Court of Appeals of Indiana | Opinion 23A-CT-345 | November 9, 2023 Page 1 of 15

ATTORNEYS FOR APPELLANT

Colby A. Barkes

Jeffrey S. Wrage

Valparaiso, Indiana

ATTORNEY FOR APPELLEE

Michael A. Sarafin

Crown Point, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Laurie Gardner,

Appellant-Plaintiff,

v.

Anonymous Physician,

Appellee-Defendant

November 9, 2023

Court of Appeals Case No.

23A-CT-345

Appeal from the Lake Superior 

Court

The Honorable Calvin Delee 

Hawkins, Judge

Trial Court Cause No.

45D02-2004-CT-417

Opinion by Chief Judge Altice

Judges May and Foley concur.

Altice, Chief Judge.

Case Summary

[1] Laurie Gardner, a nurse at St. Mary Medical Center, Inc. (the Hospital), filed a 

proposed complaint against Anonymous Physician for medical malpractice. 

Anonymous Physician sought dismissal, arguing that because he and Gardner 
Court of Appeals of Indiana | Opinion 23A-CT-345 | November 9, 2023 Page 2 of 15

were in the same employ and she sustained a workplace injury, her exclusive 

remedy was under the Worker’s Compensation Act (WCA). The trial court 

dismissed the medical malpractice action based on Ind. Trial Rule 12(B)(1) for 

lack of subject matter jurisdiction.

[2] On appeal, Gardner argues that physicians are third parties under the WCA

and thus are not shielded from claims of medical negligence brought by an 

employee of the same company. We agree that the exclusivity provision of the 

WCA does not immunize a physician from claims for medical negligence

arising from a doctor-patient relationship with the injured party, who is in the same 

employ as the physician. The exclusivity provision, however, does apply to 

claims brought against a physician that are unrelated to the physician’s medical 

treatment of a fellow employee. 

[3] Reading the proposed complaint in a light most favorable to Gardner, we 

conclude that some of her allegations of malpractice appear to have arisen out 

of a doctor-patient relationship between her and Anonymous Physician and not 

simply from their common employment at the Hospital. While Gardner may 

not proceed against Anonymous Physician based on his treatment of another 

patient or his actions as a medical director at the Hospital, she may pursue a 

medical malpractice action related to any treatment she received from 

Anonymous Physician for her workplace injury. Accordingly, the trial court 

erred in dismissing the proposed complaint.

[4] We reverse and remand.
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Facts & Procedural History

[5] On September 1, 2016, Gardner was exposed to crusted (Norwegian) scabies in 

the course and scope of her employment as a nurse at the Hospital. She 

contracted scabies from contact with a patient and then unknowingly exposed 

her family, resulting in family members contracting the skin infection.

[6] Gardner filed a worker’s compensation claim against the Hospital in March 

2018, which was settled by a compromise agreement in October 2019. In the 

meantime, on May 23, 2018, she filed a proposed complaint against 

Anonymous Physician with the Indiana Department of Insurance (the DOI). 

Gardner asserted the following negligence allegations:

7. [Anonymous Physician] failed to protect Plaintiff from 

exposure to and failed to diagnose the scabies which led to a 

delay in appropriate treatment. Said failure to diagnose caused 

Plaintiff to unknowingly expose her family to scabies which 

resulted in her family members also contracting scabies.

8. [Anonymous Physician] negligently directed Plaintiff’s care by 

failing to provide appropriate and timely treatment and for his 

failure to refer Plaintiff to medical care providers specializing in 

the treatment of the scabies condition which Plaintiff contracted 

at her place of employment.

Appendix at 27.

[7] On September 15, 2022, while the matter still pended before the DOI, 

Anonymous Physician sought a preliminary determination of law by the trial 

court that the proposed complaint should be dismissed pursuant to T.R. 
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12(B)(1) for lack of subject matter jurisdiction. Anonymous Physician argued 

that dismissal was warranted because Gardner “exhausted her sole remedy, a 

worker’s compensation claim, upon a workplace accident and subsequent 

medical care which occurred when she and [Anonymous Physician] were 

employed by subsidiaries of the same corporate parent(s).” Appendix at 13. 

