                                                                          Apr 17 2015, 9:28 am




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Kevin W. Vanderground                                      Gregory A. Crisman
      Church, Church, Hittle & Antrim                            Carly A. Brandenburg
                                                                 Eichhorn & Eichhorn, LLP
      Rick C. Gikas                                              Hammond, Indiana
      Merrillville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Angelique Lockett and Lanetra                              April 17, 2015
      Lockett,                                                   Court of Appeals Case No.
                                                                 45A05-1407-CT-340
      Appellants-Plaintiffs,
                                                                 Appeal from the Lake Superior Court
              v.                                                 The Honorable William E. Davis,
                                                                 Judge
                                                                 Cause No. 45D05-1109-CT-175
      Planned Parenthood of Indiana,
      Inc., and Cathy McGee,
      Appellees-Defendants




      Bailey, Judge.



                                            Case Summary
[1]   Angelique Lockett (“Angelique”) and her mother Lanetra Lockett (“Lanetra”)

      (collectively, “the Locketts”) appeal the trial court’s grant of summary



      Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015                    Page 1 of 20
      judgment in favor of Planned Parenthood of Indiana, Inc. 1 (“Planned

      Parenthood”) after Angelique, then a minor, intentionally misrepresented

      herself to be eighteen-years-old and obtained an abortion at a Planned

      Parenthood clinic without Lanetra’s consent. We affirm the trial court’s grant

      of Planned Parenthood’s motion for summary judgment because the Locketts

      failed to present their claims first to a medical review panel, as required by the

      Medical Malpractice Act2 (“the MMA”), and thus the trial court lacked subject

      matter jurisdiction over the claims. However, to the extent that the trial court’s

      order appears to have dismissed the Locketts’ claims against defendant Cathy

      McGee (“McGee”),3 we reverse and remand with instructions to correct the

      order.



                                                     Issues
[2]   The Locketts present three issues on appeal, which we consolidate and restate

      as the following one: whether the trial court erred in granting Planned

      Parenthood’s motion for summary judgment where the Locketts’ claims against

      a health care provider based on an alleged failure to obtain informed consent

      were not presented first to a medical review panel.




      1
          Now Planned Parenthood of Indiana and Kentucky, Inc.
      2
          Ind. Code § 34-18.
      3
          McGee is not a party to this appeal.


      Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015   Page 2 of 20
[3]   We also address sua sponte the status of the Locketts’ claims against McGee.



                             Facts and Procedural History
[4]   In early 2010, then seventeen-year-old Angelique suspected she was pregnant

      and informed her boyfriend’s mother, McGee. Present during the conversation

      with McGee was Raven Francis (“Francis”), the girlfriend of another of

      McGee’s sons. Although unsure if she was even pregnant, Angelique discussed

      with McGee and Francis the possibility of obtaining an abortion at Planned

      Parenthood. Francis, who was eighteen-years-old at the time, offered to loan

      Angelique her Indiana State-issued identification card (“ID”) so that Angelique

      could represent herself to Planned Parenthood as old enough to consent to

      medical treatment. Francis’s boyfriend opined that Angelique and Francis

      resembled each other, even though Angelique weighed twenty pounds less and

      stood four inches shorter than the weight and height listed on Francis’s ID.

      Angelique was skeptical that the ruse would work, but borrowed Francis’s ID.


[5]   On January 22, 2010, unbeknownst to Lanetra, McGee took Angelique to

      Planned Parenthood’s Merrillville office. Angelique stated that “the whole

      purpose of going there was first to see if I was pregnant.” (App. 59.) Upon

      arrival, Angelique represented herself to the office staff as eighteen-year-old

      Francis, and McGee, using her own name, posed as Angelique’s mother.

      Angelique presented Francis’s ID to the office staff, who looked at it and made

      a copy. The employee who accepted the ID attested that she checked the ID,

      “saw no reason to doubt the identity that the patient had presented” and

      Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015   Page 3 of 20
      “observed that the patient’s identification showed her age to be 18.” (App. 73.)

