Carol Fluhr v. Anonymous Doctor 1

FILED

May 09 2024, 8:44 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Court of Appeals of Indiana

Carol Fluhr, Individually and as Personal Representative of the

Estate of Ed Fluhr, Deceased,

Appellant-Respondent/Plaintiff

v.

Anonymous Doctor 1, Anonymous Medical Group 1,

Anonymous Doctor 2, Anonymous Medical Group 2,

Anonymous Medical Center 1, Anonymous Doctor 4, and

Anonymous Medical Center 2,

Appellees-Third-Party Defendants

and

Anonymous Doctor 3 and Anonymous Medical Group 3,

Appellees-Petitioners/Defendants

and

Amy L. Beard, Commissioner, Indiana Department of Insurance,

Third-Party Respondent

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 1 of 15

May 9, 2024

Court of Appeals Case No.

23A-MI-1632

Appeal from the Marion Superior Court

The Honorable Gary L. Miller, Judge

Trial Court Cause No.

49D03-2212-MI-41670

Opinion by Judge Weissmann

Judges Mathias and Tavitas concur.

Weissmann, Judge.

[1] On April 28, 2020, during the early days of the global COVID-19 pandemic,

Carol Fluhr’s husband, Ed Fluhr, died of a stroke. Carol, individually and as

the personal representative of Ed’s estate, contends that the defendants

misdiagnosed Ed and delayed critical care, thereby contributing to his death.

Defendants moved for summary judgment on grounds that they were immune

from Carol’s complaint under Indiana’s COVID-19 immunity statute. The trial

court agreed. We affirm.

Facts1

[2] On March 6, 2020, Governor Holcomb issued Executive Order 20-02, declaring

1

We held oral argument in this case on April 4, 2024, and thank counsel for their excellent advocacy. We

also thank the amici, the Indiana State Medical Association and the American Medical Association, for their

helpful brief.

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 2 of 15

a Public Health Emergency for the COVID-19 pandemic. The next month, on

April 23, EMTs brought Ed to Anonymous Medical Center 1 with symptoms of

nausea, vomiting, and a headache. While en route, EMTs also performed a

stroke assessment test on Ed that reported, at that time, no signs of a stroke.

Arriving at Medical Center 1, doctors initially thought that Ed had COVID-19

and ordered a test to confirm. Doctors also had Ed undergo a head CT scan,

which did not reveal any abnormalities. But while the COVID-19 test results

were still pending, Ed’s condition deteriorated enough that he was sedated and

transferred to Anonymous Medical Center 2.

[3] Doctors at Anonymous Medical Center 2 also suspected Ed of being COVID-

19 positive. At that time, about six weeks after Governor Holcomb’s executive

order, emergency COVID-19 protocols required placing patients suspected of

having COVID-19 in contact isolation. The protocols restricted health care

providers from performing comprehensive full-contact physical examinations

while patients were suspected to have COVID-19. But doctors could still

perform more cursory physical examinations. The protocols delayed a physical

exam of Ed by several hours.

[4] Ed’s initial exam did not raise any immediate concerns. But his medical chart

noted that a more thorough, full-contact exam would have been performed if

not for Ed’s suspected COVID-19 diagnosis. Ed then received two more

COVID-19 tests at Medical Center 2. All three tests ultimately came back

negative. After two days in Medical Center 2, doctors eventually diagnosed Ed

with a stroke, which was his eventual cause of death.

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 3 of 15

[5] Carol filed a medical malpractice claim against the attending doctors and

associated medical centers (collectively, Defendants). She argued that

Defendants’ failure to adequately examine Ed when he arrived caused his

stroke to go undiagnosed and contributed to his death. Carol provided an

affidavit from an expert witness who stated that no “medical reason” prevented

Defendants from properly diagnosing and treating Ed’s stroke. Id. at 122.

[6] Before the medical malpractice process began, Defendants moved for a

preliminary determination that they were immune from Carol’s suit and, if the

trial court agreed, summary judgment on that basis.2 Defendants’ immunity

claim arose under a new statute, Ind. Code § 34-30-13.5-1, et seq., which gave

health care providers civil liability immunity for services rendered during the

COVID-19 emergency.

