# CUTCHIN v. ANONYMOUS HEALTHCARE PROVIDER 1

> District Court, S.D. Indiana · March 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10166136

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** March 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

JEFFREY B. CUTCHIN, Personal Representative )
of the Estates of Claudine D. Cutchin and Adelaide )
E. Cutchin, )
)
Plaintiff, )
)
v. ) Case No. 3:18-cv-00028-TWP-MPB
)
INDIANA DEPARTMENT OF INSURANCE, )
STEPHEN W. ROBERTSON, )
)
Intervenor Defendant. )

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on Cross-Motions for Summary Judgment filed pursuant to
Federal Rule of Civil Procedure 56. Intervenor Defendant Stephen W. Robertson, Commissioner
of the Indiana Department of Insurance, Administrator of the Indiana Patient’s Compensation Fund
(“PCF”) filed a summary judgment motion on August 23, 2019. (Filing No. 73). That same date,
Plaintiff Jeffrey B. Cutchin (“Cutchin”) filed a cross-motion. (Filing No. 76). Cutchin initiated this
action against Anonymous Healthcare Provider 1 and Anonymous Healthcare Provider 2,
following the tragic deaths of his wife and daughter, alleging that their medical care and treatment
fell below the standard of care, which led to the wrongful deaths of his wife and daughter. Cutchin
amended his Complaint to add a request for declaratory judgment, thereafter, the PCF intervened
in the case to protect its interests implicated by the Amended Complaint. Cutchin reached an
agreement to settle his claims with Anonymous Healthcare Providers 1 and 2, and the cross-
motions for summary judgment followed. For the reasons explained below, the Court grants the
PCF’s Motion and denies Cutchin’s Motion.
I. BACKGROUND
The Indiana Medical Malpractice Act, Indiana Code § 34-18 et seq., provides the statutory
framework for medical negligence claims in the state of Indiana. As part of this statutory
framework, the Indiana General Assembly created the Patient’s Compensation Fund (“PFC”),

which allows a claimant to seek payment from the fund for an amount in excess of a health care
provider’s liability limits on medical malpractice claims. See Ind. Code §§ 34-18-6; 34-18-14; 34-
18-15; and generally Ind. Code § 34-18 et seq. The PCF is administered by the Commissioner of
the Indiana Department of Insurance.
Anonymous Healthcare Provider 1 (“Provider 1”) practices medicine at Anonymous
Healthcare Provider 2 (“Provider 2”), which is a medical clinic in Ft. Branch, Indiana. Provider 1
is a “qualified provider” subject to and governed by the provisions of the Indiana Medical
Malpractice Act. Provider 1 provided medical care to Sylvia Watson (“Watson”) beginning in
May 2000 (Filing No. 78-1 at 3). In the course of treating Watson for a variety of medical
conditions, Provider 1 prescribed numerous medications for Watson, and in early 2017, Watson

was taking at least eight different medications, including an opioid, prescribed by Provider 1
(Filing No. 82-1 at 9).
On February 2, 2017, Watson and her granddaughter, Brandy Mayer (“Mayer”), left
Taylor’s Garage in Owensville, Indiana, to travel to Princeton, Indiana. Before leaving Taylor’s
Garage, Mayer watched Watson take out a prescription bottle and take two pills. Watson then
drove her vehicle while Mayer was in the passenger seat. There is a stoplight at the intersection
of State Road 65 and State Road 64, and as Watson and Mayer approached the intersection, the
traffic light was red. However, Watson was unable to physically lift her foot off the gas pedal to
brake for the red light. As a result, Watson crashed her vehicle into another vehicle driven by
Claudine Cutchin (Cutchin’s wife) with Adelaide Cutchin (Cutchin’s daughter) as a passenger.
Watson, Claudine Cutchin, and Adelaide Cutchin all died as a result of the accident. A blood test
administered to Watson after the accident revealed the presence of opiates in her system (Filing
No. 74-1 at 2–3; Filing No. 80-3 at 4–8).

