Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                        May 28 2013, 9:42 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

BRIAN D. LARSON                                      STEPHEN M. BRANDENBURG
Law Offices of Charles P. Dargo, P.C.                Johnson & Bell, Ltd.
Demotte, Indiana                                     Chicago, Illinois

                                                     SHARON L. STANZIONE
                                                     Johnson & Bell, Ltd.
                                                     Crown Point, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DENNIS POWELL and BARBARA POWELL,                    )
                                                     )
        Appellants-Defendants,                       )
                                                     )
               vs.                                   )     No. 64A03-1210-CT-413
                                                     )
PORTER HOSPITAL, LLC d/b/a                           )
PORTER HOSPITAL,                                     )
                                                     )
        Appellee-Plaintiff.                          )

                      APPEAL FROM THE PORTER SUPERIOR COURT
                           The Honorable Mary R. Harper, Judge
                             Cause No. 64D01-1011-CT-11564


                                            May 28, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                         Case Summary

       Dennis and Barbara Powell appeal the trial court’s dismissal of their complaint

against Porter Hospital, LLC, d/b/a/ Porter Hospital (“Hospital”).               We reverse and

remand.

                                               Issue

       The Powells raise two issues, which we consolidate and restate as whether the

Powells’ claim falls under the Medical Malpractice Act (“the Act”).

                                               Facts

       On June 23, 2009, Dennis was a patient at the Hospital when he slipped and fell on

water or another liquid in the hallway outside of the shower area. On October 27, 2010,

the Powells filed a premises liability complaint against the Hospital.1 The Hospital filed

an answer alleging that it was not the proximate cause of Dennis’s injuries, that his

injuries were caused by his own negligence, and that the danger was open and obvious.

       On May 31, 2012, the Hospital filed a motion to dismiss without prejudice for lack

of jurisdiction.    The Hospital argued that Dennis was a “high fall risk” patient.

Appellee’s App. p. 4.        According to the Hospital, Dennis’s medical condition and

treatment at the time of the fall would be part of the negligence claim and, therefore, the

matter must be reviewed by a medical review panel under the Medical Malpractice Act.

In support of its motion, the Hospital submitted the following exhibits: (1) the Powells’

complaint; (2) an “Event Detail Summary”; (3) its answers to the Powells’

1
  Community Health Systems Professional Services Corp. was also a defendant in the action, but it was
later dismissed. Count II of the complaint alleged a loss of consortium claim.


                                                 2
interrogatories; (4) its answer to the Powells’ complaint; (5) an affidavit regarding the

Hospital’s status as a qualified healthcare provider; and (6) a portion of Dennis’s

deposition.

       The Event Detail Summary noted that Dennis was admitted for a left calf

hematoma and cellulitis and states:

              [P]atient requested to take a shower as ordered, nurse
              informed patient to wait in room, will return with towels and
              escort to shower. [P]atient found on the floor near the linen
              room stating that he fell because of water on floor in shower
              room. . . . . [P]atient was then informed to stay in bed for
              now and ask for assistance when getting up. [P]atient refused
              suggestion, states that he is going to shower anyway.

Id. at 21. One of the interrogatory answers provided:

              Mr. Powell requested to take a shower and the nurse
              instructed him to wait until she returned with towels.
              However, he refused to comply with her request and
              proceeded to the shower without assistance. Mr. Powell
              knew that he had problems walking due to the cellulitis and
              hematoma on his leg, but decided to ignore this risk and
              shower without assistance. Moreover, a reasonable person
              would infer that the area near a shower room could have
              slick, wet floors. Mr. Powell accepted this risk and proceeded
              to the shower area without assistance. If Mr. Powell had
              appropriately followed the nurse’s instructions, the accident
              would not have happened.

Id. at 30.    The interrogatories were completed by Gerard Kalbfell, director of the

Hospital’s risk management department. Dennis’s deposition provided that he was never

told to ask for assistance before getting up or walking around and that he did not need

assistance.




                                            3
      The Powells responded to the motion to dismiss by arguing that their claim was a

premises liability claim, not a claim that related to Dennis’s medical care. The Powells

presented Dennis’s deposition testimony in which he testified that he was never

instructed to ask for assistance when getting up and that he slipped on a puddle of water

in the hallway. They also argued that there was no evidence Dennis was a high fall risk

patient. The Powells also contended that the Event Detail Summary and interrogatory

answers were inadmissible hearsay and should have been excluded from consideration.

      The trial court granted the motion to dismiss. The trial court entered findings of

fact and conclusions thereon as follows:

                                      FINDINGS

             1.     Mr. Powell was a patient at Porter Hospital on June 23,
                    2009. The shower available to Mr. Powell was located
                    down the hall from his hospital room. When he
                    wanted to take a shower, Mr. Powell did not call the
                    nursing staff for assistance but walked down the
                    hallway by himself and subsequently slipped and fell
                    on a puddle of water near the shower.

