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Physician allowed to sue lawyer in medical malpractice case
The Indiana Supreme Court has ruled that a physician may sue a medical malpractice claimant, her attorney and her attorney’s law firm for statutory negligence.
The state’s Medical Malpractice Act requires a medical malpractice claimant to present a claim to the medical review panel before an action is filed in court. However, such action may be simultaneously filed in court if the complaint contains no information allowing the defendant provider(s) to be identified.
The case in question
In the case of Kho v. Pennington, et al., the proposed complaint was filed with the Indiana Department
of Insurance, but before it was considered by the medical review panel, the complaint also was filed
in court, explicitly naming Dr. Kho and other defendant health care providers.
Dr. Kho responded because his name appeared throughout the medical records as the local family physician on call for the emergency room. He was not involved in the treatment at issue, and the claimant and her lawyers voluntarily dismissed Dr. Kho from the lawsuit.
Dr. Kho then sued, seeking damages for emotional suffering, embarrassment, undue negative
publicity, injury to his reputation and mental distress resulting from being falsely named in the malpractice lawsuit. The trial court granted summary judgment against Dr. Kho, which the Court of Appeals affirmed.
The key issue
The Indiana Supreme Court granted transfer in the case to address one specific issue: whether violation of the defendant identity confidentiality provision of the malpractice act may give rise to an
action for damages.
In its opinion, the court noted: “the nature of the damages sought by the doctor falls within the risk of
the type of harm against which the statute is directed.”
Additionally, the court observed that merely dismissing the improperly filed complaint would have
been “wholly ineffectual to prevent or remedy the harm to a defendant physician’s reputation that
results from media coverage of the court filing.”
The court focused on the purpose of the malpractice act and noted that although the statutory
provision may not be a foolproof means to protect the physician’s good name and reputation, “it
serves a significant ameliorative function clearly intended by the legislature.”
The court held that Dr. Kho could properly bring a claim for violation of the statutory defendant identity confidentiality provision. It noted that its decision was consistent with the state constitutional right to seek a remedy for harm to one’s reputation.
What’s important to learn
“It is important to understand what this case says and does not say,” said Julie Reed, ISMA legal counsel. “This case simply protects the identity of the physician in court proceedings until the panel process is completed.
The opinion does not say that a physician can sue a malpractice claimant and their attorney simply
for naming a physician in a case when the physician was not involved in the treatment at issue.”
Although the case did not address Dr. Kho’s malicious prosecution theory, the justices implied that initially including the physician in the suit was not inappropriate, explained Reed.
Dr. Kho’s name did appear throughout the records, and it was only through subsequent litigation discovery that he could demonstrate he was not involved in the care at issue.”
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