On January 25, 2018, Cutchin simultaneously filed a proposed complaint with the Indiana
Department of Insurance and his Complaint in this Court, containing parallel allegations and
seeking damages against Provider 1 and Provider 2 for the wrongful deaths of his wife and
daughter (Filing No. 80-5 at 3–8). In his Complaint, Cutchin alleged, “The medical care and
treatment rendered to Watson by [Provider 1 and Provider 2] was substandard, breached applicable
standards of care, and was careless and negligent proximately causing and contributing to the cause
of the wrongful deaths of Claudine and Adelaide.” (Filing No. 1 at 3.)
Cutchin further alleged, “Defendants’ treatment of Watson fell below the applicable
standard of care and proximately caused the wrongful death of Claudine and Adelaide” when
Provider 1 and Provider 2, among other things, “failed to warn Watson about driving a motor

vehicle under the influence of the drugs and various combinations of drugs which he/they
prescribed”. Id. at 3, 5. “Watson had fallen at least twice due to unknown causes within eighteen
(18) months of the fatal accident, yet Defendants failed to adjust Watson’s medication or warn her
concerning the operation of motor vehicles.” Id. at 4.
As a qualified health care provider under the Medical Malpractice Act, Provider 1 was
insured by Medical Protective Insurance as well as the PCF. Watson was Provider 1’s longtime
patient from 2000 to 2017, and Provider 1 provided her medical services, treatment, and healthcare
in that physician-patient relationship. Provider 1 never provided any medical services, treatment,
or healthcare to Cutchin, Claudine Cutchin, or Adelaide Cutchin. Provider 1 never established a
physician-patient relationship with Cutchin, Claudine Cutchin, or Adelaide Cutchin. Cutchin,
Claudine Cutchin, and Adelaide Cutchin were never Provider 1’s patients, and they never received
medical services from Provider 1 or his medical practice (Provider 2) (Filing No. 74-3 at 2–3).
Approximately nine months after filing his original Complaint, Cutchin filed an Amended

Complaint, which added a request for a declaratory judgment concerning the applicability of the
Indiana Medical Malpractice Act to the factual allegations of his Complaint. (Filing No. 26 at 6-
7). Three months later, the PCF filed a Motion to Intervene as a defendant in this matter to protect
its interest in administering the fund. PCF explained that if the Court were to determine that the
Medical Malpractice Act applies, then the PCF possibly could be affected (Filing No. 35). PCF’s
position in the Motion to Intervene is that the Medical Malpractice Act does not apply because,
“the case facts do not provide coverage under the Act,” and the PCF should not be accessible for
any excess damages. Id. at 10.
The Magistrate Judge scheduled a settlement conference for March 13, 2019, and the PCF
filed a motion to be excused from participating in the settlement conference asserting that “this

matter should not be determined under the Medical Malpractice Act,” and “this case does not fall
within the Act.” (Filing No. 38 at 1–2.) The Magistrate Judge denied the PCF’s request to be
excused from the settlement conference (Filing No. 42).
On March 13, 2019, the settlement conference was held with Cutchin, Provider 1, Provider
2, a representative of Provider 1 and 2’s malpractice insurer, and the PCF. A settlement was
reached between Cutchin and Providers 1 and 2 for $250,000.00, the maximum amount
recoverable against the doctor under the Medical Malpractice Act (Filing No. 43; Filing No. 80-
7). All parties to the case, including the PCF, executed a “Memorandum of Agreement,” which
acknowledged the settlement, reflected the amount to be paid by Providers 1 and 2, called for
termination of the medical review panel proceedings as to Providers 1 and 2, and noted Cutchin’s
reservation of the right to pursue claims against the PCF (Filing No. 80-7).
In accordance with the Memorandum of Agreement, Cutchin dismissed Providers 1 and 2
from this litigation, accepted the $250,000.00 payment from Providers 1 and 2, and executed a

