stark inaccessibility of medical care in rural …the stark inaccessibility of medical care in rural...

THE STARK INACCESSIBILITY OF MEDICAL CARE INRURAL INDIANA: JUDICIAL AND LEGISLATIVE

SOLUTIONS

Thomas F. Martin II'

PART I ............................................ 833A. Geographic Accessibility. Hospitals..... ...... 833B. Medically Underserved Areas and Populations in

Indiana..................................837C. Health Professional Shortage Areas...........839

PARTII ......................................... 841A. Medical Malpractice and Its Effects .............. 841B. The Conception and History of the Locality Rule.843C. The Modified Locality Rule Debuts in Indiana

Jurisprudence ....................... ..... 845D. The Modified Locality Rule as a Solution to

Inaccessibility ................... ............. 849E. Gross Negligence as a Solution to Inaccessibility. 855

PART III .................................... 860A. Existing Accessibility Programs .............. 860B. Critical Access Hospitals......... ........... 864C. Geographic Accessibility. State-Owned and Opera ted

Critical Access Hospitals and Support for theEstablishment ofAcute Care and Primary CareHospitals ......................... ............ 865

D. Medical Personnel Accessibility: The 'Pay-to-Drive"and the "Rural Practice Benefits Program"..........872

E. Conclusion........................874

J.D. Candidate, 2014, Indiana University Robert H. McKinneySchool of Law, Indianapolis, Indiana; B.A., May 2010, Indiana University,Bloomington, Indiana.

INDIANA HEALTH LAW REVIEW

INTRODUCTION

There is a widespread disparity of accessibility tomedical care within Indiana. This disparity of access toquality health services in certain areas of Indiana isseemingly nothing less than a full blown crisis. While muchrecent legislative focus and attention have been devoted tomedical insurance coverage, a general lack of accessibility tohealthcare, especially in rural areas, has remainedunsettled. This article outlines the maldistribution ofhospitals and healthcare professionals within Indiana witha focus on a comparative analysis of rural and urbanlocales, and it also seeks to explore and offer legal solutionsto this humanitarian inequity.

In part I of this note, the nature and scope of theinaccessibility to medical facilities and the shortage ofmedical professionals in rural areas within Indiana arehighlighted. In particular, the geographic placement ofhospitals throughout the state is analyzed. Additionally,data on the extent of primary care physician availability inrural areas is reviewed.

Moreover, in part II of this note, medical malpracticeand the effects thereof are examined in the context of theabsence of adequate access to healthcare institutions andthe waning number of medical professionals practicing inrural Indiana. Judicial measures may exist to remedy, to acertain extent, the inaccessibility of medical care in ruralareas. Principally, two judicial measures will be proposedin part II of this note. These include adoption of themodified locality rule as the standard of care for ruralphysicians and alternatively the adoption of grossnegligence as the threshold of malpractice liability for ruralphysicians.

Additionally, comprehensive legislative measures arealso available to combat the inaccessibility of medical carein rural areas. Primarily, two legislative measures will beof focus in part III of this note. These are the establishmentof state-funded and operated hospitals and theestablishment of a program which would facilitate the

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redistribution of medical professionals from large cities torural Indiana.

PART I

Accessibility of medical care within certain areas ofIndiana is shockingly limited. These areas tend toconstitute agrarian locales. In order to accurately portraythe current state of accessibility to medical treatmentwithin these non-urban locales, two types of medical careaccessibility will be assessed in this note. These aregeographic and medical personnel accessibility. Geographicaccessibility, usually referred to as medically underservedareas or populations, constitutes the availability of medicalfacilities or services in a certain locale or area. Medicalpersonnel accessibility, herein often referred to as healthprofessional shortage areas, means the adequacy orinadequacy of the amount of certain medical professionalsgiven their ratio to the population of a certain geographicarea.

A. Geographic Accessibility: Hospitals

Hospitals play a vital role throughout the healthcareinfrastructure in delivering many types of health services.Hospitals, through their physicians and staff, most notablybear the assumed responsibility of diagnosing a plethora ofailments and diseases, establishing efficient systems for theprovision of preventative care, responding to epidemics andother health crises, treating infectious disease, performingcomplex inpatient and outpatient surgeries, treating severeinjuries under extenuating circumstances, and providingmeans of long term care. These services are indispensableto maintaining the well-being of many Americans, andindirectly the availability of these services helps tomaintain a thriving society.

Specifically, proper and robust healthcare deliveryintuitively effectuates healthier living. In turn andgenerally speaking, a healthy population is likely to be moreproductive than is one that struggles to obtain and maintain

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good health.' This is due to the straightforward notion thatpeople who suffer inadequate health services are corporallyless capable of bearing the demands of activity. In otherwords, sickness of the human body takes an adverse toll onhuman happiness and productivity, and thus illness takespriority in everyday living. Contrarily, healthy populationsare better able to center and focus their energies onendeavors such as education, commerce, philanthropy, andartistic expression, which as a result benefits society as awhole. Hospitals act as the foundation of the healthcaredelivery system which is integral to societal health andproductivity.

As of 2010, there are sixteen rural counties in Indianathat contain no acute care hospital.2 Acute care is defined asmedical treatment of a severe and short-lasting injury ordisease. 3 Acute care hospitals generally provide manyimportant medical services consisting of inpatient andoutpatient treatments. Most of the counties that lack anacute care facility are found south of Indianapolis or inwhat may be considered southern Indiana. 4

Southern Indiana has historically faced greater economichardship than other regions of the state. 5 As of 2000,eighteen of Indiana's poorest thirty counties were located insouthern Indiana.6 Moreover, the real per capita personalincome of twenty-seven Indiana counties, fifteen of whichare found south of Indianapolis, are at least 25 percent

1 TERRELL ZOLLINGER ET AL., IND. UNIV. CTR. FOR HEALTH POLICY,CRITICAL SHORTAGE OF PHYSICIANS AND NURSES PROJECTED FOR INDIANA 4(Marilyn Yurk ed., 2008), available at http://www.healthpolicy.iupui.edulPubsPDFs/Critical%20Shortage%200f%20Physicians%20and%2ONurses.pdf.

2 AFFILIATED SERV. PROVIDERS OF IND., INC., IND. STATE DEP'T OFHEALTH, INDIANA STATE RURAL HEALTH PLAN 35 (2011), available athttp://www.in.gov/isdhlfiles/IndianaStateRuralHealthPlan2O1lfinal.pdf.

3 MERRIAM-WEBSTER, MEDICAL DICTIONARY (2012), available athttp://www.merriam-webster.com/medicallacute%20care (last visited Nov.23, 2012).

4 AFFILIATED SERV. PROVIDERS OF IND., INC., IND. STATE DEP'T OFHEALTH, supra note 2, at 35.

5 Scott MacGregor, Much oflndiana Faces More Bhght Than Bloom:Metro Area's Economic Upsurge Hasn't Fanned Outward, INDIANAPOLISSTAR, May 15, 2002, at Al.

6 Id.

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below the national personal income average. 7 Thedisproportionate regional distribution of acute carehospitals reflects the disparate distribution of wealth withinthe state. Based on these facts, it may be that southernIndiana counties are fiscally incapable of establishing publichospitals. Specifically, the poor economic state of thesecounties most likely severely weakens the taxation pool onwhich county governments must rely to establish andmaintain public institutions. At the same time, it seemsthat the private sector has refused to invest in the poverty-stricken counties for want of an economic incentive.

The nonexistence of acute care hospitals within certainIndiana counties has the potential to produce devastatingresults in the context of individual life and also in the well-being of the population of those counties. For example, if anindividual finds himself severely injured within a countythat is without an acute care provider, say in a car accidenton the back-roads of Crawford County8 , then he must seektreatment in a nearby county. In some accident scenarios,undoubtedly time is of the essence and failure to speedilyobtain treatment could result in loss of life or permanentdisability.

Even more striking, it would take at least sixty minutesto reach a level 1-3 trauma center in 8.18 percent of thetotal geography of Indiana. 9 And while 8.18 percent seemsinsignificant, and it would be in most non-life threateninginstances, it is staggering in the context of a life-threateninginjury. However, some might argue that such a smallpercentage (8.18%) of the state, where medical responsetime is delayed, is confined and affects only a small amountof people. This assertion fails to consider the mobility of thepopulation; in-state and out-of-state travelers, commercialor not, frequently must move across these areas of delayed

7 Morton J. Marcus, The Rich Stay Rich Among Indiana s Counties,IND. Bus. REv., Fall 2000, at 1, available at http://www.ibrc.indiana.edu/ibr/2000/fall00/01.pdf.

8 Crawford County is located in south central Indiana along the OhioRiver.

9 Univ. of Pa., Indiana: Trauma Center Lv 1-3 Access 2010,TRAUMAMAPS.ORG, http://www.traumamaps.org/Trauma.aspx (last visitedNov. 22, 2012).

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response, which augments the at-risk population. Theexistence of these delayed response areas is indicative of theneed for the construction of new hospitals. Failure to investin the construction of these hospitals will necessarily resultin the continued unreasonable exposure of certainpopulations, residents and passersby, to a risk of untimelytreatment, which could produce negative consequences suchas prolonged recovery or sometimes even death.

Hospitals, besides providing general medical care, alsooffer many specialty services which range from cardiologicto podiatric services. The importance of certain specialtiescannot be overstated. Specialists provide an expertise inthe diagnosis and treatment of complex ailments andconditions that cannot be matched in general medicine.Obstetrics is one of these expert fields and it is a staple inthe maintenance of women's overall health. Specifically,obstetrics is a field of medicine that pertains to pregnancyand childbirth.' 0 Despite its major importance to such anumerous class, there are twelve Indiana counties that haveno obstetrical services available. 11 The potentialconsequence of this dearth of obstetrical services in certainIndiana counties is palpable and appalling. Statistics areincapable of illustrating the disturbing adverse effects of theabsence of obstetrical services in these counties.Hypothetically, due to the lack of obstetrical services, apregnant woman residing in Crawford County for example,who begins labor, would be required to travel to aneighboring county to receive medical assistance. Underthese pressing circumstances, it is plausible that the womancould be forced to give birth without assistance, possiblyendangering the welfare of both mother and child. Somemight rightly posit that the above example is conjecturallyanecdotal and maybe even extreme. However, it must beremembered that effective legal systems do not only concernthemselves with merely remedying definable and

10 MERRIAM-WEBSTER, MEDICAL DICTIONARY (2012), available athttp://www.merriam-webster.com/medicallobstetrics (last visited Nov. 23,2012).