[8] Among the limited exhibits provided by Anonymous Physician in support of 

his motion to dismiss was the affidavit of Nancy Moser, Vice President for 

Corporate Compliance and Quality/Risk Management for Community 

Healthcare System, which includes, among others, Community Foundation of 

Northwest Indiana, Inc. (CFNI), the Hospital, St. Catherine Hospital, Inc. 

(SCH), Munster Medical Research Foundation, Inc. (MMRF), and Community 

Care Network, Inc (CCNI). The corporate organizational structure of these 

entities is summarized by the following flow chart:

CFNI

THE HOSPITAL, MMRF & SCH

Each 100% held by CFNI

CCNI 

Equally held (1/3) by the Hospital, MMRF & SCH
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According to Moser, Anonymous Physician was at all relevant times an 

employee of CCNI1 and contracted as the Medical Director of the Hospital’s 

Infection Control and Wound Care Department. 

[9] Following briefing and oral argument on the T.R. 12(B)(1) motion, the trial 

court issued an order on January 30, 2023, dismissing Gardner’s proposed 

complaint. Gardner now appeals.

Discussion & Decision

[10] Where a party defends against a negligence claim based on the exclusivity 

provision of the WCA, the defense is properly advanced through a T.R. 

12(B)(1) motion to dismiss for lack of subject matter jurisdiction. See GKN Co. 

v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). “In ruling on a motion to dismiss 

for lack of subject matter jurisdiction, the trial court may consider not only the 

complaint and motion but also any affidavits or evidence submitted in support.” 

Id. Ultimately, the opponent of subject matter jurisdiction has the burden of 

proving the lack of jurisdiction. Curry v. D.A.L.L. Anointed, Inc., 966 N.E.2d 91, 

95 (Ind. Ct. App. 2012), trans. denied.

[11] Where jurisdictional facts are not in dispute or where they are disputed but the 

trial court ruled on a paper record without conducting an evidentiary hearing, 

we afford no deference to the trial court on appeal. GKN Co., 744 N.E.2d at 

1 CCNI is a multi-specialty medical practice group and a subsidiary of the Hospital, MMRF, and SCH.
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401. In other words, our review is de novo in these circumstances because we 

are in as good a position as the trial court to determine the existence of subject 

matter jurisdiction, and we will affirm on any legal theory the evidence of 

record supports. Id. 

[12] The WCA provides compensation to employees for accidental injuries that arise 

out of, and in the course of, employment, and its exclusive remedies provision –

Ind. Code § 22-3-2-6 – precludes a trial court from hearing a common law 

action brought by the employee for the same injuries. “It is the employeremployee relationship that defines the parameters of the immunity granted by 

the WCA’s exclusive remedy provision.” Brenner v. All Steel Carports, Inc., 122 

N.E.3d 872, 877 (Ind. Ct. App. 2019) (citing Ross v. Schubert, 388 N.E.2d 623, 

627 (Inc. Ct. App. 1979), trans. denied). Thus, the WCA does not reach beyond 

the employment relationship to benefit a third party. Id. 

[13] I.C. § 22-3-2-13 specifically addresses the right of an injured employee to pursue 

remedies in tort against a third party (as well as an employer’s rights to 

subrogation) and provides in relevant part: 

Whenever an injury or death, for which compensation is payable 

under chapters 2 through 6 of this article shall have been 

sustained under circumstances creating in some other person 

than the employer and not in the same employ a legal liability to 

pay damages in respect thereto, the injured employee, or the 

injured employee’s dependents, in case of death, may commence 

legal proceedings against the other person to recover damages 

notwithstanding the employer’s or the employer’s compensation 

insurance carrier’s payment of or liability to pay compensation 

under chapters 2 through 6 of this article.
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I.C. § 22-3-2-13(a) (emphasis supplied). “With this provision the WCA creates 

an exception to the exclusive remedy provision for actions to be brought against 

third parties, namely someone other than the employer or a fellow employee, in 

which legal liability was created by a WCA-compensable injury.” Brenner, 122 

N.E.3d at 877; see also Walls v. Markley Enterprises, Inc., 116 N.E.3d 479, 483 

(Ind. Ct. App. 2018) (“Although the [WCA] bars a court from hearing any 

common law claim brought against an employer for an on-the-job injury, it 

does permit an action for injury against a third-party tortfeasor provided the 

third-party is neither the plaintiff’s employer nor a fellow employee.”), trans. 

denied.

