Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 1 of 24 A TTORNEY S FOR A PPELLANT Daniel H. Pfeifer James P. Barth Jeffrey J. Stesiak South Bend, Indiana A TTORNEY FOR A PPELLEE Robert J. Palmer Mishawaka , Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Linda Martinez, as the Personal Representative of the Estate of Roy Martinez , Appellant

- Plaintiff ,

v. 

### Oaklawn Psychiatric Center, Inc. , Appellee

- Defendant

. July 12, 2019 Court of Appeals Ca se No. 18A

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- 2883 Appeal from the St. Joseph Superior Court The Honorable Jenny Pitts Manier, Judge Trial Court Cause No. 71D05

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Mathias, Judge.

[1] The issue presented in this appeal is whether the claim in this case alleges facts that fall under Indiana ’ s Medical Malpractice Act (“the Act”), or whether the facts allege pure negligence or premises liability outside the definitions of the Act. The St. Joseph Superior Court granted Oaklawn Psychiatric Center, Inc. ’ sCourt of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 2 of 24 (“Oaklawn”) motion to dismiss under Tr ia l Rule 12(B)(1) for lack of subject matter jurisdiction. Linda Martinez , as the pers onal representative of the estate of Roy Martinez (“the Estate”) , appeals the dismissal, arguing that Oaklawn is liable based on the theory of premises liability

. 1

[2] We aff irm.


### Facts and Procedural History

[3] After five months of inpatient treatment for mental illness , on February 2, 2017, Roy Martinez (“Martinez”) was admitted to Metcalf House, a voluntary group home operated by Oaklawn 2 that offers supervised living for patients who do not require inpatient services

. Metcalf House is licensed as a Supervised Group Living home through the Indiana Department of Mental Health and Addictions and is a qualified health care provider in accordance with Indiana Code section 34

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. Appellant ’ s Conf. App. p. 44.

[4] Oaklawn employees at Metcalf House called “resident ial assistants” are responsible for helping residents develop or improve their ability to function independently . Specifically, resident assistants help the residents establish and maintain routines and manage dai ly activities like hygiene, self

- administering medication, and transportation. Metcalf House residential assistants are trained

1 We held oral argument in this case on June 12, 2019 at the Jewish Community Center in Indianapolis. We extend our gratitude to the Center and its staff for their gracious hospitality. We also thank counsel for the quality of their written and oral advocacy.
2 Oaklawn provides mental health and addi ctions services in St. Joseph and Elkhart Counties, Indiana.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 3 of 24 annually in non

- violent, verbal de

- escalation strategies

. Appellant ’ s Conf. App. p. 79

. Residential assistants are also trained to call 911 when medical attention is required and to remove themselves from possibly violent situations. Appellant ’ s Conf. App. p. 92.

[5] The Estate ’ s complaint arises from an incident that occurred between Martinez and residential assistant Kennedy Kafatia (“Kafatia”). A t approximately 12:30 a.m. on August 3, 2017, the South Bend Police Department responded to a reported ass ault at Metcalf House. Kafatia reported to the responding officer that he had walked into the living room where Martinez was watching television around midnight and told Martinez he had to go to bed because it was past curfew. Martinez allegedly refused and stated that he wanted to finish his show and drink first. K afatia said that he walked near Martinez to turn off the lamp, a nd a struggle for the lamp ensued. When both men dropped the lamp, Kafatia explained that Martinez attempted to charge at him, and in
response, Kafatia fell back slightly, extended his right foot, and kicked Martinez , causing a large laceration to his righ t shin . Martinez reportedly fell backwards into his chair , and his shin started bleeding. Martinez then walked to the kitchen and called 911

. R ather than following Martinez into the kitchen, Kafatia remained in the living room to wait for the police, which was consistent with Oaklawn ’ s protocol for handling altercations with the psychiatric patient s of Metcalf House

.
[6] The responding officer observed Martinez sitting on a chair in the kitchen with a large amount of blood around him. Martinez was still breathi ng and makingCourt of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 4 of 24 grunting noises but was unconscious. While waiting for medics to respond, Martinez suddenly stopped breathing . Two officers began CPR until medics arrived and took over , and Martinez was transported by ambulance to a local hospital . At approx imately 1:41 a.m., Martinez was pronounced dead

. Kafatia was transported to the police department where he was arrested for battery resulting in death. Appellant ’ s Conf. App. pp. 50

– 51.

