Linda Martinez, as the Personal Representative of the Estate of Roy Martinez v. Oaklawn Psychiatric Center

FILED
Jul 12 2019, 7:46 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

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

IN THE
COURT OF APPEALS OF INDIANA

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

Mathias, Judge.

[1] The issue presented in this appeal is whether the claim in this case alleges facts

that fall under Indiana’s Medical Malpractice Act (“the Act”), or whether the

facts allege pure negligence or premises liability outside the definitions of the

Act. The St. Joseph Superior Court granted Oaklawn Psychiatric Center, Inc.’s

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 (“Oaklawn”) motion to dismiss under Trial Rule 12(B)(1) for lack of subject

matter jurisdiction. Linda Martinez, as the personal representative of the estate

of Roy Martinez (“the Estate”), appeals the dismissal, arguing that Oaklawn is

liable based on the theory of premises liability.1

[2] We affirm.

Facts and Procedural History
[3] After five months of inpatient treatment for mental illness, on February 2, 2017,

Roy Martinez (“Martinez”) was admitted to Metcalf House, a voluntary group

home operated by Oaklawn2 that offers supervised living for patients who do

not require inpatient services. Metcalf House is licensed as a Supervised Group

Living home through the Indiana Department of Mental Health and Addictions

and is a qualified health care provider in accordance with Indiana Code section

34-18-2-24.5. Appellant’s Conf. App. p. 44.

[4] Oaklawn employees at Metcalf House called “residential assistants” are

responsible for helping residents develop or improve their ability to function

independently. Specifically, resident assistants help the residents establish and

maintain routines and manage daily activities like hygiene, self-administering

medication, and transportation. Metcalf House residential assistants are trained

1
We held oral argument in this case on June 12, 2019 at the Jewish Community Center in Indianapolis. We
extend our gratitude to the Center and its staff for their gracious hospitality. We also thank counsel for the
quality of their written and oral advocacy.
2
Oaklawn provides mental health and addictions services in St. Joseph and Elkhart Counties, Indiana.

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 annually in non-violent, verbal de-escalation strategies. Appellant’s Conf. App.

p. 79. Residential assistants are also trained to call 911 when medical attention

is required and to remove themselves from possibly violent situations.

Appellant’s Conf. App. p. 92.

[5] The Estate’s complaint arises from an incident that occurred between Martinez

and residential assistant Kennedy Kafatia (“Kafatia”). At approximately 12:30

a.m. on August 3, 2017, the South Bend Police Department responded to a

reported assault at Metcalf House. Kafatia reported to the responding officer

that he had walked into the living room where Martinez was watching

television around midnight and told Martinez he had to go to bed because it

was past curfew. Martinez allegedly refused and stated that he wanted to finish

his show and drink first. Kafatia said that he walked near Martinez to turn off

the lamp, and a struggle for the lamp ensued. When both men dropped the

lamp, Kafatia explained that Martinez attempted to charge at him, and in

response, Kafatia fell back slightly, extended his right foot, and kicked

Martinez, causing a large laceration to his right shin. Martinez reportedly fell

backwards into his chair, and his shin started bleeding. Martinez then walked to

the kitchen and called 911. Rather than following Martinez into the kitchen,

Kafatia remained in the living room to wait for the police, which was consistent

with Oaklawn’s protocol for handling altercations with the psychiatric patients

of Metcalf House.

[6] The responding officer observed Martinez sitting on a chair in the kitchen with

a large amount of blood around him. Martinez was still breathing and making

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 grunting noises but was unconscious. While waiting for medics to respond,

Martinez suddenly stopped breathing. Two officers began CPR until medics

arrived and took over, and Martinez was transported by ambulance to a local

hospital. At approximately 1:41 a.m., Martinez was pronounced dead. Kafatia

was transported to the police department where he was arrested for battery

resulting in death. Appellant’s Conf. App. pp. 50–51.

