Negligent Credentialing as a Cause of Action in Indiana Medical Malpractice Litigation


NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION
IN INDIANA MEDICAL MALPRACTICE LITIGATION

Lindsey Stout*

I. INTRODUCTION................................... 250
A. Roadmap .............................. .... 252
B. Background................................ 252

II. INDIANA CASE LAW AND GUIDANCE IN NEGLIGENT
CREDENTIALING ACTIONS ..................... .... 253

III. CURRENT TRENDS IN NEGLIGENT CREDENTIALING FROM
OTHER JURISDICTIONS ...................... ...... 260

A. Bifurcation ..................................... 260
B. Qualified Immunity................... ........ 265
C. Negligent Credentialing and the Peer Review
Process............ .................... ..... 267

1. Minnesota's Interpretation of the Peer Review
Privilege in Negligent Credentialing Claims......... 269

2. Texas's Interpretation of the Peer Review Privilege
in Negligent Credentialing Claims ................ 272

3. Iowa's Interpretation of the Peer Review Privilege
in Negligent Credentialing Claims ................ 275

4. Missouri's Interpretation of the Peer Review
Privilege in Negligent Credentialing Claims......... 277

D. Statutory Immunity...................... 281
1. Utah's Negligent Credentialing Statute.... .... 281
2. Ohio's Negligent Credentialing Statute.... .... 282

IV. NEGLIGENT CREDENTIALING AND THE AFFORDABLE
HEALTH CARE ACT............................... 284

V. CONCLUSION ............................... ..... 286

* J.D. Candidate, 2013, Indiana University Robert H. McKinney School of
Law; B.S., 2006, Purdue University.



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I. INTRODUCTION

The concept of negligent credentialing has been around
since the 1965 landmark decision by the Illinois Supreme
Court in Darling v. Charleston Memorial Hospital I
However, the courts have slowly accepted negligent
credentialing as a cause of action. As of June 2011, at least
28 states now recognize it as a valid cause of action.2 Due to
the slow growth in this cause of action, there is no clear
guidance on how these cases should be handled by the
courts. Unfortunately, state courts are not in agreement as
to how negligent credentialing claims should be handled
and litigated, and of those states that have adopted
negligent credentialing as a cause of action, some state
supreme courts have not even had the chance to render
decisions on these claims.3

Negligent credentialing is "the theory in which the
recipient of harmful service recovers from a gatekeeping
entity for allowing the provider of that service to engage in
the activities that caused the recipient harm."4 In order for
doctors to treat their patients at a hospital, the hospital
must grant the physicians credentials and privileges to
admit patients and perform certain procedures.5 The recent
trend toward integration of health care facilities and offices
has interrupted the privileges of immunity that once
protected health care institutions, and has opened a new
era of litigation involving hospital liability for physician
errors.6

I Elam v. Coll. Park Hosp., 183 Cal. Rptr. 156, 164 (Cal. Ct. App. 1982)
(citing Darling v. Charleston Cmty. Mem'I Hosp., 211 N.E.2d 253, 258 (Ill. 1965)).

2 Estate of Burton v. Trover Clinic Found., Inc., No. 2009-CA-001595-MR,
2010 WL 6816338, at 2 (Ky. Ct. App. June 10, 2011).

3 See Andrew R. deHoll, Vital Surgery or Unnecessary Procedure?
Rethinking the Propriety of Hospital Liability for Negligent Credentialing, 60 S.C.
L. REv. 1127, 1132 (2009) (explaining that some states allow negligent
credentialing claims, some states do not allow the action due to the state's privilege
or immunity statutes, and some states recognize the cause of action, but effectively
nullify it through granting peer review privileges to hospitals).

4 Id. at 127.
5 42 C.F.R. § 422.204.
6 Benjamin J. Vernia, Annotation, Tort Claim for Negligent Credentialing

ofPhysician, 98 A.L.R.5th 533 (2002).

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Historically, physicians working in hospitals were
classified as independent contractors, meaning they were
permitted to work at the hospital and were given use of the
hospital's facility and equipment, but the hospital had no
control over the physician, and therefore, no liability
pertaining to the physician's actions.7 However, the
integration of healthcare has led to the formation of
business relationships between hospitals and physicians,
such that now physicians are sometimes employees of the
hospitals they are credentialed to work in.8 The problem
with integration, as it pertains to medical malpractice
claims, is that it is often unclear as to where the actions of
the hospital end and where the actions of the physician
begin when evaluating negligence actions and what could
have been avoided.9 Negligent credentialing is one cause of
action that seeks to determine the liability of hospitals in
medical malpractice claims.10

Currently, it is estimated that "j]ust six percent of
doctors are responsible for nearly sixty percent of all
medical negligence." 1 Additionally, "two-thirds of doctors
who make ten or more medical negligence payments are
never disciplined." 12 Furthermore, since the creation of the
National Practitioner Databank in 1990, created for
hospitals to report adverse physician events, about half of
all U.S. hospitals have not even reported a single event.13
Based on these statistics, there is a clear discrepancy
between what is happening and what is being reported.
Hospitals have a duty of care to patients and allowing

7 Whitney Foster, Note, Health Law-Negligent Credentialing and You:
What Happens When Hospitals Fail to Monitor Physicians, 31 U. ARK. LITTLE
ROCK L. REV. 321, 323 (2009).

8 Kevin Kavanagh, Health Care Integration: Will Physicians Lose Their
Voice?, 96 BULL. OF THE AM. COLL. OF SURGEONS 28 (2011).

9 Lyle Griffin Woodruff, Hospital Liability, WARSHAUER LAW GROUP,
http://www.warlawgroup.com/files/ LGW-HospitalLiability.pdf (last visited Oct. 5,
2012).

1o Vernia, supra note 6.
1' AMER. ASS'N FOR JUSTICE, MEDICAL NEGLIGENCE: THE ROLE OF

AMERICA'S CIVIL JUSTICE SYSTEM IN PROTECTING PATIENTS' RIGHTS, 4 (2011),
available at http://www.justice.org/resources/MedicalNegligence Primer.pdf.

12 id
" Id. at 4, 6.

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negligent credentialing as a cause of action against
hospitals promotes an additional layer of protection to
patients against avoidable medical errors and helps to keep
hospitals accountable in the role of patient safety. 14

A. Roadmap

This note discusses negligent credentialing as a cause of
action in medical malpractice claims. Section II looks to
Indiana case law as it pertains to negligent credentialing
and the guidance that the decided cases in Indiana give in
regard to defendant and plaintiff actions. In order to better
understand negligent credentialing as a cause of action and
the future of this type of claim, Section III explores current
trends in negligent credentialing in other jurisdictions and
argues for three changes to Indiana law: (1) the bifurcation
of negligent credentialing claims; (2) a clarification on the
peer review privilege; and (3) for a negligent credentialing
statute to protect plaintiffs.

Indeed, Indiana has looked to neighboring jurisdictions
for guidance on how to rule in this type of action and will be
likely to do so as further issues arise in negligent
credentialing actions.15 Section IV looks to how the
enactment of the Patient Protection and Affordable Care
Act (PPACA) could impact negligent credentialing in
Indiana cases.16

B. Background

Darling v. Charleston Community Memorial Hospital,
decided in 1965, was the first case to recognize negligent
credentialing as a cause of action in medical malpractice
claims.17 The Indiana Court of Appeals was slow to
recognize negligent credentialing as a cause of action, but

14 Vernia, supra note 6; see also Deborah LaValley, Why Credentialing
Matters for Patient Safety, HARv. CRICO/RMF FORUM, Oct. 2006, at 1.

15 Beswick v. Bell, 940 N.E.2d 338, 345 (Ind. Ct. App. 2010).
16 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124

Stat. 119-1025 (2010).
17 Elam v. Coll. Park Hosp., 183 Cal. Rptr. 156, 164 (Cal. Ct. App. 1982)

(citing Darling v. Charleston Cmty. Mem'1 Hosp., 211 N.E.2d 253, 258 (Ill. 1965)).

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eventually ruled that there is a valid cause of action in
medical malpractice claims in 2000.18 In 2010, the Indiana
Court of Appeals decided a case that broadened the scope of
factual foundations under which a plaintiff can bring a
negligent credentialing action.19 The Indiana Supreme
Court has not yet heard a case on negligent credentialing.
Therefore, the only guidance afforded to the lower courts is
from the few decisions that have been decided through the
Indiana Court of Appeals, unless the lower court looks to
another jurisdiction's rulings as demonstrated by the court
in Beswick v. Bell.2 0 The lack of guidance from the Indiana
Supreme Court and the lack of cases involving this cause of
action leave the issue of what exactly is required in a
negligent credentialing claim, the adjudicative process that
is afforded in these claims, and issues of privilege and
discovery open for debate. Thus far, the decisions seem to
render more questions than answers.

II. INDIANA CASE LAW AND GUIDANCE IN NEGLIGENT
CREDENTIALING ACTIONS

Since 1938, the common law rule in Indiana was that a
hospital is generally not liable for the medical negligence of
the doctors on its staff, since by law, doctors are considered
to be independent contractors. 21 However, in 1986, Yaney
v. MeCray Memorial Hospital provided an exception to that
common law rule. 22 The court in Yaney held that a hospital
could be liable for medical malpractice of its physicians if
the hospital was aware that the care provided by a
physician had deviated from the normal practice. 23 In
determining whether the hospital could be found negligent,
the court looked to whether the hospital's acts or omissions
could be a proximate cause of the plaintiffs injuries. 24 The

18 Winona Mem'1 Hosp. v. Kuester, 737 N.E.2d 824, 828-29 (Ind. Ct. App.
2000).

19 Beswick v. Bell, 940 N.E.2d 338 (Ind. Ct. App. 2010).
20 id.
21 Iterman v. Baker, 15 N.E.2d 365, 370 (Ind. 1938).
22 Yaney v. McCray Mem'1 Hosp., 496 N.E.2d 135 (Ind. Ct. App. 1986).
23 Id. at 137.
24 id

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court stated:

The test for determining whether a negligent
act or omission is the proximate cause of an
injury is whether the injury is a natural and
probable consequence, which in light of the
circumstances, should have been foreseen or
anticipated. The key is foreseeability of the
ultimate injury as a natural and probable
consequence of the act or omission.25

While this case did not include negligent credentialing as
one of the causes of action, it opened the door for hospital
negligence in medical malpractice claims and, eventually,
the recognition of negligent credentialing as a cause of
action.

