Amy K. Metz, as Mother and Next Friend of Kiara K. Metz, an incapacitated minor v. Saint Joseph Regional Medical Center-Plymouth Campus, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 15 2018, 8:38 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David V. Miller Kirk D. Bagrowski
DVM Law, LLC Hammond, Indiana
Newburgh, Indiana
George C. Barnett, Jr.
Barnett Law, LLC
Evansville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Amy K. Metz, as Mother and November 15, 2018
Next Friend of Kiara K. Metz, Court of Appeals Case No.
an incapacitated minor, 18A-CT-325
Appellant-Defendant, Appeal from the St. Joseph Circuit
Court
v. The Honorable John E. Broden,
Judge
Saint Joseph Regional Medical Trial Court Cause No.
Center-Plymouth Campus, Inc.; 71C01-1705-CT-233
Saint Joseph Regional Medical
Center, Inc.; Joel Schumacher,
M.D.; and Plymouth Family and
Internal Medicine,
Appellee-Plaintiff.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-325 | November 15, 2018 Page 1 of 16
 Tavitas, Judge.

Case Summary
[1] Amy Metz, as mother and next friend of Kiara Metz, an incapacitated minor,

appeals the trial court’s dismissal of her complaint against the Saint Joseph

Regional Medical Center-Plymouth Campus, Inc.; Saint Joseph Regional

Medical Center, Inc.; Joel Schumacher, M.D.; and Plymouth Family and

Internal Medicine (collectively, “Medical Providers”). We affirm.

Issue
[2] Metz raises several issues, which we consolidate and restate as whether the trial

court properly determined that the Indiana Medical Malpractice Act governs

Metz’s claims against Medical Providers.

Facts
[3] In May 2017, Metz filed a complaint against Medical Providers alleging

negligence and requesting punitive damages. Metz alleged that her daughter,

Kiara, was born on August 6, 2004, at Saint Joseph Regional Medical Center-

Plymouth Campus (“Plymouth Hospital”) and that Dr. Schumacher was

engaged to provide services, “including but not limited to the timely review of

TSH Test Results regarding infants born at the Plymouth Hospital, and the

timely communication of those results to the appropriate hospital office and to

the parents of the said newborn infants.” Appellants’ App. Vol. II pp. 18-19.

Metz alleged that a blood sample was obtained from Kiara by the delivery team

and was sent to the Indiana University Newborn Screening Laboratory
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 (“Laboratory”). The Laboratory issued a written report on August 16, 2004,

which it sent to Plymouth Hospital and Dr. Schumacher. The written report

provided that Kiara’s “TSH” was “abnormal borderline.” Id. at 29. The report

noted: “The newborn screen was considered abnormal and a recollection of an

additional blood spot specimen is necessary to further evaluate this infant.” Id.

Medical Providers did not report the test results to Metz or take action to retest

Kiara. Metz alleges that she called Dr. Schumacher’s office on August 20,

2004, regarding the test results and was informed by office staff that the results

were normal.

[4] On August 31, 2004, the Laboratory again sent a letter to the Plymouth

Hospital and Dr. Schumacher noting that it had not received “follow-up . . . as

is required by ISDOH . . . .” Id. at 30. Medical Providers again did not contact

Metz. On September 25, 2004, Metz received a copy of a letter from the

Laboratory to Dr. Schumacher dated September 21, 2004. Kiara’s pediatrician,

Dr. Robert Kolbe, then requested copies of the records from Dr. Schumacher

and obtained additional testing of Kiara, which demonstrated that Kiara has

hypothyroidism. According to Metz, “if hypothyroidism is identified within

two to three weeks of a child’s birth, damaging developmental effects of

hypothyroidism can be prevented by the administration of manufactured

medicines containing substances that provide the newborn with substitutes for

the inadequate production of TSH by the infant’s thyroid gland.” Id. at 21.

Metz alleged that Kiara has suffered “numerous irreversible consequences.” Id.

at 25.

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[5] Medical Providers filed a motion to dismiss pursuant to Indiana Trial Rule

12(B)(1) and Indiana Trial Rule 12(B)(6). Medical Providers argued that the

matter was barred by the statute of limitations set out in the Indiana Medical

Malpractice Act (“MMA”). Medical Providers argued that the alleged acts and

omissions constitute claims of medical negligence rather than general

negligence, and thus, the MMA applies. According to Medical Providers, Metz

failed to file a timely proposed complaint with the medical review panel and

failed to file a claim before Kiara’s eighth birthday as required by the MMA.

