Bradford, J.
Beginning in 2012, patients around the country began suffering meningitis after being injected with preservative-free methylprednisolone acetate (“MPA”), a steroid purchased from New England Compounding Pharmacy, Inc., a/k/a the New England Compounding Center (“NECC”). It was soon discovered that some lots of MPA had become contaminated with fungus. This consolidated appeal concerns claims brought by injured patients (or those suing on their behalf) (collectively, “the Plaintiffs”) against Anonymous Clinic in St. Joseph County and Orthopedic and Sports Medicine Center of Northern Indiana (“OSMC”) and affiliated entities in Elkhart County (collectively, “the Defendants”). Plaintiffs contend that the Defendants were negligent in choosing to administer preservative-free MPA and in failing to properly evaluate NECC before using it as a supplier. Some of the Plaintiffs brought suit without using the procedures laid out in the Indiana Medical Malpractice Act (“the MMA”), and Defendants moved either for dismissal or summary judgment on the basis that Plaintiffs’ claims were claims of medical malpractice.
Stephen W. Robertson, acting in his capacity as Commissioner of Indiana Department of Insurance, which administers the Indiana Patient’s Compensation Fund (“the PCF”) intervened, arguing that Plaintiffs’ claims were of general negligence and therefore not subject to the provisions of the MMA. The trial courts ultimately agreed with Defendants and Plaintiffs (who had reversed their initial position) that Plaintiffs’ claims were governed by the MMA. In this consolidated appeal, the PCF contends that the trial courts erred in concluding that Plaintiffs’ claims are claims of medical malpractice. Plaintiffs, Defendants, and Amici Curiae (health-care providers facing similar claims in other cases), contend that Plaintiffs’ claims are subject to the MMA as they involve actions informed by the exercise of professional medical judgment. Because we conclude that Plaintiffs’ claims are subject to the MMA, we affirm the judgments of the trial courts and remand for further proceedings consistent with this opinion.
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With this in mind, we turn to Plaintiffs’ specific allegations. Plaintiffs have alleged that Defendants negligently decided to purchase preservative-free MPA from NECC and also negligently failed to properly investigate and evaluate NECC’s manufacturing procedures. The PCF asserts that these allegations are not covered by the MMA. We have little trouble concluding that the selection of preservative-free MPA—in particular, preservative-free MPA made by NECC—in favor of MPA with preservatives from other suppliers, were actions that involved the exercise of professional medical skill and judgment, i.e., they qualify as the practice of medicine.
We have observed that “[t]he practice of medicine may be said to consist in three things: First, in judging the nature, character, and symptoms of the disease; second, in determining the proper remedy for the disease; third, in giving or prescribing the application of the remedy to the disease.” Fowler v. Norways Sanitorium, 112 Ind. App. 347, 42 N.E.2d 415, 420 (Ind. Ct. App. 1942) (quoting Underwood v. Scott, 23 P. 942, 943 (Kan. 1890)) (superseded by statute on other grounds as recognized by Sloan v. Metro. Health Council of Indpls., Inc., 516 N.E.2d 1104, 1106 (Ind. Ct. App. 1987)). We conclude that the allegations in this case clearly fall under the second aspect of the practice of medicine—selection of the proper remedy.
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…In summary, pursuant to this court’s holdings in Harts and Pluard, the line between MMA claims and non-MMA claims divides them into situations that can be understood without the assistance of expert testimony and those that cannot be, and the claims in this case fall into the latter category. [Footnote omitted.]
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The Defendants and Plaintiffs have the much more defensible position here, namely that ensuring the PCF’s continued liquidity is not this court’s job. If, pursuant to the MMA’s plain language and under current precedent, the Plaintiff’s claims should be governed by the MMA, we should rule as such, whatever the consequences. See, e.g., Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 338 (Ind. 1994) (“The General Assembly has decided to concentrate the State’s energies on regulating commercial waste disposal facilities and it is not our job to second guess such decisions.”). Even if we assume that the claims in this case will result in payouts sufficient to threaten the viability of the PCF (which is by no means a foregone conclusion), we are not free to ignore the law in an attempt to save it.
Conclusion
There is really only one issue before the court in this case, whether alleged negligence by a medical provider in selecting a certain drug from a particular supplier are claims subject to the MMA or sound in general negligence. Indiana law stands for the proposition that if allegations cannot be understood by laypersons without resort to expert testimony, the claims are governed by the MMA. We conclude the claims in this case, i.e., that Defendants were allegedly negligent in choosing to purchase and administer preservative-free MPA and in choosing NECC without proper vetting, are allegations that claim negligence in decisions that were made using professional expertise. Because we conclude that Plaintiffs’ claims are governed by the provisions of the MMA, we affirm the judgment of the trial courts and remand for further proceedings consistent with this opinion.
We affirm and remand for further proceedings.
Pyle, J., and Altice, J., concur.