Winona Memorial Hospital v. Krueger is the landmark
Indiana case that adopted negligent credentialing as a
cause of action in medical malpractice claims.26 The issue
here was whether a negligent credentialing claim fell within
the purview of the Indiana Medical Malpractice Act (the
Act).27 The court looked to the definition of "malpractice"
under the Act and then looked to the statute covering
credentialing to determine if credentialing of a physician
could fall under the Act. 28

Since the credentialing process involves both medical
and nonmedical personnel and expertise, the court stated
that it was "neither clearly within the Act nor outside of
it."29 In order for a negligent credentialing cause of action to
continue, "[t]he credentialing process alleged must have
resulted in a definable act of medical malpractice that
proximately caused injury to [the plaintiff] ."30 The court
reasoned that a complaint of negligent credentialing is
subject to a medical review panel as required by the Act:

25 Id. at 138.
26 Timothy C. Curess & Katherine Amy Lemon, Recent Developments in

Indiana Tort Law, 35 Ind. L. Rev. 1583, 1591 (2002).
27 Id. at 825.
28 Id. at 826-27.
29 Id. at 827.
30 Id. at 828.

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Because the act of credentialing and
appointing licensed physicians to its medical
staff is a service rendered by the hospital in its
role as a health care provider, inclusion of
negligent credentialing under the Act is
consistent with use of the medical review panel
to establish the standard of care owed by
Winona in credentialing. 31

Further, the court held that the credentialing of a
physician was "directly related to the provision of health
care, and is therefore, not excluded from the Act" as a cause
of action in medical malpractice claims. 32 The importance of
the Winona case lies not only in that it recognized negligent
credentialing as a cause of action, but also gave courts the
guidance that negligent credentialing claims have to follow
the statutory requirements of medical malpractice claims as
listed in the Act.

In 2007, the federal courts in Indiana revisted the
matter of negligent credentialing in Pike v. Decatur
Memorial Hospital.33 This case turned on the issue of who
could be considered a "health care provider" under the Act
in order to satisfy the requirements for bringing a negligent
credentialing claim. 34

Since Winona established that negligent credentialing
claim could be brought under the Act, it is only valid
against "health care provider" as defined by the act. 35 In
Pike, the hospital had contracted with a third party
company, NES, to find and provide it the service of
emergency room physicians. 36 The physician did not disclose
that he had been previously licensed to practice in another
state, nor that his license in California had been revoked

31 id
32 id

33 Pike v. Decatur Mem'l Hosp., No. 1:04-cv-391-JDT-TAB, 2007 U.S. Dist
LEXIS 32552, at 1 (S.D. Ind. May 1, 2007).

34 Id. at 26-27.
35 IND. CODE § 34-18-3-1 (2012) (providing that if a health care provider

fails to "qualify," it loses the protections afforded it under the Act).
36 Pike, 2007 U.S. Dist LEXIS 32552, at 2.

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due to a mental illness..37 The physician was credentialed to
perform emergency room services, despite previously having
his medical license suspended in the State of California,. 38

NES argued that it was not a "qualified provider" as
required by the Act.3 9 The court responded that NES's
contract:

[T]o be responsible for all physician emergency
room services at Decatur makes it more than
difficult for it to say it is not a "health care
provider" when the statute provides that an
agent of a facility authorized by the state to
provide health care is a "health care
provider."40

Once the court determined that NES was considered a
"health care provider" under the provisions of the Act, it
turned to the specific claim of negligent credentialing.41

NES attempted to shift the burden of negligent
credentialing to the hospital since NES believed it was
"insulated from liability . . . because Decatur had ultimate
responsibility for issuing hospital privileges and regardless
of what information NES may have provided."42 The court
found that, at the time the hospital granted credentials to
Dr. Angel, Dr. Angel had not yet obtained the California
license so there was no evidence that Decatur knew he had
a license in California or that is was revoked. 43 However,
the evidence was clear that NES had Dr. Angel's curriculum
vitae, which listed his California license number, and NES
had in place a policy of conducting two-year reviews for its
physicians. 44 The court ultimately held that NES could be

37 id
" Id. at 9.
39 Id. at 17; see IND. CODE §§ 34-18-2-24.5 and 34-18-3-2 (2012) (requiring

that medical providers and their insurers file certain proofs with the commissioner
to become "qualified").

40 Pike, 2007 U.S. Dist LEXIS 32552, at 26 (construing IND. CODE § 34-18-
2-14(1) (2012)).

41 Id. at 28.
42 id
43 id
4 Id. at 28-29.

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held liable for the negligent credentialing claim, but there
was not sufficient evidence for summary judgment. 45 This
case is essential to the basis of case law for negligent
credentialing since it expanded the realm of negligent
credentialing liability to third party entities that contract
with hospitals.

The next case to provide guidance on negligent
credentialing in Indiana was Beswick v. Bell, which was
decided in December of 2010.46 The court noted that Indiana
accepted negligent credentialing as a cause of action in the
decision of Winona but went on to state that the elements
needed for a negligent credentialing claim had not been
defined in Indiana law.4 7 The court looked to Ohio and
Illinois law to determine what elements are needed to
satisfy a negligent credentialing cause of action.4 8

In 2009, the Ohio Supreme Court held that "[to prove a
negligent-credentialing claim, a plaintiff injured by the
negligence of a staff doctor must show that but for the lack
of care in the selection or retention of the doctor, the doctor
would not have been granted staff privileges, and the
plaintiff would not have been injured."49 The Indiana Court
of Appeals read this as: "Ohio law contemplates some
knowledge on the part of the hospital that would render its
credentialing decision negligent."50

The court also looked to a decision rendered by the
Illinois Appellate Court, which looked to other federal and
state courts on the issue of negligent credentialing.51 The
Illinois court decided that:

"[Tlhe elements needed to prove negligent
credentialing" were as follows: that "the
hospital failed to meet the standard of
reasonable care in the selection of the

45 Id. at 29-30.
46 Beswick v. Bell, 940 N.E.2d 338 (Ind. Ct. App. 2010).
47 Id. at 344.
48 Id. at 344-45.
49 Id. at 345 (citing Schelling v. Humphrey, 916 N.E.2d 1029, 1033 (Ohio

2009)).
50 id
51 id

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physician it granted medical state privileges to
whose treatment provided the basis for the
underlying medical mal-practice claim"; and
that "while practicing pursuant to negligently
granted medical staff privileges, the physician
breached the applicable standard of care"; and
that "the negligent granting of medical staff
privileges was the proximate cause of the
plaintiffs injuries."52

After reviewing the other courts' decisions, the Indiana
Court of Appeals held that since there were no previous
complaints or allegations from patients of negligence
against Dr. Bell and since Dr. Bell held the appropriate
state medical license and board certification for an
orthopedic surgeon, there was no evidence that the hospital
knew he had deviated from the standard of care, as required
by the Yaney decision. 53 Furthermore, the court held that
there was no evidence that but for the lack of care in the
selection or retention of Dr. Bell, he would never had been
given staff privileges, as required by Schelling.54

This decision is extremely important since it outlines the
elements for a negligent credentialing cause of action.
However, the decision leaves an ambiguous area of what
exactly is required by a hospital to protect itself against
negligent credentialing claims. Perhaps, more importantly,
it leaves the question of how much importance hospitals
should place on patient complaints in determining physician
retention and how past complaints may affect in their
defense of negligent credentialing claim.

This decision is also important because the court of
appeals looked outside of Indiana for guidance on how to
handle the issues presented in a negligent credentialing
decision. Given the precedent of looking to other
jurisdictions for guidance in negligent credentialing claims,
it would be advantageous to be familiar with how these

52 Id. (citing Frigo v. Silver Cross Hosp. & Med. Ctr., 876 N.E.2d 697, 723
(Ill. App. Ct. 2007)).

5 Id.
54 id

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jurisdictions are deciding negligent credentialing decisions
and any new areas of development in this area so as to gain
a better understanding of how the Indiana Court of Appeals
may address these issues in the future.

In December of 2011, the Indiana Court of Appeals once
again addressed a claim of negligent credentialing.5 5 The
plaintiff filed a medical malpractice claim against the
defendant doctor following issues from a bilateral breast
reduction.56 The medical review panel issued a unanimous
opinion that the doctor failed to meet the standard of care in
treating the plaintiff and that the defendant hospital failed
to meet the standard of care in granting the doctor
privileges.57 However, the trial court granted summary
judgment for both defendants because the plaintiff missed
deadlines for admitting expert evidence.5 8

On appeal, the Indiana Court of Appeals held that "the
trial court properly granted summary judgment to Dr. Park
because Martinez failed to rebut the expert testimony that
he did not breach the applicable standard of care in pre-
operatively, surgically, or post-operatively treating
Martinez." 59 The court then held that the summary
judgment on the negligent credentialing claim was also
appropriate because the defendant cannot be liable
"[wlithout a showing of an underlying breach of the
standard of care by [the doctor] proximately causing
[plaintiffs] injuries."60 While this case did not exactly create
new law for lower courts to implement, it is important in
that it reiterated the importance of establishing a medical
malpractice claim against a defendant doctor in order to
prove a negligent credentialing claim.

5 Martinez v. Park, 959 N.E.2d 259 (Ind. Ct. App. 2011).
56 Id. at 260.

" Id. at 266-67.
5 Id at 271-72.
60 Id at 272.

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III. CURRENT TRENDS IN NEGLIGENT CREDENTIALING FROM

OTHER JURISDICTIONS

As noted above, the court in Beswick v. Belllooked to the
court decisions from Ohio and Illinois for guidance on a
negligent credentialing claim because of the lack of Indiana
cases on the subject. 61 Given the importance other
jurisdictional decisions can have on the Indiana court
system, it is imperative to look at trends happening around
the country in the area of negligent credentialing that could
have an impact on Indiana law.