[14] There is no dispute in this case that Gardner’s injuries arose out of and in the 

course of her employment as a nurse at the Hospital. Indeed, she contracted 

scabies from a patient at the Hospital where both she and Anonymous 

Physician worked. Gardner, however, contends that Anonymous Physician

was an independent contractor at the Hospital by virtue of his status as a 

physician and that, therefore, he is a third party against whom she can pursue a 

medical malpractice action.

[15] Gardner acknowledges that at all relevant times Anonymous Physician was an 

employee of CCNI, a multi-specialty medical practice group, and that he

worked at the Hospital as Medical Director of Infection Control and Wound 

Care. Further, the undisputed evidence establishes that Anonymous 

Physician’s employer, CCNI, was a subsidiary of the Hospital and two other 

hospitals with the three hospitals all being wholly owned subsidiaries of CFNI. 
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[16] Relevant here, the WCA’s definition of “employer” provides:

A corporation, limited liability company, or limited liability 

partnership that controls the activities of another corporation, 

limited liability company, or limited liability partnership, or a 

corporation and a limited liability company or a corporation and 

a limited liability partnership that are commonly owned entities, 

or the controlled corporation, limited liability company, limited 

liability partnership, or commonly owned entities, and a parent 

corporation and its subsidiaries shall each be considered joint 

employers of the corporation’s, the controlled corporation’s, the 

limited liability company’s, the limited liability partnership’s, the 

commonly owned entities’, the parent’s, or the subsidiaries’

employees for purposes of IC 22-3-2-6 and IC 22-3-3-31.

I.C. § 22-3-6-1(a); see also Hall v. Dallman Contractors, LLC, 51 N.E.3d 261, 264-

66 (Ind. Ct. App. 2016) (addressing this statutory provision in the context of 

“multiple tiers of subsidiaries” and holding that the parent corporation and its 

subsidiaries – one a direct subsidiary and the other a third-tier subsidiary – were 

all joint employers under the WCA). Thus, the Hospital and CCNI were joint 

employers of Anonymous Physician for purposes of the exclusivity provision of 

the WCA. 

[17] Nonetheless, Gardner argues that Anonymous Physician cannot be considered 

to have been in the same employ as her because “as a matter of law physicians 

are independent contractors and not ‘fellow employees.’” Appellant’s Brief at 16. 

She relies on Ross v. Schubert, 388 N.E.2d 623 (Ind. Ct. App. 1979), for this 

proposition.
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[18] Ross involved a factory worker, Ross, who received medical treatment from 

physicians employed in a clinic located inside International Harvester’s plant. 

The physicians were salaried employees at the plant. Ross sued the physicians 

for damages based on alleged medical negligence that occurred during their 

treatment of him for a nonindustrial accident. At trial, the jury was instructed, 

over Ross’s objection, that if the defendant doctors were employees of 

International Harvester, then they were immune from a claim of damages based 

on malpractice. Ross appealed after receiving an adverse jury verdict.

[19] On appeal, this court held that the “fellow employee immunity provisions” of 

the WCA do not protect a company physician from a claim of medical 

negligence brought by an employee of the same company. Id. at 625 (internal 

quotations omitted). The Ross court explained:

After carefully studying the history of the [WCA] and examining 

its provisions, we are unable to discern from the Act any 

legislative design to immunize physicians from medical 

malpractice claims or to interfere with the customary physicianpatient relationship. It is our opinion that it would torture the 

Indiana legislature’s intent, as evidenced by its objectives in 

enacting the [WCA], to let the simple rubric of “in the same 

employ” insulate physicians from liability arising out of the 

performance of professional medical services.

Id. at 626. 

