Opinion
23A-CT-2849
09-11-2024
Roger Ashley, et al., Appellant-Defendant v. Anonymous Physician 1, et al., Appellee-Plaintiff
ATTORNEY FOR APPELLANT Christopher Taylor-Price Taylor-Price Law, LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEES ANONYMOUS PHYSICIAN 3 AND ANONYMOUS PHYSICIAN 10 Joshua W. Davis Nicholas J. Davis Leah T. Scharff O'Bryan, Brown, &Toner, PLLC Louisville, Kentucky ATTORNEYS FOR APPELLEES ANONYMOUS PHYSICIAN 2, ANONYMOUS PHYSICIAN 5, ANONYMOUS PHYSICIAN 6, ANONYMOUS PHYSICIAN 8, ANONYMOUS PHYSICIAN 9, ANONYMOUS PHYSICIAN 11, ANONYMOUS PHYSICIAN 12, ANONYMOUS PHYSICIAN 13, ANONYMOUS PHYSICIAN 14, ANONYMOUS NURSE PRACTITIONER 1 Katherine M. Haire Ronald A. Mingus Reminger, Co., L.P.A. Indianapolis, Indiana ATTORNEYS FOR APPELLEES ANONYMOUS HEALTHCARE SYSTEM, ANONYMOUS PHYSICIAN 1, AND ANONYMOUS PHYSICIAN 7 Rodney L. Scott John R. Hofmann Waters, Tyler, Hofmann, &Scott, LLC New Albany, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Floyd Superior Court The Honorable Richard G. Striegel, Senior Judge Trial Court Cause No. 22D03-2304-CT-549
ATTORNEY FOR APPELLANT Christopher Taylor-Price Taylor-Price Law, LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEES ANONYMOUS PHYSICIAN 3 AND ANONYMOUS PHYSICIAN 10 Joshua W. Davis Nicholas J. Davis Leah T. Scharff O'Bryan, Brown, &Toner, PLLC Louisville, Kentucky
ATTORNEYS FOR APPELLEES ANONYMOUS PHYSICIAN 2, ANONYMOUS PHYSICIAN 5, ANONYMOUS PHYSICIAN 6, ANONYMOUS PHYSICIAN 8, ANONYMOUS PHYSICIAN 9, ANONYMOUS PHYSICIAN 11, ANONYMOUS PHYSICIAN 12, ANONYMOUS PHYSICIAN 13, ANONYMOUS PHYSICIAN 14, ANONYMOUS NURSE PRACTITIONER 1 Katherine M. Haire Ronald A. Mingus Reminger, Co., L.P.A. Indianapolis, Indiana
ATTORNEYS FOR APPELLEES ANONYMOUS HEALTHCARE SYSTEM, ANONYMOUS PHYSICIAN 1, AND ANONYMOUS PHYSICIAN 7 Rodney L. Scott John R. Hofmann Waters, Tyler, Hofmann, &Scott, LLC New Albany, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] In 2021, Roger Ashley ("Roger") was treated by various healthcare providers for COVID-19, and while he was being treated, he developed an injury to his left gluteal area. Roger and his wife Kimberly Ashley (collectively, "the Ashleys") subsequently filed a proposed complaint with the Indiana Department of Insurance against Anonymous Physicians 1 - 14, Anonymous Nurse Practitioner, and Anonymous Healthcare System (collectively, "Providers"). The Ashleys alleged Roger had suffered injuries due to Providers' "negligence and willful disregard" for Roger's health. App. v. II at 91. Pursuant to Indiana Code Section 34-18-11-1, Providers then filed a petition in state court seeking a preliminary determination that they are immune from liability under state and federal law. The trial court granted Providers' motion for summary judgment on the ground of immunity, and the Ashleys now appeal that decision.
[¶2] We affirm.
Issues
[¶3] The Ashleys purport to raise one issue, which we restate as the following three issues:
I. Whether the trial court had jurisdiction to address Providers' immunity defense.
II. Whether the trial court erred when it granted summary judgment to Providers on the ground of immunity.
III. Assuming the Ashleys raised a willful misconduct claim, whether the trial court had jurisdiction to address that claim.
Facts and Procedural History
[¶4] On September 5, 2021, then-seventy-one-year-old Roger was admitted to Anonymous Healthcare System's hospital ("Hospital") for treatment of his COVID-19 infection and related pneumonia. On September 7, Roger was placed in the intensive care unit due to his rapidly deteriorating condition. From September 7 to 26, Roger was sedated, intubated, immobilized, and connected to a ventilator to treat his COVID-19 pneumonia. During his thirtyeight-day hospital admission, Roger was treated by various medical personnel-including physician specialists in pulmonology, nephrology, wound care, and gastroenterology-for complications that resulted from his COVID-19 infection. During the nineteen days Roger was on a ventilator, he developed tissue injuries commonly known as bed sores on his left gluteal area. Roger recovered from COVID-19 and was discharged from Hospital on October 13, 2021. At that time, Roger still had severe bed sores and was admitted to a rehabilitation facility that diagnosed and treated them.
