. Accordingly, because the CPA did

not increase Dr. Hippensteel’s liability, Dr. Hippensteel could only be found to have entered

into a physician-patient relationship and, as a result, acquired a duty to NP Vories’s patients,

if he performed any affirmative act with regard to the patient. See Miller, 754 N.E.2d at 46;

Dixon, 661 N.E.2d at 607. Again, the record in the instant matter indicates that Dr.

Hippensteel did not do so with regard to Harper, Jr.

       In sum, we conclude that Dr. Hippensteel did not owe a duty to Harper, Jr. because he

did not, at any time, enter into a physician-patient relationship with Harper, Jr. As such, we

conclude that Dr. Hippensteel was entitled to summary judgment.

       The judgment of the trial court is affirmed.

BAILEY, J, and MAY, J., concur.




                                              14