“Settlement and Release Agreement”. The PCF did not contribute financially to the settlement
and was not a party to the formal settlement documents executed by the settling parties. However,
the settlement agreement between Cutchin and Providers 1 and 2 explicitly reserved Cutchin’s
right to proceed against the PCF (Filing No. 86-1 at 3–4, 6–7).
On April 11, 2019, Cutchin filed a Stipulation of Dismissal of Providers 1 and 2 and
“specifically reserve[ed] Plaintiff’s claims and rights herein to proceed against the Defendant
Indiana Patient’s Compensation Fund.” (Filing No. 45 at 1.) On the same day, Cutchin filed a
Petition for Payment of Damages from the PCF (Filing No. 46). On April 15, 2019, the PCF
represented to the Court that it “does not object to dismissal of Anonymous Healthcare Providers
1 and 2 with prejudice.” (Filing No. 47 at 2.) However, the PCF objected to the stipulated

dismissal to explain that the “Plaintiff’s ability to proceed against the PCF under the Indiana
Medical Malpractice Act I.C. §34-18-1-1 et. seq. (the ‘Act’) is a central dispute in this case,” and
“[t]he PCF has consistently taken the position that because of the nature of Plaintiff’s claims, the
Plaintiff has no cognizable legal right to damages from the PCF because the underlying acts are
not within the purview of the Act.” Id. at 1–2.
On June 27, 2019, Cutchin and the PCF submitted their Joint Proposed Preliminary Case
Management Plan Schedule, which stated that the parties agreed they would file summary
judgment motions regarding whether the Indiana Medical Malpractice Act applies to the facts of
this case (Filing No. 66). Then on August 23, 2019, the parties filed their Cross-Motions for
Summary Judgment.
II. SUMMARY JUDGMENT STANDARD
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in

order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that summary
judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 489–90 (7th Cir. 2007). In ruling on a motion for summary
judgment, the court reviews “the record in the light most favorable to the non-moving party and
draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584
(7th Cir. 2009) (citation omitted). “However, inferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d

624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who
bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively
demonstrate, by specific factual allegations, that there is a genuine issue of material fact that
requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet
this burden with conclusory statements or speculation but only with appropriate citations to
relevant admissible evidence.” Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind.
1995) (citations omitted).
“In much the same way that a court is not required to scour the record in search of evidence
to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits
of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation
marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties
nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion
for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir.

1997) (citations and quotation marks omitted).
These same standards apply even when each side files a motion for summary judgment.
The existence of cross-motions for summary judgment does not imply that there are no genuine
issues of material fact. R.J. Corman Derailment Serv., LLC v. Int’l Union of Operating Eng’rs.,
335 F.3d 643, 647 (7th Cir. 2003). The process of taking the facts in the light most favorable to
the non-moving party, first for one side and then for the other, may reveal that neither side has
enough to prevail without a trial. Id. at 648. “With cross-motions, [the court’s] review of the
record requires that [the court] construe all inferences in favor of the party against whom the
motion under consideration is made.” O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983
(7th Cir. 2001) (citation and quotation marks omitted).

III. DISCUSSION
The parties filed Cross-Motions for Summary Judgment on the sole issue of whether the
Indiana Medical Malpractice Act (“MMA”) applies to the facts of this case. If the MMA applies
to this case, then Cutchin would be allowed to petition for payment of any excess damages from
the PCF. But if the MMA does not apply to this case, then the PCF would not be available to
Cutchin.
Since its enactment in 1975, the MMA has dictated the statutory procedures
for medical malpractice actions. The MMA is not all-inclusive for claims against
healthcare providers, nor is it intended to be extended to cases of ordinary
negligence. Instead, the MMA was designed to curtail, not expand, liability for
medical malpractice. As such, the MMA is in derogation of common law and
should be narrowly construed.
G.F. v. St. Catherine Hosp., Inc., 124 N.E.3d 76, 84 (Ind. Ct. App. 2019) (internal citations
omitted).
To fall within the purview of the MMA, a provider’s conduct must be
undertaken in the interest of, or for the benefit of, the patient’s health. In other
words, the conduct must be curative or salutary in nature or effect for the person
claiming patient status under the MMA. The curative or salutary conduct must be
directed toward the person to whom the provider owes a duty of care. Conversely,
the MMA does not apply to conduct unrelated to the promotion of a patient’s health
or the provider’s exercise of profession expertise, skill, or judgment.

