Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Jeffrey S. Wrage

Colby A. Barkes

Blachly, Tabor, Bozik & Hartman LLC

Valparaiso, Indiana

ATTORNEYS FOR APPELLEE

Michael E. O’Neill

Marian C. Drenth

Kathleen M. Erickson

O’Neill McFadden & Willet LLP

Schererville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Ricardo S. Trevino,

Appellant-Plaintiff,

v.

Comprehensive Care, Inc.,

Appellee-Defendant.

December 30, 2016

Court of Appeals Case No. 

45A05-1603-CT-683

Appeal from the Lake Superior 

Court

The Honorable Bruce D. Parent, 

Judge

Trial Court Cause No.

45D04-1508-CT-156

Mathias, Judge.

[1] The Lake Superior Court granted a motion to dismiss filed by Comprehensive 

Care, Inc. (“CCI”) in a negligence action filed by Ricardo S. Trevino 
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 2 of 16

(“Trevino”). Trevino appeals and argues that the trial court erred in concluding 

that his complaint fell within the scope of the Indiana Medical Malpractice Act,

which would have required him to file a proposed complaint with a medical 

review panel before filing his complaint in court. Concluding that the acts 

alleged in Trevino’s complaint do fall within the scope of the Act, we affirm.

Facts and Procedural History

[2] At the time relevant to this appeal, CCI was a corporation licensed to practice 

physical and occupational therapy medicine in Indiana. Trevino had sustained 

a work-related injury to his left ankle and, on December 8, 2014, went to CCI 

for a return-to-work examination. During the examination, a CCI employee 

instructed Trevino to step onto stacked exercise steps. When he did so, the steps 

slipped out from under him, causing him to fall. As a result of the fall, Trevino 

sustained serious injury to his left knee.

[3] On August 14, 2015, Trevino filed a complaint against CCI alleging the above 

facts and claiming that, as a direct and proximate result of CCI’s negligence, 

Trevino had sustained “serious, permanent, and debilitating injuries to his left 

knee, and has experienced and will continue to experience in the future, 

physical pain and the loss of enjoyment of life as a result of those injuries, as 

well as past and future lost wages and diminished earning capacity.”

Appellant’s App. p. 9. Trevino’s complaint sought compensatory damages, 

costs, and other just and proper relief. Id.
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 3 of 16

[4] After receiving an enlargement of time in which to file its response, CCI 

submitted an answer to Trevino’s complaint on October 9, 2015. On November 

13, 2015, CCI filed a motion to dismiss for lack of subject matter jurisdiction, 

arguing that Trevino’s claim fell within the scope of the Medical Malpractice 

Act. Since Trevino had not submitted a claim to a medical review panel, CCI 

argued that the trial court lacked subject matter jurisdiction to hear Trevino’s 

complaint.

[5] Trevino filed a response on January 6, 2016, arguing that his complaint 

sounded in premises liability, not medical malpractice, and was therefore not in 

the scope of the Act. The trial court held a hearing on the motion to dismiss on 

February 29, 2016, at the conclusion of which it took the matter under 

advisement. Later that same day, the trial court issued an order on the motion 

to dismiss, which provides in relevant part: 

9. Trevino provided the Court with a series of cases that had to 

do with premises liability, not from the provision of medical 

services. Yet, Trevino’s complaint put forward the following facts 

which CCI did not contest:

a. CCI was at all times relevant “duly licensed to practice 

physical and occupational therapy medicine in the state of 

Indiana.”

b. CCI was at all times relevant a corporation “engaged in 

the business of providing physical therapy and back to work 

examinations.”

c. All negligent acts and omissions of CCI were performed 

or omitted by employees, agents, and/or representatives 

“while they were acting within the scope of their 

employment.”
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 4 of 16

d. On the date in question, Trevino appeared at CCI for a 

return-to-work examination related to an injury to his left 

ankle.

e. CCI, while performing a return-to-work exam requested 

that Trevino “step upon stacked exercise steps, which slipped 

out from under him, causing him to fall and receive severe 

and permanent injury.”

10. To this Court, the provisions of a medical examination to 

Trevino, related to his injury, by CCI – a company that engaged 

in the provision of occupational therapy medicine – instructing 

Trevino to make specific assessable movements was the provision 

of medical services as a matter of law under the test provided by 

Popovich v. Danielson, [896 N.E.2d 1196 (Ind. Ct. App. 2008)], 

even under the very stringent limitation as on a claimant’s rights 

provided by the Court of Appeals in Peters v. Cummings, [790 

N.E.2d 572 (Ind. Ct. App. 2003)].

