Background on the MMA
Pursuant to the MMA , a plaintiff who wishes to pursue a medical negligence claim against a qualified provider must : ( 1 ) present a proposed complaint to the Indiana Department of Insurance for review by a medical review panel ; and ( 2 ) the medical review panel must render its opinion as to the care provided by the qualified provider , before the plaintiff can proceed with a medical negligence action in state court . 6 The purpose of the panel requirement – and the “ sole duty ” of the medical review panel – is to render an expert opinion as to whether “ the evidence supports the conclusion that the defendant [ s ] acted or failed to act within the appropriate standards of care as charged in the complaint .” 7 Until a medical review panel issues an opinion ( which can take years ), the subject matter jurisdiction of the state court is limited to “ preliminarily determining affirmative defenses under Trial Rules , deciding issues of law or fact that may be preliminarily determined under Trial Rule 12 ( D ), and compelling discovery pursuant to Trial Rules 26 through 37 , inclusively .” 8
In simpler terms , the MMA provides that a medical review panel must render an expert medical opinion as to whether a qualified provider was negligent when providing treatment to the plaintiff before the plaintiff can proceed in state court . It appears , based on the Immunity Provision ’ s specific reference to the MMA , that the legislature intended for the MMA ( and its procedural prerequisites ) to apply to claims of gross negligence or willful or wanton misconduct arising out of COVID-19 . 9 However , the Immunity Provision is silent as to whether , when , and to what extent the panel ’ s jurisdictional prerequisite comes into play .
The Panel Requirement and Claims of Gross Negligence
The trouble presents in the interaction of the MMA ’ s panel requirement and the application of the Immunity Provision . Imagine this scenario : a plaintiff files a proposed complaint against a qualified provider alleging that the provider was grossly negligent and / or engaged in willful or wanton misconduct in the treatment of the patient , which purportedly resulted in injuries or death from COVID-19 . The Immunity Provision does not bar the claim . However , is a medical review panel obligated to render an expert opinion as to whether the provider complied with the applicable standard of care – the precise conduct which the Immunity Provision is designed to protect – before the claimant is required to produce any evidence to support his allegation of gross negligence or willful or wanton misconduct ?
The response , based on the traditional application of the MMA , appears to be “ yes ,” particularly considering that gross negligence is predicated on a showing of negligence . 10 However , it seems contrary to the intent of the legislature to require qualified providers to satisfy the jurisdictional prerequisites which apply to a general negligence claim before the plaintiff is required to present evidence of the intent necessary to support a claim for gross negligence or willful or wanton misconduct simply because the plaintiff drafted the proposed complaint to avoid the Immunity Provision .
One alternative option would be for the medical review panel to issue an opinion as to whether the qualified provider ’ s conduct constitutes gross negligence or willful or wanton misconduct . This solution is imperfect for multiple reasons . First , the MMA specifically provides the language to be adopted by the panel ( depending on its opinion ), and none of the enumerated options incorporates the higher standard for gross negligence or willful or wanton misconduct
11 , 12 under Indiana law .
Second , the purpose of the panel requirement – to provide an expert medical opinion for issues that are beyond a lay person ’ s understanding 13 – is not necessary to prove whether the provider acted with the intent necessary to elevate the conduct from general negligence to gross negligence or willful or wanton misconduct . The Indiana Supreme Court has defined gross negligence as “ a conscious voluntary act or omission in reckless disregard of the consequences to another party .” 14 Similarly , willful or wanton misconduct in the practice of medicine has been defined by the medical licensing board as “ the conscious and intentional doing of a wrongful act or omission of a duty , with reckless indifference to the obligations of the medical profession or the consequences to the rights or feelings of others , including the possibility of patient injury [.]” 15 Intent – the element necessary to distinguish negligence from gross negligence and to prove willful or wanton
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