[7] As part of their affirmative defense, Defendants’ evidence conceded that more

“complete and comprehensive physical exam[s] could have been performed on

[Ed]” and that “more testing, evaluation, or treatment alternatives may have

resulted in other differential diagnoses being considered and/or ruled out.”

Appellant’s App. Vol. II, p. 75. But Defendants generally contended that the

2

Under Indiana’s Medical Malpractice Act (MMA), “before a party brings a medical malpractice action in

an Indiana court, the MMA requires that the proposed complaint be presented to a medical review panel and

that the panel render an opinion.” Ramsey v. Moore, 959 N.E.2d 246, 250 (Ind. 2012) (citing Ind. Code § 34-

18-8-4); but see Ind. Code § 34-18-11-1(a) (allowing a defendant to request an appropriate trial court to

“preliminarily determine an . . . issue of law” before submitting the case to the medical review panel).

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 4 of 15

care Ed received followed policies designed to limit the spread of a deadly

disease. The trial court granted Defendants’ motions for summary judgment.

Discussion and Decision

[8] In reviewing a summary judgment ruling, “[w]e apply the same standard as the

trial court.” Shawa v. Gillette, 209 N.E.3d 1196, 1199 (Ind. Ct. App. 2023). The

party moving for summary judgment bears the initial burden to show that no

genuine issue of material fact exists. Id. Summary judgment is improper if the

moving party fails to meet this burden, or, if the burden is met, the nonmoving

party in turn establishes a genuine issue of material fact. Fox v. Barker, 170

N.E.3d 662, 665 (Ind. Ct. App. 2021). Only the evidence specifically designated

to the trial court will be considered. Ind. Trial Rule 56(. All factual inferences

are construed in the nonmoving party's favor. Id. at 665-66.

[9] “When the defendant is the moving party, the defendant must show that the

undisputed facts negate at least one element of the plaintiff's cause of action or

that the defendant has a factually unchallenged affirmative defense that bars the

plaintiff’s claim.” Sheets v. Birky, 54 N.E.3d 1064, 1069 (Ind. Ct. App. 2016).

Here, Defendants rely on the COVID-19 immunity statute as an affirmative

defense. See Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 291 (Ind. Ct. App.

2013) (noting that immunity is an affirmative defense to a medical malpractice

claim).

[10] Thus, our analysis proceeds by determining whether Defendants can establish

that no genuine issue of material fact exists and that they are immune from civil

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 5 of 15

liability as a matter of law. Id. at 294-95. We conclude that the trial court

properly granted summary judgment.

I. Defendants Have Statutory Immunity

A. Background of the COVID-19 Immunity Statute

[11] The COVID-19 immunity statute was enacted as part of a broader bill, Public

Law No. 166-2021, designed to insulate and protect areas of public life at risk

from the pandemic. See generally Mellowitz v. Ball State Univ., 221 N.E.3d 1214,

1218-19 (Ind. 2023) (discussing a separate section of Public Law No. 166-2021).

Under the provision here, health care providers cannot be “held civilly liable for

an act or omission relating to the provision or delay of health care services or

emergency medical services arising from a state disaster emergency declared

under IC 10-14-3-12 to respond to COVID-19.” Ind. Code § 34-30-13.5-1(b)(1).

The statute’s operative language—“arising from a state disaster emergency”—

means an injury or harm:

(1) caused by or resulting from an act or omission performed in

response to a state disaster emergency declared under IC 10-14-3-

12 to respond to COVID-19; and

(2) arising from COVID-19.

Ind. Code § 34-6-2-10.5. Both sides agree that the first triggering condition, a

state disaster emergency to respond to COVID-19, is met here.

[12] “[A]rising from COVID-19,” in turn, has a broad array of defined meanings,

including:

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 6 of 15

(1) the implementation of policies and procedures to:

(A) prevent or minimize the spread of COVID-19; and

(B) reallocate or procure staff or resources for COVID-19.