11. Accordingly, this Court [finds] as a matter of law [that] it 

does not possess jurisdiction over the parties to hear this matter 

pursuant to T.R. 12(B)(1) and the Indiana Medical Malpractice 

Act.

Tr. pp. 26-27. Trevino now appeals.

Standard of Review

[6] A trial court ruling on a motion to dismiss for lack of subject matter jurisdiction 

under Trial Rule 12(B)(1), unlike a trial court ruling on a motion to dismiss 

under Trial Rule 12(B)(6), may consider not only the complaint but also any 

affidavits or evidence submitted in support. B.R. ex rel. Todd v. State, 1 N.E.3d 

708, 711 (Ind. Ct. App. 2013). If such evidence is presented, the trial court may 

weigh the evidence to resolve the jurisdictional issue. Id. On appeal, our 

standard of review depends on what occurred in the trial court, that is, whether 
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 5 of 16

the trial court resolved disputed facts; and if the trial court resolved disputed 

facts, whether it conducted an evidentiary hearing or ruled on a “paper record.”

Id.

If the facts before the trial court are not in dispute, then the 

question of subject matter jurisdiction is purely one of law. Under 

those circumstances no deference is afforded the trial court’s 

conclusion because appellate courts independently, and without 

the slightest deference to trial court determinations, evaluate 

those issues they deem to be questions of law. Thus, we review de 

novo a trial court’s ruling on a motion to dismiss under Trial Rule 

12(B)(1) where the facts before the trial court are undisputed.

If the facts before the trial court are in dispute, then our standard 

of review focuses on whether the trial court conducted an 

evidentiary hearing. Under those circumstances, the court 

typically engages in its classic fact-finding function, often 

evaluating the character and credibility of witnesses. Thus, where 

a trial court conducts an evidentiary hearing, we give its factual 

findings and judgment deference. And in reviewing the trial 

court’s factual findings and judgment, we will reverse only if they 

are clearly erroneous. Factual findings are clearly erroneous if the 

evidence does not support them, and a judgment is clearly 

erroneous if it is unsupported by the factual findings or 

conclusions of law. 

However, where the facts are in dispute but the trial court rules 

on a paper record without conducting an evidentiary hearing, 

then no deference is afforded the trial court’s factual findings or 

judgment because under those circumstances a court of review is 

in as good a position as the trial court to determine whether the 

court has subject matter jurisdiction. Thus, we review de novo a 

trial court’s ruling on a motion to dismiss where the facts before 

the court are disputed and the trial court rules on a paper record.
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 6 of 16

GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001) (citations and internal 

quotations omitted).

[7] Here, it appears that the facts are essentially undisputed. Moreover, although 

the trial court held a hearing on the motion to dismiss, the hearing was simply 

an oral argument, as the parties presented no evidence and no witnesses were 

sworn. Accordingly, we apply a de novo standard of review based on the paper 

record before us. See B.R. ex rel. Todd, 1 N.E.3d at 712 (applying de novo 

standard where trial court held hearing at which parties made legal arguments 

and did not present evidence) (citing Popovich v. Danielson, 896 N.E.2d 1196 

(Ind. Ct. App. 2008)). 

The Indiana Medical Malpractice Act

[8] The Medical Malpractice Act authorizes a patient who has a claim for bodily 

injury or death due to medical malpractice to file a complaint in any court with 

jurisdiction. Ind. Code § 34-18-8-1; Terry v. Cmty. Health Network, Inc., 17 

N.E.3d 389, 393 (Ind. Ct. App. 2014). Indiana Code section 34-18-8-4 provides 

that “an action against a health care provider may not be commenced in a court 

in Indiana before: (1) the claimant’s proposed complaint has been presented to 

a medical review panel . . . and (2) an opinion is given by the panel.” Thus, 

until a medical review panel has issued its opinion, the trial court has no 

jurisdiction to hear and adjudicate the claim. Terry, 17 N.E.3d at 393; see also

B.R. ex rel. Todd, 1 N.E.3d at 713 (“simply said, the Act grants subject matter 
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 7 of 16

jurisdiction over medical malpractice actions first to the medical review panel, 

and then to the trial court.”).1

[9] We further observe that, “‘the statutory procedures for bringing a medical 

malpractice action are in derogation of common law, and as such, they are to 

be strictly construed against limiting a claimant’s right to bring suit.’” B.R. ex rel. 

