May, J.
Kristyn R. Plummer and Angela M. Stillabower (collectively, “Appellants”) appeal the trial court’s order granting summary judgment in favor of Amy L. Beard, in her capacity as Commissioner of the Indiana Department of Insurance, which administers the Indiana Patient Compensation Fund (collectively, “the Fund”). Appellants raise several issues, which we consolidate, revise, and restate as: 1. Whether Appellants’ claim against Columbus Regional Hospital (“CRH”) falls under Community Hospital v. McKenzie, 185 N.E.3d 368 (Ind. 2022), such that it sounds in ordinary negligence rather than medical malpractice; 2. Whether, if McKenzie controls, it should be applied retroactively to Appellants’ claim; and 3. Whether, if McKenzie controls, the Fund has statutory authority to challenge Appellants’ right to access the Fund after Appellants reached a settlement with CRH.
We affirm.
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Not all claims by patients against healthcare providers fit within the MMA, nor is the MMA intended to encompass cases of ordinary negligence. Doe v. Ind. Dept. of Insurance, 194 N.E.3d 1197, 1200 (Ind. Ct. App. 2022). Instead, the MMA covers only “curative or salutary conduct of a health care provider acting within his or her professional capacity” and “not conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment.” Id. (quoting Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011)).
The fact that the alleged misconduct occurred in a healthcare facility, or that the injured party was a patient at the facility, is not dispositive of whether the MMA applies. Instead we must look to the substance of the claim and determine whether it is based on the provider’s behavior or practices while acting in his or her professional capacity as a provider of medical services. We have explained:
A case sounds in ordinary negligence where the factual issues are capable of resolution by a jury without application of the standard of care prevalent in the local medical community. By contrast, a claim falls under the MMA where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship.
Thus, “acts or omissions of a health care provider unrelated or outside the provider’s role as a health care professional” are outside the reach of the MMA.
“In sum, the appropriate analysis involves first, the nature of the conduct alleged in the complaint – whether or not the alleged negligence involves provision of medical services – and, second, whether the rendering of medical services is to the plaintiff for the plaintiff’s benefit.”
Id. (internal citations and footnote omitted). Whether a case is ordinary negligence or medical malpractice that falls under the MMA is a “question for the court,” Rossner v. Take Care Health Sys., LLC, 172 N.E.3d 1248, 1255 (Ind. Ct. App. 2021), trans. denied, and as such it is “particularly suited for determination on summary judgment.” Doe, 194 N.E.3d at 1199.
We begin our analysis with discussion of our Indiana Supreme Court’s decision in Community Health Network, Inc. v. McKenzie, 185 N.E.3d 368 (Ind. 2022), on which the trial court relied when granting summary judgment to the Fund. In McKenzie, Katrina Gray, who worked for an orthopedic practice in the Community Health Network (“Community”), had been given access to Community’s confidential medical records system so that she could schedule appointments and release records for patients of the orthopedic practice. Id. at 374. Gray also used that access to improperly browse the medical records of 160 people who were not patients of the orthopedic practice. Id. Amongst those 160 people were seven members of the family of Heather McKenzie, with whom Gray had a “long-running family feud.” Id. at 373.
The McKenzie family members (collectively “the McKenzies”) filed a lawsuit against Community and Gray in Marion Superior Court. Id. at 374. Against Community, the McKenzies asserted claims of respondeat superior and negligent training, supervision, and retention, and against Gray, the McKenzies asserted claims of negligence and invasion of privacy. Community filed a motion to dismiss for lack of subject matter jurisdiction in which Community asserted the McKenzies could not proceed in the trial court without first satisfying the jurisdictional requirements of Indiana’s MMA. Id. The trial court denied Community’s motion to dismiss after finding the McKenzies did not need to satisfy the jurisdiction requirements of the MMA because the McKenzies “‘were not patients of the practice at which Gray worked’ and Gray’s alleged misconduct ‘did not involve providing medical treatment to them.’” Id. at 375 (quoting trial court order). The Court of Appeals affirmed the trial court’s denial of the motion to dismiss after concluding the McKenzies’ claims did not fall under the MMA, and Community petitioned for transfer. Id.