[7] On March 23, 2018, the Estate filed a complaint alleging that Kafati a, acting in the course and scope of his employment, “negligently or recklessly” injured Martinez, resulting in his death. The complaint states that “[a]fter [Martinez] began bleeding, neither the employee supervising and working at Metcalf House nor emplo yees of [ Oaklawn ] exercised reasonable care by providing basic first aid to [ Martinez ] or attempting to procure other medical aid or assistance. Appellant ’ s App. pp. 16

– 17. The Estate also asserts that Oaklawn is “vicariously liable for [Kafatia ’ s] actions, as well as any other employees or supervisors who failed to assist [Martinez].” Appellant ’ s App. p. 17.

[8] Specifically, the Estate allege d that Oaklawn is separately liable to Martinez for:

A. Negligently supervising Martinez ; B. Negligently supervising Kafatia ; C. Failing to provide a safe living environment for Martinez ; D. Failing to provide adequate personnel and staffing to supervise the resident s of Metcalf House ; E. Failing to provide proper training to the staff on the use of first aid and when to use first aid ;Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 5 of 24 F. Failing to properly train staff on when to call for assistance ; and
G. Failing to provide safety and protection for Martinez and the residents of Metcalf House. Appellant ’ s App. pp. 17

– 18.

[9] On May 15, 2018, Oaklawn filed its Answer and Affirmative Defenses , stating in relevant part that “[t] h is court lacks the requisite subject matter jurisdiction over this Complaint because [ the Estate ] has raised allegations of medical malpractice , but has fai led to proceed through the medical review panel
process
. ” Appellant ’ s App. p. 22. Thereafter, Oaklawn filed a Motion to Dismiss pursuant to Trial Rule 12(B)(1) on September 7, 2018.

[10] The trial court held a hearing on th e motio n on October 23, 2018. O n November 27, 2018, the trial court entered an order finding that “[w]hether the conduct of [Oaklawn] and/or [ Kafatia] was negligent , or the exercise of professional judgment compromised, the conduct alleged is not ‘ unrelated to the promotion of a patie nt ’ s health or the provider ’ s exercise of professional expertise, skill, or judgment. ’ ” Appellant ’ s App. p. 15 ( citation omitted ).
T he refore, the trial court determined that the Estate ’ s claims f e ll under the Act and granted Oaklawn ’ s motion to dismiss. Id

. The Estate now appeals.


### Standard of Review

[11] The standard of review on an appeal of a c ase like this, which is decided under Trial Rule 12(B)(1 ) , is an unusual , but critical , component of our dec ision

making process
. A trial court ruling on a motion to dismiss for lack of subjectCourt of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 6 of 24 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 oth er evidence presented and submitted on the issue of subject matter jurisdictio n
. B.R. ex rel. Todd v. State , 1 N.E.3d 708, 71 2 (Ind. Ct. App. 2013) , trans. denied . If such evidence is presented, the trial court may weigh the evidence to resolve the jurisdi ctional issue. Id . On appeal, our standard of review depends on what occurred in the trial court, that is, whether 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 find ings 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 clearlyCourt of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 7 of 24 erroneous if it is unsupported by the factual findings or conclusions of law.

How ever, 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 pape r record.
GKN Co. v. Magness , 744 N.E.2d 397, 401 (Ind. 2001) (citations and internal quotations omitted). In this case, the trial court considered the following evidence in the record: the affidavit of Laurie Nafziger, the president and CEO of Oaklawn Psy chiatric Center, Inc., the South Bend Police Department ’ s case report, and the deposition of Lisa Johnson, Kafatia ’ s supervisor and the team leader of supervised group living at Oaklawn.