[6] Metz responded by arguing that the MMA did not apply because Medical

Providers “simply failed to perform an administrative duty to read and report

the critical information in those letters.” Id. at 76. Metz contended that the

“MMA cannot, by any stretch of its statutory language, be interpreted to

include the failure to perform a purely administrative act.” Id. According to

Metz, her claims “sound[] in common law negligence against the [Medical

Providers].” Id. at 80.

[7] In January 2018, the trial court granted Medical Providers’ motion to dismiss

pursuant to both Trial Rule 12(B)(1) and Trial Rule 12(B)(6) as follows:

11. [ ] [T]his court found the discursive analysis as set out
in Terry v. Community Health Network, 17 N.E.3d 389
(Ind. Ct. App. 2014) and Robertson v. Anonymous Clinic,
63 N.E.3d 349 (Ind. Ct. App. 2016) to be most helpful.
Both cases emphasized a focus on “whether the claim
is based on the provider’s behavior or practices while
acting in his professional capacity as a provider of
medical services.” Terry, [17 N.E.3d] at 393 (citing

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 Madison Ctr, Inc., v. R.R.K., 853 N.E.2d 1286, 1288
(Ind. Ct. App. 2006). Both cases then emphasized that
the court’s true focus must be on whether the issues are
capable of resolution without referring to the medical
standard of care; if so, the claims are not subject to the
MMA. Robertson, [63 N.E.3d] at 360.

12. With that analysis in mind, the focus shifts to the actual
text of the allegations in Plaintiff’s Complaint and the
contents of the designated evidence regarding the
actual acts of alleged negligence. As discerned by this
court, the acts of alleged negligence asserted by Plaintiff
are as follows: A. Neither Dr. Schumacher nor any
other named Defendant reported the abnormal TSH
Test Results information to Plaintiff or anyone
associated with Kiara’s parents; B. Neither Dr.
Schumacher nor any other named Defendant caused
Kiara to be retested as required by the August 16
report; C. On or about August 20, 2004, Plaintiff was
advised by a staff person of Dr. Schumacher that the
results of Kiara’s infant blood screen were all normal;
D. Defendants failed to provide Plaintiff with a copy of
or advise her of the contents of an August 31, 2004
letter from the IU Lab advising Defendants that the
Lab had yet to receive a follow up blood sample as
requested; E. Plaintiff was not made aware of the
abnormal test result until September 25, 2004 when she
received a letter from the IU Infant Screening
Laboratory; F. Plaintiff did not receive an actual copy
of the August 31, 2004 letter from the IU Lab until late
September or early October of 2004; G. Plaintiff
contends in paragraph 31 of her Complaint that these
failures were purely the result of lack of proper
attention and/or administrative or clerical failures,
none of which involved the exercise of medical skill or
judgment.

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 13. This court finds that the alleged acts of negligence set
out above do have to do with the provider’s behavior or
practices while acting in his professional capacity as a
provider of medical services. Further, there is a causal
connection between the conduct complained of and the
nature of the patient-health care provider relationship.
The court also notes that the test involved revealed a
“borderline abnormal” reading. Such a reading makes
the medical issues more complicated and would
involve an analysis of the medical standard of care and
be outside the common knowledge of a lay juror. In
the end, this court cannot conclude Defendants’ alleged
acts of negligence are demonstrably unrelated to the
promotion of the Plaintiff’s health or not involving the
provider’s exercise of professional expertise, skill, or
judgment. Therefore, Plaintiff’s claim is governed by
the terms and provisions of the MMA.

Appellants’ App. pp. 14-15.

Analysis
[8] Metz appeals the trial court’s grant of Medical Providers’ motion to dismiss

pursuant to both Indiana Trial Rule 12(B)(1) and Indiana Trial Rule 12(B)(6).

Trial Rule 12(B)(1) addresses the “[l]ack of jurisdiction over the subject matter.”

