Rush, C.J.
Indiana’s Medical Malpractice Act (MMA) limits the damages for which a health care provider can be liable to a patient. When a provider settles a patient’s claim by agreeing to pay the maximum amount, the patient may seek excess compensation from the Indiana Patient’s Compensation Fund. But such compensation is available only if the health care provider’s liability stemmed from an act of malpractice as defined in the MMA.
Here, a physician sexually assaulted a twelve-year-old boy during a medical examination that required touching the child’s genitals. The child and his parents filed a medical malpractice complaint, which included a negligent-credentialing claim against the hospital that employed the physician. After the parties settled the underlying case with the hospital, the child and his parents sought excess compensation from the Fund. The defendants pursued summary judgment, claiming excess compensation was unavailable because neither the sexual assault nor the hospital’s negligence were acts that fell within the MMA. The trial court denied that motion.
We affirm. In doing so, we resolve three issues of first impression. The Fund can challenge whether a claim falls within the MMA after a plaintiff concludes a settlement with a health care provider. A negligent-credentialing claim falls within the MMA only if the credentialed physician commits an act of medical malpractice. And finally, claims premised on sexual assault by a physician during an authorized medical examination can fall within the MMA if the alleged misconduct stems from an inseparable part of the health care being rendered. Because the designated evidence here establishes that the physician’s sexual misconduct fits within this narrow category, the defendants have failed to show that they are entitled to judgment as a matter of law.
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Resolving this case hinges on these statutes. We first address a threshold issue and conclude that contesting the compensability of a claim under the MMA is distinct from contesting a health care provider’s liability. The Defendants are therefore permitted, notwithstanding the settlement, to challenge whether the Does’ claims fall within the MMA. Then, in addressing that challenge, we conclude that a negligent-credentialing claim falls within the MMA only if both alleged acts—for example, a hospital’s credentialing decision and a physician’s misconduct—sound in malpractice. To that end, we conclude that claims premised on sexual assault by a physician during an authorized medical examination can fall within the MMA if the alleged misconduct stems from an inseparable part of the health care being rendered. Finally, because the designated evidence confirms that Dr. Cavins’s sexual misconduct stemmed from an inseparable part of an otherwise proper medical examination that required touching Child in sensitive areas, we hold that the Defendants have failed to show they are entitled to judgment as a matter of law. As a result, the Defendants are not entitled to summary judgment.
I. The Fund can challenge the applicability of the MMA to the Does’ claims despite their settlement with the Hospital.
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Under the plain language of Section 34-18-15-3(5), a claim for excess compensation is not “established” by a settlement between a patient and a health care provider; such an agreement only establishes the “liability of the health care provider.” Id. The distinction between the health care provider’s liability and the Fund’s liability is critical. The latter involves questions distinct from the former because, while a health care provider may settle a claim of any nature, the Fund is “not required to pay non-compensable damages.” Robertson v. B.O., 977 N.E.2d 341, 348 (Ind. 2012) (quotation omitted). Indeed, the Fund is liable only for “a medical malpractice judgment or settlement.” Tucker v. Harrison, 973 N.E.2d 46, 54 (Ind. Ct. App. 2012), trans. denied.
And so, even when a health care provider’s settlement resolves the “factual question of compensability,” the “legal question of compensability” from the Fund may remain. Robertson, 977 N.E.2d at 347. Factual questions, including whether the patient suffered an injury and what caused it, are “foreclosed” when a health care provider settles. Id. at 347–48. But legal questions are not, including whether the “injury is one for which the law recognizes a cause of action” and “which theory of recovery” applies. Id. For these reasons, we agree with the decisions from other courts that have all held the Fund, following a settlement, can litigate whether a health care provider’s liability is legally compensable under the MMA…
Here, the issue the Defendants raise is one of legal compensability: whether the Hospital’s liability sounds in medical malpractice or in ordinary negligence. The fact that the Hospital’s liability is “established” doesn’t necessarily mean it is liable for claims of malpractice under the MMA. And only such claims trigger the Fund’s duty to pay excess damages. As a result, the Fund can contest the MMA’s applicability to a claim after a settlement between a patient and a health care provider. To conclude otherwise would permit parties to unilaterally determine the scope of the MMA regardless of the underlying facts or allegations.
Thus, the Defendants are entitled to challenge whether the Does’ claims fall under the MMA. We next consider whether the Defendants are entitled to summary judgment on those claims.