      Angelique and McGee were then given forms to fill out, some of which McGee

      filled out on Angelique’s behalf. Angelique also filled out forms, including at

      least one on which she began to sign her actual name beginning with the letter

      “A,” but adjusted to reflect the name “Raven Francis.”


[6]   During the visit, Angelique underwent an ultrasound and blood and urine tests.

      The tests confirmed that Angelique was in fact pregnant and in her first

      trimester. After undergoing counseling outside of McGee’s presence,

      Angelique forged the name “Raven Francis” on a form consenting to an

      abortion and acknowledging that she had received the statutorily-prescribed

      information regarding the procedure and abortion alternatives. McGee paid in

      advance for the procedure. Angelique did not tell anyone at Planned

      Parenthood that she was actually Angelique Lockett or that McGee was not her

      mother.


[7]   After a six day waiting period, Angelique returned to Planned Parenthood on

      January 28, 2010, again represented herself as Raven Francis, and an abortion

      was provided. McGee was not present at the beginning of the appointment, but

      arrived later. Lanetra, who was not aware that her daughter was pregnant and

      considering an abortion, did not consent to the procedure.


[8]   On August 30, 2011, Angelique, now an adult, and Lanetra filed a complaint

      against Planned Parenthood and McGee, alleging that Angelique and Lanetra

      were harmed when Planned Parenthood’s physician performed an abortion on


      Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015   Page 4 of 20
       Angelique without Lanetra’s consent. Angelique and Lanetra specifically

       alleged against Planned Parenthood the following two claims: strict liability for

       failing to comply with Indiana Code chapter 16-34-2 (concerning requirements

       for legal abortions, informed consent procedures, parental consent, and

       criminal penalties for noncompliant physicians) and negligence for breaching

       duties imposed by Indiana Code chapter 16-34-2. Angelique also brought

       against both Planned Parenthood and McGee claims for assault, battery, and

       negligent infliction of emotional distress.


[9]    On December 5, 2013, Planned Parenthood filed a motion for summary

       judgment, in which it argued that immunity provisions in the Health Care

       Consent Act4 relieved Planned Parenthood of liability and that the Locketts

       should be equitably estopped from pursuing their claims due to Angelique’s

       misrepresentations. After the Locketts filed their response on May 28, 2014,

       Planned Parenthood filed a reply brief on June 5, 2014 in which it also argued

       that Indiana’s statutes governing abortion, including Indiana Code chapter 16-

       34-2, do not create a private right of action for individuals such as the Locketts.


[10]   On June 13, 2014, the trial court held a hearing on Planned Parenthood’s

       motion for summary judgment. The court also heard argument on the

       Locketts’ motion to strike portions of affidavits designated by Planned

       Parenthood in support of its summary judgment motion.




       4
           See I.C. § 16-36-1-10(a).


       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015   Page 5 of 20
[11]   On June 20, 2014, the trial court entered an order granting the Locketts’ motion

       to strike certain evidence. The court also found: “There is no genuine issue that

       the Statute I.C. § 16-34-2-4 [governing parental consent for abortions performed

       on minors] does not confer on the Plaintiff a private right of action, which

       would allow her to bring a civil suit against the Defendants.” (App. 1.) The

       trial court then granted Planned Parenthood’s motion for summary judgment.

       The court also dismissed the Locketts’ complaint in its entirety and entered

       “Judgment for Defendants.”


[12]   The Locketts now appeal the trial court’s grant of summary judgment in favor

       of Planned Parenthood.



                                   Discussion and Decision
                                          Standard of Review
[13]   Indiana Trial Rule 56 governs motions for summary judgment. Trial Rule

       56(C) provides that a trial court shall grant summary judgment for the movant

       “if the designated evidentiary matter shows that there is no genuine issue as to

       any material fact and that the moving party is entitled to a judgment as a matter

       of law.” When we review a grant or denial of a motion for summary judgment,

       our standard of review is the same as for the trial court. Asklar v. Gilb, 9 N.E.3d

       165, 167 (Ind. 2014). The moving party must show there are no genuine issues

       of material fact and that the party is entitled to judgment as a matter of law. Id.