In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant

to Trial Rule 12(B)(1), the relevant question is whether the type of claim

presented falls within the general scope of the authority conferred upon the

court by constitution or statute. Robertson v. Anonymous Clinic, 63 N.E.3d 349,

356 (Ind. Ct. App. 2016), trans. denied. A motion to dismiss for lack of subject

matter jurisdiction presents a threshold question with respect to a court’s power

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 to act. Id. “The standard of review for a trial court’s grant or denial of a

12(B)(1) motion to dismiss for lack of subject matter jurisdiction is ‘a function

of what occurred in the trial court.’” Berry v. Crawford, 990 N.E.2d 410, 414

(Ind. 2013) (citing GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001)), reh’g

denied. Where the facts before the trial court are not in dispute, the question of

subject matter jurisdiction is one of law, and we review the trial court’s ruling

de novo. Id. Likewise, when reviewing a final judgment, we review all

conclusions of law de novo. Id. In the appeal from a trial court’s grant of a

pretrial motion to dismiss under Trial Rule 12(B)(1), we accept as true the facts

alleged in the complaint. State ex rel. Zoeller v. Aisin USA Mfg., Inc., 946 N.E.2d

1148, 1149-50 (Ind. 2011), reh’g denied.

[9] Trial Rule 12(B)(6) addresses the “[f]ailure to state a claim upon which relief

can be granted.” A motion to dismiss under Trial Rule 12(B)(6) tests the legal

sufficiency of the plaintiff’s claim, not the facts supporting it. Bellwether

Properties, LLC v. Duke Energy Indiana, Inc., 87 N.E.3d 462, 466 (Ind. 2017). A

dismissal under Trial Rule 12(B)(6) is improper “‘unless it appears to a certainty

on the face of the complaint that the complaining party is not entitled to any

relief.’” Id. (quoting State v. American Family Voices, Inc., 898 N.E.2d 293, 296

(Ind. 2008), reh’g denied). We review a Trial Rule 12(B)(6) dismissal de novo,

giving no deference to the trial court’s decision. Id. In reviewing the complaint,

we take the alleged facts to be true and consider the allegations in the light most

favorable to the nonmoving party, drawing every reasonable inference in that

party’s favor. Id. A complaint states a claim on which relief can be granted

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 when it recounts sufficient facts that, if proved, would entitle the plaintiff to

obtain relief from the defendant. Id.

[10] The issue in this appeal is whether Metz’s allegations against Medical Providers

are claims of general negligence or are claims covered by the provisions of the

MMA. If the claims against Medical Providers are not subject to the MMA,

they are claims of general negligence. See Robertson, 63 N.E.3d at 357. This

distinction is important because the MMA requires the presentation of the

proposed complaint to a medical review panel before an action may be

commenced in a court in Indiana, and Metz did not present the claim to a

medical review panel. See Ind. Code § 34-18-8-4. “Essentially, the [MMA]

grants subject matter jurisdiction over medical malpractice actions first to the

medical review panel, and then to the trial court.” H.D. v. BHC Meadows

Hospital, Inc., 884 N.E.2d 849, 853 (Ind. Ct. App. 2008), reh’g denied, trans.

denied; see also B.R. ex rel. Todd v. State, 1 N.E.3d 708, 713 (Ind. Ct. App. 2013)

(“Simply said, the [MMA] grants subject matter jurisdiction over medical

malpractice actions first to the medical review panel, and then to the trial

court.”), trans. denied.

[11] Moreover, “[a] motion to dismiss for failure to state a claim on which relief

may be granted may be an appropriate means of raising the statute of

limitations.” Chenore v. Plantz, 56 N.E.3d 123, 126 (Ind. Ct. App. 2016).

“When the complaint shows on its face that the statute of limitations has run,

the defendant may file a Trial Rule 12(B)(6) motion.” Id. The MMA imposes a

two-year statute of limitations but does allow claims on behalf of minors to

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 proceed if the claim is filed before the minor’s eighth birthday. See Ind. Code

34-18-7-1(b) (“A claim, whether in contract or tort, may not be brought against

a health care provider based upon professional services or health care that was

provided or that should have been provided unless the claim is filed within two

(2) years after the date of the alleged act, omission, or neglect, except that a

minor less than six (6) years of age has until the minor’s eighth birthday to

file.”). Here, Metz did not file her complaint until after Kiara’s twelfth

birthday. In an action for general negligence, however, the statute of

limitations would be tolled until two years after Kiara was eighteen years old.

See Ind. Code 34-11-6-1 (“A person who is under legal disabilities when the

cause of action accrues may bring the action within two (2) years after the

disability is removed.”). Consequently, we address whether Metz’s claims fall

within the MMA.

[12] “[T]he MMA was a legislative response to escalating problems in the

malpractice insurance industry, with physicians being fearful of exposure to

malpractice claims and, further, being unable to obtain adequate malpractice

insurance.” Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 726 (Ind. Ct. App.