II. Because Dr. Cavins committed an act of medical malpractice, the Does’ claims fall within the MMA.
Having determined that the Fund can challenge whether a health care provider’s underlying misconduct is legally compensable, we now address the two remaining issues. The first issue is whether the MMA permits a standalone negligent-credentialing claim. We conclude that it does not. For a secondary claim of liability such as negligent credentialing to fall within the MMA, the credentialing hospital and the physician must each commit an alleged act of medical malpractice. The second, related issue is whether a claim premised on sexual assault by a physician during a medical examination can fall within the MMA. We conclude that it can in narrow circumstances. A patient’s claim of sexual assault by a physician during an authorized medical examination can constitute malpractice if the alleged misconduct stems from an inseparable part of the health care being rendered. And, on this record, we hold that Dr. Cavins’s sexual assault constituted malpractice. We address each issue in turn.
- To constitute medical malpractice, negligent credentialing must rest on an underlying act of malpractice by the credentialed physician.
The parties dispute whether a negligent-credentialing claim can fall within the MMA without an underlying act of medical malpractice by the credentialed physician. The Does argue that “a hospital credentialing board’s act of protecting a patient from a sexual assault that occurs during a medical procedure” alone constitutes malpractice because credentialing “relies upon medical expertise.” The Hospital similarly contends that negligent credentialing sounds in medical malpractice regardless of whether the credentialed physician commits malpractice. But the Defendants disagree, insisting that “the underlying act must fall within the scope of the MMA in order for a negligent credentialing claim to also fall within the MMA’s scope.” We agree with the Defendants. Without an underlying act of malpractice by a credentialed physician, a negligent-credentialing claim lacks the requisite connection to health care.
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This causal connection must be present for a negligent-credentialing claim to fall within the MMA. To succeed on such a claim, “the plaintiff must show that the physician to whom the hospital allegedly negligently extended privileges breached the applicable standard of care in treating the plaintiff and proximately caused her injuries.” Martinez v. Park, 959 N.E.2d 259, 271 (Ind. Ct. App. 2011). Because of the causation element, our Court of Appeals has recognized that “it is inappropriate to look only to the credentialing conduct alleged in the complaint.” Winona Mem’l Hosp., Ltd. P’ship v. Kuester, 737 N.E.2d 824, 828 (Ind. Ct. App. 2000). Rather, the “credentialing process alleged must have resulted in a definable act of medical malpractice that proximately caused injury.” Id. Otherwise, a negligent-credentialing claim would be “completely unmoored” from the provision of health care. Fairbanks Hosp. v. Harrold, 895 N.E.2d 732, 738 (Ind. Ct. App. 2008), trans. denied. We agree and conclude that the MMA allows a negligent-credentialing claim only if the physician’s underlying conduct constitutes malpractice.
At the same time, we recognize that the credentialing of physicians calls for the professional expertise, skill, and judgment of a hospital’s credentialing committee. By statute, a hospital must assign privileges “with the advice and recommendations of the medical staff.” I.C. § 16-21- 2-5(a)(2). And an administrative regulation requires that physicians be involved in examining hospital health care providers’ credentials… And so, when a patient claims only that a hospital negligently credentialed a physician, and thereby exposed the patient to the risk of the physician’s non-care-related misconduct, the requisite connection between the complained-of conduct and the patient-provider relationship is missing. F
or these reasons, a claim of secondary liability—such as one for negligent credentialing—falls under the MMA only if both alleged acts constitute malpractice. We now turn to whether the Does’ claims, each of which stems from Dr. Cavins’s sexual assault, fall within the MMA.
b. Dr. Cavins’s sexual assault stemmed from an inseparable part of the health care he rendered to Child during an authorized medical examination.
Finally, the parties dispute whether a claim based on sexual misconduct by a physician can fall within the MMA and whether the Does’ claims do so here. The Defendants argue that Dr. Cavins’s sexual assault fell “so far outside the scope of medicine” that it couldn’t possibly relate to health care. The Does, however, assert that Dr. Cavins “was authorized to touch” Child “by way of a hernia and discharge test” and the assault “arose out of this authorized conduct.” The Hospital similarly contends that Dr. Cavins’s actions were “sufficiently intertwined with legitimate medical care such that the claims against him fell within the purview of the MMA.” We ultimately agree with the Does and the Hospital.