[20] Anonymous Physician recognizes the holding in Ross but argues that it has been 

eroded over time and should no longer be followed. This requires a close look 

at the underpinnings of Ross.
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[21] The Ross court observed that prior to the language “in the same employ” being 

added to the WCA, the Indiana Supreme Court had adopted the rule that “the 

physician, whether hired by the employer or not, is a third party within the 

contemplation of the [WCA].” Id. at 627 (quoting Seaton v. U.S. Rubber Co., 61 

N.E.2d 177, 181 (Ind. 1945)). The Ross court “d[id] not believe the legislature’s 

subsequent insertion of the words, ‘and not in the same employ’ was intended 

to abrogate the [Supreme] Court’s interpretation that the Act failed to 

immunize physicians.” Id. at 628.

[22] Additionally, the Ross court looked to cases outside the area of worker’s 

compensation law that had “consistently held that a doctor, even though 

employed by an entity, is personally liable as an independent contractor when 

he engages in the practice of medicine.” Id. at 629. Of particular note here, the 

court relied on Iterman v. Baker, 15 N.E.2d 365 (Ind. 1938), which held that 

physicians employed by a professional medical corporation were independent 

contractors and that because the corporation could not legally engage in the 

practice of medicine, it could not be held vicariously liable for the medical 

negligence of its physicians. Id. at 369-71.

[23] The holding of Iterman eroded over time with the enactment of the Professional 

Corporation Act of 1983,2 which “stands as a pronouncement of public policy 

concerning a corporation’s vicarious liability for the acts of its employee2

 Ind. Code §§ 23-1.5-1-1 to -5-2.
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physician.” Sloan v. Metro. Health Council of Indianapolis, Inc., 516 N.E.2d 1104, 

1107 (Ind. Ct. App. 1987). In Sword v. NKC Hosps., Inc., the Supreme Court 

acknowledged the demise of Iterman and that “courts no longer allow hospitals 

to use their inability to practice medicine as a shield to protect themselves from 

liability.” 714 N.E.2d 142, 149 (Ind. 1999). The Court recognized, however, 

that physicians can be either employees of a hospital or independent contractors

and held that hospitals may be subject to vicarious liability for the negligence of 

its independent contractor physicians under the theory of apparent or ostensible 

agency. Id. at 149-52; see also Sloan, 516 N.E.2d at 1109 (“We hold that where 

the usual requisites of agency or an employer-employee relationship exist, a 

corporation may be held vicariously liable for malpractice for the acts of its 

employee-physicians.).

[24] It is evident that Ross’s independent contractor rationale and reliance on Iterman

no longer has sound footing. But this was not the entire basis for the holding in 

Ross. On the contrary, the court emphasized the Supreme Court’s distinct

holding in Seaton (that is, treating physicians are third parties under the WCA, 

whether hired by the employer or not). The court then noted that when 

amending I.C. § 22-3-2-23 to include “and not in the same employ,” the 

legislature “must be deemed to have been cognizant of the court’s 

determination that physicians employed by corporations were liable as third 

parties, and in light of this knowledge, they retained the employee’s right to 

proceed against a third party” and “did not expressly or by necessary inference 

curtail[] or den[y this common law right].” Ross, 388 N.E.2d at 628. The court 
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continued: “The suggestion that the legislature intended, by this amendment, to 

include the company physician as a fellow employee of the injured industrial 

worker is a startlingly illogical concept.”3

 Id.

[25] After noting that International Harvester had no control over the manner in 

which the physicians rendered treatment to Ross, the court stated:

The liability of these physicians arose from their independent exercise of 

medical judgment, that is, it arose from their doctor-patient relationship 

with Ross and not from the employer-employee relationship which the 

Act was designed to regulate. We have not permitted physicians to 

escape liability by working for hospitals or forming medical 

corporations, and it is our opinion that the [WCA] was, likewise, never 

intended to abrogate the rights of an employee who stands in the shoes of 

a patient, from suing a doctor who treats him.