A. Bifurcation

In 2009, the Supreme Court of Ohio handed down a
ruling in Scheling v. Humphrey, which pertained to
bifurcation of negligent credentialing claims.62 The plaintiff
filed a claim against the surgeon for medical malpractice
relating to two heel surgeries and also filed a claim against
the hospital for negligently granting staff privileges to the
surgeon. 63 The plaintiff subsequently dismissed her claim
against the physician after the surgeon filed for bankruptcy
and the plaintiff reached a settlement with the bankruptcy
trustee. 64 However, the plaintiff continued with her
negligent credentialing claim against the hospital.65

Prior to the surgeon filing for bankruptcy, the hospital
moved to bifurcate the negligent-credentialing claim and
the medical malpractice claim against the surgeon, arguing
that "the negligent-credentialing claim did not become
ripe until the doctor's negligence was determined".66 The
trial court granted this motion.67 Once the settlement was
reached between the plaintiff and the surgeon, the hospital
moved for dismissal of the claim arguing that without a
finding of negligence, the negligent credentialing claim

61 Beswick v. Bell, 940 N.E. 2d 338, 344-345 (Ind. Ct. App. 2010).
62 Schelling v. Humphrey, 916 N.E.2d 1029, 1031 (Ohio 2009).
63 Id.
6 Id. at 1031-32.
65 Id. at 1031.
66 id
67 Id.

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could not be established. 68 The hospital did not believe the
bankruptcy court found negligence in this case nor was the
hospital aware that the surgeon had admitted negligence. 69

The Supreme Court of Ohio ultimately held that the
plaintiff could continue with the negligent credentialing
claim, in the absence of the surgeon, so long as she could
prove that his malpractice was a causal element of the claim
against the hospital. 70 Given the unusual circumstances of
the case, the court stated that the impeded plaintiff "should
be permitted to prove that [the surgeon] committed medical
malpractice and that the alleged malpractice caused the
[plaintiffs] injury, as an element of their negligent
credentialing claim against the hospital."71

The Supreme Court of Ohio gave further instruction
regarding the bifurcation of the claims by stating that the
bifurcation of the medical malpractice claim and the
negligent credentialing claim would avoid "the problems of
jury confusion or prejudice that may result from admitting
evidence of prior acts of malpractice in a combined trial on
both claims." 7 2 Evidence of prior malpractice by the surgeon
would lend credibility to the negligent credentialing claim,
but would provide for unfair prejudice in the jury
determination of whether the doctor committed mal-
practice. 73 Additionally, the court reasoned that bifurcation
was appropriate because if the medical malpractice claim
against the doctor did not prevail, the negligent
credentialing claim could be dismissed.74 The court stated
that "[ilf the fact-finder determines that negligence of the
doctor is not the cause of the plaintiffs injury, then a
hospital's grant of staff privileges to a doctor is not the
cause of the plaintiffs injuries."75

The Kentucky Court of Appeals has also ruled on the

6 Id. at 1032.
69 id.

70 Id. at 1036-37.
' Id. at 1036.

72 id.
73 id
74 Id.
75 Id.

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issue of bifurcation in Patterson v. Marshall.76 In that case,
the court actually affirmed trifurcation of the claims and
ordered that the trial proceed in three separate stages
before the same jury with the medical negligence claim
against the physician first, followed by the hospital's statute
of limitations defense if the physician was found guilty, and
then ending with the negligent credentialing claim if the
defense was not sustained.77 In addition to the proposed
plan, the trial court excluded all matters relating to the
physician's employment history during the phase pertaining
to the physician's medical negligence claim and also denied
the plaintiffs motion to compel the hospital to produce the
physician's credentialing files and peer review files.7 8

The appellate court held that the trial court had not
abused its discretion in regard to the challenged trial plan.7 9

In regard to a challenge to the hospital's participation in the
first trial state, the appellate court reasoned that "to
prevent [the hospital] from introducing evidence of
[defendant's] compliance with the standard of care would
have prevented [the hospital] from defending itself against
the negligent credentialing claim under the procedure
utilized by the trial court."80 In regards to the challenge of
the trial court excluding evidence of the physician's
employment and peer review, the court reasoned that the
physician's prior loss of privileges held no bearing on the
standard of care he provided to the plaintiff, and allowance
of this evidence would only confuse the two issues of
medical negligence and negligent credentialing in this
case.81 While allowing for the bifurcation of the claims, the
Kentucky Court of Appeals did not formally recognize
negligent credentialing as a cause of action in this claim. 82

In June 2010, the Kentucky Court of Appeals
revisited the issue of bifurcating claims in negligent

76 Patterson v. Marshall, No. 2008-CA-000157, 2009 WL 2341448, at 1 (Ky.
Ct. App. July 31, 2009).

n Id at 2.
78 id
79id

80 Id at 3.
1' Id
82 Id at 2.

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credentialing cases in Estate of Burton v. Trover Clinic
Foundation, Inc.83 In delivering the opinion, the court began
by first recognizing negligent credentialing as a valid tort in
the State of Kentucky. 84 In this case, the defendant doctor
and the defendant hospital joined together and filed a
motion, granted by the trial court, to bifurcate the case into
two phases which would include the medical negligence
issues first, followed by all other issues in the case including
the claim of negligent credentialing.85 The court stated that
in deter-mining bifurcation of these claims, trial court
should "consider potential prejudice to the parties, potential
confusion to the jury, and the relative convenience and eco-
nomy which would result."86 The court then held that
bifurcation in this instance was not an abuse of discretion
by the trial court.

The plaintiff argued that bifurcation of the trials was
a reversible error on the grounds that bifurcation was in
violation of a state statute requiring that a jury consider all
issues concurrently and bifurcation deprived the plaintiff of
his constitutional right to conduct a full voir dire.87 The
relevant statute in this appeal is KRS § 411.186 which
states that "[iln any civil action where claims for punitive
damages are included, the jury . . . shall determine
concurrently with all other issues presented, whether
punitive damages may be assessed."88 The court held that
the statute was not violated because the trial court only
bifurcated the claims between the defendants, but did not
bifurcate the damages claims in relation to each individual
defendant.* 89

In relation to the voir dire argument, the plaintiff
only submitted voir dire questions on the first phase of the
trial for the medical negligence claim. 90 The court held that

83 Estate of Burton v. Trover Clinic Found., Inc., No. 2009-CA-001595-MR,
2010 WL 6816338, at 2 (Ky. Ct. App. June 10, 2011).

84 Id. at 2.
85 Id at 1.
86 Id at 3.
87 Id at 2.
88 KY. REV. STAT. Ann. § 411.186 (West 2012).
89 Estate ofBurton, 2010 WL 6816338, at 3.
90 Id.

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the plaintiff should have been allowed to conduct a full voir
dire in the initial phase that concerned both phases of the
bifurcated trial.91 However, the court went on to note that
there was no reversible error because the jury did not find
the defendant doctor negligent in the first phase of the trial,
so the second portion of the trial was never conducted. 92

The Indiana courts should adopt bifurcation of medical
malpractice claims and negligent credentialing claims. The
bifurcation of these claims saves hospitals the unnecessary
expense of defending a claim that may be dismissed prior to
adjudication. In December 2011, the American Medical
Association released a medical liability reform report
indicating that the average cost of defending a physician in
a medical liability claim in 2010 was $47,158.93 Further, the
report noted that in 2010, 63.7% of closed claims against
physicians were dropped, withdrawn, or dis-missed without
any payment, and that each of these claims costs an average
of $26,851 to defend. 94 Hospitals and the physicians are
both paying these amounts to defend medical liability
claims that involve negligent credentialing complaints. It
may even be advantageous to allow bifurcation of not only
the trial, but also the discovery phases of these claims,
limiting the initial phase to the issues involved in the
underlying medical negligence claim against the physician.
Bifurcating the discovery phase would, in effect, focus on
determining the underlying issue of whether the physician
was negligent.9 5 Moreover, it would "lessen credentialing
discovery expense by postponing the need to depose those
involved in the credentialing process, witnesses testifying
on the physician's alleged defects and experts."96 Since over
half of medical malpractice claims against physicians are

91 Id
92 id
93 Morgan Lewis, Jr., Medical Malpractice Costs Continue to Climb, MOD.

MED. (Jan. 11, 2012), http://www.modernmedicine.com/modernmedicine/article/
articleDetail.jsp?id=755739 (last visited Sept. 27, 2012).

94 id
9 Thomas J. Hurney, Jr. et al., Defending Negligent Credentialing Cases,

FOR THE DEF. 44, 51 (July 2010), available at http://www.moser.com/Firm-News-
and-Events/FTD- 1 007-HurneyStiegerWillmanPozzo.pdf.

96 Id.

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NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

dropped, it would be advantageous to bifurcate the claims
and, at least, save the hospital the expenses of defending a
claim that can only be adjudicated on after the physician
has been found negligent.9 7

In instances of bifurcation, the court should permit the
hospital to participate in all phases of the trial since the
hospital is a defendant in an underlying claim.9 8 Bifurcation
also allows for protection against jury bias against a
physician defending himself in a medical malpractice suit.
Moreover, bifurcating claims is in conformity with the
Federal Rules of Evidence. Federal Rule of Evidence 404(b)
provides that "le]vidence of a crime, wrong, or other act is
not admissible to prove a person's character in order to
show that on a particular occasion the person acted in
accordance with the character."99

By following the holding and guidance in Estate of
Burton v. Trover Clinic Foundation, Inc.,100 the Indiana
courts would give guidance to the lower courts of what
issues to consider when bifurcation is presented. Further,
this decision helps to direct how to deal with voir dire in
instances of bifurcating a negligent credentialing claim and
what needs to be included in the initial voir dire process.

B. Qualified Immunity

Some jurisdictions have looked to state statutes to give
qualified immunity from negligent credentialing so long as
the hospital is compliant with credentialing procedures. In
Huntsman v. Aultman Hospital, the Ohio Court of Appeals
provided that the defendant hospital was not subject to

97 Dwight Golann, Dropped Medical Malpractice Claims: Their Surprising
Frequency, Apparent Causes, and Potential Remedies, Soc. SCI. RES. NETWORK
(July 19, 2011), http://ssrn.com/abstract-1896181 (last visited Sept. 27, 2012).

98 See Patterson v. Marshall, No. 2008-CA-000157, 2009 WL 2341448, at 3
(Ky. Ct. App. July 31, 2009) (holding that "to prevent [defendant hospital] from
introducing evidence of [the doctor's] compliance with the standard of care would
have prevented [defendant hospital] from defending itself against the negligent
credentialing claim under the procedure utilized by the trial court").