       Summary judgment is improper if the moving party fails to carry its burden, but


       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015   Page 6 of 20
       if it does, then the non-movant must present evidence establishing the existence

       of a genuine issue of material fact. Id.


[14]   When we decide whether summary judgment was properly granted or denied,

       we consider only the evidence the parties specifically designated to the trial

       court. T.R. 56(C), (H). We construe all facts and all reasonable inferences

       established by the designated evidence in favor of the non-moving party.

       Asklar, 9 N.E.3d at 167. “As a reviewing court, we are not limited to reviewing

       the trial court’s reasons for granting or denying summary judgment but rather

       may affirm a grant of summary judgment upon any theory supported by the

       evidence.” Keaton & Keaton v. Keaton, 842 N.E.2d 816, 821 (Ind. 2006).


                           Claims against Planned Parenthood
[15]   On appeal, the Locketts challenge the trial court’s grant of summary judgment

       in favor of Planned Parenthood. Mindful that we may affirm a grant of

       summary judgment “upon any theory supported by the evidence,” id., we

       examine first whether the trial court had subject matter jurisdiction over the

       Locketts’ claims against Planned Parenthood.


                                     Subject Matter Jurisdiction
[16]   Subject-matter jurisdiction is the power of a court to hear and decide a

       particular class of cases. Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288

       (Ind. Ct. App. 2006), trans. denied. To resolve the issue of subject-matter

       jurisdiction, we must determine that the claim involved falls within the general

       scope of authority conferred on a court by the Indiana Constitution or by

       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015    Page 7 of 20
       statute. Id. Subject-matter jurisdiction cannot be waived and may be raised by

       the parties or the court at any time, including on appeal. Id.


[17]   Indiana Code section 34-18-8-4 provides that, with limited exceptions, “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.” Therefore,

       the MMA “grants subject-matter jurisdiction over medical malpractice actions

       first to the medical review panel, and then to the trial court.” Putnam Cnty.

       Hosp. v. Sells, 619 N.E.2d 968, 970 (Ind. Ct. App. 1993). “‘Until the panel

       issues its opinion, the trial court has no jurisdiction to hear and adjudicate the

       claim.’” Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App.

       2014) (quoting Stafford v. Szymanowski, 13 N.E.3d 890, 897 (Ind. Ct. App.

       2014)).


[18]   The MMA defines “malpractice” 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. Under the

       MMA, a “tort” is “a legal wrong, breach of duty, or negligent or unlawful act

       or omission proximately causing injury or damage to another.” I.C. § 34-18-2-

       28. “Health care” is defined 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.” I.C. § 34-18-2-13. A “health care provider” includes “a



       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015    Page 8 of 20
       corporation . . . licensed or legally authorized by this state to provide health

       care or professional services as a . . . hospital. . . .” I.C. § 34-18-2-14(1).


[19]   Under the MMA, a “patient” means “an individual who receives or should

       have received health care from a health care provider, under a contract, express

       or implied[.]” I.C. § 34-18-2-22. A patient also “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. The

       statute further provides that “[d]erivative claims include the claim of a parent or

       parents . . . including claims for loss of services, loss of consortium, expenses,

       and other similar claims.” I.C. § 34-18-2-22.


[20]   Neither the fact that the alleged misconduct occurs in a healthcare facility or

       that the injured party was a patient of the facility or provider are dispositive as

       to 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. The MMA

       indisputably concerns itself with the behavior or practices of a physician acting

       in his or her professional capacity as a provider of medical services, but does

       not apply to acts or omissions of a health care provider unrelated to or outside

       the provider’s role as a health care professional. Collins v. Thakkar, 552 N.E.2d

       507, 510 (Ind. Ct. App. 1990), trans. denied. Furthermore, the language of the

       MMA, “read with due regard to the subject matter, suggests actions undertaken

       in the interest of or for the benefit of the patient’s health, i.e. conduct engaged

       in by a physician which is curative or salutary in nature or effect.” Id. It thus

       excludes from its scope “conduct of a provider unrelated to the promotion of a

       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015       Page 9 of 20
       patient’s health or the provider’s exercise of professional expertise, skill or

       judgment.” Id. “It is therefore the substance of a claim, not its caption, which

       determines whether compliance with the [MMA] is necessary.” Van Sice v.

