FILED
Jun 14 2023, 9:46 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Courtney David Mills Timothy S. Schafer
Alexis R. Jenkins Timothy S. Schafer, II
Riley Bennett Egloff, LLP Todd S. Schafer
Indianapolis, Indiana Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Incremedical, LLC and Annie June 14, 2023
Gonzalez, Court of Appeals Case No.
Appellants-Defendants, 22A-CT-2929
Appeal from the Porter Superior
v. Court
The Honorable Jeffrey Clymer,
Alyssa Kennedy, Judge
Appellee-Plaintiff. Trial Court Cause No.
64D02-2108-CT-7130
Opinion by Judge Riley
Judges Bradford and Weissmann concur.
Riley, Judge.
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 1 of 12
STATEMENT OF THE CASE
[1] Appellants-Defendants, IncreMedical, LLC (IncreMedical) and Annie
Gonzalez (Gonzalez) (collectively, Appellants), appeal the trial court’s denial of
their motion to dismiss Appellee-Plaintiff, Alyssa Kennedy’s (Kennedy),
Complaint for lack of subject matter jurisdiction.
[2] We reverse and dismiss.
ISSUE
[3] Appellants present this court with one issue on appeal, which we restate as:
Whether the trial court erred by denying Appellants’ motion to dismiss because
Appellants are qualified health care providers pursuant to the Medical
Malpractice Act and Kennedy failed to present her proposed complaint to the
medical review panel prior to commencing this cause.
FACTS AND PROCEDURAL HISTORY
[4] IncreMedical is a rehabilitation management company that employs
approximately 380 individuals and provides a wide variety of resources and
personnel in the field of rehabilitation medicine. IncreMedical provides staffing
and management of rehabilitation facilities in northern Indiana and
surrounding communities. As part of its business services, IncreMedical
employs a wide array of health care professionals, including physical therapists
and occupational therapists. At all times during these events, Gonzalez was an
employee of IncreMedical and acted in the course and scope of her
employment with IncreMedical.
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 2 of 12
[5] On August 22, 2019, Kennedy, then a high school student, was playing
volleyball at Portage High School. During the game, both Kennedy and a
teammate went for a ball and collided. Kennedy was knocked to the ground
and her head struck the floor. Kennedy was referred to Athletic Trainer (AT)
Gonzalez, working as an IncreMedical employee and contracted to work at
Portage High School. AT Gonzalez advised Kennedy’s mother that “there is
no use in going to the hospital” because a concussion is not visible on a scan.
(Appellants’ App. Vol. II, p. 8). The following day, Kennedy informed AT
Gonzalez that she had a terrible headache. Without doing an impact test as
required by Portage High School’s safety policies and procedures, AT Gonzalez
cleared Kennedy for practice. Three days later, Kennedy participated at
another volleyball game at Portage High School. During the game, Kennedy
was struck in the head by a ball. She was clearly dazed and confused. Again,
AT Gonzalez advised Kennedy’s mother “that there was no use in going to the
ER because there isn’t anything they can do to treat a concussion.”
(Appellants’ App. Vol. II, p. 20).
[6] On August 4, 2021, Kennedy filed her Complaint against Portage High School
and Portage Township Schools (collectively, Portage High School) 1, claiming to
have sustained a brain injury due to Portage High School’s and its employees’
negligence in failing to follow its safety rules and procedures. On September
30, 2021, Portage High School filed its answer, naming AT Gonzalez and
1
Portage High School is not part of these appellate proceedings.
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 3 of 12
IncreMedical as non-parties. On January 3, 2022, Kennedy amended her
Complaint, adding AT Gonzalez and IncreMedical as defendants and alleging
that AT Gonzalez “failed to recognize [Kennedy’s] brain injury” and “failed to
perform proper tests regarding concussions and brain injuries.” (Appellants’
App. Vol. II, p. 20).