Our Indiana Supreme Court affirmed the trial court’s denial of the motion to dismiss because “[t]he misconduct alleged does not constitute ‘malpractice[.]’” Id.
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Appellants claim we should reach a different result herein because three factual differences make their circumstances distinguishable from McKenzie. We disagree, but we address each of Appellants’ assertions to further explain our reasoning.
First, Appellants assert that, in McKenzie, the tortfeasor worked for an orthopedic practice where none of the victims were patients, while herein Johnson-Heck worked for CRH where both Plummer and Stillabower were patients. However, while Johnson-Heck worked at CRH during the years in question and had clinical privileges at CRH, both Johnson-Heck and CRH indicated Johnson-Heck did not work for CRH during months when she accessed the medical records of Plummer and Stillabower. Instead, JohnsonHeck was employed by EPIC and SIENT. (See Appellants’ App. Vol. II at 54, 60 (“At the time of each inappropriate access to Plaintiffs’ electronic health record, Johnson-Heck was an employee of either EPIC or SIENT[.]”); & 110 n.1 (indicating Johnson-Heck was employed by EPIC and SIENT, which had relationships with CRH but were “separate entities from CRH”).) Accordingly, Johnson-Heck’s employment for a third-party provider who had been given access to the hospital’s records places her in precisely the same position as the tortfeasor in McKenzie.
Moreover, Johnson-Heck’s legal submission to the Medical Review Panel admitted she “never provided care to either Plummer or Stillabower, nor did she ever have a practitioner-patient relationship with either of them.” (Id. at 114.) Accordingly, her accessing of Appellants’ medical records “lacks a temporal connection to any care provided” by CRH to Appellants as patients. McKenzie, 185 N.E.3d at 377. As such, her alleged misconduct cannot be construed as “‘health care’ under the MMA.” Id. at 376 (“without this requisite temporal tie, the underlying actions are not ‘health care’ under the MMA”).
Second, Appellants assert that, unlike in McKenzie, they “were being provided a service of ‘professional expertise, skill, or judgment’ when [Johnson-Heck] accessed their records[.]” (Appellants’ Br. at 24.) In support of this assertion, Appellants quote Johnson-Heck’s submission to the Medical Review Panel: Johnson-Heck denies that her access to the records of Plummer and Stillabower constituted misconduct. Nor was the access improper. HIPAA does allow for physicians, medical professionals, and hospitals to access patient information to ensure adequate and appropriate care is being provided and to evaluate the quality of care being provided.
(Id. at 23 (citing App. Vol. II at 111).) However, if, as Appellants now assert, Johnson-Heck was providing them with a professional service permitted by HIPAA, then arguably CRH could not be liable for Johnson-Heck’s accessing of Appellants’ medical records. Not only would Appellants avoid application of McKenzie, but they ought also dismiss this action altogether. Moreover, while HIPAA might permit medical professionals and hospitals to access patient information to evaluate quality of care, there is nothing in the record before us to suggest Johnson-Heck had been given authorization to evaluate the quality of care provided to people who had never been her patients (and also happened to be married to Johnson-Heck’s ex-husband or to be the mother of a child with Johnson-Heck’s current husband). We decline to hold Appellants’ case is distinguishable from McKenzie on this basis. See McKenzie, 185 N.E.3d at 376 (“Gray’s unauthorized access of Plaintiffs’ medical records was unrelated to any professional service executed on their behalf as Community’s patients.”).
Finally, Appellants note there was no medical review panel decision in McKenzie, while a unanimous medical review panel reached a determination regarding whether Johnson-Heck or CRH breached the appropriate standard of care. Appellants assert this “factor is of particular significance given that ‘[the Medical Review Panel is] empowered to determine whether its opinion is called for since the Act provides for no other body to make that determination.’” (Appellants’ Br. at 24.). However, as noted above, whether facts state a claim for ordinary negligence or medical malpractice under the MMA is a “question for the court.” Rossner, 172 N.E.3d at 1255. Accordingly, we do not find compelling Appellants’ assertion that the existence of a medical review panel decision distinguishes this case from McKenzie.