[7] On March 23, 2018, the Estate filed a complaint alleging that Kafatia, acting in

the course and scope of his employment, “negligently or recklessly” injured

Martinez, resulting in his death. The complaint states that “[a]fter [Martinez]

began bleeding, neither the employee supervising and working at Metcalf

House nor employees of [Oaklawn] exercised reasonable care by providing

basic first aid to [Martinez] or attempting to procure other medical aid or

assistance. Appellant’s App. pp. 16–17. The Estate also asserts that Oaklawn is

“vicariously liable for [Kafatia’s] actions, as well as any other employees or

supervisors who failed to assist [Martinez].” Appellant’s App. p. 17.

[8] Specifically, the Estate alleged that Oaklawn is separately liable to Martinez for:

A. Negligently supervising Martinez;

B. Negligently supervising Kafatia;

C. Failing to provide a safe living environment for Martinez;

D. Failing to provide adequate personnel and staffing to supervise the
residents of Metcalf House;

E. Failing to provide proper training to the staff on the use of first aid and
when to use first aid;

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 F. Failing to properly train staff on when to call for assistance; and

G. Failing to provide safety and protection for Martinez and the residents of
Metcalf House.

Appellant’s App. pp. 17–18.

[9] On May 15, 2018, Oaklawn filed its Answer and Affirmative Defenses, stating

in relevant part that “[t]his court lacks the requisite subject matter jurisdiction

over this Complaint because [the Estate] has raised allegations of medical

malpractice, but has failed to proceed through the medical review panel

process.” Appellant’s App. p. 22. Thereafter, Oaklawn filed a Motion to

Dismiss pursuant to Trial Rule 12(B)(1) on September 7, 2018.

[10] The trial court held a hearing on the motion on October 23, 2018. On

November 27, 2018, the trial court entered an order finding that “[w]hether the

conduct of [Oaklawn] and/or [Kafatia] was negligent, or the exercise of

professional judgment compromised, the conduct alleged is not ‘unrelated to

the promotion of a patient’s health or the provider’s exercise of professional

expertise, skill, or judgment.’” Appellant’s App. p. 15 (citation omitted).

Therefore, the trial court determined that the Estate’s claims fell under the Act

and granted Oaklawn’s motion to dismiss. Id. The Estate now appeals.

Standard of Review

[11] The standard of review on an appeal of a case like this, which is decided under

Trial Rule 12(B)(1), is an unusual, but critical, component of our decision-

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

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matter jurisdiction under Trial Rule 12(B)(1), unlike a trial court ruling on a

motion to dismiss under Trial Rule 12(B)(6), may consider not only the

complaint, but also any affidavits or other evidence presented and submitted on

the issue of subject matter jurisdiction. B.R. ex rel. Todd v. State, 1 N.E.3d 708,

712 (Ind. Ct. App. 2013), trans. denied. If such evidence is presented, the trial

court may weigh the evidence to resolve the jurisdictional issue. Id. On appeal,

our standard of review depends on what occurred in the trial court, that is,

whether the trial court resolved disputed facts, and if the trial court resolved

disputed facts, whether it conducted an evidentiary hearing or ruled on a “paper

record.” Id.

If the facts before the trial court are not in dispute, then the
question of subject matter jurisdiction is purely one of law. Under
those circumstances no deference is afforded the trial court’s
conclusion because appellate courts independently, and without
the slightest deference to trial court determinations, evaluate
those issues they deem to be questions of law. Thus, we review
de novo a trial court’s ruling on a motion to dismiss under Trial
Rule 12(B)(1) where the facts before the trial court are
undisputed.

If the facts before the trial court are in dispute, then our standard
of review focuses on whether the trial court conducted an
evidentiary hearing. Under those circumstances, the court
typically engages in its classic fact-finding function, often
evaluating the character and credibility of witnesses. Thus, where
a trial court conducts an evidentiary hearing, we give its factual
findings and judgment deference. And in reviewing the trial
court’s factual findings and judgment, we will reverse only if they
are clearly erroneous. Factual findings are clearly erroneous if the
evidence does not support them, and a judgment is clearly

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 erroneous if it is unsupported by the factual findings or
conclusions of law.