Id. at 85 (internal citations and quotation marks omitted).
“A medical malpractice claim under the Act exists only when the substance of the claim
involves a causal connection between the negligence and the nature of the provider/patient
relationship.” Id. Similarly, “the MMA applies where there is a causal connection between the
conduct complained of and the nature of the patient-health care provider relationship.” Anonymous
Hosp., Inc. v. Doe, 996 N.E.2d 329, 333 (Ind. Ct. App. 2013). A “physician-patient relationship
is necessary to bring claims under the procedures of the MMA.” Id. at 334.
The MMA defines “patient” as:
[A]n individual who receives or should have received health care from a health care
provider, under a contract, express or implied, and includes a person having a claim
of any kind, whether derivative or otherwise, as a result of alleged malpractice on
the part of a health care provider. Derivative claims include the claim of a parent or
parents, guardian, trustee, child, relative, attorney, or any other representative of
the patient including claims for loss of services, loss of consortium, expenses, and
other similar claims.

Ind. Code § 34-18-2-22.
Cutchin argues that the PCF is foreclosed from contesting its liability for excess damages
because the MMA unequivocally establishes the PCF’s liability when a health care provider settles
a claim with the claimant. He asserts that the settlement between the claimant and the health care
provider forecloses the issues of causation and proximate cause,1 leaving only the issue of damages
to be decided. As a result, Cutchin contends the PCF cannot litigate the applicability of the MMA
or the health care provider’s liability after settlement. He argues under Indiana law, doctors have
a duty to warn their patients about the side effects of medications, and they may be liable to injured

third-parties for failing to do so. In support of his argument, Cutchin relies on the cases of Manley
v. Sherer, 992 N.E.2d 670 (Ind. 2013); Robertson v. B.O., 977 N.E.2d 341 (Ind. 2012); Cram v.
Howell, 680 N.E.2d 1096 (Ind. 1997); McDaniel v. Robertson, 83 N.E.3d 765 (Ind. Ct. App. 2017);
Green v. Robertson, 56 N.E.3d 682 (Ind. Ct. App. 2016); Atterholt v. Robinson, 872 N.E.2d 633
(Ind. Ct. App. 2007); Rimert v. Mortell, 680 N.E.2d 867 (Ind. Ct. App. 1997); J.L. v. Mortell, 633
N.E.2d 300 (Ind. Ct. App. 1994); Dillon v. Callaway, 609 N.E.2d 424 (Ind. Ct. App. 1993); and
Dillon v. Glover, 597 N.E.2d 971 (Ind. Ct. App. 1992).
Cutchin asserts that the only thing left to be done in this case is to conduct a hearing where
both sides may “introduce relevant evidence” to help the Court “determine the amount of
claimant’s damages.” Ind. Code § 34-18-15-3(5). Cutchin contends that the PCF’s argument that

his claim falls outside the scope of the MMA, is foreclosed by statute: “In approving a settlement
or determining the amount, if any, to be paid from the patient’s compensation fund, the court shall
consider the liability of the health care provider as admitted and established.” Id.

1 In its Response Brief, the PCF asserted that proximate cause is disputed but not relevant, and further explained,

[T]he issue of proximate cause is not relevant to the pending cross-motions for summary judgment.
. . . However, because Plaintiff designated evidence that is potentially relevant to the issue of
proximate cause, and in an abundance of caution so as not to waive the possibility that factual
questions may arise on the issue of proximate cause, the PCF designates the Affidavit of Dr. Paul
Axelsen and supporting documents.