Todd, 1 N.E.3d at 713 (quoting Weldon v. Universal Reagents, Inc., 714 N.E.2d 

1104, 1107 (Ind. Ct. App. 1999)). When our General Assembly enacts a statute 

in derogation of common law, we presume that the legislature is aware of the 

common law, and does not intend to make any change beyond what is declared 

in express terms or by unmistakable implication. Id. 

[10] As explained in B.R. ex rel. Todd,

“Malpractice” is defined as “a tort or breach of contract based on 

health care or professional services that were provided, or that 

should have been provided, by a health care provider, to a 

patient.” I.C. § 34-18-2-18. A “patient” is “an individual who 

receives or should have received health care from a health care 

provider, under a contract, express or implied, and includes a 

person having a claim of any kind, whether derivative or 

otherwise, as a result of alleged malpractice on the part of a 

health care provider.” I.C. § 34-18-2-22. And “health care” is “an 

act or treatment performed or furnished, or that should have been 

performed or furnished, by a health care provider for, to, or on 

 

1 There is an exception to the requirement that a complaint for medical malpractice be submitted to a medical 

review panel if the plaintiff’s complaint includes a declaration that the plaintiff seeks damages of $15,000 or 

less. Ind. Code § 34-18-8-6(a). If such a declaration is included, the case may be commenced in the trial court 

without first submitting the complaint to a medical review panel. Id.
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 8 of 16

behalf of a patient during the patient’s medical care, treatment, or 

confinement.” I.C. § 34-18-2-13.

1 N.E.3d at 713.

[11] “The Act covers ‘curative or salutary conduct of a health care provider acting 

within his or her professional capacity, but not conduct unrelated to the 

promotion of a patient’s health or the provider’s exercise of professional 

expertise, skill, or judgment.’” Terry, 17 N.E.3d at 393 (quoting Howard Reg’l 

Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011)). When deciding whether 

a claim falls under the provisions of the Medical Malpractice Act, we are 

guided by the substance of a claim to determine the applicability of the Act. Id.

[12] The fact that the alleged misconduct occurs in a healthcare facility, or that the 

injured party was a patient at the facility, is not dispositive in determining 

whether the claim sounds in medical malpractice. Id. (citing Madison Ctr., Inc. v. 

R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006)). Instead, the test is 

whether the claim is based on the provider’s behavior or practices while acting 

in his professional capacity as a provider of medical services. Id. Or, put 

differently, “A case sounds in ordinary negligence where the factual issues are 

capable of resolution by a jury without application of the standard of care 

prevalent in the local medical community.” Anonymous Hosp., Inc. v. Doe, 996 

N.E.2d 329, 333 (Ind. Ct. App. 2013). Thus, we have held that the Medical 

Malpractice Act was not intended to extend to cases of ordinary negligence or 

premises liability. Pluard ex rel. Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, 

1037 (Ind. Ct. App. 1999).
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 9 of 16

[13] Application of these tests has resulted in “‘hairline distinctions between claims 

that sound in medical negligence and those that sound in ordinary negligence.’” 

Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 727 (Ind. Ct. App. 2014), trans. 

denied (quoting Doe, 996 N.E.2d at 333). More recent decisions of this court 

have offered the following distinction when facing the issue of whether a claim 

falls within the purview of the Medical Malpractice Act:

A case sounds in ordinary negligence [rather than medical 

negligence] where the factual issues are capable of resolution by a 

jury without application of the standard of care prevalent in the 

local medical community. By contrast, a claim falls under the 

Medical Malpractice Act where there is a causal connection 

between the conduct complained of and the nature of the patienthealth care provider relationship. 

West, 23 N.E.3d at 727 (quoting Doe, 996 N.E.2d at 333) (brackets in original); 

accord Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 

2014); B.R. ex rel. Todd, 1 N.E.3d at 714-15.

Discussion and Decision

[14] In the present case, Trevino argues that his claim of negligence does not require 

resolution of the applicable medical standard of care and therefore does not fall 

within the purview of the Medical Malpractice Act. We disagree. Applying the 

above-mentioned standard to the facts of this case, we conclude that there is a 

causal connection between the conduct complained of—Trevino being 

instructed to step upon stacked exercise steps, which slipped out from under 

him—and the nature of the patient-provider relationship. It is not Trevino’s 
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 10 of 16

status as a patient, which he concedes, that is dispositive, nor is it dispositive 

that the accident occurred on hospital property. Instead, it is dispositive that 

Trevino was injured while performing an activity that he was instructed to do 

by his health-care provider, a health care provider who falls under the Medical 

Malpractice Act, while undergoing a medical test.