This court is not persuaded that we should sanction protection of 

company physicians while at the same time hold liable 

independent physicians who provide identical services. In either 

circumstance, the liability arises because of the individual 

doctor’s exercise of medical judgment. Where that judgment is 

exercised, i.e., upon the company’s premises as opposed to the 

physician’s private office, should not be the determinative factor 

as to whether or not an individual may bring an action for 

3

 The Ross court observed in a footnote:

The amended statute was drafted with the objective of insuring that a particular class of 

industrial accidents was covered – that at least for that class of accidents, industry owed its 

workers an obligation; therefore, if in the course of the employment relationship an employee is 

injured due to the actions of a fellow employee, IC 22-3-2-13 immunizes that fellow employee 

from liability, but the immunization is because of the type of accident involved, not because of a direct 

objective to immunize particular persons.... An injury sustained due to the malpractice of a 

physician does not come within the class of industrial accidents which the [WCA] was designed 

to encompass.

Id. at n.6 (emphasis supplied).
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medical malpractice since in both instances, the physician 

controls the manner of medical treatment. To hold otherwise 

would encourage the company physician to be less assiduous....

Clearly, forcing the wrongdoer to bear the cost of his wrong, 

rather than the industry, will have a salutary effect in that it will 

operate as an incentive for careful conduct.

We find nothing in [the WCA] which indicates the Act was 

intended to shield a physician from the legal obligations entailed 

by the doctor-patient relationship. We, therefore, hold that these 

physicians were not immune from liability by virtue of IC 22-3-2-

when they engaged in the practice of medicine.

Id. at 629-30 (emphases supplied and footnotes omitted).

4

 

[26] We do not believe that Anonymous Physician has made a good case for 

abandoning the holding of Ross, which, though battered, has remained standing

since 1979 and has not been altered by any of the multiple amendments to I.C. 

§ 22-3-2-13 since that time. Its holding, however, does not extend so far as 

Gardner attempts to employ it. Ross does not hold that a physician can never 

benefit from the WCA’s fellow employee immunity provision. It holds only 

that immunity does not apply to claims of medical negligence arising out of a 

doctor-patient relationship between the claimant and the physician. 

4

 In Tarr v. Jablonski, this court declined to extend the Ross exception to paramedics, observing that the 

essence of the exception was “the independent professional judgment which a physician must necessarily 

exercise.” 569 N.E.2d 378, 380 (Ind. Ct. App. 1991), trans. denied.
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[27] Here, Gardner’s proposed complaint plainly shows that she is seeking, at least 

in part, to impose liability on Anonymous Physician for actions unrelated to 

any doctor-patient relationship between the two of them. Gardner was exposed 

to and contracted scabies from a patient while working as a nurse at the 

Hospital. This injury was directly related to her employment relationship, and 

Anonymous Physician was not a third party while working alongside her; he 

was her coworker. Gardner’s exclusive remedy for this workplace injury was 

through the WCA, and she cannot sue Anonymous Physician for negligence 

based on him allegedly failing to timely diagnose the patient and protect 

Gardner from exposure to scabies or for his general handling of the scabies 

outbreak in his role as medical director.

[28] That said, to the extent Anonymous Physician directly engaged in a doctorpatient relationship with Gardner after her exposure and exercised independent 

medical judgment to treat her, his status then changed to that of a third party, 

making him subject to liability for any aggravation of her workplace injury 

resulting from his negligent treatment of her. While Gardner’s proposed 

complaint does not contain a positive assertion that an actual doctor-patient 

relationship existed between her and Anonymous Physician, the allegations 

suggest – sufficiently to withstand dismissal – that such a relationship existed

(namely, Gardner alleged that Anonymous Physician negligently directed her 

care, failed to provide appropriate and timely treatment, and failed to refer her 

to appropriate specialists for treatment). This matter may be fleshed out more 
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on remand, but at this early stage and on this limited record,

5 Anonymous 

Physician has failed to establish that the trial court lacked jurisdiction to hear 

this medical malpractice action.

[29] We reverse and remand for further proceedings consistent with this opinion.

May, J. and Foley, J., concur. 

5 Anonymous Physician did not present any affidavits or other evidence to show the absence of a doctorpatient relationship with Garnder related to her diagnosis and treatment for scabies.