(2) testing in response to COVID-19;

(3) monitoring, collecting, reporting, tracking, tracing, disclosing,

or investigating COVID-19 exposure or other COVID-19 related

information;

(4) using, designing, manufacturing, providing, donating, or

servicing precautionary, diagnostic, collection, or other health

equipment or supplies, including [PPE], for COVID-19;

(5) closing or partially closing to prevent or minimize the spread

of COVID-19;

(6) delaying or modifying the scheduling or performance of a

nonemergency medical procedure or appointment due to

COVID-19;

(7) reasonable nonperformance of medical services due to

COVID-19; and

(8) providing services or products in response to government

appeal or repurposing operations to address an urgent need for

[PPE], sanitation products, or other products necessary to protect

the public from COVID-19.

Ind. Code § 34-6-2-10.4(c). Defendants argue they are immune from Carol’s

claims as their actions amounted to “the implementation of policies and

procedures to . . . prevent or minimize the spread of COVID-19.” Ind. Code §

34-6-2-10.4(c)(1)(A).

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 7 of 15

B. Applying the COVID-19 Immunity Statute

[13] Defendants met their burden to show that they acted in line with policies

designed to mitigate or prevent the spread of COVID-19. See F.D. v. Ind. Dep’t

Child Servs., 1 N.E.3d 131, 136 (Ind. 2013) (holding that the “party seeking

immunity bears the burden of demonstrating that its conduct is within the

protection afforded by [an immunity statute]”).

[14] Because Ed was suspected of having COVID-19, he was subject to isolation

procedures then in place. During Ed’s treatment, his doctors wrote in their care

notes that they were “unable to perform a full contact physical exam of [Ed]

due to Covid protocols at the hospital.” Appellant’s App. Vol. II, p. 68. This

falls under the category for implementing policies and procedures designed to

limit the spread of COVID-19. Ind. Code § 34-6-2-10.4(c)(1)(A). Thus, we have

no difficulty in finding Defendants qualify for immunity here. See Mills v.

Hartford Healthcare Corp., 298 A.3d 605, 623 (Conn. 2023) (“The diagnosis and

treatment of a patient with health care complications that the health care

provider believed in good faith to be caused by COVID-19, as well as the

prevention of the spread of COVID-19 to other patients, clearly constitute acts

or omissions connected to the provision of health care services in support of the

state's COVID-19 response.”).

[15] Carol does not rebut this showing. Instead, she points out that there is no

separate document in Defendants’ designated evidence containing the Medical

Centers’ COVID-19 policies. Given this lack of first-hand proof, Carol argues

that summary judgment is improper. We disagree.

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 8 of 15

[16] “To obtain summary judgment, ‘the movant must designate sufficient evidence

to foreclose the nonmovant’s reasonable inferences and eliminate any genuine

factual issues.’” Staat v. Ind. Dep’t of Transp., 177 N.E.3d 427, 430 (Ind. 2021)

(quoting Butler v. City of Peru, 733 N.E.2d 912, 915 (Ind. 2000)). There is no

reasonable inference or genuine factual dispute that Defendants’ actions were

not governed by policies designed to limit the spread of COVID-19.

Defendants’ designated materials refer several times to the relevant aspects of

the Medical Centers’ COVID-19 policies; namely that Ed was placed in

isolation while suspected of having COVID-19 and that certain physical

examinations were deferred until the COVID-19 test results came back.

Appellant’s App. Vol. II, pp. 65, 74-75. In short, although we agree with Carol

insofar as the designated evidence would be stronger with a copy of the written

policies, regardless, Defendants met their burden of proof.

[17] Carol then seeks to rebut Defendants’ immunity through an affidavit from her

own expert witness, who stated: “Based on [his] review of the medical records,

there [was] no medical reason that any medical provider . . . was prevented from

doing a complete and comprehensive physic[al] and/or medical exam.”

Appellant’s App. Vol. II, pp. 119-22 (emphasis added). This statement does not

rebut Defendants’ immunity. Whether a medical reason justified Defendants’

alleged failure to promptly perform a full contact physical examination is

irrelevant to the existence of the COVID-19 protocols. See Jarvis Drilling, Inc. v.