99 FED. R. EvID. 404(b).
100 Estate of Burton v. Trover Clinic Found., Inc., No. 2009-CA-001595-MR,

2010 WL 6816338 (Ky. Ct. App. June 10, 2011).

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liability for alleged negligent re-credentialing since there
was a state statute that granted the hospital qualified
immunity from liability based on the hospital's compliance
with credentialing proce-dures. 101 Here, a deceased patient's
estate brought a negligent credentialing claim against the
hospital subsequent to the patient passing away one day
after a hernia repair procedure. 102 The trial court granted
summary judgment to the defendant hospital concluding
that "R.C. 2305.25 does not allow for a cause of action for
negli-gent credentialing against a hospital where a
credentialing process was in place."103 The trial court also
stated that "a hospital cannot be held liable for 'sloppy'
credentialing, so long as the proper credentialing process
was followed."104

The relevant statute at issue in this case was R.C.
2305.25, which stated, in part, that "[no hospital . . . shall
be liable in damages to any perform for any acts, omissions,
decisions, or other conduct within the scope of the
committee."105 Committee was statutorily defined as: "A
board or committee of a hospital . .. of which the hospital. .
. is a member reviewing professional qualifications or
activities of the medical staff as the hospital . . . or
applicants for admission."10 6

Since there were regulated, specific credentialing
procedures in place at the time of credentialing, and the
procedures were followed by the hospital in the re-
credentialing process of the physician in this instance, the
hospital was shielded from a negligent credentialing
claim.107 The court did further provide that "R.C. 2305.25
does not provide blanket immunity to a hospital for
negligence in granting and/or continuing staff privileges of

101 Huntsman v. Aultman Hosp., No. 2010CA00211, 2011 WL 884107, at 5
(Ohio Ct. App. Mar. 14, 2011).

102 Id. at 2.
103 id

04 Id. at 5.
los OHIO REV. CODE ANN. § 2305.25 (West 2012).
106 Huntsman, 2011 WL 884107, at 3 (citing OHIO REV. CODE ANN. §

2305.25 (West 2012)).
107 Id.

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NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

an incompetent physician." 0 8

Codifying regulations for credentialing procedures in
Indiana would place hospitals on notice as to what is
specifically required in the credentialing process to avoid a
negligent credentialing claim. Also, not affording blanket
immunity to the hospital maintains the ideal of hospital
responsibility in regard to ensuring patient safety through
its actions, but does afford the hospital protection against
liability for acting in accordance with standards ensuring
patient safety. It is important to note that the Ohio statute
cited in this claim is no longer a statute. Ohio has now put
in to place R.C. 2305.251, which specifically provides that
there is a presumption of no negligence in credentialing and
provides immunity for hospitals as long as they follow a laid
out process in credentialing physicians.109

C. Negligent Credentialing and the Peer Review Process

One recent trend in negligent credentialing litigation is
the determination of whether peer review privilege extends
to negligent credentialing claims. In general, the peer
review process is "a process by which health care providers
evaluate their colleagues' work to determine if it complied
with the standard of care by understanding the root cause of
why a preventable adverse event occurred."110 This process
is generally used in the credentialing process with the
governing body of the hospital overseeing the finalized
recommendations of the peer review committee.11 ' The peer
review committee is involved in reviewing initial
applications from medical professionals who do not yet have
current membership in the medical facility, reappointments
for staff members who are currently privileged or
credentialed for the facility, and situations in which a

108 id.

109 oHIO REV. CODE ANN. § 2305.251 (West 2012).
10 Patricia A. Sullivan & Jon M. Anderson, The Health Care Debate: IfLack

of Tort Reform Is Part of the Problem, Federalized Protection for Peer Review
Needs to Be Part of the Solution, 15 ROGER WILLIAMS U. L. REV. 41, 45 (2010).

"' Craig W. Dallon, Understanding Judicial Review of Hospitals' Physician
Credentialing and Peer Review Decisions, 73 TEMP. L. REv. 597, 610 (2000).

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problem is identified with an existing privilege.112 Inherent
with the peer review process and negligent credentialing is
the problem that most states, including Indiana, provide
immunity to peer review committees in disclosing
information.113 Indiana Code Section 34-30-15-1 provides:
"(a) All proceedings of a peer review committee are
confidential. (b) All communications to a peer review
committee shall be privileged communications."114

Some defendant hospitals will argue that immunity
provided for in peer review statutes precludes negligent
credentialing as a cause of action. Indeed, invoking the peer
review privilege in a negligent credentialing claim could be
a crucial move for defendant hospitals since it would protect
any documents the peer review committee used .in the
credentialing process, thus frustrating the efforts of the
plaintiff to obtain evidence through discovery methods.115 A
hospital can adopt a medical staff bylaw specification that
defines "peer review" or "peer review committee" in an
extensive way that is still consistent with the language of
the state's peer review statute in an effort to protect even
more information under peer review confidentiality
provisions.116

Most hospitals have their credentialing process outlined
in their bylaws and policies. Bylaw, policies, procedures,
and guidelines are all discoverable since they are available
through original sources and are not protected by any peer
review privilege.117 Thus, if a hospital follows its own
policies and bylaws, and they are in accordance with
credentialing and peer review statutes, the hospital should
not be found to be negligent in the credentialing process. By
blocking the discoverability of the actual peer review

112 Id.

1 Id. at 611.
114 IND. CODE § 34-30-15-1 (2012).
11s Katten Muchin Rosenman, LLP, Current Issues in Negligent

Credentialing Part II, JDSUPRA (June 14, 2011), http://www.jdsupra.com/post/
documentViewer.aspx?fid=9c44f04d-7376-4d74-91fd-da9c9288bll4 (last visited
Sept. 27, 2012).

116 Id.
117 Charles David Creech, The Medical Review Committee Privilege: A

Jurisdictional Survey, 67 N.C. L. REV. 179, 229 (1988).

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NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

process that was used in the credentialing, the hospital has
the upper hand on the claim. Since every state has its own
peer review statute, it is important to examine how
different states have interpreted the role of these statutes in
negligent credentialing claims.

1. Minnesota's Interpretation of the Peer Review
Privilege in Neghgent Credentialing Claims.

Larson v. Wasemiller is a landmark case, in which the
Minnesota Supreme Court recognized, for the first time,
that the tort of negligent credentialing of a physician by a
hospital exists under the common law and is reinforced, not
precluded, by Minnesota's peer review statute." 8 Larson is
important to review since it reasons through several
portions of Minnesota's peer review statute, and the statute
is very similar to the Indiana statute on peer review.119

The court in Larson looked at several issues with the
Minnesota Peer Review Statute as it pertained to negligent
credentialing. First, the court looked to whether the statute
created a cause of action for negligent credentialing. The
statute provides:

No review organization and no person shall be
liable for damages . .. when the person acts in
the reasonable belief that the action or
recommendation is warranted by facts known
to the person or the review organization after
reasonable efforts to ascertain the facts upon
which the review organization's action or
recommendation is made.120

The court found that the "language of this statute
implies that a review organization shall be liable for
granting privileges where the grant is not reasonably based
on the facts that were known or that could have been known

118 Larson v. Wasemiller, 738 N.W.2d 300 (Minn. 2007).
"9 Id. at 303-04 (discussing Minnesota's peer review statute).
120 MINN. STAT. § 145.63 (2012).

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by reasonable efforts."121 The court declared that while the
statute did not affirmatively declare a negligent
credentialing cause of action, it indicated the existence of a
cause of action.122

Next, the court looked to whether negligent
credentialing as a cause of action would conflict with the
section of Minnesota's peer review statute that provided a
provision for confidentiality.12 3 The confidentiality provision
states, in part:

[D]ata and information acquired by a review
organization, in the exercise of its duties and
functions . . . shall not be subject to subpoena
or discovery . .. The proceedings and records of
a review organization shall not be subject to
discovery or introduction into evidence in any
civil action against a professional arising out of
the matter or matters which are the subject of
consideration by the review organization.12 4

The defendant hospital argued that the statute
prohibited it from disclosing information the credentialing
committee relied on in making its decision.125 Therefore, the
statute precluded a claim of negligent credentialing since
the issue in negligent credentialing claims is whether the
hospital was negligent in credentialing the physician on the
basis of what he actually knew at the time of the decision.126

The court responded that this interpretation was too narrow
since negligence is decided on "what was actually known or
what should have been known at the time of the
credentialing decision."127

121 Larson, 738 N.W.2d at 304.
122 id
123 Id. at 309-10.
124 MINN. STAT. § 145.64 (2012).
125 Larson, 738 N.W.2d at 309.
126 Id.
127 Id. at 310. See also Diaz v. Feil, 881 P.2d 745, 750 (N.M. Ct. App. 1994)

(should have known); Corleto v. Shore Mem'l Hosp., 350 A.2d 534, 538 (N.J.
Super. Ct. App. Div. 1975) (had reason to know); and Albain v. Flower Hosp., 553
N.E.2d 1038, 1046 (Ohio 1990) (had reason to know).

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There is a provision of the statute indicating that
information available from the original source is not
immune from discovery or use in civil actions. 128 The court
determined that while the statute prevents hospitals from
disclosing specific information used by the credentialing
committee, it does not prevent hospitals from introducing
the same information, so long as it could be obtained from
the original sources. 129 The court acknowledged that this
does, in fact, further burden the plaintiff since the plaintiff
has no way of discovering what exact information was used
by the hospital in the credentialing process.130 However, it
does provide the plaintiff with the cause of action and a
chance to demonstrate what the hospital should have
known at the time of the credentialing process.

