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Wednesday, September 25, 2013
Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)
For publication opinions today (3):
Steven Harper and Rose Harper as Co-Personal Representatives of the Estate of Steven Harper, Deceased v. Gerry Hippensteel, M.D., a 14-page opinion by Judge Bradford, looks at an Indiana Collaborative Practice Agreement for Prescriptive Authority (“CPA”) in which Dr. Hippensteel agreed to be available to Nurse Practitioner Vories for consultation:
The Harpers contend that the trial court erred in granting summary judgment in favor of Dr. Hippensteel because Dr. Hippensteel breached a duty owed to Harper, Jr. In making this claim, the Harpers concede that Dr. Hippensteel did not provide treatment to or participate in the care or treatment of Harper, Jr. The Harpers argue, however, that Dr. Hippensteel nevertheless engaged in a physician-patient relationship with Harper, Jr. because he entered into a CPA with NP Vories. Dr. Hippensteel argues on appeal that he had no duty to Harper, Jr. because he did not participate in Harper, Jr.’s care or treatment, and also because the CPA that he entered into with NP Vories did not create a physician-patient relationship between himself and any of NP Vories’s patients. * * *In Robert Fechtman, as Guardian of the Estate of Roberto Hernandez v. United States Steel Corporation, Zurich North America, a 15-page opinion, Judge Mathias writes:
[p. 8] In determining whether Dr. Hippensteel could be found to have engaged in a physician-patient relationship with Harper, Jr. by way of the CPA entered into between Dr. Hippensteel and NP Vories, we find it helpful to provide an overview of Indiana law relating to the practice of advanced practice nurses and nurse practitioners in Indiana. * * *
Because the CPA explicitly states that its terms do not place any increased liability on Dr. Hippensteel for decisions made by NP Vories, and indicates that NP Vories had the independent authority to treat patients as she saw fit, we cannot conclude that Dr. Hippensteel entered into a physician-patient relationship with each of NP Vories’s patients merely because he entered into a CPA with NP Vories. Accordingly, because the CPA did not increase Dr. Hippensteel’s liability, Dr. Hippensteel could only be found to have entered into a physician-patient relationship and, as a result, acquired a duty to NP Vories’s patients, if he performed any affirmative act with regard to the patient. See Miller, 754 N.E.2d at 46; Dixon, 661 N.E.2d at 607. Again, the record in the instant matter indicates that Dr. Hippensteel did not do so with regard to Harper, Jr.
In sum, we conclude that Dr. Hippensteel did not owe a duty to Harper, Jr. because he did not, at any time, enter into a physician-patient relationship with Harper, Jr. As such, we conclude that Dr. Hippensteel was entitled to summary judgment. The judgment of the trial court is affirmed.
Roberto Hernandez (“Hernandez”) filed a complaint in Lake Circuit Court against United States Steel Corp. (“U.S. Steel”) seeking to recover for injuries Hernandez sustained while working on U.S. Steel property for an independent contractor hired by U.S. Steel.1 The jury found in favor of Hernandez but apportioned five percent of the fault to Hernandez, fifteen percent to U.S. Steel, and eighty percent to Hernandez’s employer, the non-party Roger & Sons. Based on the jury’s finding of damages in the amount of $4,657,792.87, the trial court entered judgment against U.S. Steel in the amount of $698,668.93. Hernandez appeals and claims that the trial court erred in refusing an instruction tendered by Hernandez regarding strict liability for the conduct of an abnormally dangerous activity. Zurich North America (“Zurich”), the worker’s compensation carrier, crossappeals and claims that the trial court erred in instructing the jury on how to consider the worker’s compensation benefits received by Hernandez in arriving at its verdict. Concluding that the trial court did not abuse its discretion in refusing Hernandez’s tendered instruction, and concluding that the question presented by Zurich is moot, we affirm. * * *In Involuntary Term. of the Parent-Child Rel. of D.P., Minor Child, and her Father, D.P.; D.P. v. Indiana Dept. of Child Services and Child Advocates, Inc. , an 8-page opinion, Judge Bradford writes:
The trial court did not err in refusing Hernandez’s tendered instruction because U.S. Steel’s act of dumping the dust catcher was not an abnormally dangerous activity subject to strict liability. We decline to consider the question presented by Zurich because it is moot.
On February 20, 2013, the juvenile court issued an order terminating Appellant-Respondent D.P.’s (“Father”) parental rights to his minor child. The order contained factual findings and conclusions thereon that were recommended to the juvenile court by a magistrate. The magistrate who made and reported the recommended factual findings and conclusions thereon to the juvenile court was not the same magistrate who conducted the evidentiary hearing. The magistrate who conducted the evidentiary hearing resigned from her position as magistrate before making any recommended factual findings or conclusions thereon.NFP civil opinions today (1):
On appeal, Father contends that the juvenile court erred in terminating his parental rights. In challenging the termination of his parental rights, Father raises numerous issues, one of which we find dispositive. This issue is whether the replacement magistrate could make recommended factual determinations when the replacement magistrate did not hear the evidence or observe the witnesses during the evidentiary hearing. Because we conclude that the replacement magistrate could not make recommended findings of fact and conclusions thereon to the juvenile court, we reverse the judgment of the juvenile court and remand to the juvenile court for a new evidentiary hearing.
 Indiana law provides that a magistrate may conduct an evidentiary hearing. Ind. Code § 33-23-5-5(11). The magistrate who conducts an evidentiary hearing shall report the magistrate’s findings to the court, which shall enter the final order. Ind. Code § 33-23-5-9.
NFP criminal opinions today (2):
Posted by Marcia Oddi on September 25, 2013 01:18 PM
Posted to Ind. App.Ct. Decisions