ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J. RICHARD KIEFER DANIEL R. FAGAN
DARLENE R. SEYMOUR NANA QUAY-SMITH
Kiefer & McGoff CANDACE L. SAGE
Indianapolis, Indiana WHITNEY WHITE SOERGEL
COURT OF APPEALS OF INDIANA
DAVID L. KEIM, )
vs. ) No. 29A02-0208-CV-698
ROBERT S. POTTER, M.D., )
APPEAL FROM THE HAMILTON CIRCUIT COURT
The Honorable Judith S. Proffitt, Judge
Cause No. 29C01-0011-CT-941
February 20, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
David L. Keim appeals the trial court’s entry of partial summary
judgment in favor of Robert S. Potter, M.D. on Keim’s medical malpractice
claim. Keim presents two issues for our review, which we consolidate and
restate as: whether the trial court erred when it found that the modified
impact rule bars Keim’s emotional damages claim.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY
In the summer of 1993, Keim donated blood at a Red Cross center. On
August 20, 1993, the Central Indiana Regional Blood Center sent Keim a
letter informing him that his blood tested positive for hepatitis C and
advising him to contact a physician. Accordingly, Keim consulted his
family physician, Dr. Potter, who conducted two tests to confirm whether
Keim had hepatitis C. The first test was a simple antibody screen, like
the one the blood bank had performed, and the results were positive for
hepatitis C. The second test was a recombinant immuno-blot assay (“RIBA”)
test, and the results were indeterminate. Dr. Potter told Keim that the
first test, the antibody screen, often results in false positives, so he
advised Keim to return in December 1993 to undergo another RIBA test.
On December 27, 1993, Keim returned to Dr. Potter’s office for a
second RIBA test. But Dr. Potter erroneously ordered another antibody
screen instead of the RIBA test. The result of the antibody screen was
positive for hepatitis C. In early January 1994, Dr. Potter telephoned
Keim to report that the test, which Dr. Potter believed was the RIBA test,
indicated that he definitely had hepatitis C. Keim sought clarification
from Dr. Potter that the result was not indeterminate again, and Dr. Potter
assured Keim that the test result was positive for hepatitis C.
At that time, Keim was thirty-three years old and married, with two
young children. Dr. Potter explained that the disease would cause symptoms
including fatigue, pain, and jaundice, and that the quality of his life
would be substantially diminished. Dr. Potter told Keim that he could
develop serious liver damage, including cirrhosis and cancer. Finally, Dr.
Potter explained that Keim’s hepatitis C would kill him in fifteen to
twenty years’ time.
Because hepatitis C is transmitted through bodily fluids, Keim was
forced to take extreme measures to protect his wife and children from
becoming infected through contact with him. Keim and his wife had to begin
using condoms every time they had intercourse; he had to keep his
toothbrush and razor out of his children’s reach; and the children were
prohibited from eating or drinking Keim’s food and drink. In addition, Dr.
Potter instructed Keim to avoid alcoholic beverages, eat healthful foods,
exercise regularly, and avoid over-the-counter medications and vitamins.
This advice led Keim to become compulsive about what he ate and how much he
exercised. Keim’s behavior and changed lifestyle had a negative impact on
his relationships with his wife and children. Keim and his wife separated
in 1995 and later divorced.
When he first diagnosed Keim with hepatitis C, Dr. Potter explained
that he should undergo tests every six months to monitor his liver
function. Over the ensuing two and one half years, none of those tests
indicated any impairment of Keim’s liver function. On May 13, 1996, Dr.
Potter reviewed Keim’s medical file and realized that a second RIBA test
was never conducted. Dr. Potter admitted the mistake and told Keim that he
might not have hepatitis C after all. In June 1996, Dr. Potter ordered
another RIBA test, and the results were indeterminate. When pressed, Dr.
Potter acknowledged that another type of test was available to determine,
definitively, whether Keim had hepatitis C. The results of that final test
indicated that Keim did not have hepatitis C.
