UPDATING THE CONTRAST IN PRIVATE RIGHTS OF ACTION IN INDIANA

By: David J. Cutshaw, Attorney

In May of 2016, we contrasted the ability of a private citizen to sue a doctor for a violation of the child abuse reporting statute and the right of a doctor to sue a lawyer for an inadvertent disclosure of a doctor’s name in a medical malpractice complaint.  Since May of 2016, Indiana Courts have continued to refuse to imply a private right of action for violations of other statutes in the following circumstances:

Doe v. Ind. Dept. of Child Services, 81 N.E. 3d 199 (Ind. 2017):  The Indiana Supreme Court refused to infer a private right of action where the identity of a confidential informant who reported child abuse was released by DCS directly to the suspected abuser, resulting in threats to and harassment of the informant and his family.  The statute in that case required DCS to keep the identity of the informant confidential.  The Indiana Supreme Court held the informant had no legal recourse against DCS, adding more meaning to the no-good-deed-goes-unpunished mantra and creating the danger that other informants will hesitate to report child abuse at his or her own physical peril.

Shirey v. Flenar, 89 N.E. 3d 1102 (Ind. Ct. App. 2017):  The Court of Appeals refused to recognize a private right of action when a physician lost or destroyed a patient’s records contrary to the requirements of an Indiana statute that requires the doctor to preserve a patient’s records and produce them to the patient when properly requested.  In this case, the patient was unable to sue her doctor who did not produce her medical records for her inability to fully document her personal injury claim due to the lost/destroyed records.  Again, doctors can sue lawyers for inadvertently disclosing their involvement in a medical malpractice suit, but a patient cannot sue a doctor under the circumstances in Shirey.