11 AFFILIATED SERV. PROVIDERS OF IND., INC., IND. STATE DEP'T OFHEALTH, supra note 2, at 35.

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empirically proven problems and imperfections. Aneffective legal system takes into account potentialconsequences of an imperfect arrangement of variables, andit intuitively and prophylactically implements measuresthat reduce or eliminate those consequences. Given thecurrent preeminent state of technology and the economicpowerhouse status of the United States, it is unthinkableand deplorable that such a set of conditions exists that couldlead to a deprivation of medical assistance to such a largeclass of persons.

B. Medically Underserved Areas and Populations in Indiana

The Health Resources and Services Administration(HRSA) is an agency within the U.S. Department of Healthand Human Services.12 The Health Resources and ServicesAdministration is responsible for facilitating greater accessto health care for underserved populations and suspectclasses. 13 At the time of writing this note, according to theHRSA, there are fifty-four medically underserved areas inIndiana.14 A medically underserved area is one which lacksadequate personal health services given the population.' 5

Medically underserved areas are designated by county, agroup of contiguous counties, or in cities by census tractswhich are comprised of like economic and demographiccharacteristics.1 6 Also according to HRSA, there are twenty-

12 U.S. PRINTING OFFICE, THE UNITED STATES GOVERNmENT MANUAL(2012), available at http://www.usgovernmentmanual.gov/Agency.aspx?Entityld=Ldrc/ujFJeo=&ParentEld=+klubNxgVOo&EType-jY3M4CTKVHY=.

13 Id14 HEALTH RES. & SERvs. ADIN., U.S. DEP'T OF HEALTH & HUMAN

SERvS., MEDICALLY UNDERSERVED AREAS/POPULATIONS (MUA/P): STATESUMMARY OF DESIGNATED MUA/P 1 (2012), available athttp://datawarehouse.hrsa.gov/topics/shortageAreas.aspx.

15 Health Res. & Servs. Admin., U.S. Dep't of Health & Human Servs.,Shortage Designation: Health Professional Shortage Areas & MedicallyUnderserved Areas/Populations, BHPR.HRSA.Gov, http://www.hrsa.gov/shortage/ (last visited Nov. 23, 2012).

16 Health Res. & Servs. Admin., U.S. Dep't of Health & Human Servs.,Medically Underserved Areas/Populations: Guidelines for MUA and MLJP

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four medically underserved populations within Indiana. 17

The distinguishing characteristic between medicallyunderserved areas and populations is that the designationof medically underserved populations is focused morenarrowly on a demographic group which is impaired fromobtaining primary medical services due to economic,cultural, or linguistic misfortunes.' 8

There are several factors that are applied to determinewhether a particular area or population qualifies asmedically underserved. These factors include the "ratio ofprimary care physicians to the population, infant mortalityrate, percentage of the population which is age 65 or older,and percentage of the population with family income belowthe poverty level."' 9 Based on the severity of these factors, ascore is computed for an area. The score for an area is thenmeasured against the national median score, which lies on ascale of 1-100. A score of zero is the lowest possiblemedically underserved score, and 100 is the highest andbest medically served score. If the overall score for aparticular area falls below the national median score ofsixty-two, then the area is considered medicallyunderserved. 20

Despite the failure of certain areas to qualify for thedesignation of medical underservice, the Governor mayrequest that those areas receive the designation due toexceptional circumstances. 21 According to the HRSA,nineteen areas or populations have received this specialtype of governor designation. 22 In all, a combination of

Designation, BHPR.HRSA.GOV, http://www.hrsa.gov/shortage/mualindex.html (last updated June, 1995).

17 HEALTH RES. & SERVs. ADViN., U.S. DEP'T OF HEALTH & HUMANSERVS., supra note 14.

18 Health Res. & Servs. Admin., U.S. Dep't of Health & Human Servs.,supra note 15.

19 Medically Underserved Areas and Population Groups, 41 Fed. Reg.45718 (Oct. 15, 1976) (codified at 42 C.F.R. § 51C.102(e)(1-4) (2013)).

20 Health Res. & Servs. Admin., U.S. Dep't of Health & Human Servs.,supra note 16.

21 Id.22 HEALTH RES. & SERvS. ADmiN., U.S. DEP'T OF HEALTH & HUMAN

SERVS., STATE PROFILE: INDIANA: STATE IN HHS REGION V 8 (2012), availableat http://datawarehouse.hrsa.govHGDWReports/ RT.App.aspx?rpt= SP .

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ninety-seven medically underserved areas and populationsexist in Indiana.230verall, rural areas and inner cities aremore likely to suffer from medical underservice. 24

C. Health Professional Shortage Areas

Many areas and population groups in Indianaparticularly suffer a shortage of primary care healthprofessionals. The HRSA is also required to designate areaswhere there is a shortage of health professionals. Thehealth professional shortage area (HPSA) classificationcontains three fields or services of health care. These areprimary care, dental care, and mental health care. 25

Additionally, within the primary care HPSA label, there arethree distinct subcategory designations which includegeographic area (which has a shortage of healthprofessionals), population group, and facility.26 For each ofthese subcategories of the HPSA designation, there areestablished criteria which must be satisfied in order thatthe HPSA designation attach.27 For example, in order for ageographic area to qualify for designation as a primary carehealth professional shortage area, the geographic areamust: be an area where it is logical to provide primary careservices, show that the ratio of the area's population to fulltime primary care physicians is not lower than 3,500 to 1 ornot less than 3,000 to 1 if the area displays a uniquely highdemand for primary care physicians or an "insufficientcapacity of existing primary care providers," and show thatprimary care physicians in surrounding areas areoverworked, far removed, or unable to be reached by the

23 Id.24 ZOLLINGER ET AL., supra note 1.25 Health Res. & Servs. Admin., U.S. Dep't of Health and Human

Servs., Shortage Designation: Health Professional Shortage Areas (HPSAs):Designation Criteria and Guidelines, BHPR.HRSA.Gov, http://bhpr.hrsa.gov/shortage/hpsas/designationcriterialindex.html (last visited Nov. 23, 2012).

26 Health Res. & Servs. Admin., U.S. Dep't of Health and HumanServs., Shortage Designation: Primary Medical Care HPSA DesignationOverview, BHPR.HRSA.GOv, http://bhpr.hrsa.gov/shortage/hpsas/designationcriterialprimarycarehpsaoverview.html (last visited Nov. 23, 2012).

27 Id

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population of the area. 28 For each criteria listed above, thereare guidelines which are determinative of whether thegeographic area meets the relevant criterion. For example,one guideline for determining whether a geographic area,which has a population to primary care physicians ratio ofmore than 3,000 to 1 but less than 3,500 to 1, displays auniquely high demand for primary care physicians, is thatthe area suffers an infant death rate of more than 20 per1,000 births. 29

As of 2012, Indiana has received 104 total designationsof primary care health professional shortage areas. 30

Indiana fairs better than four out of five states listed in itsregion in regard to the total amount of primary caredesignations. 31 However, Indiana falls behind only Illinoisin having the greatest number of counties to receive theprimary care HPSA designation within its region. 32 As ofNovember 27th, 2012, 1,107, 243 Hoosiers live in or are apart of an area, population, or facility which suffers ashortage of primary care health professionals. 33 In Indiana'sregion and as of November 27th, 2012, only Ohio, Illinois,and Michigan have more residents who are living in or are apart of an area, population, or facility which suffers ashortage of primary care health professionals. 34

On average, there are 53.6 primary care physicians per100,000 Hoosiers. 35 The national average amounts to 90.5

28 Id.; Criteria for Designation of Areas Having Shortages of PrimaryMedical Care Professional(s), 42 C.F.R. Pt. 5, App. A. (2012).

29 42 C.F.R. Pt. 5, App. A. Part I(B)(4)(b).30 HEALTH REs. & SERVs. ADMIIN., U.S. DEP'T OF HEALTH & HUMAN

SERVS., supra note 22, at 9.31 BUREAU OF CLINCIAN RECRUITMENT & SERv., U.S. DEP'T OF HEALTH

& HUMAN SERvS., DESIGNATED HEALTH PROFESSIONAL SHORTAGE AREAS(HPSA) STATISTICS: PRIMARY CARE 2 (2012). There are five other states inIndiana's region. Id.

3 2 Ids Id.

34 Id.35 HANNAH MAXEY ET AL., IND. UNIV. CTR. FOR HEALTH POLICY,

INDIANA PRIMARY HEALTH CARE: DESCRIPTION, DISTRIBUTION, CHALLENGES,& STRATEGIC RECOMMENDATION TO EMPOWERED DECISION MAEING 6 (2012),available at http://www.ic4n.org/wp-content/uploads/2013/03/Indiana-Primary-Health-Care.pdf.