Based on the MMA’s statutory definitions and relevant caselaw, we conclude that a patient’s claim of sexual assault by a physician during an authorized medical examination can constitute malpractice if the alleged misconduct stems from an inseparable part of the health care being rendered. And, on this record, because the designated evidence shows Dr. Cavins’s misconduct stemmed from an inseparable part of the health care he rendered, the Defendants have failed to show they are entitled to judgment as a matter of law.
i. Statutory definitions and relevant caselaw establish that a claim based on sexual assault by a physician during a medical examination can fall within the MMA.
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From these relevant definitions, it follows that sexual assault is a “tort” constituting “malpractice” if it is based on “an act or treatment performed or furnished . . . by a health care provider for, to, or on behalf of a patient” during their “medical care, treatment, or confinement.” Id.; see also Popovich v. Danielson, 896 N.E.2d 1196, 1202 (Ind. Ct. App. 2008) (holding that a physician’s battery of a patient “while he was evaluating [her] injuries” fell within the MMA), trans. denied. Thus, the statutory text alone confirms that a patient’s claim of sexual assault by a physician during a medical examination can fall within the MMA.
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And when a physician sexually assaults a patient during an authorized medical examination that calls for touching the patient in sensitive areas, the requisite connection to the patient-provider relationship may be present and the applicable standard of care may be implicated. So, recognizing that not all allegations of sexual assault against health care providers are alike, we conclude that claims premised on sexual assault by a physician during an authorized medical examination can fall within the MMA if the alleged misconduct stems from an inseparable part of the health care being rendered. 6 We now apply this test to determine whether the Defendants have established that they are entitled to judgment as a matter of law.
ii. The designated evidence fails to show that Dr. Cavins’s sexual misconduct falls outside the MMA.
The substance of the Does’ claims and the designated evidence confirm that Dr. Cavins’s sexual assault stemmed from an authorized examination that required touching Child in sensitive areas. Indeed, the Does alleged that Child “suffered from a sexual assault” while Dr. Cavins was conducting “a routine physical examination.” And the designated evidence reveals that Child was seeing Dr. Cavins on the day of the incident for a physical examination that included a hernia test, which involved Dr. Cavins touching Child’s genitals, as well as a discharge test, during which Dr. Cavins ran his fingers down the shaft of Child’s penis. Though Child did not know the purpose of these tests, he was not upset by the administration of the hernia test because Dr. Cavins had performed it before. And uncontested expert evidence in the record confirms that a hernia test involves touching the testicles and a discharge test involves touching the penis. It was shortly after the hernia test that Dr. Cavins sexually assaulted Child by stroking his penis and putting a condom on it.
Thus, the sexual assault occurred during an authorized physical examination that included tests requiring Dr. Cavins to touch Child’s genitalia. And so, on this record, Dr. Cavins’s misconduct was based on his “behavior or practices” while acting in his “professional capacity as a provider of medical services.” Doe, 194 N.E.3d at 1200.
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Conclusion
For the reasons articulated above, we affirm the trial court’s denial of the Defendants’ motion for summary judgment and remand for proceedings consistent with this opinion. Goff, J., concurs.
Molter, J., concurs with separate opinion.
Massa, J., concurs in part and dissents in part with separate opinion in which Slaughter, J., joins.
Molter, J., concurring.
I join Chief Justice Rush’s well-reasoned opinion for the Court, and I write separately only to note one more point in response to the partial dissent’s concern that we are straying from the Medical Malpractice Act’s plain terms: The Court’s statutory interpretation mirrors how the Patient’s Compensation Fund interprets the Act when applying it to an alleged nonsexual battery during medical treatment; so if the Fund’s interpretation in that context is correct, then it follows that the Court doesn’t deviate from the statutory text by treating an alleged sexual battery during medical treatment the same.
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Massa, J., concurring in part, dissenting in part
I completely concur in the Court’s holding on two of three issues decided; first, that the Fund may challenge whether the Does’ claims fall within the MMA, notwithstanding the settlement, and second, that a negligent-credentialing claim falls within the MMA only if both alleged acts sound in malpractice. Where I part company and respectfully dissent is from the holding that child molestation may constitute medical malpractice under the Act. The doctor’s actions here occupy the broad realm of ordinary torts not subject to the Act, and not the narrow realm of medical malpractice.
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