MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Nov 22 2019, 8:38 am

regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEY FOR APPELLEES
Teresa Lorraine Sowski                                  David D. Becsey
Indianapolis, Indiana                                   Zeigler Cohen & Koch
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Teresa Lorraine Sowski,                                 November 22, 2019
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        19A-CT-940
        v.                                              Appeal from the Marion Superior
                                                        Court
Bryan A. Mills and                                      The Honorable Caryl F. Dill,
Tim M. Hobbs,                                           Magistrate
Appellees-Defendants                                    Trial Court Cause No.
                                                        49D02-1901-CT-2501



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-940 | November 22, 2019               Page 1 of 8
                                   Case Summary and Issue
[1]   Teresa Lorraine Sowski filed with the Indiana Department of Insurance a

      proposed complaint for medical malpractice against Bryan Mills, Tim Hobbs,

      and Anonymous Doctor, alleging she received negligent medical care and/or

      treatment from each of them. Mills and Hobbs filed a petition for preliminary

      determination and motion for summary judgment in the trial court alleging that

      neither of them had a physician-patient relationship with Sowski. The trial

      court granted summary judgment to Mills and Hobbs and finding there was no

      just cause for delay, entered final judgment in their favor. Proceeding pro se,

      Sowski appeals the trial court’s judgment, raising many issues which we

      consolidate and restate as whether the trial court erred in granting summary

      judgment to Mills and Hobbs.1 Concluding the trial court did not err in

      granting the summary judgment, we affirm.



                              Facts and Procedural History
[2]   On August 16, 2018, Sowski filed with the Department of Insurance a proposed

      complaint for damages alleging that while she was hospitalized from August 19,

      2016 through September 14, 2016, she received negligent medical care and/or

      treatment from Mills, Hobbs, and Anonymous Doctor. On August 24, 2018,




      1
       Sowski’s brief is essentially incomprehensible as it relates to the nature of her claim, Mills’ and Hobbs’
      motion, and the trial court’s order. We have attempted to address what we believe to be the crux of her
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-940 | November 22, 2019                     Page 2 of 8
      Sowski received a letter from the Department of Insurance informing her that

      Anonymous Doctor was a qualified health care provider, but Mills and Hobbs

      were not.


[3]   On January 17, 2019, Mills and Hobbs filed in the trial court a petition for

      preliminary determination and motion for summary judgment alleging there

      was no physician-patient relationship between them and Sowski. In support of

      their motion, each submitted an affidavit. Mills’ affidavit stated that he has

      been the president and chief executive officer of Community Health Network

      since 2009; that he is not a physician and has never held a license to practice

      medicine; that as a health care administrator, he does not “direct, consult, or

      become involved in any way with the health care provided to individual

      patients”; that he has never spoken with or made recommendations to Sowski

      or any of her health care providers; and that he had no knowledge of Sowski

      until she named him in a lawsuit. Corrected Appellees’ Appendix, Volume II

      at 25. Hobbs’ affidavit stated that he is trained as a family medicine physician;

      that in 2016, he was the Chief Physician Executive with Community Health

      Network “provid[ing] counsel and leadership to the network”; that he has never

      spoken to Sowski or any of her health care providers; that he did not “treat, see,

      care [for], [or] diagnose” Sowski, did not write any orders for her, and did not

      participate in any way in her admission to the hospital; and that he had no

      knowledge of Sowski until she named him in a lawsuit. Id. at 27. In addition,

      Anonymous Doctor filed an affidavit attesting that he was Sowski’s admitting

      physician; that he never spoke with either Mills or Hobbs about Sowski; and


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-940 | November 22, 2019   Page 3 of 8
      that neither Mills nor Hobbs were involved in any way with Sowski’s

      presentation, admission, or hospitalization or made any recommendations

      about her care.


[4]   Sowski was served with a copy of the petition for preliminary determination

      and motion for summary judgment. She thereafter filed a document containing

      over 150 pages of miscellaneous documents, none of which were relevant to the

      motion for summary judgment. The trial court held a hearing at which Sowski

      appeared but failed to make any coherent arguments against summary

      judgment. At the conclusion of the hearing, the trial court stated “there is no

      fact or law under which I can find that [Mills and Hobbs] treated [Sowski].”

      Transcript of the Record, Volume II at 9. The trial court subsequently entered a

      written order finding that there is no genuine issue of material fact and Mills’

      and Hobbs’ motion for summary judgment should be granted. Sowski now

      appeals.