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primary care physicians per 100,000. Indiana's ratio ofprimary care physicians per 100,000 is 40 percent below thenational average. 36 Non-metropolitan Indiana countiessuffer more acutely from this shortage of primary carephysicians as they generally have less primary carephysicians per the population than metropolitan countieshave. 37 Specifically, 98 percent of rural counties in Indianaare deficient in primary care specialists, and thus they donot satisfy the U.S. standard ratio of primary carespecialists per 100,000. 38 In order to adequately fulfilldemand for medical services throughout the state, 5,000more physicians need to be injected into the workforce.39 Insum, Indiana falls behind thirty-four states in theaccessibility of physicians who provide primary care. 40

PART II

A. Medical Malpractice and Its Effects

Medical errors and the litigation that flows from themhave burdened the healthcare industry in the past. 41 Thesevere and increasing costs of malpractice litigationcontinue today to plague the healthcare industry. 42 Also,medical professionals' perception of a litigious consumerbase and legal favoritism to these consumers' cause isremarkably apparent. 43 In the context of rural practicethen, the question becomes whether the variables andunique set of conditions of rural practice influence and

36 Id.37 ZOLLINGER ET AL., supra note 1, at 7.38 Id. at 1.39 Id.40 AFFILIATED SERV. PROVIDERS OF IND., INC., IND. STATE DEP'T OF

HEALTH, supra note 2, at 8.41 Alec Shelby Bayer, Looking Beyond the Easy Fix and Delving into

the Roots of the Real Medical Malpractice Crisis, 5 Hous. J. HEALTH L. &POL'Y 111, 115-16 (2005).

42 Id. at 114-15.43 See id. at 116; Alan G. Williams, The Cure for What Ails: A

Reahstic Remedy for the Medical Malpractice "Crisis" 23 STAN. L. & POL'YREV. 477, 487 (2012).

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exacerbate medical professionals' perception and fear ofmalpractice litigation, resulting in a greater disincentive topractice there. 44

In 2002, one-third of U.S. hospitals experienced a 100percent increase in medical liability insurance premiums. 45

It is also reported that in response to rising liabilitypremiums, 25 percent of U.S. hospitals have reduced theextent to which they provide or have altogether terminatedcertain medical services. 46 The rising costs of malpracticelitigation have also negatively affected the ability of someall-important trauma centers to feasibly remain inoperation.47 Additionally due to rising premiums, in somestates physicians have closed their doors and moved insearch of a more legally favorable place to practice. 48

Moreover, some physicians have summarily ended theircareers in medicine due to the high costs of malpracticelitigation. 49

In 2011, 167 medical malpractice claims resulted inpayment in Indiana.5 0 These payments amounted to $ 22,473, 800.51 The payments however do not reflect the totalcosts of malpractice litigation. Defendant physicians ortheir insurers must also bear the costs of attorney's andexpert witness' fees and other transactional costs inpreparing for litigation and in defending againstmalpractice claims. Even defendant physicians who are notfound to be liable still incur some litigation costs. Insurancecompanies in turn spread these costs across the professionsometimes resulting in higher premiums. As a consequence

44 See Williams, supra note 43, at 490.45 Addressing the New Health Care Crisis: Reforming the Medical

Litigation System to Improve the Quality of Health Care Hearing Beforethe S Subcomm. On Labor, Health and Human Serv. and Educ. of the SAppropriations Comm., 108th Cong. (2003) (statement of Claude A. Allen,Deputy Sec'y of the Dep't of Health and Human Servs.).

46 Id.47 Id.48 Id.49 Id.5o KAISER FAMILY FOUND., STATE HEALTH FACTS: INDIANA: NUMBER OF

PAID MEDICAL MALPRACTICE CLAIMS (2011).51 KAISER FAMILY FOUND., STATE HEALTH FACTS: INDIANA: PAYMENTS

ON MEDICAL MALPRACTICE CLAIMS (2011).

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of rising premiums, hospitals and physicians raise the priceof their services, and ultimately patients or their medicalinsurers bear the extra costs of far removed malpracticelitigation.

The Indiana Legislature enacted the MedicalMalpractice Act to combat the increasing cost of malpracticelitigation on the medical field.5 2 The Malpractice Act createda process whereby malpractice claims are submitted to aboard of three medical practitioners and a single practicingattorney who oversees the board's legal analysis of eachmalpractice claim.53 The board of physicians makes a legaldetermination on each claim of whether the physician inquestion breached the standard of care. 54 The board'sfinding in favor of the physician becomes a de factosummary judgment motion in subsequent litigation. 55Additionally, although Indiana is a comparative faultjurisdiction, contributory negligence on the part of thepatient is a complete bar to recovery in malpracticelitigation.56

B. The Conception and History of the Locality Rule

The locality rule in the United States owes its existenceto the Kansas Supreme Court, which purportedly firstadopted the rule in 1870. 57 In the late nineteenth centuryand before the landmark case of Tefft v. Wilcox, physiciansand surgeons in Kansas were required to exercise that levelof ordinary care and skill and to possess that level ofknowledge which experts in the field of medicine had

52 Bruce D. Jones, Unfair and Harsh Results of ContributoryNeghgence Lives in Indana: The Indiana Medical Malpractice System andthe Indiana Comparative Fault Act, 6 IND. HEALTH L. REV. 107, 109-12(2009).

53 IND. CODE §§ 34-18-8-4, 34-18-10-1, 3, 19 (2012).54 § 34-18-8-4.55 Snyder v. Cobb, 638 N.E.2d 442, 447 (Ind. Ct. App. 1994).56 IND. CODE § 34-51-2-1(b)(1) (2012).57 Brent R. Cohen, The Locality Rule in Colorado: Updating the

Standard of Care, 51 U. COLO. L. REV. 587, 588 (1980) (exploring the historyof the locality rule).

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espoused and which the profession commonly accepted. 58

Tort law at that time thus pronounced the expectation thatthe skill and expertise of physicians practicing in smallertowns should be of the same quality and nature as the skilland expertise of physicians working in cities.5 9 Liabilitythen could be established merely by a showing that adefendant physician's conduct deviated from the commonlyaccepted mode of treatment, with no attention or analysisbeing paid to the circumstances and conditions of aparticular locale.60

In Tefft, plaintiff Wilcox brought suit alleging that thedefendant physician's treatment of his arm caused him tolose the use of it and his shoulder.6 1 Principally, the KansasSupreme Court focused their inquiry on evidentiary andjury instruction error. 62 However, the court clarified thestandard of care for physicians practicing in Kansas.

In examining circumstances that may affect aphysician's ability to comport his skill and knowledge to theestablished standards of the profession, the KansasSupreme Court noted that locality of practice constituted anextenuating circumstance of potential permissibledeviation.6 3 The court explained that physicians practicingin larger cities usually possessed greater knowledge andskill in medicine, were endowed with better medicalfacilities, and had more exposure to routine operations andvarying maladies. 64 The court reasoned that, due to the factthat physicians practicing in small towns had less access tocomprehensive facilities and less experience treatingdiseases, physicians in smaller towns or in rural areasshould be held to a lower standard of care and skill thanthose physicians operating in cities were held. 65

Presumably then, locality with its attendant unique

58 See Tefft v. Wilcox, 6 Kan. 46, 62 (1870) (quoting Elwell onMalpractice).

59 See id.60 See id.61 Id. at 54 (quoting Elwell on Malpractice).62 Id. at 60 (quoting Elwell on Malpractice).63 Id. at 63 (quoting Elwell on Malpractice).64 Id. at 63-64 (quoting Elwell on Malpractice).65 Id. (quoting Elwell on Malpractice).

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conditions would from then onward be instrumental indefining the contours of a physician's standard of care.

C. The Modified Locality Rule Debuts inIndiana Jurisprudence

In 1877, the Indiana Supreme Court in Gramm v.Boener held that the trial court did not err in refusing toinclude an instruction to the jury that emphasized strictlocality as the applicable standard of care for physicianliability.66 Plaintiff Boener brought suit alleging that thedefendant physician Gramm improperly and ineffectivelyrealigned his broken arm and leg which caused a loss of theuse of his arm and a deformity in his leg. 67 Upon review ofthe jury instruction, the court ruled that the doctrine ofstrict locality, which required physicians to only exercisethat level of ordinary care and skill that was established intheir particular community, was not the applicable law inthe state. 68

The Gramm court reasoned that it was an unthinkableproposition to allow a handful of physicians in a ruralcommunity to dictate the standard of care to which theywould be held, because quite poignantly some physiciansmight be incompetent and others could be phonies of theprofession. 69 Quite obviously then, the Gramm court'smotivation for uprooting the strict locality rule was foundedupon the possibility that pockets of the profession couldessentially and unfairly shield themselves from liability.The new rule then would seek to pierce the so-called shieldof malpractice protection. The Gramm court ultimately laiddown what is known as the modified locality rule. 70 Thisnew version of the doctrine of locality required physicians to

66 Gramm v. Boener, 56 Ind. 497, 500-01 (1877).67 Id. at 497.68 Id. at 500.69 Id. at 501 ('There might be but few practising in the given locality,

all of whom might be quacks, ignorant pretenders to knowledge notpossessed by them, and it would not do to say, that, because one possessedand exercised as much skill as the others, he could not be chargeable withthe want of reasonable skill.").

70 Id

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exercise that level of care and skill that ordinarily carefuland skillful physicians of similar localities exercised.71 Thisslight modification of the locality rule meant that physiciansfacing malpractice liability could no longer only show, andhence rely on the fact, that their professional conductcomported with the normative conduct of their colleaguespracticing in the same town. Hence, the modified localityrule seemingly expanded the scope of inquiry into theestablished standard of care from a single town perspectiveto a collective perspective of many towns similarlycomprised and situated.