Midwest Oil Producing Co., 626 N.E.2d 821, 825 (Ind. Ct. App. 1993) (“[F]actual

disputes that are irrelevant or unnecessary will not be considered.”). It is only

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 9 of 15

where “the evidence permits conflicting reasonable inferences as to material

facts” that civil liability immunity will not be found. Bules v. Marshall Cnty., 920

N.E.2d 247, 250 (Ind. 2010) (emphasis added).

[18] Because Carol does not rebut Defendants’ designated evidence that the

healthcare providers were acting under policies intended to prevent or minimize

the spread of COVID-19, there is no genuine issue of material fact and

Defendants are entitled to immunity as a matter of law.

II. No Exception Applies to Defendants’ Immunity

[19] The COVID-19 immunity statute excludes from its protections conduct

resulting from “gross negligence, willful or wanton misconduct, fraud, or

intentional misrepresentation.” Ind. Code § 34-30-13.5-2. Carol asserts that

there is a genuine issue of material fact about this exception because this is “a

classic case of conflicting affidavits.” Appellant’s Br., p. 10. As our Supreme

Court has recognized, “[i]n medical malpractice cases, expert opinions which

conflict on ultimate issues necessarily defeat summary judgment.” Siner v.

Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1190 (Ind. 2016).

[20] Carol’s complaint alleges that Defendants “acted with gross negligence in the

medical care and treatment of Ed[.]” Appellee (Anon. Doctor 3) Vol. II, pp. 10-

27. In support, her designated evidence contains an affidavit claiming that

“there [is] no medical reason that any medical provider . . . was prevented from

doing a complete and comprehensive physician and/or medical exam.”

Appellant’s App. Vol. II, p. 122.

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 10 of 15

[21] On the other hand, Defendants claim the COVID-19 immunity statute’s

protections “would be worthless” if this case is allowed to proceed. Anonymous

Doctor 3 Br., p. 35. In that vein, Defendants assert that “[t]he courts would be

inundated with cases merely alleging gross negligence without factual support,

compelling health care providers to litigate cases from which the legislature

surely intended to protect them.” Id.

[22] As recently noted by this Court, “[t]he General Assembly has frequently used

the phrases ‘gross negligence’ and ‘willful or wanton misconduct’ in statutes

granting immunity from civil damages.” McGowen v. Montes, 152 N.E.3d 654,

660 (Ind. Ct. App. 2020) (collecting statutes). The COVID-19 immunity statute,

like other civil immunity statutes, does not define those phrases. Instead, the

General Assembly appears content with our Supreme Court’s definition of

gross negligence as “a conscious, voluntary act or omission in reckless disregard

of . . . the consequences to another party.” N. Ind. Pub. Serv. Co. v. Sharp, 790

N.E.2d 462, 465 (Ind. 2003) (quoting Black’s Law Dictionary 1057 (7th Ed.

1999)). “[W]illful or wanton misconduct” similarly consists of either:

1) an intentional act done with reckless disregard of the

natural and probable consequence of injury to a known

person under the circumstances known to the actor at the

time; or 2) an omission or failure to act when the actor has

actual knowledge of the natural and probable consequence of

injury and his opportunity to avoid the risk.

Howard Cnty. Sheriff’s Off. v. Duke, 172 N.E.3d 1265, 1268 (Ind. Ct. App. 2021).

“[T]he question of whether an act or omission constitutes gross negligence is

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 11 of 15

generally a question of fact, but the question may become one of law if ‘the

facts are undisputed and only a single inference can be drawn from those

facts.’” McGowen, 152 N.E.3d at 661 (quoting Miller v. Ind. Dep’t of Workforce

Dev., 878 N.E.2d 346 356 (Ind. Ct. App. 2007)).