       Sentany, 595 N.E.2d 264, 266 (Ind. Ct. App. 1992).


[21]   Here, there is no question that Planned Parenthood qualifies as a “health care

       provider” under the MMA. Health care providers include hospitals, I.C. § 34-

       18-2-14(1), and the MMA defines a “hospital” as “a public or private institution

       licensed under IC 16-21-2.” I.C. § 34-18-2-16. Abortion clinics, such as

       Planned Parenthood’s Merrillville office, are licensed under Indiana Code

       section 16-21-2. See I.C. § 16-21-2-1.


[22]   Angelique presented at Planned Parenthood, a health care provider, seeking

       health care services: specifically, a pregnancy test, ultrasound, and ultimately an

       abortion procedure performed by a physician at a licensed clinic. Under

       Indiana law, legal abortions occur for reasons and in circumstances

       determinable only in “the professional, medical judgment of the pregnant

       woman’s physician.” I.C. §§ 16-34-2-1(a)(1)-(3). Thus, the abortion provided

       to Angelique at a licensed clinic by a licensed physician falls squarely within the

       MMA’s definition of “health care.” See I.C. § 34-18-2-13.5




       5
        We find the case at hand clearly distinguishable from Collins, 552 N.E.2d 507, in which a panel of this
       Court confronted the applicability of the MMA to a case involving abortion. As succinctly summarized in
       Boruff v. Jesseph, “[i]n Collins, the plaintiff alleged the defendant physician was her lover, and that he had
       committed a battery against her by deliberately, wrongfully, and painfully aborting their fetus immediately
       after performing a pelvic exam on the plaintiff and lying to her that she was not pregnant.” 576 N.E.2d 1297,
       1298 (Ind. Ct. App. 1991). The Collins court held that the MMA did not apply to such “wanton and

       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015                         Page 10 of 20
[23]   As an individual who sought health care from a health care provider, Angelique

       unquestionably qualifies as a “patient” under the MMA. See I.C. § 34-18-2-22.

       Although Lanetra did not directly receive health care from Planned

       Parenthood, as Angelique’s mother, she also qualifies as a patient to the extent

       that she has “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.


[24]   Turning to the substance of the Locketts’ claims, they allege five theories of

       recovery all arising out of the same act. As succinctly explained in their brief,

       “the act that is complained of” is Planned Parenthood’s “failure to obtain

       voluntary and informed consent before performing an abortion” and that this

       failure was “the direct cause of the injuries suffered by both Lanetra and

       Angelique Lockett.” (Appellant’s Br. 17.) More specifically, the alleged wrong

       is that Planned Parenthood’s patient intake procedures were inadequate to

       detect Angelique’s intentional misrepresentations about her identity, age, and

       ability to consent to medical treatment. Because Angelique was in fact a minor,

       and Lanetra did not provide her consent, the Locketts allege that Planned

       Parenthood failed to obtain informed consent before providing health care to

       Angelique and that the failure led to both Angelique’s and Lanetra’s injuries.




       gratuitous” conduct undertaken “without the patient’s consent and despite her protests[,]” reasoning that
       “[i]n no way can it logically be said that the legislature intended such behavior to constitute the rendition of
       health care or professional services.” Collins, 552 N.E.2d at 511. No such wanton and gratuitous conduct is
       at issue here, where Angelique presented at a licensed clinic as a patient seeking professional health care
       services.

       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015                            Page 11 of 20
[25]   The duty to obtain informed consent “arises from the relationship between the

       doctor and patient, and is imposed as a matter of law as are most legal duties.”

       Culbertson v. Mernitz, 602 N.E.2d 98, 101 (Ind. 1992) (citation and quotation

       marks omitted). In obtaining informed consent, a physician must comply with

       the standard of a reasonably prudent physician. Id. at 104. Complete lack of

       informed consent to a harmful touching in the medical context traditionally was

       viewed as a battery claim. Spar v. Cha, 907 N.E.2d 974, 979 (Ind. 2009). See

       also Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007) (“Failure to

       obtain informed consent in the medical context may result in a battery.”).