The court then looked to whether the immunity from the
liability portion of the Minnesota peer review statute
precluded negligent credentialing claims. The court
reasoned that while the statute limited liability of hospitals
and credentialing committees, there was no indication of
intent to immunize hospitals from liability or to nullify a
common law claim for negligent credentialing.131 The court
further noted that "[ilf the legislature had intended to
foreclose the possibility of a cause of action for negligent
credentialing, it would not have addressed the standard of
care applicable to such an action."132

Larson reconciled the disparities that can exist between
peer review statutes and negligent credentialing claims.
However, one result of this decision is that "[alttorneys and
trial court judges must walk a fine line between allowing
the case to proceed within the parameters established by
the Minnesota Supreme Court while maintaining the strict
confidentiality established by the Minnesota Legislature."'3 3

While this was a Minnesota case, the ramifications of the

128 MINN. STAT. § 145.63 (2012).
129 Larson, 738 N.W.2d at 310.
130 id
131 Id. at 311.
132 id.
133 Mark R. Whitmore, A Survivor's Guide to Larson v. Wasemiller: An Aid to

Eliminating Reversible Error in Managing Negligent Credentialing Claims Under
Minnesota Law, 1 WM. MITCHELL J.L. & PRAC. 2 (2008).

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decision could reach to other jurisdictions since every state
has similar peer review statutes. Since negligent
credentialing as a cause of action is still being developed in
some areas, courts may look to this decision to develop their
areas of common law. This decision is important for Indiana
to adopt since the statutes at issue in the case are similar to
Indiana's statutes. The courts need to recognize the
potential issues presented through the peer review statutes
and provide guidance in how these statutes will be followed
in case determinations.

2. Texas's Interpretation of the Peer Review Privilege in
Negligent Credentialing Claims

Another example of peer review protection in negligent
credentialing is found in the Texas Medical Malpractice
Act. 134 Through the Texas Medical Malpractice Act, health
care providers are given immunity from determinations
made in the course of peer review, so long as those decisions
were made without malice. 135

Further complicating the process of proving negligent
credentialing through the Texas Medical Malpractice Act's
immunity provision of peer review committees is that the
initial credentialing information is not discoverable.136 The
court in St. Luke's Episcopal Hospital v. Agbor determined
that malice, within the context of negligent credentialing,
involved a showing not that the hospital acted with malice
toward the patient but that it acted with malice, in
general.137 In determining what behavior constituted
malice, the court looked to the Civil Practices and Remedies
Code and held that to support a negligent credentialing
claim, a showing of malice requires demonstrating that:

134 TEX. OCC. CODE ANN. § 160.010 (West 2012).
3 Id.

136 See Brownwood Reg'1 Hosp. v. Eleventh Cir. Ct. App., 927 S.W.2d 24
(Tex. 1996); Irving Health Care Sys. v. Brooks, 927 S.W.2d 12 (Tex. 1996).

13n See St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 506 (Tex.
1997).

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(A) a specific intent by the defendant to
cause substantial injury to the claimant; or

(B) an act or omission:
(i) which when viewed objectively from the

standpoint of the actor at the time of its
occurrence involves an extreme degree of risk,
considering the probability and magnitude of
the potential harm to others; and

(ii) of which the actor has actual, subjective
awareness of the risk involved, but
nevertheless proceeds with conscious
indifference to the rights, safety, or welfare of
others. 138

In 2005, The Texas Supreme Court revisited negligent
credentialing through Romero v. KPH Consolidation, Inc. 39

The court stated that since peer review communications and
proceedings were generally confidential, "a plaintiff must
prove that a hospital acted maliciously without access to
evidence of what happened, or did not happen, in the
credentialing process." 140 In this case, the plaintiff
underwent an elective back surgery during which he lost a
significant amount of blood before Dr. Baker, the treating
surgeon, or anyone else noticed, and "in the 45 minutes it
took to prepare a transfusion, he lost almost all of the blood
in his body."141 As a result of the blood loss, the plaintiff
went into cardiac arrest and suffered severe, permanent
brain damage, leaving him "profoundly disabled and unable
to care for himself."142

The plaintiff brought a claim for negligent credentialing
of Dr. Baker. Despite not having access to the peer review
committee records involved in the credentialing process, the
plaintiff presented evidence that at the time of
credentialing, the hospital had access to information
involving Dr. Baker's involvement in ten malpractice

11 Id. at 507.
139 Romero v. Consol., Inc., 166 S.W.3d 212 (Tex. 2005).
140 Id. at 215.
141 Id. at 218.
142 id

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actions from 1988 to 1993, including one action for
operating on the wrong hip of a patient.143 The plaintiff also
presented evidence that the peer review committee had
information pertaining to Dr. Baker's prescription drug
abuse.144 In light of this evidence, the Texas Supreme Court
accepted the court of appeals' assumption that the plaintiff
established an objective showing of malice, as required by
the statute, since "a physician engaged in drug abuse
presents an extreme risk to patients."145 The Supreme
Court also accepted the Court of Appeals' assumption that
the plaintiff established the first prong in the subjective
component of malice by showing that the hospital "had
actual, subjective awareness of the risk posed by Baker's
drug abuse, at least at one point in time."146

However, despite all of this, the court concluded that a
showing of malice as an element of a negligent credentialing
claim required a higher burden of proof at the trial level and
a higher standard of review at the appellate level.147 At
trial, the plaintiff must prove malice by clear and
convincing evidence, and on appeal the Court must
determine based on the evidence at trial that a reasonable
trier of fact could have formed a firm belief or conviction
that the reviewing entity acted with malice in credentialing
the doctor.148 The Texas Supreme Court may have decided
the case differently if the plaintiff had offered testimony
that Columbia would have suspended Dr. Baker if it knew
of the drug problems, the lawsuits, and the suspension.149

The Texas standard of proof in a negligent credentialing
claim, in light of its peer review privilege, is almost
impossible to meet. As indicated above, despite alarming
evidence presented by the plaintiff in Romero, the burden of
proof of "firm belief or conviction" is almost impossible to

143 Id. at 216-17.
44 Id. at 216-17.

145 Id. at 221.
146 Id.
147 Id. at 220-21.
148 Id. at 221.
149 Casey L. Moore, Note, "In the Wake of Rose" and "Life After Romero

The Viability of a Cause of Action for Negligent Credentialing in Texas in Light of
Recent Texas Supreme Court Decisions, 58 BAYLOR L. REV. 549, 576 (2006).

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NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

prove without access to the peer review committees' records.
By adopting this type of standard in relation to protecting
the peer review committee and their actions, Indiana courts
would essentially negate the option of negligent
credentialing as a cause of action. While the integrity of the
peer review committee needs to be afforded protection, that
protection must be weighed with the safety of patients and
allowing patients an appropriate remedy when that safety
has been compromised.

3. Iowa ' Interpretation of the Peer Review Privilege in
Negligent Credentialing Claims

In December of 2011, the Iowa Supreme Court ruled on a
negligent credentialing case involving the peer review
privilege relating to a doctor's credentialing file.150 The
plaintiff filed a medical malpractice suit, which included a
negligent credentialing claim against the hospital, after he
suffered complications from two back surgeries performed
in 2000.151 Specifically, the plaintiff alleged that the
hospital failed to properly investigate the doctor's
qualifications, negligently extended surgical privileges to
the doctor, and allowed the doctor to continue to perform
surgeries after the hospital had reason to know that
questions had been raised concerning the surgeries and
procedures that the doctor was performing.152 During the
course of the case, the plaintiff served a request for
production for the complete copy of the doctor's credential
file.153 The hospital objected to the request since the
credential file was subject to the peer review privilege laid
out in Iowa Code § 147.135.154 Despite this, the trial judge
entered an Order Compelling Discovery and the hospital
produced almost the entire contents of the doctor's
credentialing file.155 The case went to trial and the jury

'so Cawthorn v. Catholic Health Initiatives Iowa Corp., 806 N.W. 2d 282
(Iowa 2011).

11 Id. at 283.
152 id.
153 id
154 Id. at 284.
1ss Id.

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found in favor of the plaintiff, and both parties appealed on
different grounds.15 6 Based on these appeals the Supreme
Court remanded the case for a new trial.157

After the case was remanded but prior to the new trial
taking place, the Iowa Court of Appeals handed down the
decision in Day v. Finley Hospital, where the court held that
the contents of a hospital's credentialing file fell within the
scope of the Iowa Code § 147.135 peer review protection to
the extent that those documents were in the custody of a
peer review committee.158 At that time, the defendant
hospital filed for summary judgment arguing that the new
ruling barred production of the credentialing file and
without these documents the plaintiff did not have
sufficient evidence to prove a prima facie case.159 The trial
court ruled that the defendant was not barred from
asserting the peer review privilege, even though the
documents had been submitted previously, since the new
ruling was an "intervening change or clarification of the
law."160 The case was appealed to the Iowa Supreme Court.

The Iowa Supreme Court looked to the peer review
statute and determined that the statute set forth three
restrictions: (1) peer review records are "privileged and
confidential"; (2) peer review records are "not subject to
discovery, subpoena, or other means of legal compulsion";
and (3) peer review records are "not admissible in
evidence."16 The court then held that this privilege could
not be voluntarily waived by a hospital, and as a result, the
hospital was able to claim the privilege even though it had
previously submitted the credentialing file.162

This case is important since the hospital was able to
assert the peer review privilege after it had submitted the
credentialing file for review. It would seem that most
hospitals would be given adequate legal advice to bar
discovery of these documents in the first place, but this rule

156 id

157 Id. at 283.
158 Day v. Finley Hosp., 769 N.W.2d 898, 902 (Iowa Ct. App. 2009).
159 Cawthorn, 806 N.W. 2d at 285.
10 Id. at 283.
161 Id. at 289 (quoting Iowa Code § 147.135 (2009)).
162 Id. at 291.

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NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

could add an additional layer of protection against hospitals
who fail to assert the privilege. This ruling essentially
further frustrates a plaintiffs attempts to access
credentialing documents to establish a prima facie case for
negligent credentialing.