(Filing No. 88 at 3.) In his Reply Brief, Cutchin argued that clearly the PCF contests liability, which is not permitted
under the MMA (Filing No. 91 at 6–7). The Court will not give further consideration to these arguments because at
this stage of the litigation, “the liability of the health care provider [is] admitted and established,” Ind. Code § 34-18-
15-3(5), and is not relevant to the parties’ summary judgment motions.
A review of the cases relied upon by Cutchin reveals that they do not stand for the
proposition that the PCF is prohibited from challenging the applicability of the MMA to this case.
The cases do not establish that the settlement between Cutchin and Providers 1 and 2 unequivocally
established the PCF’s liability. Instead, the proffered cases explain that the liability of (and

necessarily the existence and proximate cause of injury as components of liability) the health care
provider is admitted and established, not the liability of the PCF. The plain language of the statute
itself, also states this: “the court shall consider the liability of the health care provider as admitted
and established.” Ind. Code § 34-18-15-3(5) (emphasis added). The cases cited by Cutchin discuss
the PCF’s opportunity to raise various issues even after a settlement between a claimant and the
health care provider, with each case explaining that the PCF cannot challenge the liability of the
health care provider. Challenging the liability of a health care provider is not the same as
challenging the applicability of the MMA, and the PCF may do the latter.
From its very first participation in this case and throughout the litigation (including before
Cutchin’s settlement with Providers 1 and 2), the PCF consistently has argued that the MMA does

not apply to this case. The PCF has not sat on its rights, conceded its own liability, or waived its
arguments as Cutchin suggests. The Court concludes that the settlement between Cutchin and
Providers 1 and 2 did not foreclose the PCF’s opportunity to challenge the applicability of the
MMA to this case and did not establish the PCF’s liability.
In arguing for summary judgment, the PCF asserts that the MMA does not apply to the
facts of this case because Claudine Cutchin and Adelaide Cutchin were never patients of Providers
1 or 2, and they cannot fit within the MMA’s definition of “patient,” which is a prerequisite to a
claim under the MMA. Cutchin and Providers 1 and 2 cannot decide the scope of the MMA by
their settlement agreement; that is a legal question for the Court.
The PCF argues persuasively, that under the plain language of the MMA and established
caselaw, Claudine Cutchin and Adelaide Cutchin do not meet the statutory definition of a “patient”
under the MMA, and therefore, Cutchin’s claim does not fall within the scope of the MMA. The
“medical malpractice is the breach of the duty owed by a healthcare provider to its patient. The

duty arises from the contractual relationship entered into between the provider and the patient.”
Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006). Without a healthcare
provider-patient relationship, no MMA claim can exist.
The PCF notes the MMA’s definition of “patient”—“an individual who receives or should
have received health care from a health care provider, under a contract, express or implied, and
includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged
malpractice on the part of a health care provider.” Ind. Code § 34-18-2-22. This statutory
definition also provides, “[d]erivative claims include the claim of a parent or parents, guardian,
trustee, child, relative, attorney, or any other representative of the patient including claims for loss
of services, loss of consortium, expenses, and other similar claims.” Id.

The PCF argues that, “[b]y definition, there is no ‘contractual relationship’ or ‘special
consensual relationship’ between a provider and unknown third parties with whom a third-party
may later be involved in an accident.” (Filing No. 75 at 7.) Thus, with no relationship at all
between Cutchin, Claudine Cutchin, and Adelaide Cutchin and Providers 1 and 2, Cutchin,
Claudine Cutchin, and Adelaide Cutchin cannot be considered “patients” under the MMA.
Cutchin, Claudine Cutchin, and Adelaide Cutchin never received medical care or treatment from
Providers 1 and 2 and were never their patients.
The PCF directs the Court’s attention to the case of Preferred Prof. Ins. Co. v. West, 23
N.E.3d 716 (Ind. Ct. App. 2014), where the plaintiff was working on an elevated “cherry picker”.
The cherry picker was hit and knocked over by a truck operated by “Hart,” and the plaintiff was
injured. Hart was taking narcotic pain medication at the time of the accident. The plaintiff sued
Hart’s medical provider who prescribed the medication, arguing that the medical provider failed
to warn Hart about the side effects and impairments of the medication. The Indiana Court of