       More recently, unless there is a complete lack of consent, the theory is

       considered a specific form of negligence for breach of the required standard of

       professional conduct. Spar, 907 N.E.2d at 979. Regardless of the caption, it is

       now well-settled in Indiana law that,“[i]n the course of rendering professional

       services to a patient, a physician’s acts of negligence, including acts which

       constitute a breach of the duties to disclose information and obtain informed

       consent, are malpractice.” Boruff, 576 N.E.2d at 1299. Furthermore, we

       observe that cases in which patients have alleged a lack of informed consent,

       but in which the applicability of the MMA is not specifically raised as an issue,

       generally have proceeded under the MMA. See, e.g., Spar, 907 N.E.2d 974;

       Mullins, 865 N.E.2d 608; Culbertson v. Mernitz, 602 N.E.2d 98 (Ind. 1992);

       Cacdac v. West, 705 N.E.2d 506 (Ind. Ct. App. 1999), trans. dismissed; Auler v.

       Van Natta, 686 N.E.2d 172 (Ind. Ct. App. 1997), trans. denied.


[26]   With this background in mind, we examine each of the Locketts’ claims in turn.

       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015    Page 12 of 20
                                                Assault & Battery

[27]   Assault “is effectuated when one acts intending to cause a harmful or offensive

       contact with the person of the other or an imminent apprehension of such

       contact.” Cullison v. Medley, 570 N.E.2d 27, 30 (Ind. 1991) (citing Restatement

       (Second) of Torts § 21 (1965)). An actor is subject to liability for battery if “(a)

       he acts intending to cause a harmful or offensive contact with the person of the

       other or a third person, or an imminent apprehension of such a contact, and (b)

       a harmful contact with the person of the other directly or indirectly results.’”

       Mullins, 865 N.E.2d at 610 (quoting Restatement (Second) of Torts § 13 (1965)).

       In short, “assault creates an apprehension of imminent harmful or offensive

       contact, while battery is the intentional harmful or offensive contact.” Knight v.

       Ind. Ins. Co., 871 N.E.2d 357, 362 (Ind. Ct. App. 2007).


[28]   The Locketts allege that Planned Parenthood’s physician assaulted and battered

       Angelique when he performed an abortion at a licensed clinic without first

       obtaining consent. These claims fall squarely within the purview of the MMA.

       See Van Sice, 595 N.E.2d at 267 (finding that plaintiff’s complaint, even though

       captioned as battery, alleged a failure to obtain informed consent and thus fell

       within the scope of the MMA).


                                Negligent Infliction of Emotional Distress

[29]   The right to seek damages for emotional distress in actions for negligence, often

       referred to as actions for negligent infliction of emotional distress, is carefully




       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015    Page 13 of 20
       circumscribed under Indiana jurisprudence. Spangler v. Bechtel, 958 N.E.2d 458,

       466 (Ind. 2011). As our supreme court has explained:

               [A]ctions seeking damages for emotional distress resulting from the
               negligence of another are permitted in two situations: where the
               plaintiff has (1) witnessed or come to the scene soon thereafter the
               death or severe injury of certain classes of relatives (i.e., the bystander
               rule), or (2) suffered a direct impact (i.e., the modified impact rule).
       Id. (citations omitted).


[30]   Angelique’s negligent infliction of emotional distress claim is based on a direct

       impact theory, in which she seeks to recover for emotional trauma sustained as

       the result of a direct impact, that is, the abortion. To recover from Planned

       Parenthood on this claim, Planned Parenthood’s negligence must be the

       proximate cause of the direct impact Angelique sustained. See id. at 466

       (explaining that the modified impact rule arises when the defendant owes a

       legal duty to the plaintiff or a third-party and the direct impact to the plaintiff is

       proximately caused by the defendant’s breach of that duty).


[31]   Here, the negligence complained of is Planned Parenthood’s inadequate patient

       screening procedures, the result of which was the provision of a medical

       procedure to Angelique without informed consent. Again, Angelique’s claim

       for negligent infliction of emotional distress arising out of a medical procedure

       performed without informed consent sounds in medical malpractice and is

       subject to the MMA.