[¶5] On July 22, 2022, the Ashleys filed a proposed complaint against Providers with the Indiana Department of Insurance. The complaint stated that Roger was admitted to Hospital "for medical treatment for pneumonia after contracting the COVID-19 virus," and that he was "completely paralyzed and unable to move himself" while receiving such treatment. App. v. II at 95. The complaint asserted that Roger developed "severe, gruesome, and excruciating deep tissue pressure wounds to his buttocks, base of his spine, and left shoulder blade" due to Providers' "failure to supervise and care for him" by "turning him so that he would not develop said wounds and would not become further injured." Id. at 96. The complaint alleged that, "as a direct result of [Providers'] negligence and willful disregard for their patient's health, dignity, and life, Roger developed deep tissue pressure wounds." Id. at 91. The Ashleys alleged that Providers "committed negligence and malpractice," that caused Roger's injuries, negligently inflicted emotional distress upon Roger, and caused "loss of consortium" to the Ashleys, for all of which they sought compensation. Id. at 97-98.
[¶6] On April 21, 2023, Providers filed in the Floyd Superior Court a Petition for Preliminary Determination and Motion for Summary Judgment in which they asserted they were immune from liability for the Ashleys' claims pursuant to state and federal laws granting immunity to providers treating COVID-19. Providers designated and submitted affidavits from various medical personnel who treated Roger at Hospital, including affidavits stating Roger's "condition continued to deteriorate due to COVID-19[,] causing the need for him to be sedated, intubated, immobilized[,] and placed on a ventilator in the intensive care unit" for nineteen days and opining "to a reasonable degree of medical certainty that the injuries that Mr. Ashley experienced that are described in his Proposed Complaint were due to his need to be intubated and placed on a ventilator to save him from dying from COVID-19." E.g., id. at 113, 114.
The April 21 motion was filed by Anonymous Physicians 2, 5, 6, 8, 9, 11, 12, 13, and 14, and Anonymous Nurse Practitioner 1. On May 2, Anonymous Physicians 1 and 7 and Anonymous Health Care System filed their motion for summary judgment in which they joined in and incorporated the summary judgment motion filed on April 21.
[¶7] On July 11, 2023, the Ashleys filed both a "preliminary" response to the motion for summary judgment and a request for an extension of time to file their final response once discovery was completed. Id. at 171. The preliminary summary judgment response designated as evidence the affidavits of the Ashleys and Hospital's responses to interrogatories. On August 18, the trial court denied the Ashleys' request for an extension of time to respond to the summary judgment motions.
[¶8] On August 25, Anonymous Physicians 3 and 10 filed their own separate Petition for Preliminary Determination of Law and Motion for Summary Judgment in which they also raised an immunity defense. On September 14, the Ashley's filed their "[s]upplemental" designation of evidence in support of their preliminary response to the summary judgment motions, designating the affidavit of a registered nurse. App. v. III at 39. On September 19, Provider filed a motion to strike the Ashley's supplemental designation of evidence as untimely.
[¶9] On September 21, the trial court held a summary judgment hearing at which the parties presented arguments. On October 30, 2023, the trial court issued its Order Granting Defendants' Motions for Summary Judgment and Motion to Strike the Ashley's supplemental designated evidence. This appeal ensued.
Discussion and Decision
Standard of Review
[¶10] We review a grant or denial of a motion for summary judgment under the same standard used by the trial court; that is,
[t]he moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Summary judgment is improper if the movant fails to carry its burden, but if it succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. In determining whether summary judgment is proper, the reviewing court considers only the evidentiary matter the parties have specifically designated to the trial court. See Ind. Trial R. 56(C), (H). We construe all factual inferences in the non-moving party's favor and resolve all doubts as to the existence of a material issue against the moving party.Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012) (case quotations and citations omitted). In reviewing a summary judgment, we "consciously err on the side of letting marginal cases proceed to trial on the merits, rather than risk short- circuiting meritorious claims." Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014).
Jurisdiction to Determine Issue of Immunity
[¶11] The Ashleys contend that the trial court did not have subject matter jurisdiction to make a preliminary determination as to Providers' immunity defense. Generally, trial courts do not have jurisdiction over a proposed complaint filed with the Indiana Department of Insurance until the medical review panel ("MRP") issues an opinion. Ind. Code § 34-18-8-4. One exception to this general rule is where a court is asked to "preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure." I.C. § 34-18-11-1(a)(1). By asserting an affirmative defense, a party admits the allegations of the complaint but asserts that there is an "additional matter barring relief." Willis v. Westerfield, 839 N.E.2d 1179, 1185 (Ind. 2006) (quotations and citation omitted).
