Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ROBERT MONTGOMERY Munster, Indiana

ATTORNEYS FOR APPELLEES: ROBERT F. PARKER DANIEL A. GIOIA Burke Costanza & Carberry LLP Merrillville, Indiana

FILED
of the supreme court, court of appeals and tax court

Aug 13 2012, 9:05 am

IN THE COURT OF APPEALS OF INDIANA
E. J., a minor by his mother and father VICTOR and LYNELL JEFFREY, and VICTOR and LYNELL JEFFREY, individually, Appellants-Plaintiffs, vs. PAUL OKOLOCHA, M.D., OKOLOCHA MEDICAL CORP., and OKOLOCHA MEDICAL, PAIN and WEIGHT, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 45A03-1201-CT-15

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Kavadias Schneider, Judge Cause No. 45D01-0808-CT-63

August 13, 2012

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary This case involves a very unfortunate set of circumstances. A New York couple adopted what they thought was a healthy baby boy from Indiana who, unbeknownst to them prior to the adoption, has profound neurological deficits which cause significant and permanent learning and physical abnormalities. A prenatal sonogram performed by the birth mother's doctor revealed significant brain abnormalities in the unborn baby. Prior to finalizing the adoption, the adoptive parents sought the prenatal records of the birth mother from her doctor as well as postnatal records of the birth mother and the baby from the hospital. Although they received the postnatal records from the hospital, which revealed no problems, the adoptive parents did not receive any prenatal records, including the sonogram report, because the birth mother's doctor did not send them those records. Nevertheless, the adoption was finalized. The adoptive parents subsequently learned of the baby's

neurological deficits and resulting learning and physical abnormalities. The adoptive parents filed a complaint for negligence against the birth mother's doctor alleging that the doctor was negligent in failing to provide them the prenatal records when they requested them. The doctor filed a motion for summary judgment contending that he had no legal duty to release the prenatal records to the adoptive parents because the medical records authorization submitted to him did not comply with the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). The adoptive parents responded with a motion for partial summary judgment contending, as a matter of law, that the doctor owed them a duty to provide them with the prenatal records at the time they requested them. The trial

2

court agreed with the doctor and entered summary judgment in his favor. On appeal, the adoptive parents argue that the trial court erred in entering summary judgment in favor of the doctor on the issue of duty and in failing to enter partial summary judgment in their favor on the same issue. Concluding as a matter of law that the doctor owed no duty to the adoptive parents, we affirm the judgment of the trial court. Facts and Procedural History The undisputed facts indicate that in February 2006, Paul Okolocha, M.D. ("Dr. Okolocha"), a family practice physician from Gary, provided prenatal care to V.S. As part of that prenatal care, on February 1, 2006, Dr. Okolocha ordered that a sonogram be performed on V.S. The sonogram report showed that V.S.'s unborn baby had significant brain abnormalities. The report indicated abnormalities associated with brain development delay, profound retardation, paralysis on one or more sides of the body, spasticity, and other severe neurological deficits that would preclude the baby from ever leading a normal life and would require the baby to receive a lifetime of medical care and assistance. On February 12, 2006, Dr. Okolocha delivered a baby boy for V.S. at Methodist Hospital. Around that same time, Victor and Lynell Jeffrey began proceedings to adopt V.S.'s baby. The Jeffreys hired New York attorney Aaron Britvan to represent them in the adoption process. Two days prior to the birth, on February 10, 2006, Britvan's legal assistant faxed Dr. Okolocha a cover letter and a medical records authorization to obtain V.S.'s prenatal records. Specifically, the cover letter was addressed to Dr. Okolocha and advised him that Britvan's office represented the prospective adoptive parents of V.S.'s baby. The cover letter

3

indicated that enclosed was an authorization to obtain V.S.'s prenatal medical records inclusive of lab test results and sonograms. Appellant's App. at 61. The enclosed authorization, signed by V.S. on February 1, 2006, was directed "TO WHOM IT MAY CONCERN" and requested the release to "AARON BRITVAN, or his medical representative, with a copy of the physician and/or hospital medical records and any other information which he may request in relation to the pre-natal or post-placement care of the child born to me." Id. at 62. The authorization further provided that "this consent will authorize the office of Aaron Britvan to forward my medical records to the adoptive parents and/or their pediatrician or other medical professionals." Id. Dr. Okolocha did not send Britvan any records. On August 25, 2006, despite having had no access to V.S's prenatal medical records, the Jeffreys completed the adoption process and adopted V.S.'s baby, E.J. By December 2006, the Jeffreys had become concerned that E.J. was not developing as other children his age. Doctors later clinically confirmed the existence of brain

abnormalities and profound neurological deficits in E.J. that resulted in learning and physical abnormalities of a significant and permanent nature. Had the Jeffreys known of the catastrophic birth defects of E.J. prior to finalizing the adoption process, they would not have completed the adoption. In April 2007, Dr. Okolocha sent Britvan a letter stating that he would release V.S.'s prenatal records after his bill for medical services was paid. Indeed, the reason Dr. Okolocha did not release the records to Britvan when originally presented with the authorization signed by V.S. was because a $15 record copying fee was not paid to his office and his outstanding

