Indiana Supreme Court Adopts Expansive Interpretation of “Patient” as Used in the Medical Malpractice Act

A little more than a month ago, we briefly noted that the Indiana Supreme Court had accepted two certified questions from the Seventh Circuit that sought to explore the meaning of “Patient” as applied in the Indiana Medical Malpractice Act. Today, we examine the Indiana Supreme Court’s answer to one of the questions and consider whether the concurring opinion should have carried the day.

The two questions sent to the Indiana Supreme Court were:

1. Whether Indiana’s Medical Malpractice Act prohibits the Patient’s Compensation Fund from contesting the Act’s applicability to a claim after the claimant concludes a court-approved settlement with a covered health care provider.

2. Whether Indiana’s Medical Malpractice Act applies to claims brought against qualified providers for individuals who did not receive medical care from the provider, but who are injured as a result of the provider’s negligence in providing medical treatment to someone else.

The court declined to answer the first, instead resolving only the latter of the two questions.

The underlying case arose after a driver apparently took an opioid prescribed to her by her physician and proceeded to collide with another vehicle after she became unable to remove her foot from the accelerator. The collision claimed the lives both of the driver and of the two passengers in the other vehicle. The surviving husband and father respectively of the other vehicle’s occupants brought a claim purportedly in accordance with the Act alleging medical malpractice of the prescribing physician. Thus, the question became whether the husband/father, who never met the physician before the tragic loss of his wife and daughter, is a “Patient” of the physician.

In answering the question, the analysis begins with the text of the Indiana Medical Malpractice Act. Fundamentally, the Medical Malpractice Act applies to claims of a “Patient” against a healthcare provider. Under the Act,

“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 majority opinion, authored by Justice Slaughter, focused on the following operative language (ellipses used for clarity): “‘Patient’ . . . 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.” In light of that language, the majority concluded:

[W]e hold that a statutory “patient”—an eligible claimant under the Act—falls into either of two categories. The first category is a traditional patient, i.e., one with a physician-patient relationship with a health-care provider: “an individual who receives or should have received health care from a health care provider, under a contract, express or implied”. The other category is a third party with a claim against a health-care provider under state law: “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.” This latter category refers to a third party whose claim results from a provider’s malpractice to someone in the first category, namely, a traditional patient. Here, [Plaintiff] is not a traditional patient because he has no patient-provider relationship . . . . But he is nevertheless a statutory “patient” because he has a wrongful-death claim resulting from . . . alleged malpractice to [the other driver], who is [a] traditional patient.

The Indiana Patient’s Compensation Fund resisted that interpretation of the statute, advancing the following interpretation:

“[‘Patient’] means only an individual who receives X, including Y.” That is, a “patient” is the one who received X, which can include Y. Under this interpretation, X is an essential attribute of “patient”, but Y is not. In the Fund’s view, Y illustrates a particular subset of X.

Needless to say, the majority opinion rejected that view, writing:

This proposed interpretation both ignores the structure of the sentence and reads out the definition’s second sentence, which says that “[d]erivative claims include the claim of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient”. “Patient” cannot be limited to “an individual who receives or should have received health care from a health care provider” and still include people related to or representing a person who receives or should have received health care. Under our surplusage canon, courts should give effect to every word and “eschew those [interpretations] that treat some words as duplicative or meaningless.”

Although three other justices joined the majority opinion, one justice did not. Justice David concurred only in the result, finding the unique circumstances of the case to have fit within the ambit of the Act but rejecting the broad interpretation of “Patient” as adopted by the majority. Notably, Justice David once again sounded the alarm on the continued march to expand the scope of Indiana’s Medical Malpractice Act. He recognized that the Act is in contravention of the common law and must be construed narrowly. Indeed, the recognized purpose of the Act is “to curtail, not expand, liability for medical malpractice.” Observing an ambiguity in the text of the statute, Justice David counseled that it ought to have been narrowly construed such that “[a] patient must be someone who received or should have received healthcare” or is the family of such a person.

At the beginning of our discussion, I indicated that we would explore whether the concurring opinion ought to have carried the day. As a general rule, Justice Slaughter and I almost always see eye-to-eye in interpreting statutes. In this instance, however, we view matters differently. I would have adopted the interpretation advanced by the Patient’s Compensation Fund. My reasoning is similar, though not wholly identical, to that of Justice David.