However, where the facts are in dispute but the trial court rules
on a paper record without conducting an evidentiary hearing,
then no deference is afforded the trial court’s factual findings or
judgment because under those circumstances a court of review is
in as good a position as the trial court to determine whether the
court has subject matter jurisdiction. Thus, we review de novo a
trial court’s ruling on a motion to dismiss where the facts before
the court are disputed and the trial court rules on a paper record.

GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001) (citations and internal

quotations omitted). In this case, the trial court considered the following

evidence in the record: the affidavit of Laurie Nafziger, the president and CEO

of Oaklawn Psychiatric Center, Inc., the South Bend Police Department’s case

report, and the deposition of Lisa Johnson, Kafatia’s supervisor and the team

leader of supervised group living at Oaklawn.

[12] The facts set forth above are undisputed. Moreover, although the trial court

held a hearing on the motion to dismiss, the hearing was simply an oral

argument, as the parties presented no additional evidence and no witnesses

were sworn. Accordingly, we apply a de novo standard of review based on the

paper record before us. See B.R. ex rel. Todd, 1 N.E.3d at 713 (applying de novo

standard where trial court held hearing at which parties made legal arguments

and did not present evidence) (citation omitted).

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 Discussion and Decision

[13] The Medical Malpractice Act authorizes a patient who has a claim for bodily

injury or death due to medical malpractice to file a complaint in any court with

jurisdiction. Ind. Code § 34-18-8-1; Terry v. Cmty. Health Network, Inc., 17

N.E.3d 389, 393 (Ind. Ct. App. 2014). However, Indiana Code section 34-18-8-

4 creates a condition precedent to trying a medical malpractice case in court,

namely, that “an action against a health care provider may not be commenced

in a court in Indiana before: (1) the claimant’s proposed complaint has been

presented to a medical review panel ... and (2) an opinion is given by the

panel.” Thus, until a medical review panel has issued its opinion, the trial court

has no jurisdiction to hear and adjudicate the claim. Terry, 17 N.E.3d at 393; see

also B.R. ex rel. Todd, 1 N.E.3d at 713 (“Simply said, the Act grants subject

matter jurisdiction over medical malpractice actions first to the medical review

panel, and then to the trial court.”).

[14] We further observe that “‘the statutory procedures for bringing a medical

malpractice action are in derogation of common law, and as such, they are to

be strictly construed against limiting a claimant’s right to bring suit.’” B.R. ex rel.

Todd, 1 N.E.3d at 713 (quoting Weldon v. Universal Reagents, Inc., 714 N.E.2d

1104, 1107 (Ind. Ct. App. 1999)). When our General Assembly enacts a statute

in derogation of common law, we presume that the legislature is aware of the

common law and does not intend to make any change beyond what is declared

in express terms or by unmistakable implication. Id.

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[15] As explained in B.R. ex rel. Todd,

“Malpractice” is defined as “a tort or breach of contract based on
health care or professional services that were provided, or that
should have been provided, by a health care provider, to a
patient.” I.C. § 34-18-2-18. A “patient” is “an individual who
receives or should have received health care from a health care
provider, under a contract, express or implied, and includes a
person having a claim of any kind, whether derivative or
otherwise, as a result of alleged malpractice on the part of a
health care provider.” I.C. § 34-18-2-22. And “health care” is “an
act or treatment performed or furnished, or that should have been
performed or furnished, by a health care provider for, to, or on
behalf of a patient during the patient’s medical care, treatment, or
confinement.” I.C. § 34-18-2-13.

Id.

[16] “The Act covers ‘curative or salutary conduct of a health care provider acting

within his or her professional capacity, but not conduct unrelated to the

promotion of a patient’s health or the provider’s exercise of professional

expertise, skill, or judgment.’” Terry, 17 N.E.3d at 393 (quoting Howard Reg’l

Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind. 2011)). Indiana Code section

34-18-2-14 defines a “health care provider” in pertinent part as:

An individual, a partnership, a limited liability company, a
corporation, a professional corporation, a facility, or an
institution licensed or legally authorized by this state to provide
health care or professional services as a physician, psychiatric
hospital, hospital, health facility, emergency ambulance service
[], dentist, registered or licensed practical nurse, physician
assistant, certified nurse midwife, anesthesiologist assistant,
optometrist, podiatrist, chiropractor, physical therapist,
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 respiratory care practitioner, occupational therapist, psychologist,
paramedic, advanced emergency medical technician, or
emergency medical technician, or a person who is an officer,
employee, or agent of the individual, partnership, corporation,
professional corporation, facility, or institution acting in the
course and scope of the person’s employment.