[23] Here, the designated evidence does not show that Defendants acted with

reckless disregard. Ed received multiple forms of treatment and medical

examinations including several COVID-19 tests, physical examinations,

intubation, stroke assessments, and a CT scan. All of this occurred in the thick

of a global pandemic—with limited physical contact between the patient and

healthcare providers to prevent the spread of COVID-19. But as Ed’s condition

worsened such that he required physical contact, like when he required

intubation, Defendants properly and promptly acted. We find nothing in the

designated materials to suggest that Defendants acted either grossly negligent or

with willful or wanton misconduct towards Ed’s care. See Duke, 172 N.E.3d at

1272-73 (finding summary judgment inappropriate where the defendant made

“a mistake” that “played a ‘big role’” in the case, which created a genuine issue

of material fact over whether the actions constituted willful or wanton

misconduct).

[24] The only reasonable conclusion reached from the designated evidence is that

Ed received care in-line with that expected during an uncertain time—April

2020—while the world grappled with a global pandemic. Because there is no

genuine issue of material fact for the factfinder to consider, we affirm summary

judgment for Defendants. See McGowen, 152 N.E.3d at 660-62 (finding

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 12 of 15

summary judgment proper where the designated evidence was undisputed that

the defendant did not act grossly negligent or commit willful or wanton

misconduct).

I. Carol Waived Any Argument that the COVID-19

Immunity Statute Is Unconstitutional

[25] Carol also challenges for the first time on appeal the constitutionality of the

COVID-19 immunity statute under Article 1, Section 12 of the Indiana

Constitution. She argues the statute is unconstitutional because it retroactively

strips “victims of medical malpractice of their accrued right to recover for their

injuries as long as the care givers claim patients have possible Covid as an

excuse for their neglect.” Appellant’s Br., pp. 13-14.

[26] This claim is waived. Neither Carol’s complaint nor any briefing before the trial

court mentions this constitutional argument. See Plank v. Cmty. Hosps. of Ind.,

Inc., 981 N.E.2d 49, 53 (Ind. 2013) (declaring that the “general rule is that

failure to challenge the constitutionality of a statute at trial results in waiver of

review on appeal”). Although Carol contended at oral argument that this court

still possessed jurisdiction to hear an otherwise waived argument, she provides

no compelling reason to do so. Indeed, the only authority she provides for this

argument is a decision from Arizona, based on their constitutional anti-

abrogation clause—a clause not present in Indiana’s constitution. Appellant’s

Br., pp. 13-14 (citing Roebuck v. Mayo Clinic, 536 P.3d 289 (Ariz. Ct. App.

2023)). Thus, we find Carol’s constitutional claims waived.

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 13 of 15

Conclusion

[27] There remains no genuine issue of material fact and Defendants are immune

from civil liability as a matter of law. We therefore affirm the trial court and its

entry of summary in favor of Defendants.

Mathias, J., and Tavitas, J., concur.

ATTORNEY FOR APPELLANT

David W. Stewart

Stewart Phelps Wood Injury Lawyers

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

ANONYMOUS DOCTOR 2 AND ANONYMOUS MEDICAL GROUP 2

Jason A. Scheele

Jordan S. Huttenlocker

Rothberg Logan & Warsco LLP

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

ANONYMOUS MEDICAL CENTER 2

Marilyn A. Young

Marley G. Hancock

Cassiday Schade, LLP

Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 14 of 15

ATTORNEYS FOR APPELLEES

ANONYMOUS DOCTOR 3 AND ANONYMOUS MEDICAL GROUP 3

Peter H. Pogue

Julia A. Condict

Schultz & Pogue, LLP

Indianapolis, Indiana

Margaret M. Christensen

Moncerrat Z. Alvarez

Dentons Bingham Greenebaum LLP

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

ANONYMOUS DOCTOR 1 AND ANONYMOUS MEDICAL GROUP 1

Edna M. Koch

Zeigler Cohen & Koch

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

ANONYMOUS MEDICAL CENTER 1

Taylor E. Bonacorsi

Stoll Keenon Ogden PLLC

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE

INDIANA STATE MEDICAL ASSOCIATION AND

AMERICAN MEDICAL ASSOCIATION

Libby Yin Goodknight

Alexandra Wilson Pantos

Krieg DeVault LLP

Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-MI-1632 | May 9, 2024 Page 15 of 15