One hundred years later, in Wilson v. Sligar, the IndianaCourt of Appeals held that the trial court erred in refusingto allow the plaintiff Wilson to establish, through expertwitness testimony, the national minimum standard of carefor orthopedic surgeons because such testimony waspermissibly intended to illustrate the nature and wide scopeof locality applicable to the facts therein.72 Plaintiff Wilsonsought treatment for a discomfort in her hip, which asurgeon had already operated on in recourse to an injurysustained in a car accident, from defendant Sligar who wasan orthopedic surgeon. 73 Doctor Sligar performed non-invasive methods of remediation, but those efforts failed toalleviate Wilson's suffering. 74 After further examination ofWilson, Doctor Sligar informed her that a total hipreplacement would be necessary. 75 However afterconsummation of the surgery, plaintiff Wilson developed aneurological condition called foot drop. 76 Subsequently,Doctor Sligar applied remedial measures to improve thecondition, and he counseled that additional surgery wasrequired.77 Plaintiff Wilson however rejected the prospect ofDr. Sligar performing the surgery.78 Wilson's surgery to

71 Id.72 Wilson v. Sligar, 516 N.E.2d 1099, 1102-03 (Ind. Ct. App. 1987).73 Id. at 1100.74 Id.75 I~d.76 Id.77 Id.78 Id

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correct the foot drop was performed by two other surgeons. 79

While performing the surgery, the surgeons noticed somedamage to the sciatic nerve and the surgeons came to theconclusion that the damage was a consequence of aretractor applied during Doctor Sligar's hip replacementsurgery.8 0 The plaintiff brought suit alleging negligence onthe part of Doctor Sligar in the performance of the hipsurgery.8 1

In ruling on the trial court's refusal to admit evidenceestablishing the national minimum standard of care fororthopedic surgeons, the Sligar court explained that thestrict locality rule was premised upon avoiding theunfairness of attaching malpractice liability to ruralphysicians for conditions outside of their control; the courtnoted that these historic conditions constituted thedifficulties of travel and urban physicians' greater access toeducation, better medical facilities, and skills trainingthrough practice. 82 The court noted that advancements inmobility, increased access to education, equal quality ofmedical facilities and equipment, and better avenues ofacquiring knowledge had seriously weakened the need andusefulness of the strict locality rule. 8 3 Ultimately, the Sligarcourt ruled that the plaintiffs questioning of expertwitnesses to establish a national minimum standard of carewas permissible because the plaintiff sought to lay arequisite foundation for the testimony.84 However, the courtruled that the plaintiff failed to show that the trial court'srefusal to admit the testimony amounted to reversibleerror.85

The Sligar court's holding is illustrative of a judicialrecognition at the time that national minimum standards ofcare existed and that these minimum standards wererelevant in establishing the scope of locality. Specifically,

80 Id81 Id82 Id at 1101.83 Id84 Id. at 1102.85 Id. at 1103.

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this recognition implied that the standard of careestablished in similar localities did not in fact control inexclusively setting the threshold of liability. Contrarily, theSligar court's holding stood for the proposition that nationalminimum standards of care could, in certain cases, trumpany pertinent standard established in similar locales.Therefore with the expansion of locality, a defendantphysician could no longer solely rely on the fact that herperformance was in line with established standards of carein similar locales to avoid liability if it could be shown thatnational minimum standards existed and the physician'sperformance failed to meet these standards.

Just five years after Sligar, the Indiana Supreme Courtaltogether abandoned the modified locality rule in Vergarav. Doan.86 Plaintiff Vergaras' son allegedly was injured bythe defendant physician's negligent performance of theirson's delivery.87 The plaintiffs sought appeal after a juryreturned a verdict in favor of Dr. Doan, and the Court ofAppeals affirmed.88 On appeal to the Indiana SupremeCourt, the plaintiffs argued that the modified locality ruleshould be abandoned in Indiana.89 The Court agreed withplaintiffs and ruled that, "a physician must exercise thatdegree of care, skill, and proficiency exercised by reasonablycareful, skillful, and prudent practitioners in the same classto which he belongs, acting under the same or similarcircumstances."9o

The Vergara court echoed the Court of Appeals in Sligeron the reasons for the modern day irrelevance of the localityrule. The court observed that advancements in mobility,communications, and increased access to medical educationserved to vitiate the foundation for applying the localityrule. 91 The court however did not completely eradicatelocality from the standard of care for physicians. The court

86 Vergara v. Doan, 593 N.E.2d 185, 187 (Ind. 1992) (adopting anational standard of care for physicians).

87 Id. at 186.88 Id89 Id. at 187 (plaintiffs argued that the justifications for the modified

locality rule were hollow in the current age).9 0 Id.91 Id.

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explained that locality would no longer be determinative insetting the parameters of the standard of care forphysicians. 92 Instead, locality would be a factor amongothers in determining whether the physician complied withthe standard of care. 93 In ruling on the reversibility of error,the court held that the lower court's instruction to the jurywhich emphasized the standard of care of a similarcommunity was harmless error, because an additionalinstruction informed the jury that the defendant'sperformance could be held to a national minimum standardof care for his specialty if the evidence sufficientlyestablished such standard.94

The Vergara decision represents a legal evolution andresponse to a culmination of a century long progression intechnology and medicine. It is unquestionable that the pastcentury has been marked by riveting breakthroughs inmedicine, and it is equally apparent that advancements incommunication and travel have helped to widely diffusethese developments to a significant percentage of thepopulation. However, the Vergara decision presupposesthat this progression has led to equality in the platforms forand nature of delivering medical services. Specifically, theCourt overlooked conditions of rural locales such as highpatient-to-doctor ratios, overworked physicians, and subparmedical facilities and equipment.

D. The Modified Locality Rule as aSolution to Inaccessibility

There is much valid criticism of the locality and themodified locality rule. Critics of the rule argue that unliketoday, there was much variation in the standards taught atmedical schools in the nineteenth century.95 They also pointout that metropolitan physicians in the nineteenth century,

92 Id9 Id94 Id at 8.

95 See Samuel J. Stoia, Vergara v. Doan: Modern Medical TechnologyConsumes the Locality Rule, 2 J. PHARMACY & L. 107, 108-09 (1993).

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unlike their rural counterparts at that time, had routineand better access to varying diseases and ailments of whichthey could gain greater knowledge and expertise throughpractice and treatment. 96 Also, critics rightly posit thatimpairments of the diffusion of medical knowledge, such asinefficient means of travel and lack of viable forms ofcommunication, do not exist today as they did in thenineteenth century. 97 Additionally, those critics suggestthat advancements in communications allow ruralphysicians today to remain up to date in their knowledge ofailments and treatments. 98 However, there might bepersisting conditions today, which the critics of the ruleunderestimate, that give life to the rule.99

Fairness still lies at the heart of the justification forapplication of the modified locality rule, as it did over onehundred years ago. Nineteenth century courts recognizedthat conditions outside the control of physicians in aparticular area profoundly affected the quality ofperformance in the delivery of medical care, and thosecourts in response rightly crafted a lenient rule with a focuson mitigating the harshness of liability in the absence oftrue fault while providing recourse for those defendantsinjured due to inexcusable fault. It is true today that someconditions of the nineteenth century, which were cited bycourts to highlight the unfairness of an inflexible rule ofmalpractice liability, have improved. Despite the fact thatsome reasons for the modified locality rule have waned, itdoes not follow that a fairness inquiry is completelyundermined or inappropriate. Fairness still today remainsa viable concern in analyzing the national standard of carerule and its application because of its historical role in

96 Compare Wilson v. Sligar, 516 N.E.2d 1099, 1101 (Ind. Ct. App.1987), with Tefft v. Wilcox, 6 Kan. 46, 63-64 (1870) (quoting Elwell onMalpractice).

97 See Scott A. Behrens, Call in Houdini: The Time Has Come To BeReleased from the Geographic Straitjacket Known as the Locality Rule, 56DRAKE L. REV. 753, 762 (2008);Cohen, supra note 57, at 595.

98 Behrens, supra note 97, at 763.99 Henry C. Karlson & Roger D. Erwin, Medical Malpractice: Informed

Consent to the Localty Rule, 12 IND. L. REV. 653, 665-66 (1979) (quotingWilliam Kane, Rural Health Care, 240 J. AM. MED. ASs'N. 2647 (1978)).

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shaping the particular rule at hand and also due to itsfoundational character in the Anglo-American legal system.Under this legal framework then, applying the nationalstandard of care to rural physicians might be unfair due tothe potential existence of conditions outside the control ofrural physicians.100 Specifically, holding rural physicians tothe same standard of care as metropolitan physicians isinequitable if metropolitan physicians have access to bettermedical facilities.10 1 Also, applying the national standard ofcare to rural physicians is inequitable if physicianspracticing in larger cities have better access to moreeffective and safer medical technologies.

Applying the national standard of care to ruralphysicians is unfair if rural physicians work longer hours orservice more patients per physician than metropolitanphysicians do. In fact, rural physicians on average workmore hours and service more patients than metropolitanphysicians do.102 It could be then that the amount of timethat a rural physician allocates per patient is more limitedand shorter than the amount of time that a metropolitanphysician allocates per patient due to the greater number ofpatients that a rural physician services. If this is true, thenrural physicians are most likely exposed to a greater risk ofmisdiagnosis or inadequate treatment due to having lesstime to commit per patient. For example, a rural physicianmay find it necessary to speed the process of a particularpatient visit in order to perform check-ups and treat asmany rural patients as he is expected. This could result inthe rural physician failing to notice a symptom of anunderlying disease whereas a metropolitan physician woulddiscover the symptom due to having more time to commit tothe particular patient. Consequentially, the patient thenmight bring suit against the rural physician under a theory

100 See id. at 663, 665-66.101 See id. at 666 (arguing that it would be unfair to hold rural

physicians to a higher standard of care if differences in the standard of carebetween rural and non-rural communities exist).

102 David A. Matsa, Does Malpractice Liability Keep the Doctor Away?Evidence from Tort Reform Damage Caps, 36 J. LEGAL STUD. S143, S168(2007).

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of negligent inspection and failure to diagnose. If thenational standard of care is applied in lieu of the modifiedlocality rule in this instance, then it is almost certain thatthe plaintiff would seek to show that the rural physician'sshorter duration of inspection of the plaintiff breached thecustomary standard of time for inspection as established byphysicians practicing in city hospitals. Holding ruralphysicians to this metropolitan standard would be unfairbecause the shortage of health professionals in rural areasvirtually requires rural physicians to see more patients andconsequentially stretches the physicians' performancecapacity. Moreover, in order to comply with this urbanstandard, rural physicians would most likely receive fewerpatients per day, and in turn this would worsen the state ofinaccessibility of medical care in rural areas.

