misconduct – is an issue of fact that is commonly interpreted and decided by lay persons . Thus , it does not require expert testimony . 16
Absent legislative action addressing the procedural problems created by the interplay of the MMA panel jurisdictional prerequisite and the Immunity Provision , the burden of clarifying the appropriate procedure to deal with medical negligence claims against qualified providers that arise out of COVID-19 but are not barred by the Immunity Provision will fall to the Indiana judiciary .
Can The Issue of Intent Be Preliminarily Determined ?
Given the above procedural uncertainties , how should a qualified provider respond upon receipt of a proposed complaint that alleges gross negligence or willful or wanton misconduct resulting in injuries arising out of COVID-19 when the plaintiff has offered no evidence of intent ? Should the provider proceed with panel proceedings – which would raise additional questions beyond the scope of this article , including whether a “ standard ” of care can exist when a condition is so novel that it has no recognized treatment or cure – and run the risk that a panel may render an opinion of breach that could require reporting to the licensing board even though the provider cannot be held liable or be subject to professional discipline for that breach absent a showing of intent ?
as analyzed above , the issue of intent does not require medical expert testimony , the court would have subject matter jurisdiction to enter judgment before the panel renders an opinion because an adverse opinion without evidence of intent would be insufficient to overcome a motion for summary judgment . 19 However , the bar for overcoming summary judgment is low , particularly for issues of fact that are generally the province of the jury , including intent . 20 Accordingly , the Immunity Provision may prove to be an insufficient shield to timely protect qualified providers from baseless claims of gross negligence or willful or wanton misconduct .
The PREP Act
Finally , one may question whether the federal immunity law , the Public Readiness and Emergency Preparedness (“ PREP ”) Act , 42 U . S . C . § 247d-6d ( 2021 ), pre-empts the MMA , giving federal courts jurisdiction over medical negligence claims arising out of COVID-19 and bypassing the panel requirement . While no federal court has considered this issue , federal courts in numerous jurisdictions have determined that the PREP Act does not preempt state court jurisdiction of state law negligence claims , thereby making removal to federal court based on preemption improper . 21 Accordingly , the PREP Act is unlikely to provide qualified providers relief as to the procedural burden presented in this article .
One possible avenue for pre-panel resolution on the merits may be summary judgment via a motion for preliminary determination of law ( after the completion of discovery ) on the grounds that the plaintiff has failed to present evidence of intent – a necessary element to prove gross negligence or willful or wanton misconduct . 17 Theoretically , the failure by plaintiff to present evidence of intent would result in the inability of the plaintiff – regardless of the outcome of the panel proceeding – to create a genuine issue of material fact and the qualified provider would be entitled to judgment in its favor as a matter of law . 18 If ,
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Riley Bennett Egloff LLP - July 2021