4

bill for newborn services in the amount of $450 remained unpaid. On April 25, 2007, the Jeffreys paid the outstanding bill and Dr. Okolocha released the prenatal records to Britvan, including the sonogram report. On September 10, 2009, the Jeffreys filed their amended complaint for negligence against several defendants, including Dr. Okolocha, Okolocha Medical Corporation, and Okolocha Medical Pain, and Weight (hereinafter collectively referred to as "Dr. Okolocha").1 Specifically, the Jeffreys' theory was that Dr. Okolocha was negligent in failing to timely provide them with V.S.'s prenatal records. On January 6, 2011, Dr. Okolocha filed a motion for summary judgment arguing that he had no legal duty to provide V.S.'s medical records to the Jeffreys. The Jeffreys responded with a motion for partial summary judgment arguing that Dr. Okolocha had a duty, as a matter of law, to provide them with the records. On May 5, 2011, the trial court held a hearing on both motions for summary judgment. Then, on December 12, 2011, the trial court entered its findings of fact and conclusions thereon granting summary judgment in favor of Dr. Okolocha. Upon Dr. Okolocha's motion pursuant to Indiana Trial Rule 56(C), and finding no just reason for delay, the trial court

The amended complaint for negligence also named as defendants the Jeffreys' Indiana adoption attorneys and their New York adoption attorneys, including Britvan. Appellants' App. at 29-37. The Jeffreys subsequently settled their claims with those defendants. Appellants' Br. at 3.
1

5

entered a final appealable judgment on January 12, 2012.2 This appeal ensued. Additional facts will be supplied in our discussion where necessary. Discussion and Decision The Jeffreys contend that the trial court erred in granting Dr. Okolocha's motion for summary judgment and in denying their motion for partial summary judgment on the same issue. Our standard of review is well settled: Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. When we review a grant of summary judgment, our standard of review is the same as that of the trial court. We consider only those facts that the parties designated to the trial court. The Court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmovant, and resolve all doubts against the moving party. A trial court's order on summary judgment is cloaked with a presumption of validity; the party appealing from the grant of summary judgment must bear the burden of persuading this Court that the decision was erroneous. We may affirm the grant of summary judgment upon any basis argued by the parties and supported by the record. Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App. 2007) (citations omitted), trans. denied (2008). Where, as here, cross-motions for summary judgment are involved, our standard of review remains unchanged. Kelley v. Med-1 Solutions, LLC, 952 N.E.2d 817, 827 (Ind. Ct.

We note that the Jeffreys also filed medical malpractice claims against Methodist Hospitals and Dr. Okolocha. The trial court in that case entered summary judgment in favor of Dr. Okolocha because the Jeffreys' malpractice complaint was filed outside the two-year medical malpractice limitations period. Another panel of this Court affirmed summary judgment in favor of Dr. Okolocha in Jeffrey v. Methodist Hospitals, 956 N.E.2d 151 (Ind. Ct. App. 2011).

2

6

App. 2011), trans. denied (2012). We consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id. Moreover, when the trial court enters findings of fact and conclusions thereon in rendering summary judgment, those findings aid in our appellate review but are not binding on this Court. Turner v. Stuck, 778 N.E.2d 429, 431 (Ind. Ct. App. 2002). Indeed, our standard of review is not altered due to findings and conclusions, and we will affirm a summary judgment order if it is sustainable upon any theory or basis found in the record. Id. The Jeffreys seek to recover against Dr. Okolocha on a theory of negligence. To prevail on a negligence claim, "a plaintiff must prove: (1) that the defendant owed plaintiff a duty; (2) that [the defendant] breached the duty; and (3) that plaintiff's injury was proximately caused by the breach." A.S. v. LaPorte Reg'l Health Sys., Inc., 921 N.E.2d 853, 856 (Ind. Ct. App. 2010). The breach of duty and proximate cause elements of a negligence claim are particularly fact-sensitive and rarely suitable for resolution on summary judgment. Price v. Kuchaes, 950 N.E.2d 1218, 1235 (Ind. Ct. App. 2011) (citing Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004)), trans. denied. However, the existence of a legal duty owed by one party to another in a negligence case is appropriate for summary judgment, as it is generally a pure question of law for the court to decide. Indiana Dep't of Transp. v. Howard, 879 N.E.2d 1119, 1122 (Ind. Ct. App. 2008). The Jeffreys negligence claim centers around a duty that they allege was owed to them by virtue of the medical records authorization they submitted to Dr. Okolocha. The Jeffreys contend that Dr. Okolocha owed a duty, as a matter of law, to release V.S's prenatal records

7

to them when presented with an authorization signed by V.S. Dr. Okolocha contends, and the trial court agreed, that he had no legal duty to release V.S.'s prenatal records to the Jeffreys because the medical authorization signed by V.S. and submitted to him did not comply with HIPAA or Indiana law. We begin our discussion with HIPAA. HIPAA protects individuals from unwarranted dissemination of medical and mental health records by restricting access to such records without the individual's direct consent. In re C.B., 865 N.E.2d 1068, 1072 (Ind. Ct. App. 2007) (citing In re A.H., 832 N.E.2d 563, 567 (Ind. Ct. App. 2005)), trans. denied. In general, HIPAA requires that "covered entities," such as Dr. Okolocha,3 obtain patient authorization before disclosing protected health information. State v. Eichhorst, 879 N.E.2d 1144, 1151 (Ind. Ct. App. 2008) (citing 45 C.F.R.

Download 08131201tac..pdf

Indiana Law