[12] The facts set forth above are undisputed. Moreover, although the tria l court held a hearing on the motion to dismiss, the hearing was simply an oral argument, as the parties presented no additional evidence and no witnesses were sworn. Accordingly, we apply a de novo standard of review based on the paper record before us. S ee B.R. ex rel. Todd , 1 N.E.3d at 71 3 (applying de novo standard where trial court held hearing at which parties made legal arguments and did not present evidence) ( citation omitted).Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 8 of 24 

### Discussion and Decision

[13] 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

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- 1; Terry v. Cmty. Health Network, Inc. , 17 N.E.3d 389, 393 (Ind. Ct. App. 2014). However, Indiana Code section 34

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- 4 crea t es a condition precedent to t rying a medical malpractice case in court, namely, t hat “an action against a health care provider may not be commenced in a court in Indiana before: (1) the claimant ’ s proposed complaint has bee n 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 (“ S imply said, the Act grants subject matter jurisdiction over medical malpractice actions first to the medical review panel, and then to the trial court.”).

[14] We further observe that “ ‘ the statutory procedures for bringing a m edical 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.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 9 of 24 [15] A s 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

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- 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 malpra ctice on the part of a health care provider.” I.C. § 34

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- 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 behalf of a patient during the pati ent ’ s medical care, treatment, or confinement.” I.C. § 34

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- 13.

Id

.

[16] “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)). Indiana Code section
34

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An individual, a partnership, a limited liability company, a corporation, a professional corporation, a facility, or an institution licensed or legally authorized by this state to provide health care or professional services as a physician , psychiatric hospital, hospital, health facility, emergency ambulance service [] , dentist, registered or licensed practical nurse, physician assistant, certified nurse midwife, anesthesiologist assistant, optometrist, podiatrist, chiropractor, physical th erapist,Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 10 of 24 respiratory care practitioner, occupational therapist, psychologist, paramedic, advanced emergency medical technician, or emergency medical technician, or a person who is an officer, employee, or agent of the individual, partnership, corporation, professional corporation, facility, or institution acting in the course and scope of the person ’ s employment.

***
A corporation, limited liability company, partnership, or professional corporation not otherwise qualified under this section that: (A) as one (1) of its functions, provides health care; (B) is organized or registered under state law; and (C) is determined to be eligible for coverage as a health care provider under this article for its health care function. Coverage for a health care provider qualified under this subdivision is limited to its health care functions and does not extend to other causes of action. The parties agree that Kafatia was an employee of Oaklawn, a “health care provider,” and when the incident occurred, Kafatia was acting with in the scope of his employment.

[17] 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. Terry, 17 N.E.3d at 393. The fact that the al leged misconduct occur red in a healthcare facility, or that the injured party was a patient at the facility, ha s not been dispositive in determining whether the claimCourt of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 11 of 24 sounds in medical malpractice. Id. (citing Madison Ctr., Inc. v. R.R.K ., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006) , trans. denied ). Instead, we consider 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 or dinary 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) , trans. denied

. Thu s, we have held that the 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) , trans. denied

.

[18] 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). M ore recent decisions of this court have offered the following distinction when facing the issue of whether a claim falls within the purview of the Act:
A case sounds in ordinary negligence [rather than medical negligence] where the factual issues are capab le 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 natur e of the patient

health care provider relationship.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 12 of 24 West , 23 N.E.3d at 727 (quoting Terry , 17 N.E.3d at 393 ) (brackets in original); accord B.R. ex rel. Todd , 1 N.E.3d at 714

– 15.

[19] Since the se cases, however, our s upreme c ourt has handed down its decision in Cox v. Evansville Police Department , et al ., 107 N.E.3d 453 (Ind. 2018) . In Cox and Babi Beyer v. City of Fort Wayne , which were consolidated on appeal , the court was faced with illegal and sexually abusive conduct by two on duty police officers in uniform , each of whom raped a wom an who w as in the respective officer ’ s custody

. Both officers ’ employer s claimed that the horr id conduct in question was far outside the scope o f the of ficers ’ respective employment as law enforcement officers and thereby outside the scope of the doctrine of respondeat superior , under which the employer can be held liable for an employee ’ s actions.