[¶12] Immunity is an affirmative defense which may be preliminarily decided by a trial court under Indiana Code Section 34-18-11-1(a)(1). Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 291 (Ind.Ct.App. 2013). However, where the determination of the preliminary question requires an expert opinion, it is reserved for the MRP, and "trial courts may not rule on those issues." Id. at 292.
[¶13] Here, Providers filed a Petition for a Preliminary Determination of the affirmative defense of immunity and moved for summary judgment. By doing so, they admit the essential allegation in the complaint that Roger developed bed sores while under their care and treatment for COVID-19 and related complications. Given that admission for purposes of the preliminary determination, no expert opinion was required to determine whether Roger's injury was related to the actions taken by Providers (i.e., placing him on a ventilator for an extended period of time) to treat him for complications of COVID-19; the undisputed material facts-and the parties' admissions- establish that it was. Therefore, pursuant to Indiana Code Section 34-19-11-1, the trial court had jurisdiction to decide the immunity issue. See Haggerty, 998 N.E.2d at 292 (holding the trial court had jurisdiction to preliminarily determine the issue of immunity in a medical malpractice case where an expert opinion was not necessary to the determination).
Immunity
[¶14] In response to the COVID-19 pandemic, both the Indiana and federal legislatures passed laws granting immunity in some instances to medical providers treating patients for COVID-19. Indiana Code Section 34-30-13.5-1(b) states that such providers "may not be held civilly liable for an act or omission relating to the provision or delay of health care services . . . arising from a state disaster emergency declared ... to respond to COVID-19." Similarly, Indiana Code Section 34-30-32-6 states that medical providers are "immune from civil tort liability for damages arising from COVID-19." "Arising from COVID-19" means an injury or harm was "caused by or resulting from . . . services, treatment, or other actions performed for COVID-19." I.C. § 34-30-32-2. Both State statutes provide that there is no immunity for gross negligence or willful or wanton misconduct. I.C. § 34-30-13.5-2; I.C. § 34-30-32-7.
The same immunity also applies to medical facilities. Ind. Code § 34-30-13.5-3.
[¶15] Federal law also provides immunity in some instances to medical providers treating COVID-19. The Public Readiness and Preparedness ("PREP") Act authorizes the Secretary of Health and Human Services ("HHS") to issue a declaration that an event is a public health emergency and then take action to utilize funds established by the Treasury to manage the emergency. See 42 U.S.C. § 247d(a). In March 2020, the HHS Secretary issued such a declaration regarding the COVID-19 pandemic. Once the declaration is issued, the PREP Act "provides sweeping immunity for certain claims against certain covered individuals." Pirotte v. HCP Prairie Village KS OPCO, LLC, 580 F.Supp.3d 1012, 1020 (D. Kan. 2022) (quotation and citation omitted).
[¶16] Specifically, the PREP Act creates immunity "from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure." 42 U.S.C. § 247d-6d(a)(1) (emphasis added). Such immunity "applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure." 42 U.S.C. § 247d-6d(a)(2)(B). "Administration" of countermeasures includes the "physical provision of the countermeasures to recipients." Maney v. Brown, 91 F.4th 1296, 1301 (9th Cir. 2024) (citing 85 Fed.Reg. at 79197). A "covered countermeasure" includes "a respiratory protective device," such as a "continuous ventilator." 42 U.S.C. § 247d-6d(i)(1)(D); 21 C.F.R. § 868.5895; see also 42 U.S.C. § 247d-6d(i)(7) (defining "qualified pandemic or epidemic product"). However, as with state law, federal law provides an exception to immunity for "willful misconduct." 42 U.S.C. § 247d-6d(d).
[¶17] Thus, if a plaintiff's allegations assert injuries caused by the administration or use of covered countermeasures, the plaintiff's exclusive remedy is to follow the procedures for seeking compensation from the federal "Covered Countermeasures Process Fund." 42 U.S.C. § 247d-6e(a),(b)(4), and (d). If a plaintiff's allegations do not assert injuries caused by the administration or use of covered countermeasures, then the claim falls outside the scope of the PREP Act, and the plaintiff may pursue other claims, such as a state law negligence claim. See Pirotte, 580 F.Supp.3d at 1021.
[¶18] The Ashleys' allegations assert injuries that were "caused by, ar[ose]out of, relat[ed] to, or result[ed] from" the physical provision of a covered countermeasure, i.e., a respiratory protective device. 42 U.S.C. § 247d-6d(a)(1). That is, they allege that Roger developed bed sores when he was immobilized for an extended period of time so that he could be placed on a ventilator to treat his COVID-19 pneumonia. That "chain of events cannot be separated from the administration of a covered countermeasure-"the use of a respiratory protective device. Cowen v. Walgreen Co., No. 22-CV-157-TCK-JFJ, 2022 WL 17640208, at *3 (N.D. Okla. December 13, 2022), appeal dismissed per stipulation, 2023 WL 4419805. Therefore, Providers are immune from liability for the Ashleys' state and federal claims that do not allege willful misconduct, and the trial court did not err in granting Providers summary judgment on that issue.