4. Missouri's Interpretation of the Peer Review Privilege
in Negligent Credentialing Claims

In December of 2010, the Missouri Court of Appeals
ruled on State ex rel. Kirksville Missouri Hospital
Company, LLC v. Jaynes, a negligent credentialing case on
whether the peer review privilege protected from discovery
documents relating to credentialing of a surgeon.163 In this
case a doctor, Dr. John Bailey, was given temporary
privileges to practice back surgery at the defendant hospital
in mid-1997. 164 However, at the time the privileges were
granted, there was a question as to whether the doctor had
actually completed training with the Columbia Spine
Fellowship.16 5 The hospital's director of surgery gave a
recommendation to the hospitals executive committee which
advised having an independent, fellowship trained, spine
surgeon review the doctor's first twenty-five spinal
instrumentation cases.16 6 Subsequent to approval of this
recommendation, Dr. John Flood, the independent,
fellowship trained spine surgeon chosen by the executive
committee, prepared a written report on his review of the
surgeries and submitted this report to the hospital. 6 7

In 2004, the plaintiff filed a lawsuit against Dr. Bailey
alleging negligent treatment and performance of surgery,
along with a claim that the hospital was negligent in
granting Dr. Bailey privileges. 168 The plaintiff learned of the
report by Dr. Flood and obtained Dr. Flood's deposition as a

163 State ex rel. Kirksville Missouri Hosp. Co. LLC v. Jaynes, 328 S.W.3d
418 (Mo. Ct. App. 2010).

'6 Id. at 420.
165 Id.
166 Id.
167 Id.
168 Id.

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result. 169 The hospital filed objections claiming that Dr.
Flood's deposition was barred by the peer review privilege
in Missouri's Peer Review Committee statute. 170 In response
to the objections, the plaintiff filed a motion for enforcement
of discovery, which was granted in part by the trial court.171

Prior to the second deposition, the plaintiff filed a motion
for enforcement of discovery or in the alternative, an in-
camera review, pertaining to documents that were alleged
to be part of the report Dr. Flood had prepared for the
hospital and had been identified on a privileged log
prepared by the defendant hospital.172 A Special Discovery
Master examined the documents and decided that the
applicable peer review statute offered no protection to the
documents in question.173 The court of appeals ordered that
the documents be produced in order to be reviewed on
appeal.

The court of appeals first reviewed the plain language of
the statute which stated that an exception to the privilege
was "information otherwise discoverable or admissible from
original sources will not be immune from discovery merely
because it was presented during proceedings before a peer
review committee." 174 The court also reviewed the second
exception which included "any person appearing before such
a committee, cannot be prevented from testifying about
matters within their personal knowledge, though they
cannot testify about the proceedings of a committee,
including about any testimony they may have provided to a
committee."175

Upon review of the materials submitted by both parties,
the court found that a portion of Dr. Flood's original report,
which included his concerns about seven of the twenty
patient charts which he had reviewed, was already in the
plaintiffs possession and that the motion to enforce only
included portions of the report that plaintiff did not already

169 id
170 id

172 Id at 420-21.
173 id

174 Id at 422 (citing Mo. ANN. STAT. § 537.035.4 (West 2012)).
175 id

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NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

have in possession.176 The defendant hospital failed to note
this in its petition for writ of prohibition; and the court then
determined that the hospital was "not entitled to a
permanent writ of prohibition to protect itself from an
alleged harm that has already occurred."1 77

In determining whether the rest of the report was
protected by the privilege, the court looked to a previous
case stating that "[credentials committee findings and
deliberations are not exempt from discovery, therefore,
unless they specifically concern the health care provided a
patient."178 The court then held that the report was not a
"peer review committee report", as it did "not fall into the
plain and ordinary meaning" of the categories listed in the
statute. 179 Instead, the report reflected "the knowledge
and/or opinions held by an outside source," since Dr. Flood
was a private, outside physician hired by the executive
committee of the hospital to review Dr. Bailey's files.180

The court reasoned that since Dr. Flood's activities were
not sufficient for him to be characterized as a "peer review
committee" as required by Missouri Statute § 537.035, then
Dr. Flood's report could not be characterized as a "peer
review com-mittee report."181 Additionally, the court held
that the report was not protected by the peer review
privilege because Dr. Bailey had already been granted
privileges and the purpose of the report was to address the
problem that he was granted privileges despite evidence
that he had not completed a fellowship program in spine
surgery. 182 Further, the letter to Dr. Flood indicated that
the hospital wanted to use the report "to defend itself in
later lawsuits."183 Due to this evidence, the court held that
the hospital could not go back on its original stated purpose
of the report and claim it was obtained for credentialing

176 Id. at 423.
17 Id. at 424.
178 id.

179 Id. at 425.
1so Id.
181 Id.
182 Id. at 426.
183 id.

2013 279



INDIANA HEALTH LAW REVIEW

matters subsequent to seeing the contents of the report.184

The court further held that Dr. Flood was never in
attendance of a peer review committee proceeding; therefore
the information in his report could not be protected under
the statute.185 Further, the court held that the minutes from
the actual Executive Committee Peer Review Meetings
discussing the report were not protected because they did
not contain information concerning the health care provided
to a patient as required by the statute. 8 6

The Missouri court's decision to allow consideration of
information that the plaintiff already had access to protects
the rights of patients and keeps hospitals accountable for
negligently credentialing physicians. The Missouri case
protects peer review committee information as it was meant
to be protected, by providing immunity for the committee
members and allowing open discussion among physicians'
peers in determining disciplinary outcomes without worry of
future litigation brought by the individual physician. 87 .
However, it also provides an avenue for plaintiffs in a
negligent credentialing claim to obtain information that is
essential in establishing a prima facie case of negligent
credentialing. This case also sets out common law for how to
interpret a third party expert opinion that a hospital might
use in making credentialing or disciplinary decisions.

In interpreting the Indiana Peer Review Privilege
Statute,188 Indiana courts should adopt the Missouri
interpretation of the privilege and permit discovery of any
information prepared by an outsider for review by the
committee. This would allow for protection of the peer
review committee, as intended by the statute, but still
afford plaintiffs the opportunity to obtain and use
information they may already have or information that is
readily available, and which could be used to establish a
prima facie case. Hospitals would still be protected because

184 id.
1 Id at 427-28.
186 id
187 Alissa Marie Bassler, Federal Law Should Keep Pace with States and

Recognize A Medical Peer Review Privilege, 39 IDAHO L. REV. 689, 690 (2003).
188 IND. CODE § 34-30-15-1 (2012).

280 VOL. 10:1



NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

they could hire an inside expert to perform reports or
present the information to the peer review committee.
Under this approach, the statute would also protect the
expert.

D. Statutorylmmunity

One recent trend, within the last two years, in negligent
credentialing is for state legislatures to provide statutory
immunity for hospitals against claims of negligent
credentialing. In 2011, at least two states, Ohio and Utah,
passed legislation that provides hospitals with immunity
against negligent credentialing claims. Each state went
about the immunity provision in entirely different ways.

1. Utah's Negligent Credentialing Statute

In 2010, the Utah Supreme Court decided a case,
Archuleta v. St. Mark's Hospital, which ruled that negligent
credentialing was a valid cause of action. 189 In this case, the
defendant hospital argued that Utah Code Ann. § 58-13-5(7)
barred a cause of action for negligent credentialing.190 The
language of Utah Code Ann. § 58-13-5(7) states:

An individual who is a member of a hospital
administration, board, committee, department,
medical staff, or professional organization of
health care providers is, and any hospital,
other health care entity, or professional
organization conducting or sponsoring the
review, immune from liability arising from
participation in a review of a health care
provider's professional ethics, medical
competence, moral turpitude, or substance
abuse.' 9 '

The Supreme Court of Utah held that the plain language
of the statute is clear and that "read as a whole and in

189 id.

190 Id. at 1046.
191 UTAH CODE ANN. § 58-13-5(7) (West 2012).

2013 281



INDIANA HEALTH LAW REVIEW

harmony with related provisions and chapters, it shows that
the legislature did not intend to immunize hospitals from
negligent credentialing claims brought by patients."192 The
court further reasoned that "the immunity contemplated
under the statue operates between a doctor whose
credentials are under review and the suppliers of
information and decision makers; it does not contemplate
immunity between a patient and a hospital."193

Senate Bill 150 of the 2011 Utah Legislative General
Session was then proposed as an attempt to overrule the
Utah Supreme Court decision and to provide hospitals with
blanket immunity from negligent credentialing claims, no
matter the specific circumstances to the case.194 Utah
passed Utah Code Ann. 1953 § 78B-3-425 in 2011, which
provides that "[ilt is the policy of this state that the question
of negligent credentialing, as applied to health care
providers in malpractice suits, is not recognized as a cause
of action."19

2. Ohio's Negligent Gredentialing Statute

Ohio passed Ohio Rev. Code Ann. § 2305.251 in 2011.196
The Ohio statute is much more expansive than the version
passed by Utah. Ohio Rev. Code Ann. § 2305.251 expands
immunity for the peer review privilege without providing
full blanket immunity against negligent credentialing.
Section (B)(1) of the statute provides that a hospital is to be
presumed to not be negligent in the credentialing of an
individual who has, or has applied for, staff membership or
professional privileges at the hospital, if the hospital proves
by a preponderance of the evidence that, at the time of the
alleged negligent credentialing of the individual, the
hospital, health insuring corporation, or sickness and
accident insurer was accredited by one of the following: the
joint commission on accreditation of healthcare

192 Archuleta, 238 P.3d at 1046.
193 Id. at 1047.
194 Negligent Credentialing, S.B. 150, Gen. Sess. (UT 2011).
195 UTAH CODE ANN. § 78B-3-425 (West 2012).
196 OHIO REV. CODE ANN. § 2305.251 (West 2012).

282 VOL. 10:1



NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

organizations; the American osteopathic association; the
national committee for quality assurance; or the utilization
review accreditation commission.197

Section (B)(2) of the statute provides that the
presumption that the hospital is not negligent in
credentialing can only be rebutted by a preponderance of
the evidence in any of the four following areas:

(a) The credentialing and review
requirements of the accrediting organization
did not apply to the hospital . . . or the type of
professional care that is the basis of the claim
against the hospital.

(b) The hospital .. . failed to comply with all
material credentialing and review
requirements of the accrediting organization
that applied to the individual.

(c) The hospital . . . through its medical
staff executive committee or its governing body
and sufficiently in advance to take appropriate
action, knew that a previously competent
individual had developed a pattern of
incompetence or otherwise inappropriate

'behavior, either of which indicated that the
individual's staff membership, professional
privileges, or participation as a provider should
have been limited or terminated prior to the
individual's provision of professional care to
the plaintiff.

(d) The hospital . . . through its medical
staff executive committee or its governing body
and sufficiently in advance to take appropriate
action, knew that a previously competent
individual would provide fraudulent medical
treatment but failed to limit or terminate the
individual's staff membership, professional
privileges, or participation as a provider prior
to the individual's provision of professional

197 id.