[20] Our supreme court disagreed . The court observed that “the scope of employment encompasses the activities that the employer delegates to employees or authorizes em ployees to do, plus employees ’ acts that naturally or predictably arise from those activities.” Id . at 461. Moreover, the scope of employment may i nclude unauthorized acts, forbidden acts, acts that violate an employer ’ s instructions, acts that breach the employee ’ s professional duty, or acts that are malicious or criminal. Id

. The scope of employment extends beyond [an employer ’ s] authorized acts fo r two key reasons. First, it is equitable to hold people responsible for some harms arising from activities that benefit them. When employees carry out assigned duties, those employment activities “further the employer ’ s business” to an appreciable extent, benefiting the employer. But delegatingCourt of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 13 of 24 employment activities also carries an inherent risk that those activities will naturally or predictably give rise to injurious conduct. When that happens, the employer is justly held accountable since the risk accom panies the employer ’ s benefit.
Second, holding employers liable for those injurious acts helps prevent recurrence. Employers can take measures

— like selecting employees carefully and instituting procedures that lessen employment dangers

— to reduce the likel ihood of tortious conduct. Since employers have some control over the risk of injurious conduct flowing from employment activities, imposing liability on employers for that conduct encourages them to take preventive action.
To be clear, the focus in deter mining the scope of employment “must be on how the employment relates to the context in which the commission of the wrongful act arose.” When tortious acts are so closely associated with the employment that they arise naturally or predictably from the acti vities an employee was hired or authorized to do, they are within the scope of employment, making the employer liable. But tortious acts are not within the scope of employment when they flow from a course of conduct that is independent of activities that s erve the employer.

Id . at 461

– 63 (internal citations omitted). Ultimately, t he court concluded that criminal conduct that violates an employee ’ s official duties or his or her employer ’ s express orders may nevertheless be within the scope of employment if “the tortious act arose naturally or predictably from the employment context.” Id

. at 463

– 64.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 14 of 24 [21] Considering the n uances of all of the Indiana cases in this area t o gether with our supreme court ’ s recent direction in Co x , we believe that t he current test under Trial Rule 12(B)(1) as to whether the Medical Malpractice A ct applies to specific mis conduct is to determine whether th at misconduct arises naturally o r predictably from t he relationship between the health care provider and patient or f rom an opportunity provided by that relation ship

. It is further important to realize that , under Cox , s uch conduct may include otherwise tortious or abusive conduct

.

[22] If this standard is not met , or if the misconduct is a pure question of premises liabil ity, then standard negligence law applies . We now apply this test to the facts and circumstances of this case.



### I. The Estate ’ s Arguments
[23] The Estate argues that the trial court erred when it granted Oaklawn ’ s motion to dismiss for two reasons. “[F]irst, kicking Mar tinez was unrelated to the promotion of his health or medical wellbeing, and second, any tangential connection to enforcing quiet hours does not require any medical judgment, skill, or expertise.” Appellant ’ s Br. at 13. Further, the Estate argues that its “allegations amount to Oaklawn ’ s failure as the premises owner of Metcalf House to provide its business invitees (residents and guests) with a reasonably safe environment.” Id . at 17. Finally, the Estate emphasizes that Martinez was voluntarily housed at t he facility and objects to Oaklawn ’ s characterization that Martinez was confined to Metcalf House. Reply Br. at 5.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 15 of 24 [24] T he Estate cites B.R. ex rel. Todd v. State in support of its argument that its claims sound in negligence because the “actions of Oaklawn and its employee did not require a healthcare professional to use their expertise, skill, or judgment.” Appellant ’ s Br. at 15. In that case, a three

- year - old child, who was placed in therapeutic foster care, ran from the therapeutic foster parents ’ home to an adjacent property where a swimming pool was located. The child nearly drowned in the pool and suffered catastrophic brain damage as a result. B.R. ex rel. Todd , 1 N.E.3d at 711.

[25] B.R., by his next friend, filed a complaint against the mental hea lth center that had contracted with DCS to facilitate therapeutic foster care placements. The trial court granted the health center ’ s motion to dismiss the complaint under Trial Rule 12(B)(1) after concluding that the claims fell under the Medical Malpract ice Act. Id . at 712.

[26] On appeal, B.R. claimed that the health center ’ s decision concerning placement with and dissemination of information about his specific needs to his therapeutic foster parents fell under the practice of foster care management, and

not health care. Id . at 715. B.R. argued that because a health care professional was not required to participate in his placement with his therapeutic foster parents, the health center ’ s professional services did not constitute health care. Id

. We agreed and n oted that therapeutic foster care placements are often made by individuals with no health care training.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 16 of 24 [27] We also agreed that a medical review panel “is no more equipped to consider” the health center ’ s negligence than the average juror. Id . at 716. Our co urt discussed the General Assembly ’ s purpose for requiring medical malpractice claims to be reviewed by a medical review panel:

The text of the Act itself thus leads one to conclude that the General Assembly intended to exclude from the legislation ’ s purvi ew conduct of a provider unrelated to the promotion of a patient ’ s health or the provider ’ s exercise of professional expertise, skill or judgment.