       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015           Page 14 of 20
                                                  Statutory Claims

[32]   The Locketts’ first two counts, brought by both Angelique and Lanetra, are

       premised on alleged violations of Indiana Code chapter 16-34-2. Though more

       broadly pleaded, this case implicates two specific sections of the chapter: the

       informed consent and parental consent requirements. 6 Section 16-34-2-1.1

       provides that a physician may only perform an abortion with the “voluntary

       and informed consent of the pregnant woman upon whom the abortion is to be

       performed[,]” and specifies an exhaustive list of procedures that must be

       followed before a physician is considered to have obtained voluntary and

       informed consent. See I.C. § 16-34-2-1.1(a)(1)-(4). Section 16-34-2-4 provides

       that “[n]o physician shall perform an abortion on an unemancipated pregnant

       woman less than eighteen (18) years of age without first having obtained the

       written consent of one (1) of the parents or the legal guardian of the minor

       pregnant woman.” I.C. § 16-34-2-4(a). However, a minor who objects to the

       parental consent requirement or whose parent or legal guardian refuses to

       consent may petition the juvenile court for a waiver of the requirement by

       following the statutory procedures. I.C. § 16-34-2-4(b). A physician may also

       petition for a waiver in certain circumstances. I.C. § 16-34-2-4(c). The juvenile

       court shall waive the parental consent requirement “if the court finds that the

       minor is mature enough to make the abortion decision independently or that an




       6
        In their brief, the Locketts approach their statutory claims even more narrowly, focusing only on section 16-
       34-2-4.

       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015                         Page 15 of 20
       abortion would be in the minor’s best interests.” I.C. § 16-34-2-4(d). Parental

       consent requirements generally reflect a legislative judgment that, “[a]s

       immature minors often lack the ability to make fully informed choices that take

       account of both immediate and long-range consequences, . . . parental

       consultation often is desirable and in the best interest of the minor.” Bellotti v.

       Baird, 443 U.S. 622, 640 (1979) (Bellotti II). Informed consent is the basis of

       parental consent requirements.


[33]   We think it is clear that the statute supplements the common law with respect

       to a physician’s duty to obtain informed consent when providing an abortion.

       The statute provides that “consent to an abortion is voluntary and informed

       only if” the specific statutory conditions are met, I.C. § 16-34-2-1.1(a) (emphasis

       added), and, in the case of unemancipated minors, parental consent or a

       judicial waiver is obtained. The physician still has a duty to obtain informed

       consent, but for this particular health care service, the legislature has expressly

       established a standard of care to which a physician must adhere.


[34]   Although the statute provides the standard of care, the statute has not altered

       the basic nature of the Locketts’ alleged wrong: that Planned Parenthood

       provided health care to Angelique without first obtaining the patient’s informed

       consent. Angelique’s injuries flow directly from an alleged failure to follow the

       statute’s informed consent and parental consent provisions before providing her

       an abortion. Lanetra also claims injury arising from Planned Parenthood’s

       failure to obtain her consent before providing care to Angelique; as such,

       Lanetra’s claims are derivative of Angelique’s claims. See I.C. § 34-18-2-22.

       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015    Page 16 of 20
[35]   When the act complained of is a negligent failure to obtain informed consent in

       the course of rendering professional services to a patient, the act sounds in

       malpractice. See Boruff, 576 N.E.2d at 1299. And where the claims allege

       medical malpractice, the Locketts cannot ignore the MMA’s procedural dictates

       and side-step our legislature’s grant of subject matter jurisdiction to the medical

       review board simply by framing their claims as violations of Indiana Code

       chapter 16-34-2.


[36]   In sum, our examination of the complaint and designated facts reveals that,

       regardless of the individual claim captions, the gravamen of the Locketts’

       complaint against Planned Parenthood is that the Locketts suffered injury when

       a health care provider, in the course of rendering professional services to a

       patient, failed to obtain informed consent. Each of their claims sounds in

       medical malpractice and fits squarely and firmly within the purview of the

       MMA. Thus, the Locketts’ complaint should have been presented first to a

       medical review panel.7 Because the Locketts failed to follow the procedural

       dictates of the MMA, the trial court had no power to adjudicate the Locketts’

       claims. Accordingly, the trial court did not err in granting summary judgment

       in favor of Planned Parenthood and dismissing the Locketts’ claims against

       Planned Parenthood.