***

A corporation, limited liability company, partnership, or
professional corporation not otherwise qualified under this
section that:

(A) as one (1) of its functions, provides health care;

(B) is organized or registered under state law; and

(C) is determined to be eligible for coverage as a health
care provider under this article for its health care function.

Coverage for a health care provider qualified under this
subdivision is limited to its health care functions and does not
extend to other causes of action.

The parties agree that Kafatia was an employee of Oaklawn, a “health care

provider,” and when the incident occurred, Kafatia was acting within the scope

of his employment.

[17] When deciding whether a claim falls under the provisions of the Medical

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

applicability of the Act. Terry, 17 N.E.3d at 393. The fact that the alleged

misconduct occurred in a healthcare facility, or that the injured party was a

patient at the facility, has not been dispositive in determining whether the claim

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 sounds in medical malpractice. Id. (citing Madison Ctr., Inc. v. R.R.K., 853

N.E.2d 1286, 1288 (Ind. Ct. App. 2006), trans. denied). Instead, we consider

whether the claim is based on the provider’s behavior or practices while acting

in his professional capacity as a provider of medical services. Id. Or, put

differently, “[a] case sounds in ordinary negligence where the factual issues are

capable of resolution by a jury without application of the standard of care

prevalent in the local medical community.” Anonymous Hosp., Inc. v. Doe, 996

N.E.2d 329, 333 (Ind. Ct. App. 2013), trans. denied. Thus, we have held that the

Act was not intended to extend to cases of ordinary negligence or premises

liability. Pluard ex rel. Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, 1037 (Ind.

Ct. App. 1999), trans. denied.

[18] Application of these tests has resulted in “‘hairline distinctions between claims

that sound in medical negligence and those that sound in ordinary negligence.’”

Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 727 (Ind. Ct. App. 2014), trans.

denied (quoting Doe, 996 N.E.2d at 333). More recent decisions of this court

have offered the following distinction when facing the issue of whether a claim

falls within the purview of the Act:

A case sounds in ordinary negligence [rather than medical
negligence] where the factual issues are capable of resolution by a
jury without application of the standard of care prevalent in the
local medical community. By contrast, a claim falls under the
Medical Malpractice Act where there is a causal connection
between the conduct complained of and the nature of the patient-
health care provider relationship.

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 West, 23 N.E.3d at 727 (quoting Terry, 17 N.E.3d at 393) (brackets in original);

accord B.R. ex rel. Todd, 1 N.E.3d at 714–15.

[19] Since these cases, however, our supreme court has handed down its decision in

Cox v. Evansville Police Department, et al., 107 N.E.3d 453 (Ind. 2018). In Cox and

Babi Beyer v. City of Fort Wayne, which were consolidated on appeal, the court

was faced with illegal and sexually abusive conduct by two on duty police

officers in uniform, each of whom raped a woman who was in the respective

officer’s custody. Both officers’ employers claimed that the horrid conduct in

question was far outside the scope of the officers’ respective employment as law

enforcement officers and thereby outside the scope of the doctrine of respondeat

superior, under which the employer can be held liable for an employee’s actions.

[20] Our supreme court disagreed. The court observed that “the scope of

employment encompasses the activities that the employer delegates to

employees or authorizes employees to do, plus employees’ acts that naturally or

predictably arise from those activities.” Id. at 461. Moreover, the scope of

employment may include unauthorized acts, forbidden acts, acts that violate an

employer’s instructions, acts that breach the employee’s professional duty, or

acts that are malicious or criminal. Id.

