concurring in result
I concur in result, but write separately to address the issue of Thomas' recourse in light of our decision today.
I agree that Thomas' claim does not sound in medical malpractice and he therefore was not required to first file his proposed complaint with the Department of Insurance. Unlike the plaintiff in M.V. v. Charter Terre Haute Behavioral Health System, Inc., 712 N.E.2d 1064 (Ind.Ct.App.1999), whose false imprisonment claim against a psychiatric facility was dismissed for lack of subject matter jurisdiction because he had failed to first take his claim to the Department of Insurance, Thomas' claims did not arise because of Deitsch's provision of medical services. In M.V., the plaintiff filed his complaint first in the trial court, and alleged that the Medical Malpractice Act did not apply because the acts of which he complained constituted the intentional tort of false imprisonment. We held that because the facility's actions were "professional judgments made by health care providers" that constituted professional services within the purview of the Act. Id. at 1066-67. However, Thomas' claims do not arise out of Deitsceh's rendition of health care or use of professional judgment and skill, and thus, I agree with the majority that the trial court properly granted Deitseh's motion for summary judgment regarding this issue.
I write separately because the majority, although noting that it does not reach the issue of whether the operative facts would support a claim for ordinary negligence, does not address the statute of limitations implications of its decision. Because his claim involved his doctor, Thomas did the cautious thing in filing his proposed complaint with the Department of Insurance before seeking redress in a court of law. Our supreme court, in cases involving uncertainty about whether or not a provider has qualified pursuant to the Medical Malpractice Act, has noted:
Some patients and their attorneys, of course, tender a complaint to the commissioner when they are uncertain whether a provider has qualified under the Act.... Filing a proposed complaint with the commissioner of insurance tolls the statute of limitations until the commissioner or his agent informs the parties that the provider has not qualified under the Act. ... If the commissioner determines that the provider has not qualified and so notifies the parties, the statute of limitations begins running again and the claimant must file an action in court or risk being barred by the statute of limitations.
Guinn v. Light, 558 N.E.2d 821, 824 (Ind.1990). See also Miller v. Terre Haute Regional Hosp., 603 N.E.2d 861, 863 (Ind.1992). Accordingly, any plaintiff, regardless of the qualified status of defendant, is entitled to the benefit of the tolling of the statute of limitations while the Department *1222of Insurance determines the qualified status. Miller, 603 N.E.2d at 863.
I believe a similar rule should be applicable in cases such as this one, in which the medical malpractice nature of the claim is questionable, and the plaintiff chooses to file first with the Department of Insurance. While the nature of the claim is being determined, the statute of limitations should be tolled, so that if it is ultimately determined that the claim is not, in fact, one involving medical malpractice which was required to be filed before the Department of Insurance, the plaintiff may still have the opportunity to file a complaint alleging common law claims in the trial court. Any other approach would put the plaintiff in an untenable situation of having to predict how the Department of Insurance and the courts will regard his "borderline" claim. Additionally, if we were not to toll the statute of limitations in cases like this, we would place far too much power in the hands of the doctor: if the plaintiff files with the Department of Insurance within two years, but the statute of limitations is not tolled, then the doctor can simply wait until two years has passed to file his motion for preliminary determination and foreclose any possibility the plaintiff might have to raise a common law claim.
Accordingly, I believe the statute of limitations should be considered tolled from the time Thomas filed his proposed complaint with the Department of Insurance until a determination was made that the claim was not a medical malpractice claim. Because Thomas timely filed all necessary motions to bring this case to this court, I also believe that the time this case was on appeal should toll the statute of limitations such that, upon certification of the case, Thomas would still have whatever time remained in his original two-year statute of limitations at the time he filed his proposed complaint in which to file any common law claims to which he might be entitled under the facts of this case.1
. It appears that the alleged act of malpractice occurred on December 2, 1997. Thomas filed his proposed complaint with the Department of Insurance on July 28, 1998. Thus, at the time Thomas filed his complaint, there was still one year and 127 days remaining in the two years provided by statute for filing such a claim.