However, even if rural physicians are able to spend onaverage the same amount of time per patient asmetropolitan physicians spend, it still remains that ruralphysicians work more hours per week than metropolitanphysicians. Working longer hours while treating morepatients might place a heavier strain on rural physiciansthat could result in more professional mistakes being made.This should not imply that stress and strain due to overexertion are per se justifications for denying recovery in amalpractice action. However, the establishment of thestandard of care in this instance based on the work placecustoms of metropolitan physicians could set theexpectation of conduct at an unattainable level for ruralphysicians. In other words, the unique circumstances ofrural practice may, to an extent, undermine or even thwartcompliance with a standard based on urban custom.Adjusting to this metropolitan standard could require ruralphysicians to work less hours thereby resulting in adecrease in the number of patients treated. As a matter ofpublic policy, this is untenable due to the existing medicalunderservice of rural areas in Indiana.

Although Indiana has enacted pro-physician medicalmalpractice legislation, the modified locality rule wouldparticularly provide an incentive for physicians to practicein rural areas. Physicians, in deliberating about where to

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establish a practice, most likely base their decision onrational considerations. Arguably, their decision to practicein a city, in the suburbs, or in the country is largely reachedthrough a cost-benefit analysis. Some of these direct cost-benefit factors are the amount of compensation, the amountof work hours, the nature and extent of opportunities forprofessional growth, the nature of the local market, and thenature of legal regimes. Comprehensive risk assessmentthen is invaluable to their ultimate decision. In reachingthis professional decision, the fact that the law will imposeupon a physician practicing in a rural area the performanceexpectations of metropolitan physicians, who might haveaccess to better medical facilities, expensive and advancedmedical technologies, and more time to devote to eachpatient, will be a disincentive for the physician to choose toengage in rural practice.

The application of the modified locality rule might allowrural physicians to sometimes escape malpractice liability,where under the national standard of care they wouldotherwise be held liable, and this safety net couldpotentially curb the cost of maintaining a viable ruralpractice. Therefore, the lowered costs of practicing in arural area might entice physicians to begin or continuepracticing there.

Research suggests that statutory caps on non-economicdamages in malpractice suits have increased physiciansupply in rural areas. An analysis of the effects of damagecaps by Matsa shows that caps do not increase physiciansupply on a statewide level, but they increase physiciansupply in the "most rural areas" by 3-5 percent.103 Moreover,Matsa concludes that caps on damages particularly increasethe supply of surgical specialists and supporting specialistsin the "most rural areas."104 His report indicates that thecaps increase surgical specialists by 10 percent andsupporting specialists by 12 percent in "most rural areas,"respectively. 105

103 Id. at S162.104 Id. at S165.105 Id.

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Application of the modified locality rule has the potentialto effectuate an even greater increase in the supply of ruralphysicians. The modified locality rule, unlike damage caps,affects the determination of liability. In essence then, themodified locality rule with its narrower reach of liabilitymay decrease the amount of successful claims ofmalpractice. A statutory cap on damages however is notdeterminative in a finding of liability and does not limit theamount of successful malpractice claims. Thus, theapplication of the modified locality rule would altogethereliminate litigation costs (e.g. a judgment) in a given case,whereas liability would not be avoided in the context of acap on damages and a consequential award for thedefendant would only be decreased to the extent of non-economic damages. If damage caps increase physiciansupply in rural areas by lowering malpractice litigationcosts, then it follows that another legal remedy whichentirely eliminates litigation costs could be just as andpossibly even more effective in creating a higher supply ofrural physicians. However this assertion presumes that theapplication of modified locality rule would be just as reliablein reducing malpractice costs as a mandated cap ondamages. Notwithstanding this assumption, the modifiedlocality rule should be considered in the adoption of judicialsolutions to combat the inaccessibility of medical care due toits potential to create fairness in malpractice litigation andto make rural practice an attractive and enjoyableendeavor.

However, if the critics of the modified locality rule arecorrect in their argument that the need for the modifiedlocality rule has completely disappeared, then other judicialmeans of combating the inaccessibility of medical care inrural areas are necessary. The application of grossnegligence as the standard of medical malpractice liabilityfor rural physicians may serve as a potential remedy for theinaccessibility to medical care.

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E. Gross Negligence as a Solution to Inaccessibility

An alternative to implementing and applying themodified locality rule to physicians practicing in rural areasis the adoption of gross negligence as the threshold ofmedical malpractice liability for rural physicians. Adoptionof the gross negligence standard might act as an incentivefor physicians to practice in rural areas due to its potentialeffect of decreasing the cost of malpractice liability. Theimplementation of gross negligence rests almost solely on autilitarian justification, whereas implementation of themodified locality rule is premised largely on fairness withan underlying objective of creating community benefit. Theapplication of gross negligence would directly benefitphysicians by providing a degree of immunity whilesimultaneously it would thwart the interest of an injuredpatient to receive compensation. However in utilitarianterms, a rural community would benefit overall even at asingle patient's loss of compensation because a degree ofphysician immunity would incentivize rural practicethereby increasing the supply of physicians and creatinggreater access to healthcare in the community.

The adoption of gross negligence has the potential toattract physicians to rural areas. As mentioned above, thecosts of malpractice litigation have been staggering anddetrimental to the medical field. 106 Lowering the cost ofmalpractice liability by adopting gross negligence as thethreshold of liability for rural physicians may have theeffect of incentivizing rural medical practice.

While the application of a gross negligence standard tothe liability of rural physicians may be deemed grosslyunfair to patients and even a radical approach, the goal oferadicating the severe inaccessibility of medical care inrural areas is essential, and it most likely outweighs thetemporary costs to quality and consequentially the costs to

106 See Daniel Eisenberg & Maggie Sieger-Joliet, The Doctor Won't SeeYou Now, TIME, Jun. 09, 2003, at 46, available at http://www.time.com/time/magazine/article/0,9171,1004970-1,00.html (noting, however, thatpremiums are more affordable in Indiana than they are in other high-premium states); Williams, supra note 43, at 480-85.

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some unfortunate patients. Several societal benefits willmaterialize due to greater accessibility of medical care.Inefficiencies in providing and gaining access to care willmost likely be minimized. Specifically, transaction costs ofpatients and physicians such as time and money spenttraveling and seeking out medical resources, medical errorsin referencing between doctors,10 7 and higher and inflatedmalpractice premiums will be reduced. Also, application ofa gross negligence standard would promote redistribution ofmedical resources to the locales where they are mostneeded. Instead of allocating resources to areas where theywill be over consumed, medical resources will be directed toareas and populations where their true market value can bebest exploited. Also, with increased access to healthcare inrural areas, the overall health of citizens may improve.With an improvement in overall health, productivity inmany areas may be bolstered. In sum and asaforementioned, a healthier population will be able to spendmore of its resources on commerce, education, and leisureactivities that will greatly benefit society in the long run.

The Indiana Legislature has recognized the need toprovide physicians in certain circumstances a degree of civilimmunity in order to reap overarching societal benefits.One such high-stakes circumstance in which Indianaaffords great protection to physicians is when theyvolunteer their expertise and service to clinics and healthfacilities that do not require payment for medicalservices. 108 Under this circumstance, malpractice liabilitycannot attach unless the physician's conduct rises to grossnegligence.109 Civil immunity in this instance is foundedupon the public purpose of facilitating greater access tohealthcare for the uninsured and other suspect classes, andthis purpose overrides the interest of the injured patient tobe economically restored. Additionally, it seems that the

107 This would most likely be true if physicians of general medicinewere able to refer patients to specialists whom they work alongside. Thiscould potentially reduce errors in communicating the medical history andnature of the disease and treatment of patients.

108 IND. CODE § 34-30-13-1 (2012).109 Id. §§ 34-30-13-1, 2.

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intent of the Legislature is two-fold in heighteningprotection against liability in this circumstance. Firstly, thestatute intends to reward physicians for acting on behalf ofsocietal interests. In other words, the statute implies that itwould be unfair to expose physicians to a liability based onordinary negligence due to the fact that the physicians'actions are not performed for the sake of self-interest. Moreimportantly however, the statute intends to promote thecontinuance of philanthropy in healthcare in order to fulfillthe public purpose of expanding access to healthcare.

Indiana courts should be mindful of public purpose and

policy and societal interests in fashioning the particulars ofa standard of gross negligence. A standard of grossnegligence should be formidable in creating greater accessto healthcare for rural citizens. At the same time, thestandard must contain checks against potential abuses thatwould undermine its purpose. A standard of grossnegligence that leans too far in favor of physician protectionwould ignore the public's interest in receiving qualityhealthcare. A standard that provides too little physicianprotection against liability would make the effectiveness ofthe standard hollow. Against this backdrop of balancingpublic purpose and policy with other societal interests,Indiana courts should promulgate a workable definition and

standard of gross negligence to be applied in cases of ruralmalpractice. Northern Indiana Public Service Company v.

Sharp illustrates the current definition of gross negligencein Indiana.

In Sharp, the plaintiff brought suit under a theory of

gross negligence in accordance with the Indiana CivilDefense and Disaster Law of 1975. 110 On appeal, theIndiana Supreme Court reviewed the court of appeals'decision that the defendant electric company did not owe aduty to a truck driver who was electrocuted by a cable thatthe electric company operated. 111 The Indiana SupremeCourt defined gross negligence as, '[a] conscious, voluntaryact or omission in reckless disregard of . . . the

110 Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 464 (Ind.

2003).111 Id. at 464-65.

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consequences to another party."'112 In further defining grossnegligence, the issue precisely becomes what constitutes"reckless disregard."

