FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                    ATTORNEYS FOR APPELLEE:
ROBERT M. OAKLEY                            ROBERT G. ZEIGLER
DANIEL K. DILLEY                            MARILYN A. YOUNG
Dilley & Oakley, P.C.                       Zeigler Cohen & Koch
Carmel, Indiana                             Indianapolis, Indiana

                                                                Sep 26 2014, 9:37 am


                            IN THE
                  COURT OF APPEALS OF INDIANA


SHACARE TERRY,                              )
                                            )
     Appellant-Plaintiff,                   )
                                            )
            vs.                             )    No. 49A04-1312-PL-630
                                            )
COMMUNITY HEALTH NETWORK,                   )
INC.,                                       )
                                            )
     Appellee-Defendant.                    )


                  APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Heather A. Welch, Judge
                         Cause No. 49D12-1305-PL-20721



                                 September 26, 2014


                            OPINION - FOR PUBLICATION

ROBB, Judge
                                          Case Summary and Issue

         Shacare Terry was admitted at Community Hospital (“Community”) while

unconscious. During her treatment, it was discovered that Terry was under the influence

of a drug and suffered from possible vaginal trauma. The physician performed a medical

evaluation but did not complete a rape kit or preserve possible evidence of sexual assault.

While treating Terry, staff members of the hospital also made several derogatory

statements about her.

         Terry sued Community for breach of duty and intentional infliction of emotional

distress (“IIED”), but the trial court dismissed the case for lack of subject matter

jurisdiction. Terry now appeals, raising two issues that we consolidate and restate as one:

whether the trial court erred in determining that it lacked subject matter jurisdiction over

Terry’s claims because they fall within the terms of the Indiana Medical Malpractice Act

(“the Act”) and Terry did not follow the Act’s procedures before filing her claims in the

trial court. Concluding that the trial court did not have subject matter jurisdiction over

Terry’s breach of duty claim, we affirm that portion of the trial court’s order. Concluding,

however, that the trial court had subject matter jurisdiction over Terry’s IIED claim, we

reverse that portion of the court’s order and remand.

                                       Facts and Procedural History1

         On the night of August 5, 2011, Terry celebrated her twenty-first birthday by going

to a club. While at the club, and without her knowledge, Terry was given phencyclidine,


         1
          We note that all facts are stated as alleged in the complaint and we merely assume they are true to decide a
question of law. See Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d 101, 103 (Ind. Ct. App. 1995).

                                                          2
a drug that has been associated with date rape. At some point, Terry blacked out and was

taken to Community where its emergency department treated her. Both a full body exam

and a toxicology screening were performed. During the exam, the physician noted possible

vaginal trauma but did not complete a rape kit. No evidence for a rape investigation was

preserved, and the incident was not reported. Terry also was not informed that she may

have been raped, and it is unclear as to how she gained this knowledge. Because no

evidence of a rape was preserved, the Indianapolis Metropolitan Police Department could

not thoroughly investigate the incident.

       While being treated at Community, Terry fell victim to several derogatory remarks.

Staff members called Terry an “addict” and told her that they did not “like treating addicts.”

Appellant’s Appendix at 3. A staff member also made light of the incident by writing the

words “Happy Birthday” next to the physician’s notation regarding Terry’s possible

vaginal trauma. Id. at 8. These actions caused Terry to suffer from feelings of guilt and

self-blame with respect to her predicament. Id. at 4.

       Terry filed a complaint in the trial court, alleging two counts against Community:

1) breach of duty, and 2) intentional infliction of emotional distress. Community filed a

motion to dismiss the complaint, arguing that the court lacked subject matter jurisdiction

over the case because neither claim had first been filed with the Indiana Department of

Insurance as required by the Act. After a hearing, the trial court granted Community’s

motion to dismiss for lack of subject matter jurisdiction, concluding that Terry’s claims

sounded in medical malpractice and were subject to the requirements of the Act. Terry

now appeals.

                                              3
                                           Discussion and Decision

                                            I. Standard of Review

         “Subject-matter jurisdiction is the power of a court to hear and decide a particular

class of cases.” Title Servs, LLC v. Womacks, 848 N.E.2d 1151, 1154 (Ind. Ct. App.

2006). The issue of subject matter jurisdiction is resolved by determining whether a claim

falls within the general scope of statutory authority. Id. In ruling on a motion to dismiss

for lack of subject matter jurisdiction, the trial court may consider the complaint, the

motion, and any evidence submitted in support. GKN Co. v. Magness, 744 N.E.2d 397,

400 (Ind. 2001). This court’s standard of review is a function of what occurred in the trial

court. Id. at 401.