In order to guide our discussion of why I view matters differently from the majority, I invoke the nomenclature and guidance of the treatise Reading Law: The Interpretation of Legal Texts authored by the late Justice Antonin Scalia and renowned legal lexicographer Bryan A. Garner. I choose this source both because it is a source I’ve often relied upon—even having persuaded the Indiana Court of Appeals to follow its guidance in interpreting an ordinance in my clients’ favor—and because it is a source often relied upon by the court in authoring opinions.

The majority opinion invoked two interpretive concepts: the plain-meaning rule and the surplusage canon. As a preliminary matter, invocation of the surplusage canon strikes me as odd. Ultimately, the opinion appears wholly founded upon the view that the plain meaning of the statute resolves the matter. If that is so, then invocation of the surplusage canon is precisely that: surplusage. As Scalia & Garner observe, the plain-meaning rule posits “that if the text of a statute is unambiguous, it should be applied by its terms without recourse to policy arguments, legislative history, or any other matter extraneous to the text—unless this application leads to an absurdity.” The Indiana Supreme Court echoed agreement with that view in O’Bryant v. Adams, writing, “courts need not resort to interpretive canons at all when a word or phrase is unambiguous. In such circumstances, we simply apply the text’s plain meaning.”

While that observation raises a flag on the invocation of the surplusage canon, standing alone, it does not rebut the majority’s conclusion. For that, we need to answer whether there is actually an ambiguity posed by the text of the statute, for, as O’Bryant teaches, if there is no ambiguity, then the lone interpretation derivable from the plain meaning is all that remains. Scalia & Garner define ambiguity as “[a]n uncertainty of meaning based not on the scope of a word or phrase but on a semantic dichotomy that gives rise to any of two or more quite different but almost equally plausible interpretations.” Indiana caselaw has long used the annunciation that an ambiguity exists where reasonable persons may disagree on a text’s interpretation. While the mere fact that both the Patient’s Compensation Fund and Justice David disagreed on the statute’s meaning is not sufficient to demonstrate an ambiguity, nevertheless, I think the text is in fact ambiguous.

Let us return to the text and start with the first sentence of the definition:

“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.

I perceive an ambiguity arising out of the word “includes.” Much of the battle in the submitted interpretation focuses on the “and” before “includes.” But, I think, the word “includes” makes all the difference.

Let us, for a moment, adopt the majority’s interpretation of the statute. Now, remove the word “includes” from the sentence and consider whether it changes the interpretation at all: “‘Patient’ means an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and [ ] 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.” Without the word “includes,” the interpretation adopted by the majority appears plainly correct. If that is so, then the majority’s interpretation has rendered the word “includes” as surplusage. Scalia & Garner’s annunciation of the surplusage canon, however, dictates that, “[i]f possible, every word and every provision to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” If we, as the majority has, interpret “includes” to modify “Patient” and not as modifying the first clause of the sentence, then it appears “includes” is rendered meaningless. To give it independent meaning as a modifier of the first clause as opposed to the word “Patient,” gives it meaning and demonstrates at least an ambiguity in need of resolution.

Having, perhaps, exposed an ambiguity, we now have open the full toolbox of statutory interpretation. With those tools available, we begin, as Justice David did, by acknowledging that the Indiana Medical Malpractice Act is in derogation of the common law and is intended to curtail otherwise cognizable claims. Scalia & Garner articulate an attending stabilizing canon as the presumption against change in common law such that “[a] statute will be construed to alter the common law only when that disposition is clear.” Here, any ambiguity is to be construed against the expansive reach of the Act and counsels in favor of the Patient’s Compensation Fund’s narrower interpretation.

Perhaps more on-point remains the surplusage canon. You see, not only does its invocation by the majority strike me as odd due to no prior recognition in the opinion of an ambiguity opening the door for a canon of construction, but it strikes me as odd because the majority’s interpretation of the first sentence of the statute appears to render the entire second sentence surplusage. That is if the first sentence is fairly read as “‘Patient’ means . . . 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[,]” then there would be no need whatsoever to delineate an illustrative list of “derivative claims,” since “derivative or otherwise” establishes that the definition reaches all claims, not simply derivative claims.