The scope of employment extends beyond [an employer’s]
authorized acts for two key reasons. First, it is equitable to hold
people responsible for some harms arising from activities that
benefit them. When employees carry out assigned duties, those
employment activities “further the employer’s business” to an
appreciable extent, benefiting the employer. But delegating

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 employment activities also carries an inherent risk that those
activities will naturally or predictably give rise to injurious
conduct. When that happens, the employer is justly held
accountable since the risk accompanies the employer’s benefit.

Second, holding employers liable for those injurious acts helps
prevent recurrence. Employers can take measures—like selecting
employees carefully and instituting procedures that lessen
employment dangers—to reduce the likelihood of tortious
conduct. Since employers have some control over the risk of
injurious conduct flowing from employment activities, imposing
liability on employers for that conduct encourages them to take
preventive action.

To be clear, the focus in determining the scope of employment
“must be on how the employment relates to the context in which
the commission of the wrongful act arose.” When tortious acts
are so closely associated with the employment that they arise
naturally or predictably from the activities an employee was
hired or authorized to do, they are within the scope of
employment, making the employer liable. But tortious acts are
not within the scope of employment when they flow from a
course of conduct that is independent of activities that serve the
employer.

Id. at 461–63 (internal citations omitted). Ultimately, the court concluded that

criminal conduct that violates an employee’s official duties or his or her

employer’s express orders may nevertheless be within the scope of employment

if “the tortious act arose naturally or predictably from the employment

context.” Id. at 463–64.

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[21] Considering the nuances of all of the Indiana cases in this area together with

our supreme court’s recent direction in Cox, we believe that the current test

under Trial Rule 12(B)(1) as to whether the Medical Malpractice Act applies to

specific misconduct is to determine whether that misconduct arises naturally or

predictably from the relationship between the health care provider and patient

or from an opportunity provided by that relationship. It is further important to

realize that, under Cox, such conduct may include otherwise tortious or abusive

conduct.

[22] If this standard is not met, or if the misconduct is a pure question of premises

liability, then standard negligence law applies. We now apply this test to the

facts and circumstances of this case.

I. The Estate’s Arguments

[23] The Estate argues that the trial court erred when it granted Oaklawn’s motion

to dismiss for two reasons. “[F]irst, kicking Martinez was unrelated to the

promotion of his health or medical wellbeing, and second, any tangential

connection to enforcing quiet hours does not require any medical judgment,

skill, or expertise.” Appellant’s Br. at 13. Further, the Estate argues that its

“allegations amount to Oaklawn’s failure as the premises owner of Metcalf

House to provide its business invitees (residents and guests) with a reasonably

safe environment.” Id. at 17. Finally, the Estate emphasizes that Martinez was

voluntarily housed at the facility and objects to Oaklawn’s characterization that

Martinez was confined to Metcalf House. Reply Br. at 5.

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[24] The Estate cites B.R. ex rel. Todd v. State in support of its argument that its

claims sound in negligence because the “actions of Oaklawn and its employee

did not require a healthcare professional to use their expertise, skill, or

judgment.” Appellant’s Br. at 15. In that case, a three-year-old child, who was

placed in therapeutic foster care, ran from the therapeutic foster parents’ home

to an adjacent property where a swimming pool was located. The child nearly

drowned in the pool and suffered catastrophic brain damage as a result. B.R. ex

rel. Todd, 1 N.E.3d at 711.

[25] B.R., by his next friend, filed a complaint against the mental health center that

had contracted with DCS to facilitate therapeutic foster care placements. The

trial court granted the health center’s motion to dismiss the complaint under

Trial Rule 12(B)(1) after concluding that the claims fell under the Medical

Malpractice Act. Id. at 712.

[26] On appeal, B.R. claimed that the health center’s decision concerning placement

with and dissemination of information about his specific needs to his

therapeutic foster parents fell under the practice of foster care management, and

not health care. Id. at 715. B.R. argued that because a health care professional

was not required to participate in his placement with his therapeutic foster

parents, the health center’s professional services did not constitute health care.

Id. We agreed and noted that therapeutic foster care placements are often made

by individuals with no health care training.