         [T]he standard of review is dependent upon: (i) whether the trial court
         resolved disputed facts; and (ii) if the trial court resolved disputed facts,
         whether it conducted an evidentiary hearing or ruled on a paper record. 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 to the trial court’s conclusion . . . .

Scheub v. Van Kalker Family Ltd. P’ship, 991 N.E.2d 952, 956 (Ind. Ct. App. 2013)

(citations omitted). Thus, in this case where the facts are not in dispute and the only

question is the application of law to the facts, we review de novo. Id.

                                   II. Indiana Medical Malpractice Act

         The Act authorizes a patient who has a claim for bodily injury or death on account

of medical malpractice2 to file a complaint in any court with jurisdiction. Ind. Code § 34-




         2
           Malpractice is 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.” Ind. Code § 34-18-2-18.

                                                           4
18-8-1. Indiana Code section 34-18-8-4 states, however, 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.” “Until the panel issues its opinion, the trial court has no jurisdiction

to hear and adjudicate the claim.” Stafford v. Szymanowski, 13 N.E.3d 890, 897 (Ind. Ct.

App. 2014).

       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.” Howard

Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011) (emphasis added) (citation

and quotation marks omitted). When deciding whether a claim falls under the provisions

of the Act, “we are guided by the substance of a claim to determine the applicability of the

Act.” Doe by Roe v. Madison Ctr. Hosp., 652 N.E.2d 101, 104 (Ind. Ct. App. 1995). Our

courts have held the Act applied to a variety of claims that do not look like traditional

medical malpractice. See, e.g., Howard, 952 N.E.2d at 186 (holding the Act was applicable

to a healthcare provider’s duty to maintain medical records); Popovich v. Danielson, 896

N.E.2d 1196, 1202 (Ind. Ct. App. 2008) (holding the Act applied to a defamation claim),

trans. denied. We have also held the Act did not apply in a variety of instances where the

claim did look more like medical malpractice. See, e.g., Murphy v. Mortell, 684 N.E.2d

1185, 1188 (Ind. Ct. App. 1997) (holding that the Act did not apply to a sexual battery

claim against a hospital when a therapy technician molested a patient), trans. denied; Doe

by Roe, 652 N.E.2d at 104 (holding that the Act did not apply to assault, battery, and IIED

                                             5
claims against hospital when a counselor coerced patient into having sex). Looking at these

cases together, we reiterate that the “fact that the alleged misconduct occurs in a healthcare

facility” or that “the injured party was a patient at the facility,” is not dispositive in

determining whether the claim sounds in medical malpractice. Madison Ctr., Inc. v.

R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006), trans. denied. “[T]he test is 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. (quotation marks omitted). We also noted

more recently that:

       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.

B.R. ex rel. Todd v. State, 1 N.E.3d 708, 714-15 (Ind. Ct. App. 2013) (citations omitted),

trans. denied.

       The record below established that Terry was a patient of Community Hospital and

that Community Hospital is a qualified healthcare provider covered by the Act.

Nonetheless, Terry contends her claims are not medical negligence claims subject to the

Act. To determine whether it was erroneous for the trial court to grant Community’s

motion to dismiss for lack of subject matter jurisdiction, we must look at the substance of

each claim.




                                              6
                                                A. Breach of Duty

         The trial court found that Community’s duty to Terry arose out of the provision of

medical services, and therefore, Terry’s breach of duty claim was in substance a claim for

medical malpractice. We agree.

         Terry argues that once Community had a reasonable suspicion that she suffered

from rape, Community had a duty to 1) notify law enforcement of Terry’s possible rape,3

2) preserve evidence to aid in an investigation and prosecution of the possible rape, 4 and

3) notify Terry that she was a possible rape victim.5 She argues none of these duties arose

out of an act of medical negligence, nor did the harm caused by them. Under any of these

theories, we must look to the substance of the claim. Doe by Roe, 652 N.E.2d at 104.

         Terry’s medical evaluation consisted of a full body exam and a toxicology

screening. While performing that evaluation, the doctor completed a diagnostic report.

These services were provided so the physician could properly diagnose Terry and to

promote Terry’s health. These services were curative and salutary. See Howard Reg’l

Health Sys., 952 N.E.2d at 186. In deciding what tests to run, what symptoms to look for,

and how to treat Terry, the physician relied on his professional expertise, judgment, and



         3
           Terry’s theory that Community breached its duty by failing to report the possible rape to law enforcement
derives from Indiana Code sections 12-10-3-2(a) and 12-10-3-9(a). Under those statutory provisions, a healthcare
provider may be required to make a report if it has reason to believe the patient is an endangered adult.

         4
           Terry’s theory that Community breached its duty to preserve evidence derives from Indiana Code section
35-44.1-2-2(a)(3), which makes it an obstruction of justice for a person to intentionally dispose of evidence used in
an investigation.