* * *
The legislature ’ s establishment of a medical review panel, the sole purpose of which is to provide an e xpert determination on the question of whether a provider complied with the appropriate standard of care, suggests that the scope of the Act is likewise confined to actions premised upon the exercise of profession [ al ] judgment.

Id . (quoting Collins v. Thak kar , 552 N.E.2d 507, 510

– 11 (Ind. Ct. App. 1990), trans. denied ). We concluded that the case manager ’ s alleged negligence was unquestionably within the understanding of the average lay juror. Id . And “[a] medical professional is no better equipped than the average juror to consider whether the case manager complied with the appropriate standard of care.” Id

. Therefore, we held that B.R. ’ s claims sounded in general negligence, and the trial court erred when it granted the health center ’ s motion to dismiss. Id

. at 717.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 17 of 24 [28] The Estate also directs our attention to OB

- GYN Associates of Northern Indiana , P.C. v. Ra nsbottom , 885 N.E.2d 734 (Ind. Ct. App. 2008 ), trans. denied

. In that
case, w e concluded that cosmetic laser hair removal was not health care because “physicians were not involved in Ransbottom ’ s treatment, and the operator of the laser machine was not req uired to be a healthcare worker or possess healthcare credentials such as medical degrees, medical licensure, or medical certification in order to operate the machine.” Id. at 739. We also stated:
[T]his treatment can be, and often is, legally administered in beauty salons by beauty salon employees. With this in mind, it appears that, but for the fact that the laser machine ’ s operator happened to be a registered nurse and the laser machine happened to be located in a medical facility, there would be no ques tion but that Ransbottom ’ s laser hair removal treatment did not constitute health care. Again, so far as we can tell, Ransbottom could have legally obtained the same treatment somewhere other than a healthcare facility, and could have legally done so witho ut the assistance or participation of someone with valid healthcare licensing or certification credentials. In those respects, the laser hair removal treatment is analogous to tattooing or tanning, both of which alter the body for cosmetic purposes, but ne ither of which need be performed by a licensed or certified physician or healthcare professional.

Id

.

[29] In support of this conclusion, we emphasized the fact that “no healthcare professional was required to” participate in the laser hair removal treatment. Id

. at 740. See also Community Hosp. v. Avant , 790 N.E.2d 585, 587 (Ind. Ct. App.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 18 of 24 2003) (holding that although the plaintiff was involved in a fitness program at a facility owned by the hospital with a trainer employed by the hospital, the plaintiff was no t a “patient” as that term is used in the Medical Malpractice Act because he was not under a physician ’ s orders to start the program as part of a medical treatment plan).

[30] The Estate also relies on Doe by Roe v. Madison Center Hospital , 652 N.E.2d 101 (Ind. Ct. App. 1995). In that case, a minor child, who was a patient of a psychiatric center, was sexually assaulted and molested by a mental health counselor/orderly. The trial court dismissed the child ’ s intentional tort claims for lack of subject matter jurisdiction , and our court reversed after concluding that the claims did not fall within the purview of the Act. Specifically, our court concluded:

Doe ’ s allegations, that [employee] King coerced Jane Doe, a minor, to engage in sexual intercourse causing her to contract a venereal disease, do not constitute a rendition of health care or professional services. The alleged acts, although occurring during Jane Doe ’ s confinement in the Hospital for psychiatric care and treatment, were not designed to promote her health. Neither do they call into question King ’ s use of skill or expertise as a health care provider.

Id . at 104 (internal citation omitted). Furthermore, our court observed that the child and the counselor did not have a therapist

- patient relationshi p.