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[27] We also agreed that a medical review panel “is no more equipped to consider”

the health center’s negligence than the average juror. Id. at 716. Our court

discussed the General Assembly’s purpose for requiring medical malpractice

claims to be reviewed by a medical review panel:

The text of the Act itself thus leads one to conclude that the
General Assembly intended to exclude from the legislation’s
purview conduct of a provider unrelated to the promotion of a
patient’s health or the provider’s exercise of professional
expertise, skill or judgment.

***

The legislature’s establishment of a medical review panel, the
sole purpose of which is to provide an expert determination on
the question of whether a provider complied with the appropriate
standard of care, suggests that the scope of the Act is likewise
confined to actions premised upon the exercise of profession[al]
judgment.

Id. (quoting Collins v. Thakkar, 552 N.E.2d 507, 510–11 (Ind. Ct. App. 1990),

trans. denied). We concluded that the case manager’s alleged negligence was

unquestionably within the understanding of the average lay juror. Id. And “[a]

medical professional is no better equipped than the average juror to consider

whether the case manager complied with the appropriate standard of care.” Id.

Therefore, we held that B.R.’s claims sounded in general negligence, and the

trial court erred when it granted the health center’s motion to dismiss. Id. at

717.

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[28] The Estate also directs our attention to OB-GYN Associates of Northern Indiana,

P.C. v. Ransbottom, 885 N.E.2d 734 (Ind. Ct. App. 2008), trans. denied. In that

case, we concluded that cosmetic laser hair removal was not health care

because “physicians were not involved in Ransbottom’s treatment, and the

operator of the laser machine was not required to be a healthcare worker or

possess healthcare credentials such as medical degrees, medical licensure, or

medical certification in order to operate the machine.” Id. at 739. We also

stated:

[T]his treatment can be, and often is, legally administered in
beauty salons by beauty salon employees. With this in mind, it
appears that, but for the fact that the laser machine’s operator
happened to be a registered nurse and the laser machine
happened to be located in a medical facility, there would be no
question but that Ransbottom’s laser hair removal treatment did
not constitute health care. Again, so far as we can tell,
Ransbottom could have legally obtained the same treatment
somewhere other than a healthcare facility, and could have
legally done so without the assistance or participation of
someone with valid healthcare licensing or certification
credentials. In those respects, the laser hair removal treatment is
analogous to tattooing or tanning, both of which alter the body
for cosmetic purposes, but neither of which need be performed by
a licensed or certified physician or healthcare professional.

Id.

[29] In support of this conclusion, we emphasized the fact that “no healthcare

professional was required to” participate in the laser hair removal treatment. Id.

at 740. See also Community Hosp. v. Avant, 790 N.E.2d 585, 587 (Ind. Ct. App.

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 2003) (holding that although the plaintiff was involved in a fitness program at a

facility owned by the hospital with a trainer employed by the hospital, the

plaintiff was not a “patient” as that term is used in the Medical Malpractice Act

because he was not under a physician’s orders to start the program as part of a

medical treatment plan).

[30] The Estate also relies on Doe by Roe v. Madison Center Hospital, 652 N.E.2d 101

(Ind. Ct. App. 1995). In that case, a minor child, who was a patient of a

psychiatric center, was sexually assaulted and molested by a mental health

counselor/orderly. The trial court dismissed the child’s intentional tort claims

for lack of subject matter jurisdiction, and our court reversed after concluding

that the claims did not fall within the purview of the Act. Specifically, our court

concluded:

Doe’s allegations, that [employee] King coerced Jane Doe, a
minor, to engage in sexual intercourse causing her to contract a
venereal disease, do not constitute a rendition of health care or
professional services. The alleged acts, although occurring during
Jane Doe’s confinement in the Hospital for psychiatric care and
treatment, were not designed to promote her health. Neither do
they call into question King’s use of skill or expertise as a health
care provider.

Id. at 104 (internal citation omitted). Furthermore, our court observed that the

child and the counselor did not have a therapist-patient relationship.

[31] Relying on those cases, the Estate argues that Kafatia is not a licensed

healthcare professional but simply a “resident assistant,” and no professional

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 expertise, skill, or judgment was involved in Kafatia’s enforcement of Metcalf

House’s curfew rule. Appellant’s Br. at 16. According to Kafatia’s supervisor

there was “only so much you can do” when someone refuses to go to bed.