Appeals affirmed the trial court’s determination that the allegations constituted claims of common
law negligence, not medical malpractice, and thus did not fall within the scope of the MMA. Id.
at 733. The Court of Appeals explained in detail why the plaintiff, an injured third-party, was not
a “patient” under the MMA and thus could not bring an MMA claim. Id. at 729–33. The court
noted, “[w]e do not believe the MMA was intended to cover claims by third parties having
absolutely no relationship to the doctor or medical provider.” Id. at 730.
The PCF additionally argues that Cutchin, Claudine Cutchin, and Adelaide Cutchin do not
have a representative or derivative claim on behalf of the actual patient, in this case Watson. The
MMA’s definition of “patient” recognizes claims for parents, guardians, trustees, children,
relatives, attorneys, and other representatives of the patient, but Cutchin, Claudine Cutchin, and

Adelaide Cutchin did not have any representative relationship with Watson, who was the patient
of Providers 1 and 2. The PCF argues Cutchin’s claim is not derivative of health care provided to
Watson; rather, his claim is based on Claudine Cutchin’s and Adelaide Cutchin’s automobile
accident injuries.
In response, Cutchin argues, “An examination of the statutory definition of that term
[“patient”], however, reveals that anyone claiming injury as a proximate result of malpractice
qualifies as a patient for the purposes of the MMA.” (Filing No. 87 at 7.) To make this argument,
Cutchin focuses on portions of the language from the statute: “includes a person having a claim
of any kind,” and “as a result of alleged malpractice on the part of a health care provider.” He
asserts, “[o]n its face, the statute encompasses, without limitation, any person asserting any claim
resulting from alleged malpractice.” Id. Cutchin asserts that the MMA’s amendment to add the
language “a claim of any kind” and “or otherwise” indicates that the definition is to be understood
broadly and applies to claimants beyond just the person who actually received medical care or

treatment from a medical provider. He contends that the Indiana Supreme Court has allowed
recovery of damages under the MMA by non-patient, third-party claimants in similar factual
situations. See Manley v. Sherer, 992 N.E.2d 670 (Ind. 2013); Cram v. Howell, 680 N.E.2d 1096
(Ind. 1997). Cutchin distinguishes the West case relied upon by the PCF on the basis that no
settlement agreement was reached in the West case, whereas settlement has been achieved between
Cutchin and Providers 1 and 2, and that settlement establishes the PCF’s liability.
The Court begins by noting that Indiana courts have specifically considered and rejected
Cutchin’s argument concerning the “or otherwise” language in the MMA’s definition of “patient”.
The “or otherwise” language cannot be used to broaden the definition of “patient” and to expand
the scope of the MMA. West, 23 N.E.3d at 729–31. For the reasons explained in West, the Court

also rejects Cutchin’s attempt to meet the definition of “patient” by way of the “or otherwise”
language.
Cutchin, Claudine Cutchin, and Adelaide Cutchin are not individuals who received or
should have received health care from Providers 1 and 2. Furthermore, Cutchin, Claudine Cutchin,
and Adelaide Cutchin are not a parent, guardian, trustee, child, relative, attorney, or any other
representative of Watson, the patient who actually did receive health care from Providers 1 and 2.
Therefore, under the statutory definition of “patient” for purposes of an MMA claim, Cutchin has
failed to show that he, Claudine Cutchin, or Adelaide Cutchin is a patient.
Cutchin’s attempt to distinguish the West case from this case on the basis of a settlement
agreement is unavailing. The Court discussed above that the settlement between Cutchin and
Providers 1 and 2 did not establish the PCF’s liability and did not foreclose the PCF’s opportunity
to challenge the applicability of the MMA to this case.

Concerning the cases relied upon by Cutchin for the proposition that the Indiana Supreme
Court has allowed recovery of damages under the MMA by non-patient, third-party claimants, the
Court notes that in Cram v. Howell, the plaintiff filed a medical malpractice complaint against a
physician, and the lower courts dismissed the complaint because a physician owed no duty to an
unknown third-party. The Indiana Supreme Court reversed the dismissal and concluded that
“generally physicians do not owe a duty to unknown nonpatients who may be injured by the
physician’s treatment of a patient.” 680 N.E.2d at 1097. But the court determined under the facts
and procedural posture of the case that the physician owed a duty to the injured non-patient, third-
party utilizing the ordinary negligence analysis of Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991).
The court did not analyze the issue of duty under the MMA. Cram, 680 N.E.2d at 1097–98. The

