Vaidik, J.
Case Summary
Taylor Krieter has sued Dr. Jatinder Kansal for battery and intentional infliction of emotional distress, alleging that he touched her inappropriately when she was seeing him for allergies and eczema. Taking the position that her claims are not medical-malpractice claims, Krieter did not present a proposed complaint to a medical-review panel before going to court, as would be required under Indiana’s Medical Malpractice Act, Ind. Code art. 34-18. Dr. Kansal moved to dismiss for lack of subject-matter jurisdiction, arguing that the Act applies because any sexual misconduct (he denies there was any) occurred during medical appointments where Dr. Kansal examined and treated Krieter. The trial court denied Dr. Kansal’s motion. We affirm. The issue isn’t whether the alleged tortious conduct occurred during the provision of medical care but whether the conduct itself was part of the provision of medical care. Assuming sexual misconduct occurred, as we must at this early stage of the case, it was wholly unrelated to the provision of medical care. Therefore, Krieter is not claiming medical malpractice, the Medical Malpractice Act doesn’t apply, and the trial court has subject-matter jurisdiction.
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Our holding is also consistent with this Court’s other decisions addressing sexual-misconduct claims against healthcare providers. We have repeatedly held that such claims are not subject to the Medical Malpractice Act…
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We find Popovich distinguishable. There, the patient alleged that the actual examination and treatment were too rough. As Krieter puts it, “The substance of the allegations was that [the doctor] inappropriately treated Popovich’s injuries – in short, classic medical malpractice allegations.” Appellee’s Br. p. 20. Here, on the other hand, Krieter alleges that Dr. Kansal ceased treatment all together and shifted to groping her for his own sexual gratification. If true, that conduct went far beyond “poor bedside manner” or mere insensitivity.
We add a caveat. At oral argument, Dr. Kansal’s attorney told us that Dr. Kansal denies the alleged touching at the core of Krieter’s claims—cupping her breasts, rubbing her nipples, and rubbing her buttocks for fifteen to twenty seconds at a time. But if he was admitting that touching and arguing it was medically appropriate, the Medical Malpractice Act might apply. Krieter conceded as much at the hearing on the motion to dismiss. Tr. pp. 25, 29, 35- 36. With certain medical specialties, the line between medical touching and sexual touching can be blurry. Doctors often have to touch patients in sensitive areas and in uncomfortable ways, and a patient could misinterpret proper medical touching as inappropriate sexual touching. In a case where the doctor and the patient agree as to the touching that occurred but disagree as to the purpose of the touching, application of the Act and presentation to a medical- review panel might be appropriate. But this isn’t such a case, so we leave that issue for another day.
… This is a “he said, she said” credibility fight that would not benefit from consideration by a medical-review panel. The factual issue is “capable of resolution by a jury without application of the standard of care prevalent in the local medical community.” Doe, 194 N.E.3d at 1200. Therefore, Krieter’s claims are not subject to the Medical Malpractice Act, and the trial court did not err by denying Dr. Kansal’s motion to dismiss.
Affirmed.
Tavitas, J., and Foley, J., concur.