Appellant’s Conf. App. pp. 87–88. And in that situation, a resident assistant is

supposed to prompt the resident to go to bed and remind them of the rules. If

that is ineffective, the resident assistant is supposed to refer the situation to his

or her supervisor. Id. For these reasons, the Estate argues that Oaklawn’s

liability arises not under the Medical Malpractice Act, but from “its duty to

exercise reasonable care for the safety of its invitees under a premises liability

theory” as set forth in its complaint. Appellant’s Br. at 17.

II. Oaklawn’s Response

[32] Oaklawn contends that the Estate’s complaint sounds in medical malpractice

because Martinez’s “injury occurred while an employee of a psychiatric group

home was acting within the scope and course of his employment in enforcing

the rules of the psychiatric facility.” Appellee’s Br. at 10. Further, the Oaklawn

employee’s actions necessary to enforce the terms and conditions of a resident

patient’s confinement in the facility required medical knowledge. Therefore, the

Estate’s claims fall under the Act.

[33] Oaklawn relies on Putnam County Hospital v. Sells, 619 N.E.2d 968 (Ind. Ct.

App. 1993). In that case, Sells, while under the effects of anesthesia

administered during a tonsillectomy, fell from the bed in her recovery room

because the bed railings were not in the upright position. On appeal, our court

concluded that Sells’s complaint raised a claim for medical malpractice.
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[34] Importantly, Sells alleged that the hospital was “negligent in failing to properly

train and supervise its staff members with regard to the proper procedure for

monitoring patients in the recovery room following surgery.” Id. at 971 (record

citation omitted). Sells also alleged that the hospital was negligent by failing to

properly monitor her in the recovery room, failing to ensure she did not injure

herself while under anesthesia, and failing to ensure that the railings were in

place on her recovery room bed. Id. We observed that the allegations in the case

did not involve faulty premises or equipment. Rather, Sells alleged that the

hospital made negligent health care decisions while she was under general

anesthesia recovering from a surgical procedure. Id. For these reasons, we

concluded that Sells’s complaint fell “squarely within the scope of the Act.” Id.

[35] Oaklawn argues that like Sells, the Estate has alleged that Oaklawn negligently

supervised Martinez and Kafatia, and that Oaklawn “failed to provide the

proper training and monitoring of its staff during Mr. Martinez’s confinement

in Metcalf House.” Appellee’s Br. at 16. Oaklawn observes that as a resident

assistant, Kafatia was trained to assist Martinez “with his treatment plan for

skill training to lead Mr. Martinez to be ready to move out of the psychiatric

group home and into his own apartment.” Id.; see also id. at 17 (arguing that

Kafatia “was attempting to provide care” for Martinez because he was

“promoting structure and regularity for a mentally ill patient in a salutary

environment”).

Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019 Page 20 of 24
 III. Cases Involving a Third Party are Distinguishable from Cases Falling
Under the Act

[36] The parties rely on the following cases, which are easily distinguishable from

this case because they involve injuries directly caused by third parties. They are

briefly discussed below. We consider them because they have been cited by one

or both of the parties.

[37] Oaklawn argues that the facts of this case are analogous to Ogle v. St. John’s

Hickey Memorial Hosp., 473 N.E.2d 1055 (Ind. Ct. App. 1985), trans. denied. In

that case, Ogle, a patient committed to the psychiatric ward of the hospital, was

raped by another patient during her commitment. Ogle sued the hospital and

alleged that it failed to provide proper security and failed to protect her. The

trial court dismissed Ogle’s complaint on the hospital’s motion because she

failed to file a proposed complaint with the medical review panel.