                                Discussion and Decision
                                     I. Standard of Review
[5]   Pursuant to Indiana Code section 34-18-11-1, a trial court may assert

      jurisdiction over threshold issues and preliminarily determine an issue of law or

      fact while a proposed complaint for medical malpractice is pending before the

      Department of Insurance. Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 294

      (Ind. Ct. App. 2013). The grant or denial of summary judgment on a motion

      for preliminary determination is subject to the same standard of review as any
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-940 | November 22, 2019   Page 4 of 8
      other summary judgment ruling. Jeffrey v. Methodist Hosps., 956 N.E.2d 151, 154

      (Ind. Ct. App. 2011).


[6]   Summary judgment is proper only when the designated evidence shows that

      there is no genuine issue of material fact and the moving party is entitled to

      judgment as a matter of law. Anonymous Physician v. Wininger, 998 N.E.2d 749,

      751 (Ind. Ct. App. 2013); Ind. Trial Rule 56(C). The moving party “bears the

      initial burden of making a prima facie showing that there are no genuine issues

      of material fact and that it is entitled to judgment as a matter of law.” Giles v.

      Anonymous Physician I, 13 N.E.3d 504, 509-10 (Ind. Ct. App. 2014) (citation

      omitted), trans. denied. If the moving party meets this burden, then the

      nonmovant must designate evidence demonstrating a genuine issue of material

      fact. Id. All facts and reasonable inferences from the designated evidence are

      construed in a light most favorable to the nonmovant and any doubts as to the

      existence of a material issue are resolved in favor of the nonmovant. Wininger,

      998 N.E.2d at 751.


                                                 II. Duty
[7]   The Medical Malpractice 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) (citations omitted). “Malpractice” is “a tort or

      breach of contract based on health care or professional services that were


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-940 | November 22, 2019   Page 5 of 8
      provided, or that should have been provided, by a health care provider, to a

      patient.” Ind. Code § 34-18-2-18. Indiana Code section 34-18-2-13 defines

      “health care” as “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.” And

      Indiana Code section 34-18-2-14 defines a “health care provider” in pertinent

      part as:


              (1) 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 (IC 16-18-
              2-107), dentist, registered or licensed practical nurse, physician
              assistant, certified nurse midwife, anesthesiologist assistant,
              optometrist, podiatrist, chiropractor, physical therapist,
              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.


      (Emphasis added.)


[8]   A plaintiff in a medical malpractice action must prove, as in any other

      negligence action, that the defendant owed a duty to the plaintiff, the defendant

      breached that duty by providing medical services that fell below the applicable

      standard of care, and the plaintiff suffered damages that were proximately

      caused by the defendant’s breach. Giles, 13 N.E.3d at 510. The duty in a

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-940 | November 22, 2019   Page 6 of 8
       medical malpractice action arises from the physician-patient relationship. Miller

       v. Martig, 754 N.E.2d 41, 46 (Ind. Ct. App. 2001). Thus, the physician-patient

       relationship is a legal prerequisite to a medical malpractice action. Id. In the

       absence of a physician-patient relationship, there is no duty and the entry of

       summary judgment is appropriate. Id.


[9]    The designated evidence in this case is undisputed. Sowski claimed she

       received medical care and/or treatment from Mills and Hobbs. Mills

       designated evidence that he is not a licensed physician but a healthcare

       administrator. A “health care administrator” is not among the exclusive list of

       “health care providers” defined by the Medical Malpractice Act. See Ind. Code

       § 34-18-2-14; Kroger Co. v. Estate of Hinders, 773 N.E.2d 303, 306 (Ind. Ct. App.

       2002) (noting pharmacists are not among the “carefully considered and

       exclusive list of health care providers afforded the protections of the Medical

       Malpractice Act”), trans. denied. As Mills is not a physician, there can be no

       physician-patient relationship giving rise to a duty to Sowski. And although

       Hobbs is a physician, he designated evidence showing he did not provide any

       treatment to Sowski. “[A] physician who does not treat a patient or perform

       some affirmative act regarding the patient has no physician-patient relationship

       and thus owes no duty to that patient.” Giles, 13 N.E.3d at 511.


[10]   Both Mills and Hobbs averred they had never even met Sowski and took no

       part in her care or treatment. Anonymous Doctor corroborated Mills’ and

       Hobbs’ statements that they were not involved with Sowski’s care. Sowski’s

       subsequent filing in no way refuted this designated evidence. Thus, the

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-940 | November 22, 2019   Page 7 of 8
       designated evidence shows there is no genuine issue of material fact as to

       whether Mills and Hobbs owed a duty to Sowski. The trial court properly

       granted summary judgment to Mills and Hobbs.



                                              Conclusion
[11]   Mills and Hobbs negated the element of duty in Sowski’s medical malpractice

       claim and Sowski failed to show that there was a genuine issue of material fact.

       We therefore affirm the trial court’s grant of summary judgment to Mills and

       Hobbs.


[12]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-940 | November 22, 2019   Page 8 of 8
