Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019 Page 1 of 24

ATTORNEYS FOR APPELLANT

Daniel H. Pfeifer

James P. Barth

Jeffrey J. Stesiak

South Bend, Indiana

ATTORNEY FOR APPELLEE

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 Case No.

18A-CT-2883

Appeal from the St. Joseph 

Superior Court

The Honorable Jenny Pitts Manier, 

Judge

Trial Court Cause No.

71D05-1803-CT-140

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.’s 
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(“Oaklawn”) motion to dismiss under Trial Rule 12(B)(1) for lack of subject 

matter jurisdiction. Linda Martinez, as the personal 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 affirm.

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 Oaklawn2 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 

34-18-2-24.5. Appellant’s Conf. App. p. 44.

[4] Oaklawn employees at Metcalf House called “residential 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 daily 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 addictions services in St. Joseph and Elkhart Counties, Indiana. 
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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”). At approximately 12:30 

a.m. on August 3, 2017, the South Bend Police Department responded to a 

reported assault 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. Kafatia said that he walked near Martinez to turn off 

the lamp, and 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 right shin. Martinez reportedly fell 

backwards into his chair, and his shin started bleeding. Martinez then walked to 

the kitchen and called 911. Rather 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 patients

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 breathing and making 
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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 approximately 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 Kafatia, 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 employees 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 alleged 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 

residents of Metcalf House;

E. Failing to provide proper training to the staff on the use of first aid and 

when to use first aid;
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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]his court lacks the requisite subject matter jurisdiction 

over this Complaint because [the Estate] has raised allegations of medical 

malpractice, but has failed 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 the motion on October 23, 2018. On 

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

expertise, skill, or judgment.’” Appellant’s App. p. 15 (citation omitted).

Therefore, the trial court determined that the Estate’s claims fell 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 case like this, which is decided under

Trial Rule 12(B)(1), is an unusual, but critical, component of our decisionmaking process. A trial court ruling on a motion to dismiss for lack of subject 
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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 other evidence presented and submitted on 

the issue of subject matter jurisdiction. B.R. ex rel. Todd v. State, 1 N.E.3d 708, 

712 (Ind. Ct. App. 2013), trans. denied. 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 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 
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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.

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 Psychiatric 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 trial 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. See B.R. ex rel. Todd, 1 N.E.3d at 713 (applying de novo 

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

and did not present evidence) (citation omitted).
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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 § 34-18-8-1; Terry v. Cmty. Health Network, Inc., 17 

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

4 creates a condition precedent to trying a medical malpractice case in court, 

namely, 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 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 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.
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[15] 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 

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

confinement.” I.C. § 34-18-2-13.

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 

34-18-2-14 defines a “health care provider” in pertinent part as:

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 therapist, 
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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 within 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 alleged 

misconduct occurred in a healthcare facility, or that the injured party was a 

patient at the facility, has not been dispositive in determining whether the claim 
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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 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), trans. denied. Thus, 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). 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 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.
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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 these cases, however, our supreme court 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 woman who was in the respective 

officer’s custody. Both officers’ employers claimed that the horrid conduct in 

question was far outside the scope of the officers’ 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 employees to do, plus employees’ acts that naturally or 

predictably arise from those activities.” Id. at 461. Moreover, the scope of 

employment may include 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 for 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 delegating 
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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 accompanies 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 likelihood 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 determining 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 activities 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 serve the 

employer. 

Id. at 461–63 (internal citations omitted). Ultimately, the 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.
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[21] Considering the nuances of all of the Indiana cases in this area together with 

our supreme court’s recent direction in Cox, we believe that the current test

under Trial Rule 12(B)(1) as to whether the Medical Malpractice Act applies to 

specific misconduct is to determine whether that misconduct arises naturally or 

predictably from the relationship between the health care provider and patient

or from an opportunity provided by that relationship. It is further important to 

realize that, under Cox, such 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 

liability, 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 Martinez 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 the facility and objects to Oaklawn’s characterization that 

Martinez was confined to Metcalf House. Reply Br. at 5.
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[24] The 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 health 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 

Malpractice 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 noted that therapeutic foster care placements are often made 

by individuals with no health care training. 
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[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 court 

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 

purview 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 expert 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. Thakkar, 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.
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[28] The Estate also directs our attention to OB-GYN Associates of Northern Indiana,

P.C. v. Ransbottom, 885 N.E.2d 734 (Ind. Ct. App. 2008), trans. denied. In that 

case, we 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 required 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 

question 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 without 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 neither 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. 
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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 not 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 relationship. 

[31] Relying on those cases, the Estate argues that Kafatia is not a licensed 

healthcare professional but simply a “resident assistant,” and no professional 
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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 refuses 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 and 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 acting within the scope and course of his employment in enforcing 

the rules of the psychiatric facility.” Appellee’s Br. at 10. Further, the Oaklawn 

employee’s actions necessary to enforce the terms and conditions of a resident 

patient’s confinement in the facility required 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.
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[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 ensure she did not injure

herself while under anesthesia, and failing to ensure 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 that 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 17 (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-CT-2883 | July 12, 2019 Page 21 of 24

III. Cases Involving a Third Party are Distinguishable from Cases Falling 

Under the Act

[36] The parties rely on the following cases, which are easily distinguishable from 

this 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 the 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 proposed 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 (“negligently 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 confinement 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 selfdestruction. Proper limitations on exposure of a mentally ill 

patient to the public or to other patients is necessarily a medical 
Court of Appeals of Indiana | Opinion 18A-CT-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 1058–59 (emphasis added). The emphasized language supports Oaklawn’s 

arguments in this case. However, the facts of the Ogle case are distinguishable 

from those 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 caused 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 premises could have as easily sustained 

R.R.K.’s injuries.
Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019 Page 23 of 24

Id. at 1288. 

[41] Furthermore, we observed that “the 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 premises. 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 

assault 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.

Conclusion

[43] The undisputed record establishes that Oaklawn is a healthcare provider and 

Kafatia is, and was at 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. 575 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-CT-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 Martinez. When the altercation 

occurred that injured Martinez, Kafatia was naturally responding to Martinez’s 

physically aggressive behavior by defending himself. Kafatia thereafter followed 

Oaklawn’s protocol by removing 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.