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Roberts asserts that because Dr. Sankey, who was a member of the medical
staff at VCH, did not review the professional practices at VCH for the
purpose of reducing morbidity and mortality, she breached the statutory duty; therefore, he
can maintain an action against Dr. Sankey pursuant to the Indiana Medical Malpractice
Act. Although Dr. Sankey may have had a duty under Indiana Code
§ 16-21-2-7, it does not necessarily follow that Roberts may enforce this duty
in a private cause of action.
When a civil cause of action is premised upon violation of a duty
imposed by statute, the initial question to be determined by the court is
whether the statute in question confers a private right of action. Vaughn
v. Daniels Co. (W. Va.), Inc.
, 777 1110, 1134 (Ind. Ct. App.
2002), clarified on reh’g on other grounds , 782 1062 (Ind. Ct. App.
2003), trans. pending . The determination of whether a civil cause of action
exists begins with an examination of legislative intent. Id. This primarily
includes looking to whether the statute is designed to protect the general public
and whether the statutory scheme contains an enforcement mechanism or remedies for violation
of the duty. See id. “As a general rule, a private
party may not enforce rights under a statute designed to protect the public
in general and containing a comprehensive enforcement mechanism.” LTV Steel Co. v.
Griffin
, 730 1251, 1260 (Ind. 2000).

    In determining legislative intent, it is important to see where the statute at
issue is located within the Indiana Code. Here, Indiana Code § 16-21-2-7
is located in the chapter titled Licensure of Hospitals. Other statutes contained
in Chapter 2 pertain to the State’s responsibility to license and regulate hospitals.
For example, Indiana Code § 16-21-2-2 provides that the State shall license
and regulate hospitals. Indiana Code § 16-21-2-4 provides that the State shall
administer Chapter 2 with the advice of the hospital council, which is appointed
by the Governor. Indiana Code § 16-21-2-6 provides that hospitals shall report
certain information to the State, such as when it terminates a hospital staff
physician’s employment. Other statutes in Chapter 2 address who must obtain a
license from the State and what the license application must contain. Ind.
Code §§ 16-21-2-10, -11. After examining Chapter 2, it is apparent that
the legislature intended this chapter to address the State’s responsibility to license and
regulate hospitals for the protection of hospital patients. See Ind. Code §
16-21-2-7(3).
The following chapter, Chapter 3, is titled Remedies for Violation and expounds further
on the State’s responsibility in the licensing and regulation of hospitals. Specifically,
Indiana Code § 16-21-3-1 provides that the State may impose various remedies for
violation of a hospital licensure requirement, including: (1) issuing a letter of
correction; (2) issuing a probationary license; (3) conducting a resurvey; (4) denying renewal
of a license; (5) revoking a license; or (6) imposing a civil penalty
in an amount not to exceed $10,000.
After examining Chapter 2 as well as the available remedies for failing to
abide by Chapter 2’s hospital licensure requirements, we find that the statutory scheme
contains a comprehensive enforcement mechanism for monitoring compliance with the hospital licensure requirements
for the protection of hospital patients. See Vaughn , 777 at 1134.
This comprehensive enforcement scheme is placed in the hands of the State.
We cannot glean any apparent legislative intent to authorize a private right
of action for the failure of a physician to follow any of the
medical staff responsibilities set out in Indiana Code § 16-21-2-7. See id.
at 1135. We are unwilling to go beyond the intent of the
legislature in providing a private remedy under this statutory scheme. See id.

    Nevertheless, Roberts argues that Winona Memorial Hospital, Limited Partnership v. Kuester , 737
824 (Ind. Ct. App. 2000), which is the only case that addresses Indiana
Code § 16-21-2-7, creates a duty from Dr. Sankey to Nell. In
effect, Roberts argues that Kuester already determined that Indiana Code § 16-21-2-7 confers
a private right of action for breach of the statute’s duties. However,
Roberts reads too much into Kuester . In Kuester , the court did not
create a duty from a physician to a patient under Indiana Code §
16-21-2-7. Rather, the court looked to the statute to determine whether the
legislature intended that negligent credentialing of a physician falls within the ambit of
the Indiana Medical Malpractice Act. Id. at 826-27. The court ultimately
concluded that negligent credentialing of a physician is subject to the Medical Malpractice
Act. Id. at 828. Roberts is wrong that Kuester determined
that Indiana Code § 16-21-2-7 creates a private right of action upon which
a patient can sue a physician.



See footnote

Because the statutory scheme contains a comprehensive enforcement mechanism that addresses the State’s
responsibility to license and regulate hospitals for the protection of hospital patients, we
conclude that Indiana Code § 16-21-2-7 does not create a private right of
action.



See Vaughn
, 777 at 1134. Further, we did not
find such a private right of action in Kuester . Accordingly, the trial
court properly granted summary judgment in favor of Dr. Sankey.



See footnote



See id.

at 1135.
Affirmed.
SULLIVAN, J., and MAY, J., concur.    

Matthew Lux’s Communication Arts Quartet
Contra-Fact
(Monofonus Press/Astral Spirits, 2017)
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