             2.     The parties are in dispute regarding many of the
                    important facts of this case. The Plaintiff claims Mr.
                    Powell had not been instructed to wait for assistance
                    before showering, nor had he been deemed a “high fall
                    risk” prior to the fall. The Defendant contends that
                    Mr. Powell had indeed been instructed by the nurses to
                    wait for assistance before walking to the shower
                    because he had been deemed a “high fall risk” based
                    on a large hematoma on his leg and a weak gait.

                                           *****

                              CONCLUSIONS OF LAW

                                           *****

                                             4
                    In their complaint, Plaintiffs allege that the Act does
             not apply because Mr. Powell’s fall resulted from
             Defendant’s failure to maintain hospital premises in a
             reasonably safe manner, rather than from medical
             “malpractice.” However, the Defendant contends that the
             allegations made by Plaintiffs do fall within the definition of
             “malpractice” because the parties are in dispute over facts
             specifically related to Mr. Powell’s medical treatment. The
             Court has weighed the evidence and resolved these factual
             disputes to determine its jurisdiction.

                                        *****

                    [T]he Court finds that in this case there was “a causal
             connection between the conduct and the nature of the patient
             and healthcare provider relationship.” Ob-Gyn Assocs. of N.
             Ind., P.C. v. Ransbottom, 885 N.E.2d 734, 738 (Ind. Ct. App.
             2008).     Although floor cleaning may not involve the
             professional skill of a healthcare provider, requiring that an
             admitted patient be assisted when walking based on his
             medical condition, and then failing to assist that patient when
             he walks in an area where water is likely to be on the floor,
             does implicate professional skill. The causal connection
             between Mr. Powell’s injury and nature of the relationship
             with Porter Hospital lies in question of whether hospital staff
             failed to assist Mr. Powell in accordance with a medical
             recommendation at the time of the injury. Because Mr.
             Powell was being treated for leg related circulatory issues, his
             ability to walk may have been the subject of a medical
             recommendation, this case falls within the realm of medical
             malpractice.

Appellant’s App. pp. 5-8.

      Regarding the admissibility of the Hospital’s exhibits, the trial court found:

                    The Defendant submitted exhibits to support Porter
             Hospital’s assertion that Mr. Powell was deemed a “high fall
             risk” and instructed not to walk without assistance. The
             Plaintiffs argue that the assertions contained in those exhibits
             are inadmissible hearsay as defined by Ind. R. Evid. 801(c).
             However, the evidence was not submitted by the Defendant to

                                            5
               prove that Mr. Powell was deemed a “high fall risk” and
               instructed not to walk without assistance, but was submitted
               to demonstrate that this dispute involves a question of proper
               medical treatment. When submitted for this purpose, the
               Exhibits do not contain inadmissible hearsay. Ind. R. Evid.
               801(c).

Id. at 9-10. The trial court dismissed the complaint without prejudice. The Powells now

appeal.

                                         Analysis

       The Powells argue that the trial court erred when it determined that the Act is

applicable to their claim rather than general premises liability principles. The Hospital

claims that the trial court correctly determined that the Powells’ complaint alleges

medical malpractice and must be presented to a medical review panel. “Before a medical

malpractice action may be commenced in any court of this state, the Medical Malpractice

Act requires that a proposed complaint be presented to a medical review panel and an

opinion rendered by the panel.” H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 853

(Ind. Ct. App. 2008) (citing Ind. Code § 34-18-8-4). “Essentially, the Act grants subject

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

then to the trial court.” Id.

       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. GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind. 2001). In

addition, the trial court may weigh the evidence to determine the existence of the

requisite jurisdictional facts. Id.


                                             6
       If the facts before the trial court are not in dispute, then the question of subject

matter jurisdiction is purely one of law. Id. 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.” Id. (quoting Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000)).

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. Id.

       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.              Id.   Under those

circumstances, the court typically engages in its classic fact-finding function, often

evaluating the character and credibility of witnesses. Id. Where a trial court conducts an

evidentiary hearing, we give its factual findings and judgment deference. Id. 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.” Id. (quoting MHC Surgical Ctr. Assocs., Inc. v. State Office of Medicaid

Policy & Planning, 699 N.E.2d 306, 308 (Ind. Ct. App. 1998)). 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. Id. The facts here were disputed and the trial

court ruled on a paper record. Thus, we conduct a de novo review of the trial court’s

judgment.

                                              7
          The Act, Indiana Code Article 34-18, applies to a patient or the representative of a

patient who has a claim “for bodily injury or death on account of malpractice . . . .” Ind.

Code § 34-18-8-1. “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. Further, “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.

          Indiana Code Section 34-18-8-4 provides that “an action against a health care

provider may not be commenced in a court in Indiana before: (1) the claimant’s proposed

complaint has been presented to a medical review panel established under IC 34-18-10

(or IC 27-12-10 before its repeal); and (2) an opinion is given by the panel.” Thus,

whether the Powells’ claim must first be submitted to a medical review panel is the issue

here.