[31] Relying on those cases , t he Estate argues that Kafatia is not a licensed hea lthcare professional but simply a “resident assistant , ” and no professionalCourt of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 19 of 24 expertise, skill, or judgment was involved in Kafatia ’ s enforcement of Metcalf
House ’ s curfew rule. Appellant ’ s Br. at 16. According to Kafatia ’ s supervisor there was “only so much you can do” when someone refuse s to go to bed. Appellant ’ s Conf. App

. pp. 87

– 88. And in that situation, a resident assistant is supposed to prompt the resident to go to bed an d remind them of the rules. If that is ineffective, the resident assistant is supposed to refer the situation to his or her supervisor. Id . For these reasons, the Estate argues that Oaklawn ’ s liability arises not under the Medical Malpractice Act, but from “its duty to exercise reasonable care for the safety of its invitees under a premises liability theory” as set forth in its complaint. Appellant ’ s Br. at 17.



### II. Oaklawn ’ s Response
[32] Oaklawn contends that the Estate ’ s complaint sounds in medical malpractice because Martinez ’ s “injury occurred while an employee of a psychiatric group home was acti ng within the scope and course of his employment in enforcing the rules of the psychiatric facility.” Appellee ’ s Br. at 10. Further, the Oaklawn

e mployee ’ s actions necessary to enforce the terms and conditions of a resident patient ’ s confinement in the facility require d medical knowledge. Therefore, the
Estate ’ s claims fall under the Act.

[33] Oaklawn relies on Putnam County Hospital v. Sells , 619 N.E.2d 968 (Ind. Ct. App. 1993). In that case, Sells, while under the effects of anesthesia administered during a tonsillectomy, fell from the bed in her recovery room because the bed railings were not in the upright position. On appeal, our court concluded that Sells ’ s complaint raised a claim for medical malpractice.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 20 of 24 [34] Importantly, Sells alleged that the hospital was “negligent in failing to properly train and supervise its staff members with regard to the proper procedure for monitoring patients in the recovery room following surgery.” Id. at 971 (record citation omitted). Sells also alleged that the hospital was negligent by failing to properly monitor her in the recovery room, failing to e nsure she did not injur e herself while under anesthesia, and failing to e n sure that the railings were in place on her recovery room bed. Id . We observed that the allegations in the case did not involve faulty premises or equipment. Rather, Sells alleged that the hospital made negligent health care decisions while she was under general anesthesia recovering from a surgical procedure. Id . For these reasons, we concluded that Sells ’ s complaint fell “squarely within the scope of the Act.” Id

.

[35] Oaklawn argues t hat like Sells , the Estate has alleged that Oaklawn negligently supervised Martinez and Kafatia , and that Oaklawn “failed to provide the proper training and monitoring of its staff during Mr. Martinez ’ s confinement in Metcalf House.” Appellee ’ s Br. at 16. Oaklawn observes that as a resident assistant, Kafatia was trained to assist Martinez “with his treatment plan for skill training to lead Mr. Martinez to be ready to move out of the psychiatric group home and into his own apartment.” Id .; see also id . at 1 7 (arguing that Kafatia “was attempting to provide care” for Martinez because he was “promoting structure and regularity for a mentally ill patient in a salutary environment”).Court of Appeals of Indiana | Opinion 18A

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### III. Cases Involving a Third Party are Distinguishable from Cases Falling Under the Act
[36] Th e parties rely on the following cases, which are easily distinguishable from th is case because they involve injuries directly caused by third parties. They are briefly discussed below . We consider them because they have been cited by one or both of t he parties.

[37] Oaklawn argues that the facts of this case are analogous to Ogle v. St. John ’ s Hickey Memorial Hosp ., 473 N.E.2d 1055 (Ind. Ct. App. 1985) , trans. denied

. In that case, Ogle, a patient committed to the psychiatric ward of the hospital, was raped by another patient during her commitment. Ogle sued the hospital and alleged that it failed to provide proper security and failed to protect her. The trial court dismissed Ogle ’ s complaint on the hospital ’ s motion because she failed to file a propose d complaint with the medical review panel.