[15] We therefore find unavailing Trevino’s citation to Winona Memorial Foundation 

of Indianapolis v. Lomax, 465 N.E.2d 731 (Ind. Ct. App. 1984). In that case, the 

plaintiff Lomax went to a hospital to undergo physical therapy in a large pool.

Before she did so, she was instructed to change her clothes in a dressing room 

adjacent to the pool area. On her way from the dressing room to the pool area, 

Lomax tripped and fell when she caught her foot on a floorboard that protruded 

from the floor. No hospital employee was assisting Lomax when she fell, and 

no medical treatment or physical therapy was rendered to her before or at the 

time of the fall. Lomax sued the hospital, alleging negligence in the 

maintenance of the floor. The hospital moved to dismiss the complaint for 

failure to comply with the review provisions of the Medical Malpractice Act, 

which the trial court denied.

[16] On appeal, the hospital argued that Lomax’s claim of negligence fell within the 

scope of the Act. Our court disagreed. After going through the history of the 

Medical Malpractice Act, the court observed that the conditions which led to 

the enactment of the Act had nothing to do with the sort of liability a health 

care provider risks when a patient, or anyone else, is injured by the negligent 

maintenance of the provider’s business premises. Id. at 739. The court further 
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 11 of 16

noted that matters such as the maintenance of reasonably safe premises are 

within the common knowledge and experience of the average person, such that 

there is no need to present this question to the experts on a medical review 

panel, who “are no more qualified as experts on such matters than the average 

juror.” Id. at 740. Because Lomax did not frame her claim for relief as a failure 

to provide her with adequate medical care or treatment, but instead framed it as 

one of premises liability, her complaint could “not possibly be construed as 

alleging the sort of negligence that the Medical Malpractice Act was intended to 

cover. Id. at 742.

[17] In contrast, here Trevino did not simply trip on a poorly maintained floor while 

unattended. He fell while performing an exercise that his health care provider 

instructed him to do while undergoing a physical examination. To determine

whether CCI was liable would require the trier of fact to determine whether the 

provider acted within the applicable standard of care for the healthcare 

provider.

[18] Accordingly, we also find Trevino’s citation to Pluard v. Patients Compensation 

Fund, 705 N.E.2d 1035 (Ind. Ct. App. 1999), to be unpersuasive. In that case, 

the plaintiff was preparing to undergo a circumcision the day after his birth. As 

a nurse’s assistant positioned a surgical lamp over the infant, the lamp became 

detached from the wall, fell on the child, and injured his face and head. The 

child’s parents filed suit on his behalf and reached a settlement agreement with 

the hospital. The parents then petitioned for payment of excess damages from 

the Patient’s Compensation Fund. The Fund argued that Pluard had no 
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 12 of 16

standing to seek damages because his injuries did not sound in medical 

malpractice but rather in premises liability. The trial court granted summary 

judgment in favor of the Fund, and Pluard appealed.

[19] On appeal, Pluard argued that his case was distinguishable from that in Lomax

because the plaintiff in Lomax tripped and fell while unattended by medical 

personnel whereas he was injured while being attended by a nurse’s assistant 

under the control and supervision of a physician while being prepared for a 

medical procedure. The Pluard court disagreed, noting that the assistant’s 

manipulation of the light, while close in time to the light’s falling, was not 

alleged to have caused his injuries. Id. at 1038. Instead, the court reasoned, the 

injury occurred because the light was not properly attached to the wall. Id. “Put 

another way, the duty to secure the light, and even the nurses’ assistant’s duty 

to position it, did not involve a health care decision involving the exercise of 

professional skill or judgment. Instead, it involved the general duty to maintain 

safe premises and equipment.”

2

Id.

[20] In contrast, here there is no allegation that the exercise steps slipped due to 

improper maintenance of the building or premises. If Trevino had instead 

slipped on the steps leading to the building or the stairs inside the building, his 

case would be more on point with Pluard. However, Trevino alleged that he was 

 

2

 Judge Sullivan dissented, believing that the question depended “upon whether or not the nurse was 

negligent in the manner in which she positioned the lamp and whether that negligence, if any, was a 

proximate cause of the injury. Id. at 1039 (Sullivan, J., dissenting).
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 13 of 16

instructed by CCI personnel to step onto stacked exercise steps, which then 

slipped out from under him, causing him to fall. This is distinct from a nurse 

manipulating a lamp that falls off the wall.

[21] Lastly, Trevino cites Community Hospital v. Avant, 790 N.E.2d 585 (Ind. Ct. 

