                                                                                  FILED
                                                                             Jul 12 2019, 7:46 am

                                                                                  CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Daniel H. Pfeifer                                           Robert J. Palmer
      James P. Barth                                              Mishawaka, Indiana
      Jeffrey J. Stesiak
      South Bend, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Linda Martinez, as the Personal                             July 12, 2019
      Representative of the Estate of                             Court of Appeals Case No.
      Roy Martinez,                                               18A-CT-2883
      Appellant-Plaintiff,                                        Appeal from the St. Joseph
                                                                  Superior Court
              v.                                                  The Honorable Jenny Pitts Manier,
                                                                  Judge
      Oaklawn Psychiatric Center,                                 Trial Court Cause No.
      Inc.,                                                       71D05-1803-CT-140
      Appellee-Defendant.



      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


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

      Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019                                 Page 2 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”). 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

      Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019           Page 3 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 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;

      Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019          Page 4 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]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 decision-

       making process. A trial court ruling on a motion to dismiss for lack of subject


       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019            Page 5 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 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

Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019           Page 6 of 24
               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).




       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019         Page 7 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 § 34-18-8-1; 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.



       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019            Page 8 of 24
[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,
       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019             Page 9 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 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


       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019            Page 10 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 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 patient-
               health care provider relationship.



       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019          Page 11 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 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

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




Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019         Page 13 of 24
[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.


       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019          Page 14 of 24
[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.




       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019             Page 15 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 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.



       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019        Page 16 of 24
[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.


       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019          Page 17 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 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


       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019          Page 18 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 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.
       Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019           Page 19 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 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 20 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 self-
               destruction. 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 21 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 22 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 23 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.




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