For all these reasons, we reject Appellants’ attempts to avoid the application of McKenzie to the facts of their case.
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Appellants argue McKenzie should not be applied retroactively because “McKenzie charted a new course away from clear past precedent” on which the parties relied. In Arrendale v. American Imaging & MRI, our Indiana Supreme Court was asked to decide whether the apparent agency principles outlined in Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 152-53 (Ind. 1999), should be expanded to non-hospital medical facilities. One of the parties therein – Marion Open MRI – asked that any expansion be made prospective only. The Court said: We have observed that “[p]rospective application is an extraordinary measure[,]’ Lowe v. N. Ind. Comm. Transportation Dist., 177 N.E.3d 796, 800 (Ind. 2021), and “[a]ppellate court decisions routinely apply to the parties involved, and everyone else, even when addressing an unresolved point of law.” RayHayes v. Heinamann, 768 N.E.2d 899, 900 (Ind. 2002). Accordingly, we decline to apply today’s rule prospectively only, and apply it to Marion Open MRI.
Arrendale, 183 N.E.3d at 1073 n.4 (alterations in Arrendale). We see no reason a different result should occur herein. See also Eakin v. Kumiega, 567 N.E.2d 150, 153, 153 n.5 (Ind. Ct. App. 1991) (hereinafter “Kumiega”) (noting Court of Appeals could not exempt the Eakin family from the “harshness” of the required legal ruling because an exception for the Eakin family “would create the potential for an anamolous result in subsequent cases”), trans. denied, abrogated as to the unavailability of emotional distress damages without physical impact by Shaumber v. Henderson, 579 N.E.2d 452 (Ind. 1991) (adopting modified impact rule).
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Appellants next argue we should not apply McKenzie to their claim because the Fund has no authority to challenge Appellants’ claim for funds in excess of CRH’s payment.
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Appellants point to Judge Shields’s language and assert “with liability conclusively established,” the Fund cannot contest the applicability of the MMA. (Appellants’ Br. at 18.) But this is an inaccurate reading of Judge Shields’s concurrence. Judge Shields would have held the Fund’s challenge precluded, but only because she believed the Fund to be raising “an issue of liability rather than an issue of whether particular damages . . . are compensable under the Act.” Callaway, 609 N.E.2d at 429 (Judge Shields, concurring in result).
Thus, the language in Subsection (5) of Indiana Code section 34-18-15-3 prohibits post-settlement challenges to liability, see Glover, 597 N.E.2d at 973-74 (citing subsection 5 of prior version of the statute, then codified as Ind. Code § 16-9.5-4-3, which contained the same language), but does not prohibit post-settlement challenges to the non-compensability of damages under the MMA, see Kumeiga, 567 N.E.2d at 152 n.4 (health care provider’s admitted liability does not obligate the Fund to compensate claimants for non-compensable injuries under Subsection 5 of Ind. Code § 16-9.5-4-3, which is now found at Ind. Code § 34-18-15-3). This is why the majority opinion in Callaway explicitly stated: “the compensable nature of Callaway’s injuries was not decided by her settlement of liability with [the doctor] and his insurer, and is properly before us.” 609 N.E.2d at 426. Based on this precedent, we hold the Fund can challenge the compensable nature of the Appellants’ damages under the MMA even after Appellants reached a settlement with providers that admitted liability. See also J.L. v. Mortell, 633 N.E.2d 300, 303-304 (Ind. Ct. App. 1994) (holding trial court’s inquiry into the compensable nature of the plaintiff’s damages was proper based on Callaway and Kumeiga), trans. denied.
Appellants’ claims cannot be distinguished from those asserted in McKenzie and, thus, do not state a claim for medical malpractice that is compensable from the Fund. McKenzie applies retroactively to Appellants’ claim. Finally, as thirty years of precedent demonstrates, Indiana Code section 34-18-15-3(5) permits the Fund to challenge whether Appellants’ claimed injuries are non-compensable under the MMA. Because Appellants have not demonstrated any genuine issue of material fact about the application of McKenzie and the Fund is entitled to judgment as a matter of law, we affirm the trial court’s grant of summary judgment to the Fund.
Affirmed.
Crone, J., and Weissmann, J., concur.