App. 2003). In Avant, the plaintiff sued the hospital after he injured himself 

while engaged in a personal training program that the professional trainer had 

designed for him. The trainer was employed by a health club owned and 

maintained by the hospital. The defendants filed a motion to dismiss 

contending that the complaint alleged medical malpractice and that the trial 

court lacked jurisdiction because Avant had not presented his claim to a

medical review panel. The trial court denied the motion to dismiss and the 

defendants brought an interlocutory appeal.

[22] On appeal, this court affirmed the trial court’s denial of the defendants’ motion 

to dismiss. The court concluded that Avant was not a client of the health club 

owned by the hospital and therefore did not qualify as a “patient” as that term 

is defined by the Medical Malpractice Act. Id. at 587. There was no evidence 

that Avant was under a physician’s orders to start the training regimen at the 

club as part of a medical treatment plan. Id. “Therefore, the trial court correctly 

assumed subject matter jurisdiction over the claim.” Id.

[23] Yet again, we find this case to be distinguishable. The court in Avant held that 

the plaintiff was not a “patient” as that term is defined by the Medical 
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 14 of 16

Malpractice Act. Here, however, Trevino concedes that he is a patient.3

Moreover, unlike in Avant, it was alleged that Trevino acted under the 

instruction of his healthcare provider, whereas in Avant, there was no indication 

that the plaintiff was under the orders of his healthcare provider to start the 

exercise regimen as part of a medical treatment plan.

[24] We find support for our holding in Putnam County Hospital v. Sells, 619 N.E.2d 

968 (Ind. Ct. App. 1993), a case cited by CCI. In Sells, the plaintiff had 

undergone a tonsillectomy at the defendant hospital and was taken to the 

recovery room while still under anesthesia. The rails on Sells’ bed had not been 

raised, and she fell from the bed, injuring her face. Sells sued the hospital 

without first filing a claim with a medical review panel, and the hospital moved 

to dismiss the claim for lack of subject matter jurisdiction. The trial court denied 

the motion, and the hospital appealed.

[25] On appeal, this court held that the complaint did sound in medical malpractice, 

not ordinary negligence or premises liability. Id. at 971. In so holding, the court 

noted that Sells’ allegation of negligence was based on failing to ensure that the 

railings were in place on her recovery room bed. Id. This, the court held, was 

not an allegation of faulty premises or equipment but instead challenged the

“health care decision” the hospital made regarding Sells while she was under 

anesthesia. Id. Sells’ complaint also contained other references to her medical 

 

3

See Appellant’s Br. p. 7 (“Trevino is a patient of the facility and it is undisputed CCI is a qualified health 

care provider.”).
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 15 of 16

care and treatment: not only was she under anesthesia, she alleged that the 

hospital failed to properly train and supervise its staff to monitor patients after 

surgery, that the hospital failed to properly monitor her in the recovery room, 

and that the hospital failed to take steps to prevent her from injuring herself 

while under anesthesia. “In essence, Sells’ complaint alleg[ed] that the 

Hospital’s acts or omissions fell below the appropriate standard of care.” Id.

[26] The same is true here. Trevino alleged that CCI was licensed to practice 

physical and occupation therapy medicine, that CCI’s agents or employees 

acted while within the scope of their employment, and that, while undergoing a 

return-to-work examination, he was instructed to step on the exercise steps that 

slipped out from under him, causing him to fall. The gravamen of Trevino’s 

complaint is not premises liability, but rather that his physical therapist acted 

negligently in either setting up the exercise steps or instructing Trevino, a man 

with a knee injury, to step on the exercise steps. Thus, his claim is based on the 

provider’s behavior or practices while acting in his professional capacity as a 

provider of medical services. See Terry, 17 N.E.3d at 393. Put differently, there 

is a causal connection between the conduct of which Trevino complained and 

the nature of the patient-healthcare provider relationship. See West, 23 N.E.3d 

at 727; accord Terry, 17 N.E.3d at 393; B.R. ex rel. Todd, 1 N.E.3d at 714-15; Doe, 

996 N.E.2d at 333.

Conclusion 

[27] In summary, we hold that there was a causal connection between the conduct 

of which Trevino complained and the nature of the patient healthcare provider 
Court of Appeals of Indiana | Memorandum Decision 45A05-1603-CT-683 | December 30, 2016 Page 16 of 16

relationship. Therefore, Trevino’s complaint falls within the scope of the 

Medical Malpractice Act. Because Trevino did not submit his claim to a

medical review panel, the trial court was without jurisdiction to hear Trevino’s 

claim. We accordingly affirm the order of the trial court granting CCI’s motion 

to dismiss for lack of subject matter jurisdiction.

[28] Affirmed.

Robb, J., and Brown, J., concur.