[38] Our court affirmed the trial court after concluding that Ogle’s claims fit the

definition of health care. Specifically,

[s]he alleges an act (the providing of protection), which should
have been performed (“negligently failed to provide....”), by a
health care provider (St. John’s), for a patient (Ogle), during the
patient’s confinement (Ogle’s confinement in the psychiatric
ward because of her suicidal tendency). The providing or not
providing of suitable confinement for such a patient can hardly be classed
as anything other than a professional judgment based on medical
knowledge under the terms of the Act as written. This is true even
though the harm experienced was not another attempt at self-
destruction. Proper limitations on exposure of a mentally ill
patient to the public or to other patients is necessarily a medical

Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019 Page 21 of 24
 judgment. The legislature expressly recognized that proper
confinement is an act of medical care as it drafted the Health
Care Definition section to encompass acts occurring during “the
patient’s medical care, treatment or confinement.”

Id. at 1058–59 (emphasis added). The emphasized language supports Oaklawn’s

arguments in this case. However, the facts of the Ogle case are distinguishable

from those in this appeal because they involve the actions of a third-party.

[39] In Madison Center, Inc. v. R.R.K., et al., 853 N.E.2d 1286 (Ind. Ct. App. 2006),

trans. denied, R.R.K, a seventeen-year-old inpatient resident of Madison Center,

a psychiatric hospital, was being disciplined for his behavior. Another inpatient

resident was standing nearby and refused to leave. When R.R.K. and the other

resident began arguing, hospital staff restrained R.R.K., but not the other

resident. The resident then ran up to R.R.K. and kicked him in the face causing

significant injury. Once again, R,R.K.’s injuries were proximately caused by a

third party.

[40] Our court agreed with the trial court that R.R.K.’s complaint alleged a premises

liability claim not governed by the Medical Malpractice Act. We observed that

R.R.K.’s injuries were not caused by any services which the
Center as the health care provider provided or failed to provide to
him as a patient. Rather, they were caused by another resident
whom the Center failed to medicate, restrain, or confine. As
such, they arise not from the Center’s medical treatment of
R.R.K., but from his presence on the Center’s premises. Indeed,
a visitor upon the premises could have as easily sustained
R.R.K.’s injuries.

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 Id. at 1288.

[41] Furthermore, we observed that “the Center’s failure to properly medicate,

restrain, or confine the resident who struck and injured R.R.K. may have

constituted malpractice as to that resident, but not to third parties with whom

the resident may have come into contact.” Id. at 1289. “The duty the Center

owed to R.R.K. to prevent his being subject to attack by one of the other

patients was the same as the duty owed to any invitee upon the premises. It did

not arise from R.R.K.’s medical treatment, but from his presence on the

premises.” Id.

[42] In so concluding, another panel of our court relied on our supreme court’s

opinion in Webb v. Jarvis, 575 N.E.2d 992, (Ind. 1991),3 which also involved an

assault by a third party that the court concluded sounded in negligence. The

R.R.K. panel also explicitly disagreed with this court’s earlier Ogle decision,

which we noted was also decided before our supreme court decided Webb.

R.R.K., 852 N.E.2d at 1289.

Conclusion
[43] The undisputed record establishes that Oaklawn is a healthcare provider and

Kafatia is, and was at the time of the incident at issue in this case, its employee.

3
In Webb, the plaintiff, who was a shooting victim, sued the physician who prescribed anabolic steroids for
the third-party contending that, by doing so, the physician committed malpractice. 575 N.E.2d at 992,
disapproved by Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 391 (Ind. 2016).

Court of Appeals of Indiana | Opinion 18A-CT-2883 | July 12, 2019 Page 23 of 24
 Martinez was, whether voluntarily or otherwise, Oaklawn’s patient in Metcalf

House. In that setting, Kafatia’s attempt to enforce Martinez’s curfew was a

part of Oaklawn’s provision of healthcare to Martinez. When the altercation

occurred that injured Martinez, Kafatia was naturally responding to Martinez’s

physically aggressive behavior by defending himself. Kafatia thereafter followed

Oaklawn’s protocol by removing himself from Martinez’s immediate physical

presence and waiting for law enforcement to assist with Martinez. These facts

and circumstances, together with the broadened scope of employment set forth

in Cox, place the incident and injuries squarely within the scope of the Medical

Malpractice Act.

[44] We therefore affirm the trial court in all respects.

Robb, J., and Altice, J., concur.

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