ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE John David Hoover Jerry Garau Michael J. Blinn Garau Germano, P.C. Hoover Hull Turner LLP Indianapolis, Indiana Indianapolis, Indiana I N T H E COURT OF APPEALS OF INDIANA John Collip, M.D., December 31, 2015 Appellant-Defendant, Court of Appeals Case No. 49A05-1501-CT-1 v. Appeal from the Marion Superior Court Vickie Ratts on behalf of Robert The Honorable Theodore M. A.J. Ratts, deceased, and Little Sosin, Judge Creek Family Health Center, Trial Court Cause No. LLP, 49D02-1012-CT-55368 Appellees-Plaintiffs Baker, Judge. Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 1 of 17 [1] Dr. John Collip had a contractual relationship with Dena Barger, who is a nurse practitioner and owns her own medical practice. Pursuant to their Collaborative Practice Agreement (CPA), Dr. Collip was to collaborate with Barger and oversee her prescriptive authority. Specifically, he was to review at least 5% of her charts on a weekly basis to evaluate her prescriptive practices. On March 30, 2009, Robert Ratts, one of Barger’s patients, died as a partial result of mixed drug intoxication. [2] Dr. Collip brings this interlocutory appeal challenging the trial court’s order granting partial summary judgment in favor of Vickie Ratts, Ratts’s mother, on her medical malpractice claim. The trial court held as a matter of law that Dr. Collip had a duty to Ratts even though he had never treated Ratts as a patient. [3] The Indiana General Assembly has enacted a complex and detailed statutory scheme that authorizes nurse practitioners to provide medical services. We infer from the language of the statute that one of the purposes of this legislation was to provide the public with greater access to affordable healthcare. The legislature also sought to ensure the safety of the public by requiring that when prescribing legend drugs, nurse practitioners must be overseen by a licensed physician. We hold as a matter of law that physicians who undertake this responsibility owe a duty to the nurse practitioner’s patients to fulfill their contractual obligations with reasonable care. We affirm and remand. Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 2 of 17 Facts 1 [4] Under Indiana law, a nurse practitioner cannot prescribe legend drugs2 without a collaborative practice agreement with a licensed physician. Dr. Collip and Barger entered into the CPA in 2006. Pursuant to the CPA, Barger practiced under the direction and supervision of Dr. Collip; Barger paid Dr. Collip for his oversight. Dr. Collip admitted that he knew that if he failed to do what was required of him under the CPA, Barger’s patients could be placed in danger. He knew that he was obligated to ensure that Barger was providing appropriate care, including prescriptive care, to her patients. Although Dr. Collip had no ownership interest in, or employment affiliation with Barger’s clinic, his name appeared with Barger’s at the top of the clinic’s preprinted prescription forms and on clinic stationery. [5] The CPA required Dr. Collip to review at least 5% of Barger’s charts on a weekly basis and to document Barger’s prescribing practices. Dr. Collip admittedly never complied with these requirements. He did engage in a limited review of Barger’s notes,3 and this review caused him to become concerned about the amount of narcotics that Barger was prescribing to her patients. He 1 We held oral argument on December 3, 2015, in Indianapolis. We thank counsel for both sides for their able written and oral presentations. 2 “Legend drugs” include “any human drug required by federal law or regulation to be dispensed only by a prescription, including finished dosage forms and active ingredients subject to 21 U.S.C. 811 through 812.” Ind. Code § 25-26-14-7. 3 As noted above, Dr. Collip was required to review at least 5% of Barger’s charts. According to counsel at oral argument, he never reviewed a single one; instead, he reviewed a limited selection of her notes. Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 3 of 17 suggested that she attend a narcotic-prescribing seminar and occasionally commented on the combination or amounts of medications she was prescribing. Dr. Collip did not follow up regarding the seminar. He knew that he held the “keys to the drugstore” for Barger and that if he terminated the CPA, she would no longer be permitted to prescribe drugs at all. Appellant’s App. p. 153. Dr. Collip did not take any steps to terminate the CPA. [6] In addition to the CPA with Barger, Dr. Collip had collaborative practice agreements with eleven to twelve other nurse practitioners. He was also working ninety hours per week as a family practice physician. [7] Ratts, a patient of Barger, was a high-risk patient with a history of depression, suicide attempts, and polysubstance abuse. From January through March 2009, Barger prescribed multiple medications for Ratts, including Lortab (a combination of hydrocodone and acetaminophen), methadone, Wellbutrin, lithium, and Xanax. Ratts died on March 30, 2009, and an autopsy revealed that the cause of his death was acute bronchopneumonia complicating mixed drug interaction. Dr. Collip never treated Ratts, never saw Ratts in consultation or in any other circumstances, and never received or reviewed any of Ratts’s medical records before this litigation. [8] On October 24, 2013, Vickie Ratts (Mother) filed an amended complaint against Dr. Collip, Barger, and Barger’s clinic. On September 11, 2014, Mother filed a motion for partial summary judgment against Dr. Collip; the motion argued solely that Dr. Collip owed a duty to Ratts as a matter of law. Dr. Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 4 of 17 Collip filed a cross-motion for summary judgment, arguing that, as a matter of law, he did not owe a duty to Ratts. Following briefing and oral argument, the trial court issued an order on December 9, 2014, summarily granting Mother’s summary judgment motion and denying Dr. Collip’s cross-motion. The trial court found that its decision was a case of first impression and sua sponte certified the order for interlocutory appeal. Dr. Collip now appeals. Discussion and Decision I. Standard of Review [9] Our standard of review on summary judgment is well established: We review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of . . . the non-moving parties, summary judgment is appropriate ‘if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (internal citations omitted). The initial burden is on the summary-judgment movant to “demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the nonmovant to “come forward with contrary evidence” showing an issue for the trier of fact. Id. at 761–62 (internal quotation marks and substitution omitted). And “[a]lthough the non- moving party has the burden on appeal of persuading us that the Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 5 of 17 grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909–10 (Ind. 2009) (internal quotation marks omitted). Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Although summary judgment is rarely appropriate in negligence cases, the existence of duty is generally a matter of law for the courts to decide. E.g., King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003). II. Duty [10] Initially, we note that Dr. Collip spends much of his brief arguing that, in a medical malpractice context, if the defendant does not have a physician-patient relationship with the plaintiff, then the defendant owed no duty to the plaintiff as a matter of law. Dr. Collip maintains that the CPA did not create a physician-patient relationship between himself and Ratts. This argument is a red herring, as Mother concedes that there is no physician-patient relationship. As such, Harper v. Hippensteel, the case primarily relied upon by Dr. Collip, is inapposite because the Harper Court determined that the mere existence of a CPA does not create a physician-patient relationship. 994 N.E.2d 1233, 1242 (Ind. Ct. App. 2013). As Mother does not make that argument, Harper does not apply to this case. Mother insists that this case sounds in tort and must be analyzed under general tort principles, and we agree. Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 6 of 17 A. Webb v. Jarvis factors [11] The seminal case in determining the existence of a duty is our Supreme Court’s decision in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991). In Webb, as in the case before us, our Supreme Court considered whether a physician had a legal duty to a third party to whom he had not provided any medical treatment. Id. at 994 (person shot by patient for whom doctor had prescribed anabolic steroids brought suit against the physician). In analyzing whether a legal duty existed, our Supreme Court articulated three factors to consider: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person who was injured; and (3) public policy concerns. Id. at 995.4 The three factors are to be balanced together rather than considered to be three distinct and necessary elements. Cram v. Howell, 680 N.E.2d 1096, 1097 (Ind. 1997). 1. The relationship between the parties [12] Here, the only link between Dr. Collip and Ratts was the CPA between Dr. Collip and Barger. It is well established, however, that “Indiana Law does not preclude liability in tort for personal injury merely because privity is absent.” Harper v. Guarantee Auto Stores, 533 N.E.2d 1258, 1262 (Ind. Ct. App. 1989). Where privity is absent, “one must have actual knowledge that a third person 4 Dr. Collip argues that Webb does not apply because this analysis is limited to “those instances where the element of duty has not already been declared or otherwise articulated.” N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003). Dr. Collip returns to his argument that it is well settled that a physician-patient relationship is a prerequisite to a duty in a medical malpractice case. Inasmuch as Webb itself involved a medical malpractice claim by a third party against a doctor with whom he did not have a physician-patient relationship, we do not find Dr. Collip’s argument persuasive. Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 7 of 17 might reasonably be affected in order to impose a duty.” Webb, 575 N.E.2d at 996. Furthermore, “we have recognized that a duty may be owed to a beneficiary of the consensual relationship, akin to that of a third party beneficiary of a contract, where the professional has actual knowledge that the services being provided are, in part, for the benefit of such third persons.” Id. [13] In this case, a physician voluntarily entered into a contract with a nurse practitioner, pursuant to which he agreed to provide oversight of her prescriptive practices. The gravamen of such a contract is the protection of the nurse practitioner’s patients. And indeed, Dr. Collip has admitted that the services he agreed to provide under the CPA were necessary for the protection of Barger’s patients. Appellant’s App. p. 153. In other words, he had actual knowledge that his services were being provided for the benefit of those third parties and that those third parties might reasonably be affected by the manner in which he performed his services. Notwithstanding the lack of privity, therefore, we find that this factor weighs in favor of the existence of a duty. 2. The reasonable foreseeability of harm to the person injured [14] In analyzing the foreseeability component of our duty analysis, “we focus on whether the person actually harmed was a foreseeable victim and whether the type of harm actually inflicted was reasonably foreseeable.” Webb, 575 N.E.2d at 996. In other words, we impose a duty only where a reasonably foreseeable victim is injured by a reasonably foreseeable harm. Id. at 997. Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 8 of 17 [15] A nurse practitioner, while a highly qualified medical professional, is not a physician. Barger did not go to medical school or participate in a residency program. As such, our legislature has determined that nurse practitioners may prescribe legend drugs only when under the supervision of a physician. One of the apparent reasons for this policy, which we infer from the language of the relevant statutes, was to ensure the safety of the patients of nurse practitioners. If the supervising physician fails to adequately perform his or her oversight duties, it is eminently foreseeable that the nurse practitioner’s patients could suffer harm. [16] Indeed, in this case, Dr. Collip admitted that his failure to adequately supervise Barger, including his failure to review her charts as required by the CPA, could result in harm befalling her patients. Appellant’s App. p. 45. Ratts, as one of her patients, was a reasonably foreseeable victim of Dr. Collip’s alleged negligence. And the harm that befell Ratts—death as a partial result of mixed drug of intoxication—is precisely the type of harm one would expect to occur if Dr. Collip had negligently performed his obligations under the CPA. Consequently, we find that this factor weighs in favor of a duty. 3. Public policy [17] As observed by the Webb Court, “‘Duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’” 575 N.E.2d at 997 (quoting Prosser & Keeton on Torts § 53 (5th ed. 1984)). Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 9 of 17 [18] As with any piece of legislation, there are multiple policy reasons that our General Assembly has decided to enact the set of laws at issue in this case. To provide the public with greater access to affordable healthcare, the legislature has authorized nurse practitioners5 to provide medical services to their patients. Ind. Code ch. 25-23-1; 848 Ind. Admin. Code 4-2-1. But as noted above, as nurse practitioners are not physicians, the legislature has determined that physician oversight is required. More specifically, the General Assembly has required that if a nurse practitioner seeks to prescribe legend drugs, he or she must fulfill a number of conditions. We infer from the language of the relevant statutes that one of the purposes behind these conditions is to ensure the safety of the patients of nurse practitioners. 848 I.A.C. 5-1-1. Among those conditions is a requirement that the nurse practitioner: [s]ubmit[] proof of collaboration with a licensed practitioner in the form of a written practice agreement that sets forth the manner in which the advanced practice nurse and licensed practitioner will cooperate, coordinate, and consult with each other in the provision of health care to patients. Practice agreements shall be in writing and shall also set forth provisions for the type of collaboration between the advanced practice nurse and the licensed practitioner and the reasonable and timely review by the licensed practitioner of the prescribing practices of 5 “Nurse practitioners” is part of a broader category defined as “advanced practice nurses.” Ind. Code § 25- 23-1-1(b). We limit our discussion to nurse practitioners here because that is the only category of advanced practice nurses at issue in this case, but our analysis applies equally to the other types of advanced practice nurses enumerated in the statutory definition. Court of Appeals of Indiana | Opinion 49A05-1501-CT-1 | December 31, 2015 Page 10 of 17