There is another point that must be made to support my conclusion. The majority opinion specifically contends, “‘Patient’ cannot be limited to ‘an individual who receives or should have received health care from a health care provider’ and still include people related to or representing a person who receives or should have received health care.” The proposition, as I understand it, is that if the second clause merely modifies the first, then the only persons who may be “Patients” are the persons who directly receive services, such that it could never include, for example, a spouse’s derivative claim. Let us play this out.

Imagine an easily agreed upon scenario that falls within the ambit of the Act: a married man goes to a physician to treat a fever; the physician commits malpractice, failing to diagnose and treat an infection; the man survives the infection but is left unable to care for himself as a result; and man and his wife pursue claims against the doctor such that the man brings a direct claim for malpractice and the wife advances a derivative claim for loss of consortium. Turn to the statutory text and see how that could make sense. We start by acknowledging that the claim of the husband is clearly covered and, in accordance with the second sentence, the claim of the wife is clearly a “derivative claim.” Our mission then is to see if the wife’s claim being pulled into the definition of “Patient,” makes sense:

“Patient” means an individual who receives or should have received health care from a health care provider . . . 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.

I posit that the definition makes sense in this scenario by viewing the wife’s claim as parasitic to the claim of the husband. That is to say, the husband is the patient, fitting his claim into the first clause. As a claim that cannot stand on its own, wife’s loss of consortium claim fits the second clause with that clause serving as a modifier of the claim brought by the husband, such that the second clause does not actually define the wife to be a “Patient,” but defines her claim to be subsumed into the husband’s claim as the traditional patient.

I have one final observation that I think illustrates the error in the majority’s interpretation. Assuming I understand the interpretation correctly, it splits the first sentence into two independent clauses that each modify “Patient.” In so doing, it has, I think wholly inadvertently, severed a crucial portion of the operative text of the first clause causing a broader expansion of the second clause than the majority may have realized. Again, we turn to the text:

“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.

The emphasized portion of the text above was interpreted by the Indiana Court of Appeals, I believe correctly, in Elliott v. Rush Memorial Hospital as necessitating a voluntary submission or accrued benefit to the patient in order to qualify as a “Patient.” There, the would-be “Patient” was involuntarily given a catheter to facilitate the collection of urine for law enforcement. The court determined the lack of benefit or voluntary consent to the catheter removed him from the definition of “Patient.”

Under the majority’s view that the two clauses are independent and each separately modifies “Patient,” we encounter the potential for a manifestly absurd result. Imagine the plausible scenario that a person is brought to a hospital by police for an involuntary blood draw and the medical provider errantly draws an unreasonably large amount of blood, leaving the person weakened. A short while later, the person is released on his own recognizance, faints while driving, and collides with another vehicle. In that scenario, accepting the court’s interpretation, the person whose blood was drawn and faints would not be a “Patient” because he did not voluntarily engage the medical services, consistent with Elliott. The injured other driver, however, would have to proceed through the rigors of the Medical Malpractice Act because there is no such modifier on the second clause. Even if there were no ambiguity and the plain-meaning rule controlled, as Scalia & Garner observe, the rule only applies “unless [its] application leads to an absurdity.” I submit, that is an absurdity resulting from the majority’s interpretation. Accordingly, it is my view that the better interpretation would have been the view advanced by the Patient’s Compensation Fund and subscribed to by Justice David.

Join us again next time for further discussion of developments in the law.

Sources

• Cutchin v. Robertson, 986 F.3d 1012 (7th Cir. 2021) (Rovner, J.).
• Cutchin v. Beard, 171 N.E.3d 991 (Ind. 2021) (Slaughter, J.; David, J., concurring in result).
• Alexander v. Linkmeyer Dev. II, LLC, 119 N.E.3d 603 (Ind. Ct. App. 2019) (Robb, J.; Baker, J., concurring in part and dissenting in part).
• O’Bryant v. Adams, 123 N.E.3d 689 (Ind. 2019) (Slaughter, J.).
• Elliott v. Rush Mem’l Hosp., 928 N.E.2d 634 (Ind. Ct. App. 2010) (Barnes, J.), trans. denied.
• Colin E. Flora, Seventh Circuit Recognizes Reckless Driving by Police Can Violate Fourteenth Amendment and Reinstates Failure-to-Train Monell Claim, Hoosier Litig. Blog (May 21, 2021).

*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, client or otherwise, should act or refrain from acting on the basis of any content included herein without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.