       7
         Presentation to the medical review panel is not necessary where all defendants agree to proceed directly to
       court or the patient’s pleadings include a declaration that the patient seeks damages of fifteen thousand
       dollars or less. I.C. §§ 34-18-8-5 & 34-18-8-6(a). We see no such agreement in the record or damages
       limitation in the complaint.

       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015                          Page 17 of 20
                                       Claims against McGee
[37]   We turn our attention now to the Locketts’ claims against McGee. In its order,

       the trial court granted Planned Parenthood’s motion for summary judgment.

       The court also purportedly dismissed the Locketts’ complaint in its entirety and

       entered “Judgment for Defendants,” even though McGee may not have been

       served.


[38]   The Locketts’ statement of the case asserts that “McGee has never appeared

       and no default was entered against her[.]” (Appellant’s Br. 1.) We note that

       Trial Rule 55(B) requires that “[i]n all cases the party entitled to a judgment by

       default shall apply to the court therefor;” however, it does not appear from the

       record that the Locketts have moved for default judgment. Moreover, to the

       Locketts’ point that McGee has not appeared, it is unclear whether the Locketts

       have ever successfully served McGee. The Chronological Case Summary

       (“CCS”) contains two entries on September 30, 2011, showing that service of

       the summons and complaint was attempted on McGee by certified mail on

       September 6, 2011 and returned on September 30, 2011. One entry states

       “ACCEPTED,” while the other indicates “Unsuccessful – Unclaimed.” (App.

       6.) Then, on August 16, 2012, the CCS contains an entry showing that the

       Locketts attempted to serve by sheriff an alias summons and complaint.

       According to an August 27, 2012 entry in the CCS, service by sheriff was

       returned as “Unsuccessful – Moved” with the comment “BOARDED UP

       ABANDONED PER SGT. L. SMITH ON 8/24/201[2].” (App. 6.)

       Thereafter, the CCS contains no additional entries of attempted service on

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       McGee, but notes “returned mail addressed to Cathy McGee” on February 25,

       2014 (App. 4), and “MAILE[D] PLEADINGS OF 6-20-14 RETURNED

       UNABLE TO FORWARD ON CATH[Y] MCGEE RECEIVED 7-14-14” on

       July 16, 2014. (App. 3.)


[39]   The fact that McGee did not move for summary judgment does not preclude

       the trial court from sua sponte granting summary judgment to McGee on any

       issues raised by Planned Parenthood. See T.R. 56(B) (“When any party has

       moved for summary judgment, the court may grant summary judgment for any

       other party upon the issues raised by the motion although no motion for

       summary judgment is filed by such party.”) Nevertheless, since it appears that

       McGee has not been served, we think the court’s order granting “Judgment for

       Defendants” and dismissing the complaint entirely was premature. Moreover,

       although the claims the Locketts state against McGee are framed identically to

       those brought against Planned Parenthood, McGee’s role in encouraging

       Angelique’s misrepresentation to Planned Parenthood places McGee in a

       substantially different position than Planned Parenthood. In this respect, we

       believe the trial court’s order was also overly-broad. We accordingly remand

       this case to the trial court to correct its order as to the claims against McGee

       and for further proceedings.



                                                Conclusion
[40]   The trial court did not err in entering summary judgment in favor of Planned

       Parenthood on all of the Locketts’ malpractice claims brought against Planned

       Court of Appeals of Indiana | Opinion 45A05-1407-CT-340| April 17, 2015   Page 19 of 20
       Parenthood. However, because the trial court’s order was premature and

       overly-broad with respect to claims brought against defendant McGee, we

       remand with instructions to correct the order and for further proceedings

       consistent with this opinion.


[41]   Affirmed in part, reversed in part, and remanded.


       Robb, J., and Brown, J., concur.




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