2013 283



INDIANA HEALTH LAW REVIEW

care to the plaintiff. 198

The Ohio statute is effective in putting hospitals on
notice because it gives hospitals clear guidance as to what
actions they can take to protect themselves from negligent
credentialing claims, but also preserves the right of an
individual plaintiff to recover damages when there has been
a clear negligence issue committed on the part of the
hospital. Adopting a statute similar to the Utah statute
would deprive individuals, who have been harmed, from
collecting damages when the hospital has been negligent in
its credentialing process. It would also protect the negligent
behavior of hospitals and while failing to provide any
incentive for hospitals to adopt thorough credentialing
process. Instead, the Utah statute leaves the patient
responsible for verifying the competency of a medical
professional.19 9

Adopting a statute similar to the Ohio statute would be
beneficial for Indiana. A clear, detailed statute would give
hospitals notice as to what exactly is required of them in the
credentialing process. It would also solve the issue
presented by the court decision in Beswick which left many
questions for defendant hospitals in how to protect
themselves against negligent credentialing claims. Further,
a statute similar to the Ohio statute would preserve the
right of harmed individuals to collect damages for injuries
that could have been avoided if not for the negligent
behavior of the hospital.

IV. NEGLIGENT CREDENTIALING AND THE AFFORDABLE
HEALTH CARE ACT

On July 1, 2011, the Value-Based Purchasing Act 20 0

went into effect. The Value Based Purchasing Act is an

198 id

'9 Utah Senate Bill 150 Threatens Negligent Credentialing as a Valid Cause
of Action; CREDENTIALING & PEER REV. LEGAL INSIDER, April 2011, at 4,
available at http://user.xmission.com/~kirton/images/News-articles/credentialing
wride.

200 42 C.F.R. § 480 (2012).

284 VOL. 10:1



NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

attempt of health care reform to move health care toward a
Pay-For-Performance model. 201 Through this Act, the
Department of Health and Human Services (HHS), collects
quality data from hospitals, compiles the data, and then
rewards hospitals for meeting certain performance
measures in quality and efficiency. 202 This Act calls for some
disclosure of performance information. 203 One purpose of
disclosing this information is that "reducing errors through
improved medical practices and effectuating penalties
against poorly performing physicians may benefit the
overall performance of the medical malpractice insurance
system."204 Currently, states have primary authority to
administer medical licensing and to standardize medical
practice. Unfortunately, this leaves the issue that each state
has its own method of tracking physicians and there is a
lack of uniformity among the states. 205 The Patient
Protection and Affordable Care Act (PPACA) helps to unify
the reporting and regulating requirements among the states
and allows for better tracking and recording of adverse
events and physicians. 206

There are several ways that this requirement could
impact negligent credentialing in Indiana claims. First,
under the Value-Based Purchasing Act, the hospitals are
required to disclose each physician's performance with
public or private review organizations. 20 7 This data is then
compared to other providers' performance levels. 208 This

201 Charles Fiegl, Medicare Pay-for-Performance Plan Criticized Over Early
Launch, AMERICAN MEDICAL NEWS, September 19, 2011, http://www.ama-
assn.org/amednews/2011/09/19/gvl 10919.htm.

202 Hospital Value-Based Purchasing Program, ICN 907664, Nov. 2011,
available at http://www.cms.gov/ Outreach-and-Education/Medicare-Learning-
Network-MLN/MLNProducts/downloads/Hospital VBPurchasingFactSheet_
ICN907664.pdf.

203 Id.
204 Bernadette Fernandez, Baird Webel, Vivian S. Chu, Medical Malpractice

Insurance and Health Reform, CONGRESSIONAL RESEARCH SERVICE, April 15,
2010, at 4.

205 id.
206 See Barry R. Furrow, Regulating Patient Safety: The Patient Protection

and A ordable Care Act, 159 U. PA. L. REV. 1727 (2011).
2 42 C.F.R. § 480.
208 id.

2013 285



INDIANA HEALTH LAW REVIEW

public information could be used as direct evidence against
a hospital showing that it had knowledge that it should not
have credentialed or re-credentialed a particular
physician.209 As mentioned above, peer review privilege
protects the hospital from having to disclose what exact
information was used in the credentialing process. However,
this rule would make performance information available to
the public making it easier for a plaintiff to obtain this
information during discovery and to build a claim on what
the hospital shouldhave known.

Second, the rule requires external reporting of an
adverse event.210 It has been proposed that "external
reporting of an adverse event that is separately the focus of
a malpractice or other claim could result in the waiver of
evidentiary privilege against discovery of this
information."211 This could significantly affect hospitals in
negligent credentialing claims since Indiana requires that
there be an underlying medical malpractice claim to
substantiate a negligent credentialing claim. The waiver of
evidentiary privilege could give the plaintiff in these claims
an added advantage. Unfortunately, the Act is so new that
it is yet to be seen how the courts will interpret the
mandatory reporting requirements in lieu of evidentiary
and peer review privilege. It also remains to be seen as to
what extent the mandatory reporting information will be
made available for use in litigation and adjudication of
medical malpractice claims.

V. CONCLUSION

Since 1965, negligent credentialing as a valid cause of
action in medical malpractice claims has been slow to be
adopted throughout state courts. Although Indiana adopted
negligent credentialing as a valid cause of action in 2000, it

209 Stacy L. Cook, Will Pay for Performance Be Worth the Price to Medical
Providers? A Look at Pay for Performance and Its Legal Implications for
Providers, 16 ANNALS HEALTH L. 163, 180 (2007).

2 0 42 C.F.R. § 480.
211 Anne B. Claiborne, Julia R. Hesse & Daniel T. Roble, Legal Impediments

to Implementing Value-Based Purchasing in Healthcare, 35 AM. J.L. & MED. 442,
468 (2009).

286 VOL. 10:1



NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION

has been slow to rule on decisions and the Indiana Supreme
Court has yet to hear a case involving this issue on appeal.
The lack of rulings and case law on this topic leaves both
defendant hospitals and plaintiffs unsure of how to proceed
in these claims and what exactly is required to bring this
type of claim. Indeed, the more recent cases have tended to
leave more questions than answers regarding elements and
evidence in these claims.

As more cases are decided on the topic, the Indiana
courts should be aware of where other jurisdictions stand on
this cause of action since they have historically looked to
neighboring jurisdictions for reference in newer areas of
law. The issues of bifurcating claims between physicians
and hospitals should be addressed to protect the integrity of
claims and efficiency of the court process. Also, the concern
of how the peer review committee protections affect
discovery in these claims will need to be clearly laid out in
future decisions. The courts and counsel need to be
cognizant of recent legislation on negligent credentialing in
other states and how it could be implemented in the State of
Indiana either to override or to protect court decisions.
Lastly, the recent enactment of the Patient Protection and
Affordable Care Act could have far reaching implications for
negligent credentialing actions and the discovery process in
these claims. As the Act is put into practice, it remains to be
seen how the courts will interpret the reporting
requirements and their use in medical malpractice
adjudication. However the courts and legislature decide to
rule out these concerns, the primary issue of balancing
patient safety and recourse with hospital and physician
responsibility needs to be at the forefront of the decision-
making process.

2013 287





INDIANA HEALTH LAW REVIEW
2012-2013

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Volume 10



INDIANA HEALTH LAW REVIEW

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Indiana University Robert H. McKinney School of Law

2012-2013 ADMINISTRATIVE OFFICERS AND FACULTY

Administrative Officers

MICHAEL A. McROBBIE, President of the University. Ph.D., Australian National University.
CH ARLES R. BANTZ, Chancellor, Indiana University-Purdue University-Indianapolis; Indiana University Executive

Vice President. B.A., M.A., University of Minnesota; Ph.D., Ohio State University.
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ANTONY PAGE, Vice Dean. Professor of Law and Dean's Fellow. B. Comm., McGill University; M.B.A., Simon Fraser

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B.A., The University of the West Indies; J.D., Columbia University School of Law; LL.M., New York University
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GERARD N. MAGLIOCCA, Associate Dean for Research, Samuel R. Rosen Professor of Law. B.A., Stanford University;
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JEFFREY 0. COOPER, Associate Professor ofLaw. A.B., Harvard University; J.D., University of Pennsylvania Law

School.
ERIC R. DANNENMAIER, Professor ofLaw, Dean 's Fellow; Grimes Fellow. B.A., Drury College; J.D., Boston

University; LL.M., Columbia University; M. St., Oxford University.
JAMES D. DIMITRI, Clinical Professor ofLaw. B.S., Indiana University; J.D., Valparaiso University School of Law.
JENNIFER A. DROBAC, Professor of Law. B.A., M.A., Stanford University; J.D., J.S.D., Stanford Law School.
YVONNE M. DUTTON, Associate Professor ofLaw. B.A., Columbia University; M.A., University of Colorado at

Boulder; Ph.D., University of Colorado at Boulder; J.D., Columbia Law School.
GEORGE E. EDWARDS, Carl M Gray Professor ofLaw; Faculty Advisor to the LL.M track in International Human

Rights Law; Director, Program in International Human Rights Law; John S. Grimes Fellow. B.A., North Carolina
State University; J.D., Harvard Law School.

FRANK EMMERT, John S. Grimes Professor of Law and Executive Director, Center for International and Comparative
Law. Erstes Juristisches Staatsexamen (J.D.), University of Munich Law School; LL.M., The University of
Michigan Law School; Ph.D., University of Maastricht; Diploma, European University Institute.

NICHOLAS GEORGAKOPOULOS, Harold R. Woodard Professor ofLaw. Ptyhion Nomikis, Athens University School of
Law; LL.M., S.J.D., Harvard Law School.

CARRIE HAGAN, Clinical Associate Professor of Law. B.A., University of Kansas; J.D., University of Cincinnati
College of Law.