[38] Our court affirmed the trial court after concluding that Ogle ’ s claims fit the definition of health care. Specifically,
[s] he alleges an act (the providing of protection), which should have been performed (“negli gently failed to provide....”), by a health care provider (St. John ’ s), for a patient (Ogle), during the patient ’ s confinement (Ogle ’ s confinement in the psychiatric ward because of her suicidal tendency). The providing or not providing of suitable confine ment for such a patient can hardly be classed as anything other than a professional judgment based on medical knowledge under the terms of the Act as written . This is true even though the harm experienced was not another attempt at self

destruction. Proper limitations on exposure of a mentally ill patient to the public or to other patients is necessarily a medicalCourt of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 22 of 24 judgment. The legislature expressly recognized that proper confinement is an act of medical care as it drafted the Health Care Definition section to encompass acts occurring during “the patient ’ s medical care, treatment or confinement.”

Id . at 105 8

– 5 9 (emphasis added)

. The emphasized language supports Oaklawn ’ s arguments in this case. However, the facts of the Ogle case are distinguishable from th ose in this appeal because they involve the actions of a third

- party

.
[39] In Madison Center, Inc. v. R.R.K., et al ., 853 N.E.2d 1286 (Ind. Ct. App. 2006), trans. denied , R.R.K, a seventeen

- year - old inpatient resident of Madison Center, a psychiatric hospital, was being disciplined for his behavior. Another inpatient resident was standing nearby and refused to leave. When R.R.K. and the other resident began arguing, hospital staff restrained R.R.K., but not the other resident. The resident then ran up to R.R.K. and kicked him in the face causing significant injury. Once again, R,R.K

. ’ s injuries were proximately cause d by a third party

.

[40] Our court agreed with the trial court that R.R.K. ’ s complaint alleged a premises liability claim not governed by the Medical Malpractice Act. We observed that

R.R.K. ’ s injuries were not caused by any services which the Center as the health care provider provided or failed to provide to him as a patient. Rather, they were caused by another resident whom the Center failed to medicate, restrain, or confine. As such, they arise not from the Center ’ s medical treatment of R.R.K., but from his presence on the Center ’ s premises. Indeed, a visitor upon the premise s could have as easily sustained R.R.K. ’ s injuries.Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 23 of 24 Id. at 1288.

[41] Furthermore, we observed that “t he Center ’ s failure to properly medicate, restrain, or confine the resident who struck and injured R.R.K. may have constituted malpractice as to that resident , but not to third parties with whom the resident may have come into contact. ” Id. at 1289. “ The duty the Center owed to R.R.K. to prevent his being subject to attack by one of the other patients was the same as the duty owed to any invitee upon the premis es. It did not arise from R.R.K. ’ s medical treatment, but from his presence on the premises. ” Id

.

[42] In so concluding, another panel of our court relied on our supreme court ’ s opinion in Webb v. Jarvis , 575 N.E.2d 992, (Ind. 1991), 3 which also involved an

as sault by a third party that the court concluded sounded in negligence. The
R.R.K. panel also explicitly disagreed with this court ’ s earlier Ogle decision, which we noted was also decided before our supreme court decided Webb

. R.R.K ., 852 N.E.2d at 1289.


### Co ncl u sion

[43] The undisputed record establishes that Oaklawn is a healthcare provider and Kafatia is, and wa s a t the time of the incident at issue in this case , its employee

.

3 In Webb , the plaintiff, who was a shooting victim, sued the physician who prescribed anabolic steroids for the third

- party contending that, by doing so, the physician committed malpractice. 57 5 N.E.2d at 992 , disapproved by Goodwin v. Yeakle ’ s Sports Bar & Grill, Inc. , 62 N.E.3d 384, 391 (Ind. 2016).Court of Appeals of Indiana | Opinion 18A

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- 2883 | July 12, 2019 Page 24 of 24 Martinez was , whether voluntarily or otherwise, Oaklawn ’ s patient in Metcalf
House

. In that setting, Kafatia ’ s attempt to enforce Martinez ’ s curfew was a part of Oaklawn ’ s provision of healthcare to Martin ez. When the altercation occurred that injured Martinez, Kafatia was naturally responding to Martinez ’ s physically aggressive be havior by defending himself

. Kafatia thereafter followed Oaklawn ’ s protocol by remov ing himself from Martinez ’ s immediate physical presence and waiting for law enforcement to assist with Martinez. These facts and circumstances, together with the broadened scope of employment set forth in Cox , place the incident and injuries squarely within the scope of the Medical Malpractice Act

.

[44] We therefore affirm the trial court in all respects.

Robb, J., and Altice, J., concur.