« Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP) | Main | Not law - NY Times online abandons pay-for-view requirements »

Wednesday, September 19, 2007

Ind. Decisions - Supreme Court decides one today

In Eusebio Kho, M.D. v. Deborah Pennington, et al., a 14-page opinion in which Boehm, J., concurs, Shepard, C.J., concurs in result with separate opinion, Sullivan, J., concurs in part and dissents in part with separate opinion in which Rucker, J., concurs, Justice Dickson writes for the majority:

The Indiana Medical Malpractice Act generally requires that actions for medical negligence against health care providers must first be submitted to and considered by a medical re-view panel. For limited purposes, the Act permits such actions to be contemporaneously filed in court, provided that the complaint contains no information that would allow the defendant provider(s) to be identified. We hold that the violation of this defendant identity confidentiality provision may be actionable. * * *

The Court of Appeals affirmed the trial court's grant of summary judgment against the doctor. Kho v. Pennington, 846 N.E.2d 1036, 1048 (Ind. Ct. App. 2006). We granted transfer to address one issue: whether violation of the defendant identity confidentiality provision of Indiana Code ยง 34-18-8-7 in the Indiana Medical Malpractice Act may give rise to an action for damages. As to all other issues, we decline review of the opinion of the Court of Appeals and summarily affirm. Ind. Appellate Rule 58(A)(2). * * *

Although the statutory requirement that the complaint not disclose the defendant's identity during the preliminary period of consideration by the medical review panel may be less than foolproof protection for the health care provider's good name and reputation, it serves a significant ameliorative function clearly intended by the legislature. We decline to countenance disregard of the provision.

We hold that the doctor's claim against the malpractice claimant and her attorneys for violation of the statutory defendant identity confidentiality provision presents a cognizable negligence action for violation of an express statutory duty. The importance of the right to seek a remedy for harm to one's reputation has been safeguarded in Indiana since 1851 by Article 1, section 12, of the Indiana Constitution. Our decision today is consistent with the values thereby protected.

Separate from his statutory negligence claim, the doctor also contends that he is entitled to bring a private right of action for damages based on the same statutory violation. A violation of an obligation imposed by statute may give rise to a civil damage claim under traditional tort doctrine. * * * Because of the availability of a remedy for statutory negligence, however, we need not determine whether the statute creates a private cause of action.

Posted by Marcia Oddi on September 19, 2007 03:38 PM
Posted to Ind. Sup.Ct. Decisions