The Restatement (Second) of Torts explains that, "In theconstruction of statutes which specifically refer to grossnegligence, that phrase is sometimes construed asequivalent to reckless disregard." 113 Further, theRestatement defines recklessness as follows,

The actor's conduct is in reckless disregard ofthe safety of another if he does an act orintentionally fails to do an act which it is hisduty to the other to do, knowing or havingreason to know of facts which would lead areasonable man to realize, not only that hisconduct creates an unreasonable risk ofphysical harm to another, but also that suchrisk is substantially greater than that which isnecessary to make his conduct negligent.114

In formulating a legal definition and standard of grossnegligence, it is imperative to include measures that willuphold society's interests in the reliability and integrity ofthe healthcare system. Particularly, quality should not beso degraded as to make widened accessibility fruitless andmeaningless. A recklessness standard of malpractice, asdefined by the Restatement, for rural physicians isuntenable because such a standard would destroy thequality of care provided by rural physicians. Thisrecklessness standard would permit a rural physician'sconduct to greatly surpass the conventional negligencethreshold without incurring liability unless the risk createdby the rural physician's conduct was substantially greaterthan a risk created by merely negligent conduct.

Due to the potentially severe adverse effects of theRestatement's recklessness standard on the quality ofmedical care, Indiana courts should adopt a definition of

112 Id. at 465.113 RESTATEMENT (SECOND) OF TORTS § 282 cmt. e(5) (1965).114 Id. § 500.

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recklessness and a standard of gross negligence as follows:gross negligence constitutes a rural physician's consciousfailure to conform his conduct to that of a reasonablephysician with ordinary skill, knowledge, and expertise,after the rural physician was supplied with facts whichwould lead a reasonable physician to appreciate theexistence of an unjustifiable risk that is moderately greaterthan a risk that would result in negligent conduct. Thusunder this standard, a rural physician's conduct can fallbelow the conduct of a reasonably skillful, knowledgeable,and prudent physician generally without liability attaching.Moreover, even if a rural physician's performance fallsbelow the national standard of care and his conduct createsa minimally greater risk than a risk usually resulting innegligence, no liability would attach because the minimallygreater risk is not moderately greater.

Arguably, under a gross negligence approach, the qualityof care provided in rural areas would most likely degrade toa certain extent. Some physicians might even takeadvantage of a relaxed standard of care for whateverreason. 115 Other rural physicians might unintentionally andsubconsciously perform less effectively than they arecapable of performing due to the gross negligence standard.Of course, some patients, who would normally recover undera medical malpractice claim, would be barred from recoverydue to the heightened burden of proving gross negligence.

Due to moral, utilitarian, and tort policy justificationssupporting compensatory recovery by an injured party froma tortfeasor under traditional malpractice liability, someexceptions to the application of gross negligence in the ruralmedical malpractice context are appropriate. Where apatient dies or is severely and permanently injured ordisabled by the alleged malpractice of a rural physician, thestandard of gross negligence should not apply. In these twoinstances, it is quite clear that the purpose of increasing thenumber of physicians in rural areas to augment access tohealthcare would be thwarted because rural individualswould be less likely to seek treatment given the increased

115 It is presumed here that physicians are aware of the law and makedecisions in light of it.

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severity of potential injury and the absence of stringentlegal constraints on rural physicians' conduct.

The promotion of greater accessibility to medical care inrural areas outweighs the costs to quality. Providing moreindividuals with access to care is fundamental. Temporarycosts to quality must be tolerated in order to maximize long-term societal gain. Once inaccessibility is eradicated orunder appropriate control, then it will be appropriate toslowly remove the restraints on quality which wereoriginally necessary to augment accessibility. Thereafter, itwill be advisable to focus more resources towards improvingquality of medical service in rural areas.

PART III

A. Existing Accessibility Programs

The federal government has created programs to addressthe inaccessibility of medical care in rural areas. Theseinclude physician scholarship and loan repaymentprograms, rural health clinical programs, Medicarepayment programs, a J-1 visa waiver for physicians, andFederally Qualified Health Center funding.116 The State ofIndiana must take advantage of these programs in order toaddress the demand for physicians in rural areas. Withoutsustained reliance on these federal programs, state initiatedalternatives will most likely lack adequate force inremedying the disparate allocation of medical resources.Some of these programs will be described below.

The Public Health and Services Act establishes fundingfor Federally Qualified Health Centers.117 Under the Act,qualified entities may receive grants to "plan and develophealth centers which will serve medically underservedpopulations." 118 Additionally, grants may be awarded to

116 Ind. State Dep't of Health, Health Professional Shortage Areas,IN.Gov, http://www.in.gov/isdh/23471.htm (last visited Oct. 14, 2013).

117 Health Res. & Servs. Admin., U.S. Dep't of Health and HumanServs., About Health Centers: What is a Health Center? HRSA.Gov,http://bphc.hrsa.gov/about/ (last visited Oct. 14, 2013).

118 42 U.S.C. § 254b(c)(1)(A) (2012).

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health centers to "enable the centers to plan and develop amanaged care network or plan . . ." and to "plan anddevelop practice management networks."119 Importantly aswell, grants are available to the health centers to aid inmeeting operating costs. 120 In order receive the grantsabove, the entity must be either public or non-profit privateand provide primary care and additional services to amedically underserved population. 121

Under the J-1 visa waiver program, the Indiana StateDepartment of Health is permitted to submitrecommendations to the Bureau of Citizenship andImmigration Service of the U.S. Department of HomelandSecurity for the approval of a waiver for recent foreigngraduates of medicine.122 Without this waiver, fresh foreigngraduates are required to return to their home countries fortwo years.123 The Indiana State Department of Health maysubmit approval recommendations for thirty foreignphysicians per year. 124 In order to qualify for approval of thewaiver, foreign physicians must be willing to practice in aprimary care health professional shortage or a medicallyunderserved area or population and practice there for atleast three years. 125 This program is engineered to retainforeign physicians in order to fulfill the need for medicalprofessionals.

Under the State Loan Repayment Program, the federalgovernment provides funding to state governmentalagencies to repay student loan obligations of primary care

119 Id. § 254b(c)(1)(B)-(C).120 Id. § 254b(e)(1)(A).121 Id. §254b(a)(1)(A)-(B),(c)(1)(A),(e)(1)(A).122 Ind. State Dep't of Health, Programs Using Shortage Desipnations:

Indiana J-1 Visa Waiver Program Guidelines, IN.Gov,http://www.in.gov/isdh/files/INJ-1ProgramGuidlines_2012-13d(1).pdf (lastvisited Oct. 27 , 2013).

123 Ind. State Dep't of Health, 1ograms Using Shortage Desgnations,IN.Gov, http://www.in.gov/isdhl24409.htm (last visited Oct. 27, 2013).

124 Id.125 Ind. State Dep't of Health, supra note 122, at 1-2. There are

additional requirements that the medical employer must meet. One suchrequirement makes approval of the waiver conditioned upon the medicalemployer being able to show that it has attempted to hire a U.S. Citizen forthe position. Id. at 2.

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physicians who agree to work in health professionalshortage areas. 126 However, for a state to take part in theprogram, it must promise to match each dollar of federalfunding. 127 Primary care physicians participating in theloan repayment program must agree to work for a public ornon-profit entity that provides medical services in a healthprofessional shortage area. 128 Currently, Indiana has haltedits involvement in the State Loan Repayment Programbecause it is unable to provide the necessary statefunding.129

While Indiana funds community health centers, thesecenters are an inadequate means of addressing thedisparity of access to healthcare. In Indiana, there existforty-eight community health centers. Of the forty-eightcommunity health centers, nineteen are classified asFederally Qualified Health Centers.130The State of Indianafinances these community health centers through anestablished tobacco settlement fund.1'1

In order to receive funding as a community healthcenter, the facility must provide primary care services for atleast twenty hours per week. 132 While this particularprerequisite to funding is not indicative of the actualamount of time spent providing primary care services, it isnonetheless illustrative of the potential inadequacy of the

126 Nat'l Health Serv. Corps, U.S. Dep't of Health and Human Servs.,SLRP Grantees: State Loan Repayment Program, NHSC.HRSA.Gov,http://nhsc.hrsa.gov/currentmembers/stateloanrepaymentprogram/index.html(last visited Oct. 27, 2013).

127 Nat'l Health Serv. Corps, U.S. Dep't of Health and Human Servs.,SLRPFunding Requirements: Cost-Shanng Requirement, NHSC.HRSA.Gov,http://nhsc.hrsa.gov/currentmembers/stateloanrepaymentprogram/fundinglindex.html (last visited Oct. 27, 2013).

128 Nat'l Health Serv. Corps, U.S. Dep't of Health and Human Servs.,SLRP Ehgibility Requirements: Elgible Sites, NHSC.HRSA.GOV,http://nhsc.hrsa.gov/currentmembers/stateloanrepaymentprogramleligibility/index.html (last visited Oct. 27, 2013).

129 Ind. State Dep't of Health, supra note 123.130 AFFILIATED SERv. PROVIDERS OF IND., INC., IND. STATE DEP'T OF

HEALTH, supra note 2, at 39.131 IND. STATE DEP'T OF HEALTH, MAPPING INDIANA COMMUNITY

HEALTH CENTERS, FISCAL YEAR 2008 2 (2007).132 rd.