JOHN LAWRENCE HILL, Professor ofLaw. B.A., Northern Illinois University; J.D., Ph.D., Georgetown University.
MAX HUFFMAN, Associate Professor ofLaw; Dean's Fellow. B.A., Cornell University; J.D., University of Cincinnati

College of Law.
LAWRENCE A. JEGEN, III, Thomas F. Sheehan Professor of Tax Law and Policy. B.A., Beloit College; J.D., M.B.A.,

University of Michigan; LL.M., New York University School of Law.
ROBERT A. KATZ, Professor ofLaw. A.B., Harvard College; J.D., University of Chicago Law School.
LINDA KELLY HILL, M Dale Palmer Professor ofLaw. B.A., J.D., University of Virginia. MAX HUFFMAN, Associate

Professor ofLaw and Dean's Fellow. B.A., Cornell University; J.D., University of Cincinnati College of Law.
ANDREW R. KLEIN, Paul E. Beam Professor ofLaw; Chief of Staff Office of the Chancellor of IUPUI. B.A., University

of Wisconsin; J.D., Emory University School of Law.
NORMAN LEFSTEIN, Professor ofLaw and Dean Emeritus. LL.B., University of Illinois College of Law; LL.M.,

Georgetown University Law School.
ALLISON MARTIN, Clinical Professor ofLaw. B.S., J.D., University of Illinois.
DEBORAH MCGREGOR, Clinical Professor ofLaw and Assistant Director ofLegal Analysis, Research and

Communication. B.A., University of Evansville; J.D., Georgetown University Law Center.
EMILY MORRIS, Associate Professor ofLaw and Dean 's Fellow. A.B., Harvard University; J.D., University of

Michigan Law School.

NOVELLA NEDEFF, Clinical Associate Professor ofLaw. B.A., J.D., Indiana University.
DAVID ORENTLICHER, Samuel R. Rosen Professor of Law and Co-Director of the William S. and Christine S. Hall

Center for Law and Health. B.A., Brandeis University; J.D., M.D., Harvard University.
JOANNE ORR, Clinical Professor ofLaw. B.S., Indiana State University; J.D., California Western School of Law.
MICHAEL J. PIrrs, Professor ofLaw; Dean's Fellow and John S. Grimes Fellow. B.S.J., Northwestern University; J.D.,

Georgetown University Law Center.

FRAN QUIGLEY, Clinical Professor ofLaw, Health and Human Rights Clinic, Indiana University Robert H. McKinney
School ofLaw; Senior Advisor, Indiana University Center for Global Health. B.A., Hanover College; M.A.,
Indiana University; J.D., Indiana University Robert H. McKinney School of Law.

FLORENCE WAGMAN ROISMAN, William F. Harvey Professor ofLaw. B.A., University of Connecticut; LL.B., Harvard
Law School.



JoAN M. RuilENBERG, Clinical Proessor of Lw' and Director ofLegal Ana/'sis, Research and Communication. B.A.,
Mississippi University for Women; J.D., Indiana University Robert H. McKinney School of Law.

MARGARET RYZNAR, Associate Proftssor ofLaw. B.A., University of Chicago M.A., Jagiellonian University; J.D.,
Uni ersity of Notre Dame Law School.

JOEL M. SclluMM, Clinical Professor of Law. B.A., Ohio Wesleyan University; M.A., University of Cincinnati; J.D.,
Indiana University Robert H. McKinney School of Law.

Li A SiHAVER, .,ssociate Professor of Law. B.A., M.A., University of Chicago; J.D., Yale Law School.
LLEINY R. SILvA, Associate Profesor of Law. B.A., M.A., Boston University; J.D., University of Connecticut School

of Lax; LL.M., University of Wisconsin Law School.
FR \NK SULLIV\N, JR., Profissor of Practice. A.B., Dartmouth College; J.D., Indiana University Maurer School of

Law: LL.M., University of Virginia School of Law.
MARGARET C. TARKINGTON, Associate Professor of Law. B.A., Brigham Young University; J.D., J. Reuben Clark Law

School, Brigham Young University.
NICOLAS P. TERRY, Hall Render Professor ofLaw; Co-Director of'the William S. and Christine S. Hall Center for Law

and Health. B.A., Kingston University; LL.M., Corpus Christi College, University of Cambridge.
CARLTON MARK WATERHOUSE, Associate Professor of Law; Dean's Fellow. B.S., Pennsylvania State University; J.D.

with honors, Howard University School of Law; M.T.S., Emory University, Chandler School of Theology; Ph.D.
with honors, Emory University.

FRANCES WATSON, Clinical Professor ofLaw. B.S., Ball State University; J.D., Indiana University Robert H.
NicKinney School of Law.

LLOYD T. WILSON, JR.. Professor of Law; Director, Joint Center for Asian Law Studies; Director, Chinese Law
Summer Program; Director, American Law for Foreign Lawyers LL.M Program. B.A., Wabash College; M.A.,
Duke University; J.D., Indiana University Maurer School of Law.

DIANA R.H. WINTERS, Associate Professor ofLaw. B.A., Brown University; M.A., Harvard University; Ph.D., Harvard
University; J.D., New York University School of Law.

R. GEORGE WRIGHT, Lawrence A. Jegen III Professor ofLaw. A.B., University of Virginia; Ph.D., Indiana University;
J.D., Indiana University Robert H. McKinney School of Law.

Emeriti Faculty

THOMAS B. ALLINGTON, Professor of Law Emeritus. B.S., J.D., University of Nebraska; LL.M., New York University
School of Law.

EDWARD P. ARCHER, Professor ofLaw Emeritus. B.M.E., Renesselaer Polytechnic Institute; J.D., LL.M., Georgetown
University Law School.

JAMES F. BAILEY, III, Professor ofLaw Emeritus. A.B., J.D., M.A.L.S., The University of Michigan.
PAUL N. Cox, Professor of Law Emeritus. B.S., Utah State University; J.D., University of Utah College of Law; LL.M.,

University of Virginia School of Law.
CLYDE HARRISON CROCKETT, Professor ofLaw Emeritus. A.B., J.D., University of Texas; LL.M., University of

London (The London School of Economics and Political Science).
DEBRA A. FALENDER, Professor ofLaw Emerita. A.B., Mount Holyoke College; J.D., Indiana University Robert H.

McKinney School of Law.
DAVID A. FUNK, Professor of Law Emeritus. A.B., College of Wooster; J.D., Case Western Reserve University School

of Law; M.A., The Ohio State University; LL.M., Case Western Reserve University; LL.M., Columbia Law
School.

PAUL J. GALANTI, Professor ofLaw Emeritus. A.B., Bowdoin College; J.D., University of Chicago Law School.
HELEN P. GARFIELD, Professor ofLaw Emerita. B.S.J., Northwestern University; J.D., University of Colorado School

of Law.
HAROLD GREENBERG, Professor of Law Emeritus. A.B., Temple University; J.D., University of Pennsylvania Law

School.
JEFFREY W. GROVE, Professor ofLaw Emeritus. A.B., Juniata College; J.D., George Washington University Law

School.
WILLIAM F. HARVEY, Carl M Gray Professor of Law & Advocacy Emeritus. A.B., University of Missouri; J.D., LL.M.,

Georgetown University Law School.
W. WILLIAM HODES, Professor of Law Emeritus, A.B., Harvard College; J.D., Rutgers University School of Law-

Newark.
WILLIAM ANDREW KERR, Professor ofLaw Emeritus. A.B., J.D., West Virginia University; B.D., Duke University;

LL.M., Harvard Law School.
ELEANOR DEARMAN KINNEY, Hall Render Professor of Law, Co-director of the William S. and Christine S. Hall Center

for Law and Health Emerita. B.A., Duke University; M.A., University of Chicago; J.D., Duke University School
of Law; M.P.H., University of North Carolina.

WILLIAM E. MARSH, Professor ofLaw Emeritus. B.S., J.D., University of Nebraska.



SUSANAH M. MEAD, Professor ofLaw Emerita. B.A., Smith College; J.D., Indiana University Robert H. McKinney
School of Law.

H. KATHLEEN PATCHEL, Associate Professor ofLaw Emerita. A.B., Huntington College; J.D., University of North
Carolina Law School; LL.M., Yale Law School.

RONALD W. POLSTON, Professor ofLaw Emeritus. B.S., Eastern Illinois University; LL.B., University of Illinois
College of Law.

KENNETH M. STROUD, Professor ofLaw Emeritus. A.B., J.D., Indiana University-Bloomington.
JAMES W. TORKE, Carl M Gray Professor ofLaw Emeritus. B.S., J.D., University of Wisconsin.
JAMES PATRICK WHITE, Professor ofLaw Emeritus. A.B., University of Iowa; J.D., LL.M., George Washington

University Law School.
LAWRENCE P. WILKINS, William R. Neale Professor ofLaw Emeritus. B.A., The Ohio State University; J.D., Capitol

University Law School; LL.M., University of Texas School of Law.
MARY THERESE WOLF, Clinical Professor ofLaw Emerita. B.A., Saint Xavier College; J.D., University of Iowa

College of Law.

Ruth Lilly Law Library Faculty

JUDITH FORD ANSPACH, Professor ofLaw and Director, Ruth Lilly Law Library. B.S., M.L.S., Kent State University;
J.D., Mississippi College School of Law.

SUSAN DAVID DEMAINE, Research and Instruction Librarian. B.A., Pennsylvania State University; M.S.L.S.,
University of Kentucky; J.D., University of Kentucky.

DEBRA DENSLAW, Research and Instruction Librarian. B.A., Franklin College; M.S., University of Illinois, Urbana-
Champaign; J.D., Valparaiso School of Law.

RICHARD HUMPHREY, Reference Librarian. A.A., Brewton-Parker Junior College; B.A., Georgia Southwestern College;
M.L.S., University of Kentucky.

WENDELL E. JOHNTING, Cataloging and Government Documents Librarian. A.B., Taylor University; M.L.S., Indiana
University.

BENJAMIN J. KEELE, Research and Instruction Librarian. B.A., University of Nebraska-Lincoln; J.D., Indiana

University Maurer School of Law; M.L.S., Indiana University School of Library & Information Science.
CATHERINE LEMMER, Head ofInformation Services. B.A., Lawrence University; J.D., University of Wisconsin; M.S.,

University of Illinois.
CHRIS E. LONG, Cataloging Librarian. B.A., Indiana University; M.A., Indiana University; M.L.S., Indiana University.
MIRIAM A. MURPHY, Associate Director. B.A., Purdue University; J.D., M.L.S., Indiana University-Bloomington.