Willful Misconduct Claim
[¶19] On appeal, the Ashleys assert that Providers were "grossly negligent" and engaged in "willful misconduct." Appellants' Br. at 34. Providers contend- and the trial court agreed-that the Ashleys raised no such claim in their proposed complaint. However, as the Ashleys point out, Indiana is a noticepleading state which only requires that pleadings contain "a short and plain statement of the claim showing that the pleader is entitled to relief, and [] a demand for reliefs" Ind. Trial Rule 8(A). Our "notice-pleading system does not require a pleading to adopt a specific legal theory of recovery to be adhered to throughout the case." Winters v. Pike, 171 N.E.3d 690, 697 (Ind.Ct.App. 2021). Rather, Indiana Trial Rule 8 "merely requires pleading the operative facts so as to place the defendant on notice concerning the evidence to be presented at trial." Id.; see also Waldrip v. Waldrip, 976 N.E.2d 102, 116 (Ind.Ct.App. 2012) ("A plaintiff need only provide a clear and concise statement that will give notice to defendants as to what has allegedly taken place and the theory or theories the plaintiff plans to pursue."). Thus, our Supreme Court has concluded that, "although highly desirable, a precise legal theory in pleading- a principle connecting a claim to the relief sought-is not required." ResCare Health Serv., Inc. v. Ind. Fam. &Soc. Serv. Admin., 184 N.E.3d 1147, 1153 (Ind. 2022) (quotation and citation omitted).
[¶20] In their proposed complaint filed with the Indiana Department of Insurance, the Ashleys asserted that, "as a direct result of [Providers'] negligence and willful disregard for their patient's health, dignity, and life, Roger developed deep tissue pressure wounds." App. v. II at 91 (emphasis added). In support of that claim, the Ashleys contended in part that Providers "rebuffed" their "desperate pleas for help." Id. Thus, while the Ashleys did not assert willful misconduct as a separate count in their proposed complaint, they alleged "willful disregard" for Roger's "health, dignity, and life" in addition to alleged negligence. Id. Under Indiana's notice-pleading rule, those allegations were sufficient to put Providers on notice as to what has allegedly taken place and the theory or theories the Ashleys plan to pursue. See, e.g., ResCare Health Serv., 184 N.E.3d at 1153.
[¶21] However, the trial court did not err in granting summary judgment to Providers because the Ashleys' willful misconduct claim is preempted by the PREP Act. Under that law, "the sole exception to the immunity from suit and liability of covered persons . . . shall be for an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct." 42 U.S.C. § 247d-6d(d)(1) (emphasis added); see also, e.g.,
"Willful misconduct" is defined as:
an act or omission that is taken
(i) intentionally to achieve a wrongful purpose;
(ii) knowingly without legal or factual justification; and
(iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.42 U.S.C. § 247d-6d(c)(1)(A).
Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393, 410 (3rd Cir. 2021) ("Congress said the cause of action for willful misconduct is exclusive, so it is."). Therefore, a plaintiff asserting a willful misconduct claim must first exhaust administrative remedies under § 247d-6e(a) by seeking compensation from the Covered Countermeasures Process Fund. Maglioli, 16 F.4th at 409 (citing 42 U.S.C. § 247d-6e(d)(1) and § 247d-6d(e)(1)). If the plaintiff is found eligible for such compensation, he or she "may choose to accept compensation from the fund instead of filing a suit in federal court." Id. If the plaintiff chooses instead to file suit, he or she must do so only in the United States District Court for the District of Columbia-which has "[e]xclusive [f]ederal [j]urisdiction" over willful misconduct claims-and must follow all of the PREP Act procedures applicable to willful misconduct claims. 42 U.S.C. § 247d-6d(e)(1); see also 42 U.S.C. § 237d-6d(c), (e); Maglioli, 16 F.4th at 409.
[¶22] Because the federal court has exclusive jurisdiction over the Ashleys' willful misconduct claim, the trial court did not err when it granted summary judgment to Providers.
Conclusion
[¶23] The trial court did not err in granting summary judgment to Providers because there are no genuine issues of material fact and, as a matter of law: the court had jurisdiction to preliminarily determine the issue of immunity; Providers are immune from liability for the Ashleys' negligence, emotional distress, and loss of consortium claims; and the Ashleys' willful misconduct claim, which is preempted by federal law, must be brought in the federal district court in the District of Columbia, following exhaustion of applicable remedies contained in the PREP Act.
[¶24] Affirmed.
Mathias, J., and Pyle, J., concur.