2014), trans. denied. “By providing some measure of protection to health care

providers, the MMA was designed to preserve health care services available to

the community.” Id. 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. Id. at 726-

27. When the legislature enacts a statute in derogation of common law, we

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 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. at 727.

[13] 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.” Ind. Code § 34-18-2-18.

“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. The MMA does not necessarily apply to all cases where a health

care provider is a party. West, 23 N.E.3d at 727.

[14] “Indiana courts understand the [MMA] to cover ‘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) (internal citations omitted). To

determine whether the MMA is applicable, we look to the substance of a claim.

Id. Regardless of “what label a plaintiff uses, claims that boil down to a

‘question of whether a given course of treatment was medically proper and

within the appropriate standard’ are the ‘quintessence of a malpractice case.’”

Id. (quoting Van Sice v. Sentany, 595 N.E.2d 264, 267 (Ind. Ct. App. 1992)).

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[15] To be outside the MMA, “a health care provider’s actions must be

demonstrably unrelated to the promotion of the plaintiff’s health or an exercise

of the provider’s professional expertise, skill, or judgment.” Id. at 186. “[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.’”

Robertson, 63 N.E.3d at 358 (quoting Madison Ctr., Inc. v. R.R.K., 853 N.E.2d

1286, 1288 (Ind. Ct. App. 2006), trans. denied). We have also noted 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
[MMA] where there is a causal connection between the conduct
complained of and the nature of the patient-health care provider
relationship.

Id. (quoting Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App.

2014)) (internal citations omitted).

[16] In support of her argument that the MMA does not apply, Metz relies on

Preferred Prof. Insurance Co. v. West, 23 N.E.3d 716 (Ind. Ct. App. 2014), trans.

denied. In West, the plaintiff sustained a workplace injury due to the actions of

her coworker, who was taking narcotic pain medications. The plaintiff brought

a claim against her coworker’s medical providers, and the trial court determined

that the MMA did not apply to the plaintiff’s claims. On appeal, the plaintiff

claimed that the medical provider’s office failed to place a telephone message

slip in his medical file and that her coworker’s nurse did not provide him with

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 the proper warnings and precautions regarding taking narcotic pain

medications.

[17] Regarding the message slip, we concluded:

[T]he essence of the claimed misconduct does not involve any
exercise of professional medical judgment or skill by the medical
provider. We have recognized that the text of the MMA
indicates that the legislature intended to exclude from the MMA
“conduct of a provider unrelated to the provider’s exercise of
judgment or skill.” [B.R. ex rel. Todd v. State, 1 N.E.3d 708, 716
(Ind. Ct. App. 2013) (quoting Collins v. Thakkar, 552 N.E.2d 507,
510-11 (Ind. Ct. App. 1990), trans. denied), trans. denied.] Indeed,
there is no need for a medical review panel, the purpose of which
“is to provide an expert determination on the question of whether
a provider complied with the appropriate standard of care.” Id.
The issues surrounding the administrative matter of the filing of
the message slip are within the understanding of the average lay
juror. A jury would be capable of resolving factual issues without
applying the standard of care prevalent in the local medical
community, and jurors’ common knowledge and experience
would enable them to understand these circumstances.
Accordingly, the trial court properly determined this claim was
not within the scope of the MMA.

West, 23 N.E.3d at 728.

[18] Regarding the nurse’s failure to provide proper warnings to the coworker, we

concluded:

The Wests’ other claimed basis of negligence is that Nurse P
allegedly failed to provide the proper warnings and instructions
to Michael—because she was not trained properly on what to
say, she negligently failed to follow procedure, or for some other

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 reason. In contrast to the administrative task of filing the
message slip, which we found did not fall within the purview of
the MMA, we find that the allegations that Nurse P failed to
warn Michael present a set of facts that allege negligence “at the
periphery of medical malpractice.” [Eads v. Cmty. Hosp., 932
N.E.2d 1239, 1244 (Ind. 2010)]. It is one of those “grey areas on
the fringe of the MMA[.]” Id. On one hand, there appears to be
no allegation that a diagnosis was in error, that the prescribed
medication was inappropriate for Michael’s symptoms or
condition, or that Dr. H did not prescribe the correct dosage.
However, the claim that Nurse P failed to warn Michael at least
potentially calls into question the degree of skill exercised by
Michael’s health care provider. As support for their position that
the MMA does not apply to their claims, the Wests characterize
Nurse P as a “non-medical employee,” because she was a
certified athletic trainer and not a licensed nurse, and that her
alleged failure to communicate warnings to Michael was
“clerical.” Appellees’ Wests’ Br. at 8. However, Nurse P was Dr.
M’s assistant, was an employee of the medical provider, was
considered the acting nurse, and was responsible for
communicating with patients and physicians, including regarding
medications. Therefore, under the facts of this case, we do not
find the athletic trainer versus licensed nurse distinction to be
legally dispositive. Assuming without deciding that the claimed
failure to warn Michael about the effects and restrictions of the
medication constitutes giving (or failing to give) medical care as
considered by the MMA, our inquiry does not end there.