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community health centers to broadly service a largepercentage of the population which is medicallyunderserved. Additionally, notwithstanding the existence ofthese community health centers, many rural areas remainmedically underserved and still suffer a shortage of medicalprofessionals. 13 3

The Indiana Department of Health has partnered withMinnesota Department of Health and the WisconsinDepartment of Health Services to fund promulgation of anassessment and plan to aid rural medical facilities inrecruiting and retaining health professionals. 134 These statedepartments charged the National Rural Health ResourceCenter ("Resource Center") and National Rural Recruitmentand Retention Network ("Retention Network") to create theassessment and plan, and the Resource Center and theRetention Network released its product called The MidwestRetention Toolkit ("the Toolkit") in 2012.135 Specifically, theToolkit is intended to provide medical facilities that arelocated in medically underserved areas insightful data andmethods to retain physicians practicing in their facilitiesunder the National Health Services Corps Loan RepaymentPrograms. 136 The Toolkit contains sample strategies in theareas of physician orientation and assimilation, physiciancompensation, mentoring, workplace recognition, andworkplace departure of which medical facilities mayimplement.137

All of the aforementioned federal and state programs arepertinent measures of focusing governmental resources onmedical care inaccessibility in rural areas. Some of thesemeasures take aim at geographic inaccessibility of medicalcare while others are designed to foster the medical practiceof health professionals in rural areas. Some of thesemeasures are more effective than others due to their very

133 HEALTH RES. & SERvS. ADMIN., U.S. DEPT OF HEALTH & HUMANSERVS., supra note 22, at 8.

134 THE NAT'L RURAL HEALTH RES. CTR. & THE NAT'L RURALRECRUITMENT AND RETENTION NETWORK, MIDWEST RETENTION TOOLKIT2012 i, 1 (2012), available at http://www.in.gov/isdh/24409.htm.

135 Id.136 Id. at 1.137 Id. at 4-8, 11-55.

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nature. Direct measures, such as the Federally QualifiedHealth Centers, increase accessibility more than indirectmeasures such as the Toolkit mentoring strategies.However, not a single measure alone can bring about asweeping change in the distribution of medical resources.Only all of the above mentioned measures combined andwith the addition of some direct, human capital oriented,and financially vigorous legislative measures may begin toaccelerate and widen the accessibility of medical care withinrural Indiana.

B. Critical Access Hospitals

Critical access hospitals ("CAHs") are indispensable tothe healthcare network in Indiana. These hospitals arelocated strategically in rural areas where other sources ofmedical care are scarce or wholly absent. The constructionof new critical access hospitals is a great starting point toaddress the inaccessibility of medical care in Indiana.

Under the Social Security Act, any state may submit anapplication to establish a Medicare Rural HospitalFlexibility Program ("Flex Program").138 In taking part inthis Flex Program, a state must designate at least onemedical facility as a critical access hospital. 139 In order toreceive a critical access designation, a medical facility mustmeet the following non-exhaustive criteria:

i. is a hospital that is located in a county(or equivalent unit of local government) in arural area (as defined in section1395ww(d)(2)(D) of this title) or is treated asbeing located in a rural area pursuant tosection 1395ww(d)(8)(E) of this title, andthat-

ii. is located more than a 35-mile drive (or,in the case of mountainous terrain or in areaswith only secondary roads available, a 15-mile

138 42 U.S.C. § 1395i-4(a) (2012).139 Id. § 1395i-4(b)(B).

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drive) from a hospital, or another facilitydescribed in this subsection; or

iii. is certified before January 1, 2006, bythe State as being a necessary provider ofhealth care services to residents in the area;140

The hospital must also provide twenty-four houremergency care services. 141 There are additionalrequirements that will not be mentioned here.142 States thathave submitted an application to establish a Flex Programmay receive grants from the federal government to assist inimplementing the program and increasing medical carequality in critical access hospitals. 143

Currently, there are thirty-five critical access hospitalsoperating in Indiana. 144 These CAHs however suffer ashortage of health professionals. 145 Specifically, it isestimated that on average each Indiana CAH has from oneto seven full-time job openings per week. 146 CAHs alsosuffer from an inability to staff part-time positions. 147

Moreover, filling these positions could not be completed inless than several months. 148 In order to increase theeffectiveness of existing CAHs, state recruitment andretention measures of health professionals must be adopted.

C. Geographic Accessibiity State-Owned and OperatedCriticalAccess Hospitals and Support for the Establishment

ofAcute Care and Primary Care Hospitals

In fiscal year 2009, Indiana received the least amount offunding (fiftieth) from the HRSA. 149 In the same year,

140 Id. § 1395i-4(c)(2)(B))(I-(II.141 Id. § 1395i-4(c)(2)(B)(ii).142 Id. § 1395i-4(c)(2)(B)(iii)-(v).143 Id. § 1395i-4(g)(1)(A)-(D).144 AFFILIATED SERV. PROVIDERS OF IND., INC., IND. STATE DEP'T OF

HEALTH, supra note 2, at 33.145 See id. at 62.146 Id147 See id.148 Id

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Indiana ranked forty-eighth in the amount of fundingreceived from the Center for Disease Control.15 0 Moreover,the State of Indiana falls behind forty-six states in fundingpublic health.151 The failure of the state government toacquire federal funding and to adequately provide statefunding to strengthen the health of its residents isregrettable. Indiana must diligently strive to obtain federalbenefits in order to comprehensively fortify the healthcaredelivery system and support the health of its residents.

If Indiana decides to address the inaccessibility tomedical care problem, then federal funding must beexploited as much as possible in order to limit the extent towhich state monies are diverted from state programs inother areas. Due to the recent downturn in the economy,states' budgetary capacities have dwindled. Due to thisdrop in revenues, budget wars have ensued with eachpolitical party targeting different expenditure programs forcuts. A failure to rely on federal monies in combinationwith a continuing reliance on the expenditure of statemonies to increase access to healthcare at the state levelmay exacerbate the targeting of important state or localexpenditure programs outside the realm of healthcare. Ofcourse, it may be argued that a potential exacerbation ofbudget cuts could be avoided by deferring reformation ofhealthcare to more prosperous times. However, thisapproach is untenable because the consequences of anunhealthy population are detrimental in the short term andin the long run. What is more, if Indiana continues to fallbehind in acquiring federal funds then the state willshoulder a substantial amount of the costs in reforming thehealthcare delivery system. A continued failure to acquirefederal funding while implementing accessibility measuresat the state level may force the state to unnecessarilyincrease taxes on Hoosiers. While some of the legislativemeasures proposed below will require an increase intaxation, the increase may be lessened through reliance onfederal monies.

149 Id. at 14.150 Id.151 Id.

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While federal initiatives and financial support areneeded to resolve the inaccessibility of medical care, thestate government is in a better position to understand theshortcomings of the local healthcare system and thecomplexities therein involved. 152 Despite the fact that thefederal government has many resources at its disposal, thestate government would most likely be better able toevaluate the current state of medical inaccessibility in ruralIndiana. The state government's scope of evaluation isgeographically smaller, whereas the federal governmentmust evaluate the state of healthcare throughout theUnited States. This large federal scope of evaluation takesresources such as time and money away from Indiana.Additionally, channels of information sharing at the statelevel are more easily ascertainable and direct than those atthe federal level. The sheer size of the federal governmentas compared to state governments may create the risks ofmisdelivery of information and the proliferation ofmisinformation. Valuable information about the nuances ofhealthcare system and the general state thereof in Indianacan be streamlined to the appropriate state agencies. Thisstreamlining of information would allow the IndianaLegislature to efficiently expend resources toward the heartof the nuanced issue.

Additionally, the state government must live with thedetrimental consequences of an ill-functioning system ofhealthcare. Deprivation of good health in Indiana mostlikely affects the local economy. Poor economies have thepotential to undermine governments in several ways.Continued governmental inaction might maintain or evenworsen the substandard performance capacity of ruraleconomies resulting in a continued reliance on socialwelfare funds, the minimization of taxation sources, and anoverall stagnation of progress.

It is imperative that the Indiana Legislature recognizeits failure to adequately address the inaccessibility ofhealthcare in rural areas and seek to remedy the disparity

152 See Kristine Marietti Byrnes, Is There a Piimary Care Doctor in theHouse? The Legislation Needed To Address a National Shortage, 25RUTGERS L.J. 799, 834-35 (1994).

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through direct financial support. If left unresolved, theprevalent inaccessibility of healthcare in rural communitiescould continue to degrade the health of rural citizens andhamper those rural communities from progressingeducationally and economically. In order to directlyadvance accessibility, the Indiana Legislature shouldestablish some state-owned and operated critical accesshospitals and partner with Indiana University Health orany willing private entity to establish new acute andprimary care hospitals in counties where they arenonexistent or highly needed.

Under the Indiana Flex Program, a statutory transitionof small rural hospitals into CAHs is one of fourobjectives. 15 3 While this objective is a positive step towardacquiring more federal funding for Indiana's ruralhealthcare delivery system, it falls short of proactively anddirectly advancing accessibility in rural communities.Specifically, the rural hospitals that are intended fortransition already exist. The transition would increasefunding, but it would not dramatically expand accessibility.The construction of state-run critical access hospitals on theother hand would immediately expand accessibility incommunities where no medical facility exists.

It is estimated that it would costs anywhere from 10.8 to12.1 million dollars to construct a two or three storyhospital in Washington, Indiana. 154 Due to the exorbitantcosts of constructing and operating hospitals, Indianashould plan to construct a minimal number of critical accesshospitals in rural areas where they are most needed.Another option is to acquire existing buildings and convertthem into hospitals. This would most likely be a lessexpensive route. Also, it might be possible for Indiana toreceive federal funding to aid in meeting the costs of

153 AFFILIATED SERV. PROVIDERS OF IND., INC., IND. STATE DEP'T OF

HEALTH, supra note 2, at 51.154 RSMEANS; Construction Cost Estimates for Hospital (2-3 Story) in

Washington, Indiana, REEDCONSTRUCTIONDATA.COM, http://www.reedconstructiondata.com/rsmeans/models/hospitallindianalwashington/ (lastvisited Oct. 18, 2013). Washington, Indiana was used for the constructioncost estimate because of its rural location.

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construction, acquisition, and operation of these criticalaccess hospitals.15 5

The state-run facilities should be small rural hospitals,much like the other Indiana critical access hospitals. Theywould provide acute care and primary care medical services,including immeasurably important services such asobstetrics. The State of Indiana already operates sixpsychiatric health hospitals.15 6 This operation could act as amodel for state-operated acute and primary care hospitals.

