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ATTORNEY FOR APPELLANT
Jon R. Pactor Indianapolis, Indiana

ATTORNEYS FOR APPELLEES
John C. Trimble Lisa M. Dillman LEWIS WAGNER, LLP Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 72S04-0609-CV-332 EUSEBIO KHO, M.D., v. DEBORAH PENNINGTON, FINDLING GARAU GERMANO & PENNINGTON, P.C., and RUBY MILLER Appellees (Defendants below). _________________________________ Appeal from the Scott Circuit Court, No. 72C01-0301-CT-4 The Honorable Roger Duval, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 72A04-0507-CV-373 _________________________________ September 19, 2007 Dickson, Justice. Appellant (Plaintiff below),

The Indiana Medical Malpractice Act generally requires that actions for medical negligence against health care providers must first be submitted to and considered by a medical review panel. For limited purposes, the Act permits such actions to be contemporaneously filed in court, provided that the complaint contains no information that would allow the defendant provider(s) to be identified. We hold that the violation of this defendant identity confidentiality provision may be actionable.

In January 2001, Ruby Miller, as personal representative of the Estate of Tracy Merle

Lee, deceased, filed with the Indiana Department of Insurance a proposed complaint for damages claiming that medical negligence by a hospital and various physicians and health care providers caused the death of Lee. Under the Indiana Medical Malpractice Act, such a filing triggers proceedings leading to the presentation of the claim to a medical review panel before the cause of action is filed in court. 1 Before any consideration by a medical review panel, however, this medical malpractice claimant also filed her complaint in Scott Circuit Court. After one of the named defendants in that action, Eusebio Kho, M.D., filed a motion for summary judgment alleging that he had not provided medical care to Tracy Merle Lee, the malpractice claimant and her lawyers voluntarily dismissed Dr. Kho from the lawsuit by stipulation.

Dr. Kho subsequently commenced an action against Ruby Miller, the malpractice claimant, her attorney, Deborah K. Pennington, and the attorney's law firm, Findling Garau Germano & Pennington, P.C., seeking damages for "emotional suffering, embarrassment, undue negative publicity, injury to his reputation, and mental distress" resulting from his being falsely named in the malpractice lawsuit, which he claims was filed without probable cause and with malice. Appellant's App'x at 11. The malpractice claimant and her attorneys sought and obtained summary judgment against the doctor. The doctor appealed, claiming: (1) the evidence demonstrates that the patient and her lawyers had neither subjective nor objective probable cause for their allegations of medical malpractice against Dr. Kho, and thus he was entitled to summary judgment on this issue; (2) the lawyers lacked probable cause or any other legal basis to name Dr. Kho in a medical malpractice action filed in court before their claim was considered by a medical review panel; (3) a genuine issue of fact exists regarding the lawyers' malice in naming Dr. Kho in the complaint filed in court; (4) the trial court should have refused the expert affidavit presented in support of summary judgment; (5) separate from the malicious prosecution claim, Dr. Kho had valid independent damage claims for statutory negligence or for a private right of action for a statutory violation; and (6) the lawyers' assertion of res judicata is meritless. The Court of Appeals affirmed the trial court's grant of summary judgment against the doctor. Kho v. Pennington, 846 N.E.2d 1036, 1048 (Ind. Ct. App. 2006). We granted transfer to address one issue:
The Indiana Medical Malpractice Act requires the preliminary filing of proposed medical negligence complaints with the Department of Insurance, which filing precipitates the selection and convening of a medical review panel and its consideration of the claim. See Ind. Code

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