Id. at 728-29.

[19] We then went on to conclude that, regardless, the plaintiff was not a “patient”

under the MMA, and the MMA was not “intended to cover claims by third

parties having absolutely no relationship to the doctor or medical provider.” Id.

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 at 730. We, consequently, concluded that the plaintiff’s claims constituted

common law negligence, not medical malpractice.

[20] Unlike in West, there is no argument that Kiara was not a patient covered by the

MMA. Rather, Metz seeks to characterize Medical Providers’ inaction

regarding Kiara’s lab results as a “purely administrative act” or clerical error

similar to the message slip in West. Appellants’ Br. p. 15. According to Metz,

no expert determination was required to analyze whether Medical Providers

complied with an appropriate standard of care, and a lay person is capable of

resolving the issues based upon his or her own common knowledge and

experience.

[21] We do not find West persuasive here. As we have noted, the MMA 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.” Ind.

Code § 34-18-2-13. The prompt analysis of laboratory results and proper follow

up care is “part of what patients expect from health care providers.” Gordon,

952 N.E.2d at 186. Such care is essential to the promotion of the patient’s

health. We disagree with Metz that the proper follow-up and interpretation of

the “borderline abnormal” TSH result on Kiara’s laboratory report is a matter

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 in the common knowledge of a lay person. 1 This allegation is much more than

a mere administrative error.

[22] Metz also claims that Dr. Schumacher’s staff member gave her the wrong test

results when Metz called Dr. Schumacher’s office. Metz argues that this

“negligent misrepresentation” claim does not fall within the MMA. 2

Appellants’ Br. p. 22. Our supreme court, however, has directed that we look

to the substance of the claim, not the plaintiff’s label for the claim. See Gordon,

952 N.E.2d at 185. The substance of the claim is that Dr. Schumacher’s staff

allegedly gave Metz erroneous information regarding Kiara’s laboratory test

results. Again, this allegation pertains to an act performed by a health care

provider for a patient during the patient’s medical care. Providing accurate test

results to a patient is also essential to the promotion of the patient’s health. As

such, it falls within the purview of the MMA.

1
In support of her argument, Metz relies on Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000), for the
proposition that expert medical testimony is not required to prove that a health care worker should provide
test results to a patient. Bader, however, was a medical malpractice action in which the health care providers
failed to provide test results to the patient. Our supreme court noted that “expert medical testimony is
usually required to determine whether a physician’s conduct fell below the applicable standard of care.”
Bader, 732 N.E.2d at 1217. The court then held that, because the failure to provide test results is not a
technical complex matter, expert medical testimony was probably not required to determine whether the
health care providers breached their duty. Id. at 1218. Bader was decided in the context of determining
breach of duty under the MMA, not whether the MMA applied at all. We do not find Bader persuasive here.
2
In support of her argument, Metz relies on H.D. v. BHC Meadows Hospital, Inc., 884 N.E.2d 849, 854-55 (Ind.
Ct. App. 2008), trans. denied, in which this court held that a hospital’s “negligent or reckless dissemination of
a patient’s confidential information to members of the general public” did not come within the purview of the
MMA. The facts of H.D. are not comparable to the situation here, and H.D. is not applicable.

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[23] Although we sympathize with Metz’s situation, “[i]t is difficult to contemplate

that [these services] fall[] outside the [MMA].” Id. Under the circumstances

here, we conclude that the MMA applies to Metz’s claim. Because Metz failed

to present the claim to a medical review panel and failed to file the claim in a

timely manner, the trial court properly dismissed Metz’s complaint against

Medical Providers.

Conclusion
[24] The trial court properly dismissed Metz’s complaint against Medical Providers

pursuant to Trial Rule 12(B)(1) and Trial Rule 12(B)(6). We affirm.

[25] Affirmed.

Brown, J., and Altice, J., concur.

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