court in Cram did not establish an MMA claim for injured non-patient, third-parties against
physicians; rather, it held that in some situations a general negligence claim may arise against
physicians. Therefore, the decision in Cram does not help Cutchin avoid summary judgment.
In the Manley v. Sherer case, the PCF was not a party to the case to challenge the
applicability of the MMA. There, the plaintiffs filed a proposed medical malpractice complaint
with the Indiana Department of Insurance against a doctor who failed to warn a patient about
driving while using medication. However, when opposing the physician-defendant’s motion for
summary judgment, the plaintiffs changed course and argued the claim was not for medical
malpractice subject to the MMA. The Indiana Supreme Court noted,
We preliminarily reject the plaintiffs’ claim that their action against Dr. Sherer and
his medical group is not governed by the Indiana Medical Malpractice Act. The
plaintiffs have treated it otherwise by filing their proposed complaint with the
Department of Insurance as required by the Act. They may not now contend that
the Medical Malpractice Act and its time limitation do not apply to their claim.

Manley, 992 N.E.2d at 674.
This Court agrees with the court of appeals’ assessment of the Manley opinion in the West
case.
[W]e do not find that the Supreme Court’s preliminary decision that the Manleys
had waived any argument concerning the application of the MMA is controlling of
our decision today. We consider the Supreme Court’s remarks to be a comment
particular to the facts and circumstances of the Manley case, not a statement of law.

West, 23 N.E.3d at 732. More recently, the court of appeals has reiterated, “the West court’s
interpretation of Manley is more in line with current precedents,” and “[w]e find the interpretation
of Manley by this court in [West] to be more persuasive. In West, we considered the supreme
court’s ‘remarks to be a comment particular to the facts and circumstances of the Manley case, not
a statement of law.’” G.F., 124 N.E.3d at 89.
The Indiana Supreme Court’s preliminary statement in dicta, rejecting the plaintiffs’
position on the basis of waiver, did not address the substance of the claim and whether it actually
fell within the scope of the MMA. To the extent Cutchin argues the Manley opinion allows a non-
patient, third-party claimant to recover damages under the MMA, the Court notes that it was
permitted only on the basis of waiver, not because the substance of the claim actually was within
the scope of the MMA. The Court agrees with the Indiana Court of Appeals in West: “We do not
believe the MMA was intended to cover claims by third parties having absolutely no relationship
to the doctor or medical provider.” 23 N.E.3d at 730.
Because Cutchin, Claudine Cutchin, and Adelaide Cutchin are not “patients” under the
MMA, Cutchin’s claim does not fall within the scope of the MMA, and the PCF is not available
to Cutchin for payment of any excess damages. Therefore, the PCF is entitled to summary
judgment in its favor on Cutchin’s request for declaratory relief.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS Intervenor Defendant Stephen W.
Robertson, Commissioner, Indiana Department of Insurance, Administrator of Indiana Patient’s
Compensation Fund’s Motion for Summary Judgment (Filing No. 73) and DENIES Plaintiff
Jeffrey B. Cutchin’s Motion for Summary Judgment (Filing No. 76). Cutchin is not entitled to
petition for payment of any excess damages from the PCF.
Final judgment will issue under separate order.
SO ORDERED. )
Date: 3/9/2020 tu al nth
TANYA WALTON PRATT, JUDGE
United States District Court
Southern District of Indiana
DISTRIBUTION:
Jean Marie Blanton
ZIEMER STAYMAN WEITZEL & SHOULDERS LLP
jblanton@zsws.com
Patrick A. Shoulders
ZIEMER STAYMAN WEITZEL & SHOULDERS
pshoulders@zsws.com
A. Richard M. Blaiklock
LEWIS WAGNER, LLP
rblaiklock@lewiswagner.com
Wade Dunlap Fulford
LEWIS WAGNER LLP
wiulford@lewiswagner.com

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10166136. Public record. Not legal advice.