         5
             Terry also claims that Community breached its general duty of reasonable care.



                                                           7
skill. See id. He used his years of training to determine what steps to take. These

decisions—along with the decision not to complete a rape kit, the failure to conclude that

Terry was raped, and the failure to report a rape—were made by the physician while acting

in his professional capacity as a provider of medical services. See Anonymous Hosp., Inc.

v. Doe, 996 N.E.2d 329, 333 (Ind. Ct. App. 2013). Any dispute about the physician’s

judgment in treating Terry is an appropriate issue for the medical review panel to decide;

in this instance, a jury may well need to apply the standard of care that is appropriate for

treating similar patients in the local medical community. See B.R. ex rel. Todd, 1 N.E.3d

at 714-15. The relationship between the healthcare provider and patient on these facts was

for the purpose of emergency medical treatment; this relationship is the direct cause of

Terry’s claim.

       Concluding that Terry’s breach of duty claim is, in substance, a medical malpractice

claim, the trial court did not have jurisdiction pursuant to Indiana Code section 34-18-8-4,

and the trial court did not err in dismissing the claim.

                      B. Intentional Infliction of Emotional Distress

       The trial court also found that the statements made to Terry by Community staff

members arose out of the provision of medical professional services, and therefore, Terry’s

IIED claim was in substance a claim for medical malpractice.

       Terry alleges that the derogatory statements caused her emotional distress. She

argues that the staff members’ decisions to refer to her as an “addict” and write “Happy

Birthday” next to the physician’s note of possible vaginal trauma were not made within the



                                              8
provision of medical services; not made to promote her health; not made with professional

expertise, judgment, or skill; and not curative or salutary.

       Although the Act does not specifically exclude intentional acts from the definition

of malpractice, Doe by Roe, 652 N.E.2d at 104, we think the Act is inapplicable to these

facts. The comments made to Terry raise a factual issue capable of resolution by a jury

without application of the prevalent standard of care in the local medical community. See

B.R. ex rel. Todd, 1 N.E.3d at 714-15. And these statements were not made while acting

in a professional capacity as the provider of medical services. See Anonymous Hosp., Inc.,

996 N.E.2d at 333.

       The statements made to Terry are different than the allegedly defamatory statements

we considered in Popovich. In Popovich, we applied the Act to a physician’s notes that

the patient was drunk and disruptive and had not been wearing a seatbelt when she was

involved in an accident that sent her to the hospital, because the statements were made for

the purpose of medical diagnosis. 896 N.E.2d at 1202-03. Accordingly, we affirmed the

trial court’s dismissal of the plaintiff’s claim for lack of subject matter jurisdiction. Id. at

1204. Here, however, the statements made to Terry were made only to disparage her and

were unrelated to medical treatment.

       We also held in Madison Ctr., Inc. v. R.R.K., that neither the occurrence of an injury

at a healthcare facility nor the existence of a patient-healthcare provider relationship is

dispositive. 853 N.E.2d at 1288-89. The fact that Terry was a patient or that the same staff

members who disparaged her also may have treated her is also not dispositive. The



                                               9
statements made to Terry were not caused by the patient-healthcare provider relationship:

they were not necessary to the proper diagnosis or treatment of Terry.

       Our decision in OB-GYN Assoc. of N. Indiana, P.C. v. Ransbottom, 885 N.E.2d

734 (Ind. Ct. App. 2008), trans. denied, is also instructive. In OB-GYN, we held that the

Act was inapplicable to laser hair removal treatment even though it was provided by a

registered nurse within an OB-GYN office; we reasoned that laser hair removal treatment

could be and often was provided and administered by individuals without healthcare

credentials, such as medical degrees, medical licensure, or medical certification. Id. at 739.

The derogatory statements made by Community staff members could have been made by

individuals without medical credentials, too. The statements were not intended to promote

Terry’s health or provide curative or salutary treatment; nor were they made with the staff

members’ professional expertise, judgment, or skill. See Howard Reg’l Health Sys., 952

N.E.2d at 186. Accordingly, Terry’s IIED claim is not a facade for medical malpractice.

       We conclude that the Indiana legislature did not intend for the Act to apply to

scenarios of this kind.    Accordingly, we believe the trial court had subject matter

jurisdiction over the IIED claim and erred in concluding otherwise.

                                         Conclusion

       Concluding that the trial court did not err in dismissing Terry’s breach of duty claim

for lack of subject matter jurisdiction, we affirm that portion of its order. Concluding that

the trial court did commit error in dismissing Terry’s IIED claim for lack of subject matter

jurisdiction, however, we reverse the trial court’s dismissal of that claim and remand for



                                             10
further proceedings.

      Affirmed in part, and reversed and remanded in part.

BAKER, J., and KIRSCH, J., concur.




                                          11