          According to the Hospital, the Powells’ claim necessarily will include

consideration of the care the nurses provided for him, including whether they ensured that

the shower area was appropriately prepared and whether the nurses ordered him not to

shower by himself. Dennis counters that his complaint did not allege inappropriate care

by the nurses. Rather, Dennis argues that his claim is merely a premises liability claim

based on the water in the hallway.2


2
    The Restatement (Second) of Torts § 343 (1965), provides:


                                                     8
       We have observed that the Act “pertains to curative or salutary conduct of a health

care provider acting within his or her professional capacity[.]” OB-GYN Associates of

N. Indiana, P.C. v. Ransbottom, 885 N.E.2d 734, 738 (Ind. Ct. App. 2008) (quoting

Murphy v. Mortell, 684 N.E.2d 1185, 1188 (Ind. Ct. App. 2008), trans. denied), trans.

denied. The Act is designed to exclude conduct that is not related to “the promotion of a

patient’s health or the provider’s exercise of professional expertise, skill, or judgment.”

Id. “[T]he fact that conduct occurs in a health care facility cannot, by itself, transmute

the conduct into the rendition of health care or professional services.” Id. “Although the

location of the occurrence is indeed one factor to consider in deciding whether it falls

within the purview of the Medical Malpractice Act, it is not determinative.” Id. “There

must be more; there must be a causal connection between the conduct and the nature of

the patient and healthcare provider relationship.” Id. at 738-39.                 “ʻThe Act is not all-

inclusive as to claims against medical providers, and a claim against a medical provider

sounding in general negligence . . . rather than medical malpractice is outside the Act.’”

Id. at 740 (quoting Peters v. Cummins Mental Health, Inc., 790 N.E.2d 572, 576 (Ind. Ct.

App. 2003), trans. denied).

               A possessor of land is subject to liability for physical harm caused to his
               invitees by a condition on the land if, but only if, he

               (a) knows or by exercise of reasonable care would discover the
               condition, and should realize that it involves an unreasonable risk of
               harm to such invitees, and

               (b) should expect that they will not discover or realize the danger, or will
               fail to protect themselves against it, and

               (c) fails to exercise reasonable care to protect them against the danger.

Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind. Ct. App. 2012).
                                                    9
       We find Winona Memorial Foundation of Indianapolis v. Lomax, 465 N.E.2d 731

(Ind. Ct. App. 1984), instructive. There, Lomax was receiving physical therapy at the

Winona hospital. Upon her arrival, she was instructed to change clothes in the dressing

room. While walking from the dressing room to the pool area, she tripped and fell on a

protruding floorboard. Winona filed a motion for summary judgment, alleging that the

Act applied, but the trial court denied the motion.

       On appeal, we noted that “the conditions that were the impetus for the legislature’s

enactment of the Medical Malpractice Act had nothing to do with the sort of liability any

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

maintenance of the provider’s business premises.”        Lomax, 465 N.E.2d at 739.        A

medical review panel has the duty of expressing its expert opinion on whether the

defendant acted within the appropriate standard of care. Id. at 740. However, “the

maintenance of reasonably safe premises are within the common knowledge and

experience of the average person” and “[h]ealth care providers, who must make up the

medical review panel . . . , are no more qualified as experts on such matters than the

average juror.” Id.

       We further noted that Lomax’s complaint alleged only premises liability and did

not make allegations that would implicate the Act. Further, at the time of her fall, Lomax

was unattended by any Winona employees and she was not receiving care or treatment at

that time. We concluded that “[a] premises liability claim by a patient against a health

care provider . . . is not within the coverage of the Medical Malpractice Act.” Id. at 742.

Consequently, the trial court properly denied Winona’s motion for summary judgment.

                                             10
        Here, although Dennis’s slip and fall occurred at the Hospital, that fact is not

determinative.      As in Lomax, the Powells’ complaint does not allege any medical

malpractice by the Hospital or its staff. The Powells do deny that Dennis was told not to

leave his bed, but they make no argument that a failure to do so was a breach of the

medical standard of care or the cause of his injury. Rather, the Powells’ complaint

alleges only a premises liability claim.            Further, Dennis was not receiving care or

treatment at the time of his fall. He was merely walking to the shower room and slipped

on a liquid in the hallway. The Hospital makes much of describing Dennis as a “high fall

risk” patient because of his leg injury and its claim that nurses told him to wait in bed.3

Those facts might be relevant to a determination regarding Dennis’s comparative fault,

but those facts do not establish as a matter of law that the Act applies. We conclude that,

as in Lomax, the Act is inapplicable here. Rather, the Powells’ complaint makes a

premises liability claim against the Hospital. As a result, the trial court erred by granting

the Hospital’s motion to dismiss.

                                             Conclusion

        The trial court erred by concluding that the Act governed the Powells’ claim.

Consequently, the trial court erred by granting the Hospital’s motion to dismiss. We

reverse and remand for proceedings consistent with this opinion.

        Reversed and remanded.

NAJAM, J., and BAILEY, J., concur.

3
  The Powells’ argue the trial court erred when it failed to exclude the Hospital’s allegedly inadmissible
exhibits. We need not address that argument because, even if we consider the exhibits, we conclude that
the Act does not apply to the Powells’ action against the Hospital.
                                                   11
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