There are many advantages of state-run hospitals. Theestablishment of state-run hospitals is the most directlegislative means to facilitating better access to healthcarein rural communities. If strategically placed, theestablishment of these state-run hospitals wouldimmediately open the door to medical care access. Thisestablishment would remove barriers to obtaining medicalservices. In particular, rural residents would no longer berequired to drive counties away to see a physician, and alsotimely treatments could be obtained. Moreover, these smallhospitals would obviously have a larger operating capacitythan existing community health centers, and therefore theycould provide more services to many more rural patients.Indiana might be able to eventually remove the medicalunderservice and the professional shortage areadesignations if it establishes state-operated hospitals andpartners with IU Health or a private entity to furtherexpand its operations.

Another advantage is that state-run facilities would notoperate on the principal of maximizing profit, but rathertheir primary goal would be to provide as many healthservices as needed to the most people as possible. Also,

155 42 U.S.C. § 1395i-4(g)(A)-(C) (2012) (whether or not grants may beawarded for construction costs is unclear and this determination revolvesaround the Secretary's interpretation of the statute); Id. § 254(b)(c)(1)(A)(authorizing the Secretary to award grants to public entities to aid inacquiring buildings and equipment in the establishment of health centers);Id. § 254(b)(e)(1-2) (giving discretion to Secretary to award grants to healthcenters to meet operating costs).

156 Div. of Mental Health & Addiction, Ind. Family & Social Servs.Admin., Mental Health Services. State Psychiatric Hospitals, IN.Gov,http://www.in.gov/fssaidmha/4325.htm (last visited Oct. 18th, 2013).

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state-run facilities could potentially lessen the burden onnon-profit hospitals of providing patient care. Additionally,state-run facilities could potentially assume more of theuncompensated patient care expenses of which non-profithospitals in Indiana shoulder the most. 157 Lastly, thespending of funds for state-operated hospitals would bemore transparent and easily traceable than subsidies givento private institutions.

Building some state-run hospitals would create jobs inrural areas and would also in turn foster a growth ofsupport industries and businesses around these medicalcenters. At the start for example, the state would awardconstruction contracts to companies to build the hospitalswhich would require those companies to hire laborers. Thiswould immediately create ancillary jobs. Also, once thesenew hospitals began operation, they would immediatelycreate demand for health goods. It is estimated thatAmerican hospitals spend 702 billion dollars on goods andservices. 15 8 These operating expenditures have created a 9.9million job market outside of the hospital infrastructure.159

There are of course disadvantages of establishing state-run hospitals. The most obvious disadvantage of state-runhospitals is the potential for high and unbearable costs ofconstruction, maintenance, and operation which taxpayersmust bear. Building the hospitals would require the stateto take bids on and pay out construction contracts of ten totwelve million dollars each. 160 Paying health careprofessionals to work in these facilities is not the onlyoperational cost associated with establishing state-runhospitals. Additionally, the state would have to purchaseexpensive medical devices and supplies. The state would

157 DAVID M. WALKER, U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-05-743T, NONPROFIT, FOR-PROFIT, AND GOVERNMENT HosprrALs:UNCOMPENSATED CARE AND OTHER COmmUNITY BENEFITS 11 (2005),available at http://www.gao.gov/new.items/d05743t.pdf.

158 AMERICAN HosP. ASS'N, ECONOMIC CONTRIBUTION OF HosPITALSOFTEN OVERLOOKED (2013), available at http://www.aha.org/content/13/13brief-econcontrib.pdf.

159 Id160 However the state might be able to obtain federal funding to assist

in meeting these costs.

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also be required to staff administrative positions in order toproperly operate the facilities. In general, most likely 44percent of a state-run rural hospital's expenses would beattributable to labor costs.1 6 ' However, the severity of thesecosts can be mitigated by the adoption of a dualisticoperating-model whereby the state government operatessome hospitals and a private entity operates others.

Another potential disadvantage, and one which is oftcited whenever government provided health care is debated,is the claim that government will refuse expensive andimportant treatment for certain ailments in order to avoidcosts. This assertion however unconvincingly presupposesan indifferent governmental predisposition toward the well-being of its citizens. This argument is also propounded interms of demonizing labels, and it usually refers togovernment involvement in the provision of medical care associalized medicine. However, it is not proposed here thatthe state government should assume the role of greatarbiter of medical treatment or much less even seek tominimize the involvement of the private sector in themedical industry. All that is proposed here is that stategovernment should provide an important service where theprivate sector refrains from doing so.

Even though there are many advantages of state-ownedand operated critical access hospitals, it is necessary tocontemplate supplementary or alternative measures whichare financially more reasonable. Thus, a supplement or analternative to state-owned and operated critical accesshospitals is a state funded expansion of IU Health into ruralareas. Under this model, the state government would bearpart of the costs of constructing the hospitals. Conversely,IU Health would operate and maintain the hospitals. IUHealth therefore would pay medical supply, labor, generaloperation, and maintenance costs yet it would avoid most ofthe acquisition or construction costs.

Another supplementary or alternative approach wouldbe privatization of the expansion of hospitals into ruralareas. Under this approach, the state government would

161 AFFILIATED SERV. PROVIDERS OF IND., INC., IND. STATE DEP'T OF

HEALTH, supra note 2, at 37.

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operate a smaller number of rural hospitals, but it alsowould provide benefits to private healthcare companies whoexpand and establish healthcare facilities in rural areas.Particularly, under this model, in order to incentivizecompanies to establish small rural hospitals, the stategovernment would create tax incentives. These taxincentives could take the form of qualified excepted incomeand significant tax credits. Of course, these incentiveswould only be applicable for a defined statutory period.This privatization approach, unlike the aforementionedapproaches, significantly decreases the amount of out-goingexpenditures. However, it also decreases the amount ofincoming tax revenue. Despite this, this hybrid approach isfeasible, viable, and it has the potential to bring betteraccess to medical care to rural areas.

D. Medical Personnel Accessibility. The 'Pay-to-Drive" andthe 'Rural Practice Benefits Program"

The Indiana Legislature should enact a program whichpromotes and facilitates metropolitan and out-of- statephysicians to travel to rural communities within Indiana topractice for limited duration on a regular basis. Thishypothetical program will be referred to as the "Pay-to-Drive" Program. This program would pay 40 percent of thetraveling physician's compensation per day (of what thephysician would have earned working at his principalhospital or facility) when working in a designated healthprofessional shortage area or medically underserved area,and it would also pay traveling expenses. Rural hospitalswishing to participate would be required to pay at least 65percent of the traveling physician's contractualcompensation. In all, the traveling physician would earn105 percent per day of his normal pay.

Under the program, the state would also provide taxbenefits to the principal medical institutions where thetraveling physician normally works. These tax benefitswould constitute tax credits. These tax benefits conferrableto the traveling physician's principal hospital would act asincentive for metropolitan hospitals to leave room in

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physicians' contracts to allow them to participate in the"Pay-to-Drive" program. Specifically, these tax benefits, bydecreasing tax liability, would be a form of compensation forthe metropolitan hospitals for their temporary loss ofhuman capital. Also, the program would cap the number ofdays available for qualifying metropolitan physicians totravel to rural areas. This restraint would exist to avoidhigh costs. Additionally, the program would specify the

days that physicians practicing at the same principalhospital could participate in order to ensure the principalhospital's capacity to meet the needs of its patients.

Metropolitan physicians wishing to participate in theprogram would be required to apply to become a travelingphysician. In order to qualify, the metropolitan physicianwould be required to show that he or she had not beenassessed more than two malpractice judgments in the lastten years of practice. This condition of participation wouldensure that quality care would be provided to ruralpatients.

After successful participation in the Pay-to-Driveprogram for three years, the traveling physician would be

permitted to apply to the "Rural Practice BenefitsProgram." Successful participation in the Pay-to-Driveprogram would constitute no more than one malpracticejudgment assessed against the physician in the last threeyears. Also, to gain acceptance into this program, thetraveling physician would necessarily have to submit atleast two letters of recommendation from two senior(defined as number of years in practice) rural physicianswith whom the traveling physician has worked.

Upon acceptance into the Rural Practice BenefitsProgram, the physician would be placed in a medicallyunderserved rural area or health professional shortage areato work, and the physician would receive at least 100percent of his former contractual compensation for fiveyears (to be paid wholly by the rural medical institution).Additionally, the physician would be allowed to excludefrom his income the amount of his compensation on hisstate return for five years, which would result in tax freecompensation. Moreover, the physician's principal

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residence would not be assessed a state real property tax forfive years.

E. Conclusion

In implementing some of the judicial measuresaforementioned, particularly the adoption of grossnegligence, the quality of care may be lowered. However,the risk of minimal degradation in quality of care isoutweighed by the expansion of accessibility of medical carein rural areas. Specifically, it is better for individuals tohave access to at least some care rather than to have noaccess at all. Once the inaccessibility of medical care is nolonger a devastating problem, more quality measuresshould then be implemented to bolster sound medicalperformance.

Some of the legislative measures proposed here, such asthe establishment of some state-run critical accesshospitals, would be monetarily burdensome on the stategovernment. However, increasing access to healthcare inrural areas is not a cheap endeavor. The high costs ofestablishing more hospitals can be lowered through hybridmeasures which shift costs to the private sector. Howevereven then, the state government must incur losses in theform of lost revenues due to the provision of tax incentives.Due to the high costs of direct state legislative action in thisarea, existing programs must be heavily relied on. Also,new measures such as the ones proposed here should beadopted and implemented lightly and with caution. Onlyafter a newly implemented measure is proven to produceoutstanding access to healthcare in rural areas should moreresources be expended to enlarge its effect.

In summary, only a combination of impactful andthoughtful judicial measures can effectively begin to remedythe disparity of accessibility of medical care in Indiana.More importantly, judicial solutions alone will probably onlyresult in lackluster results. Thus, it is imperative toconsolidate judicial remedies with legislative ones in orderto provide a comprehensive counterbalance to theinaccessibility of medical care.

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stark inaccessibility of medical care in rural …the stark inaccessibility of medical care in rural...

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