Keim filed his proposed complaint with the Department of Insurance,
alleging that Dr. Potter was negligent in diagnosing him with hepatitis
C. A medical review panel unanimously concluded that there existed a
material issue of fact, not requiring expert opinion, regarding Dr.
Potter’s liability. Keim filed his complaint with the trial court on
November 27, 2000. Dr. Potter subsequently filed a motion for summary
judgment or, in the alternative, partial summary judgment, alleging, in
relevant part, that Keim’s emotional damages claim is barred by the
modified impact rule. Following a hearing, the trial court entered partial
summary judgment in favor of Dr. Potter on the issue of Keim’s alleged
emotional damages, and the court specified that there was no just reason
for delay in the entry of final judgment on that issue. Keim brings this
DISCUSSION AND DECISION
Keim maintains that the trial court erred when it found that his
claim for emotional damages is barred under the modified impact rule. We
In determining the propriety of summary judgment, we apply the same
standard as the trial court. Jesse v. American Cmty. Mut. Ins. Co., 725
N.E.2d 420, 423 (Ind. Ct. App. 2000), trans. denied. We construe all facts
and reasonable inferences to be drawn from those facts in favor of the non-
moving party. Id. Summary judgment is appropriate when the designated
evidence demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to a judgment as a matter of law. Ind.
Trial Rule 56(C). The purpose of summary judgment is to terminate
litigation about which there can be no material factual dispute and which
can be resolved as a matter of law. Zawistoski v. Gene B. Glick Co., Inc.
727 N.E.2d 790, 792 (Ind. Ct. App. 2000). Where, as here, the material
facts are essentially undisputed, our sole task is to determine whether the
trial court properly applied the law to the facts. Laux v. Chopin Land
Associates, Inc., 615 N.E.2d 902, 905 (Ind. Ct. App. 1993), trans. denied.
In order to maintain a cause of action for negligent infliction of
emotional distress under Indiana law, a plaintiff must satisfy the “impact
rule.” Alexander v. Scheid, 726 N.E.2d 272, 283 (Ind. 2000). This rule
originally consisted of three elements: (1) an impact on the plaintiff;
(2) that causes physical injury to the plaintiff; (3) that in turn causes
the emotional distress. Id. This rule precluded recovery for the case in
which a plaintiff experienced real mental stress in the absence of physical
injury. Id. But our supreme court later modified the impact rule and
When . . . a plaintiff sustains a direct impact by the negligence of
another and, by virtue of that direct involvement sustains an
emotional trauma which is serious in nature and of a kind and extent
normally expected to occur in a reasonable person, . . . such a
plaintiff is entitled to maintain an action to recover for that
emotional trauma without regard to whether the emotional trauma arises
out of or accompanies any physical injury to the plaintiff.
Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991).
In Conder v. Wood, 716 N.E.2d 432 (Ind. 1999), our supreme court
applied the modified impact rule for the first time since Shuamber. The
plaintiff in Conder witnessed a truck hit her friend as the pair were
walking across the street. In an effort to prevent the driver from running
the truck’s tires over her friend, the plaintiff pounded on the side of the
truck to get the driver’s attention. The plaintiff later sued the truck
driver, claiming emotional damages as a result of witnessing her friend’s
death. The court held that the plaintiff sustained an “impact” when she
pounded on the truck, sufficient to satisfy the direct impact element of
the modified impact rule. Id. at 435.
Then, in Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000), where an eight-
year-old girl witnessed the immediate aftermath of her little brother being
struck and killed by a passing police vehicle, our supreme court held that
a bystander in such a circumstance need not have sustained any physical
impact at all to satisfy the rule. Quoting Conder, the court “‘recognized
the diminished significance of contemporaneous physical injuries in
identifying legitimate claims of emotional trauma from the mere spurious.
Rather, ‘direct impact’ is properly understood as the requisite measure of
‘direct involvement’ in the incident giving rise to the emotional trauma.’”
