Claims Regarding the Maintenance of Health Records Fall Under the Medical Malpractice Act; Cortez v. Indiana University Health, Inc.

The defendants in this case altered medical records and failed to disclose this multiple times. When the plaintiffs eventually discovered this, they filed suit. The question is whether this kind of claim must be brought under Indiana’s Medical Malpractice Act.

Santos Cortez went to IU Health’s Wound Clinic in 2012 to treat for pressure wounds. Various physical therapists treated Santos at the Wound Clinic, including Lucich and Longmuir. Sometime after that treatment ended, Lucich and Longmuir altered medical records regarding the care they gave Santos.

The Cortezes consulted with an attorney regarding a potential medical malpractice claim in 2013. The attorney requested Santos’s medical record, and the Wound Clinic provided the altered records. They eventually filed a proposed complaint with the IDOI. During discovery, the defendants again produced the altered records, and neither Lucich nor Longmuir said that they altered the records during their depositions.

In 2018, the Cortezes’ attorneys received a copy of Santos’s original records from Broadspire, an entity involved in Santos’s worker’s compensation claim with his employer. A few weeks later, IU Health agreed to settle the medical malpractice claim
with the right to proceed against the Patient’s Compensation Fund.

The Cortezes filed a new complaint in 2019, alleging fraud, forgery, outrage, and related claims. The defendants moved to dismiss for lack of subject matter jurisdiction, arguing that the complaint is subject to the Medical Malpractice Act and that the Cortezes did not comply with the Act. The trial court granted that motion. The Cortezes appealed.

The question on appeal was whether the new complaint was alleging malpractice. And the Court answered that in the affirmative, comparing the case to Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011), in which the Indiana Supreme Court found that a claim that a doctor’s recordkeeping was deficient (there were gaps in the records) fell under the Act. The fact pattern in this case was different (apparent negligence in Howard contrasted with intentional wrongdoing here), but the Court found that Howard’s discussion of spoliation controlling—there is no independent claim for first-party spoliation—and the Court found that is essentially what the Cortezes were alleging. Therefore, these allegations dealt with the medical malpractice claims, and should have been raised under the Medical Malpractice Act.

The plaintiffs in this case are seeking transfer, and that petition has been fully briefed for three months, so it would not be surprising to have additional authority on this issue in the near future.

One of the plaintiffs in the case is the law firm of Norris Choplin Schroeder who represented the Cortezes in the initial Medical Malpractice Action. The trial court dismissed the firm as a party, finding that any expenses or damages it incurred were a
matter of contract with the Cortezes and the firm lacked standing to assert claims against IU Health.

Lessons:
1. If the gravamen of a claim concerns the alteration of medical records, the claim falls within the scope of the Medical Malpractice Act.
2. This is true even for claims of fraud, criminal counterfeiting, forgery, violations of the Crime Victims Relief Act, and the tort of outrage.
3. The issue is addressed by a 12(B)(1) motion for lack of subject matter jurisdiction, not 12(B)(6).
4. There is no standalone cause of action for perjury or violation of Rule 34

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