Id. at 572. The court explained further:
In the present case, it is undisputed that the plaintiff did not
suffer the kind of direct impact required by Shuamber to recover as a
bystander for emotional distress. However, as the foregoing passage
from Conder makes clear, the reason for requiring direct involvement
is to be able to distinguish legitimate claims of emotional trauma
from the mere spurious. The value of requiring “direct impact” is
that it provides clear and unambiguous evidence that the plaintiff was
so directly involved in the incident giving rise to the emotional
trauma that it is unlikely that the claim is merely spurious.
Given that the prevention of merely spurious claims is the rationale
for the Shuamber rule, logic dictates that there may well be
circumstances where, while the plaintiff does not sustain a direct
impact, the plaintiff is sufficiently directly involved in the
incident giving rise to the emotional trauma that we are able to
distinguish legitimate claims from the mere spurious.
Id. And the court held that:
where the direct impact test is not met, a bystander may nevertheless
establish “direct involvement” by proving that the plaintiff actually
witnessed or came on the scene soon after the death or severe injury
of a loved one with a relationship to the plaintiff analogous to a
spouse, parent, child, grandparent, grandchild, or sibling caused by
the defendant’s negligent or otherwise tortious conduct.
Id. at 573.
In this case, Keim, Dr. Potter’s patient, was mistakenly diagnosed
with hepatitis C, a life-altering and deadly disease. As such, he was
“directly involved” in the result of Dr. Potter’s alleged negligence. See
Groves, 729 N.E.2d at 573 (holding direct involvement in incident
sufficient to satisfy modified impact rule). Keim was thirty-three years
old when he was given the diagnosis; he was forced to modify his lifestyle
significantly, to his detriment; and he was given only fifteen to twenty
years to live. Keim’s claimed emotional injuries are serious in nature and
of a kind and extent normally expected to occur in a reasonable person
faced with the same circumstances. See Shuamber, 579 N.E.2d at 456.
Dr. Potter contends that the holding in Groves, requiring direct
involvement in an incident giving rise to emotional trauma, applies only to
claims brought by bystanders. As such, Dr. Potter maintains that Keim did
not sustain an “impact” sufficient to meet the requirements of the modified
impact rule set out in Shuamber. But we do not see the logic in allowing a
witness to claim emotional damages while precluding an actual victim of
negligence from claiming such damages, where both plaintiffs have suffered
a direct involvement reasonably expected to result in emotional injury.
We hold that where, as here, a patient claims emotional damages as a
result of alleged medical malpractice, he is sufficiently “directly
involved” to satisfy the modified impact rule. Keim is entitled to
present his emotional damages claim to a trier of fact. The trial court
erred when it granted Dr. Potter’s motion for partial summary judgment. We
reverse that order and remand for further proceedings.
Reversed and remanded.
DARDEN, J., and VAIDIK, J., concur.
 Keim does not include a copy of the proposed complaint filed with
the Department of Insurance in his appendix on appeal. In his brief, Keim
states that he filed his proposed complaint on March 17, 2000, and Dr.
Potter adopts Keim’s statement of the case. But that date appears to be a
 Recently, this court held that the modified impact rule was
satisfied where plaintiffs claimed emotional distress after discovering
that their son’s cremated remains were missing twelve years after his
death. Blackwell v. Dykes Funeral Homes, Inc., 771 N.E.2d 692 (Ind. Ct.
App. 2002), trans. pending. Relying on our supreme court’s “persuasive and
compelling” reasoning in Groves, we concluded that the Blackwells were
“sufficiently and directly involved in the incident” and that “[w]hile
there was no physical impact, [they] have alleged serious emotional trauma
and it is of a kind that a reasonable person would experience.” Id. at
 We note that, in addition to emotional damages, Keim sought
damages for losing custody of his children. But Keim does not raise that
issue on appeal. As such, the issue is waived.
 Keim also contends, in the alternative, that the impact rule
should not apply to medical malpractice victims seeking emotional damages.
But we need not go that far. Instead, we have determined that patients who
bring medical malpractice claims satisfy the requirements of the modified