[7] On April 6, 2022, Appellants filed their motion to dismiss Kennedy’s
Complaint, alleging the trial court lacked subject matter jurisdiction over
Kennedy’s claims pursuant to Indiana Code section 34-18-8-4 because Kennedy
had failed to submit a proposed complaint naming Appellants to a medical
review panel. Together with their motion to dismiss, Appellants provided an
affidavit from the Indiana Department of Insurance (IDOI) verifying that
IncreMedical was a qualified health care provider pursuant to Indiana’s
Medical Malpractice Act (MMA) and an affidavit by Ann Miller (Miller),
IncreMedical’s Human Resource Manager, averring that AT Gonzalez was an
employee of IncreMedical acting within the course and scope of her
employment. On April 13, 2022, Kennedy filed her response. On April 15,
2022, Appellants filed a reply, including a supplemental affidavit from IDOI,
verifying that both IncreMedical and AT Gonzalez “were qualified health care
providers under the [MMA] for the time periods identified in [Kennedy’s]
Complaint.” (Appellants’ App. Vol. II, p. 69). The affidavit also averred that
Kennedy “did not file a Proposed Complaint for Damages with the IDOI
regarding the claims set forth in [Kennedy’s] Complaint.” (Appellants’ App.
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Vol. II, p. 69). On June 7, 2022, the trial court heard argument on Appellants’
motion and subsequently denied Appellants’ motion to dismiss.
[8] Appellants now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[9] A trial court’s ruling on a motion to dismiss for lack of subject matter
jurisdiction under Trial Rule 12(B)(1), unlike a trial court’s 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.”
Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549, 554-55 (Ind. Ct. App.
2019), decision clarified on reh’g, 131 N.E.3d 777 (Ind. Ct. App. 2019).
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 to 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
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 5 of 12
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
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 to 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 affidavits
presented by Appellants.
[10] 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
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 6 of 12
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 a de novo
standard where the trial court held a hearing at which the parties made legal
arguments but did not present evidence).
II. Health Care Providers under the MMA
[11] The MMA governs medical malpractice claims against healthcare providers.
Ball Mem’l Hosp., Inc. v. Fair, 26 N.E.3d 674, 679 (Ind. Ct. App. 2015), trans.
denied. To fall within the purview of the MMA, a provider’s conduct must be
undertaken in the interest of, or for the benefit of, the patient’s health. In other
words, the conduct must be “curative or salutary in nature or effect” for the
person claiming patient status under the MMA. Collins v. Thakkar, 552 N.E.2d
507, 510 (Ind. Ct. App. 1990). The curative or salutary conduct must be
directed toward the person to whom the provider owes a duty of care. See Peters
v. Cummins Mental Health, Inc., 790 N.E.2d 572, 577 (Ind. Ct. App. 2003), trans.
denied. Conversely, the MMA does not apply to 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).
[12] While the parties do not contest the propriety of Appellants’ conduct as falling
within the parameters of the MMA, Appellants contend that because they are
qualified health care providers, as statutorily defined, Kennedy should have
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 7 of 12
submitted her proposed complaint to a medical review panel prior to
commencing an action before the trial court.
[13] Generally, a medical malpractice action may not be brought against a health
care provider until a proposed complaint has been filed with the IDOI and an
opinion has been issued by a medical review panel. Williams v. Adelsperger, 918
N.E.2d 440, 445 (Ind. Ct. App. 2009), trans. denied. However, a plaintiff may
bring a medical malpractice claim against a health care provider—without first
filing a proposed complaint with the IDOI—if the health care provider against
whom the action is brought is not qualified under the MMA. Rumell v. Osolo
Emergency Med. Servs., Inc., 88 N.E.3d 1111, 1114 (Ind. Ct. App. 2017), trans.
denied.
[14] In deciding the proper forum, our supreme court has explained that the IDOI is
the appropriate entity to make the “determination” of whether a health care
provider is qualified under the MMA. Guinn v. Light, 558 N.E.2d 821, 824
(Ind. 1990). For this reason, the court has noted that it is “prudent for [the
plaintiff] to commence [a medical malpractice] action by filing [a] proposed
complaint with the [IDOI].” Miller v. Terre Haute Reg’l Hosp., 603 N.E.2d 861,
863 (Ind. 1992). This is so regardless of the ultimate qualified status of the
defendant health care provider. Id. Moreover, in Shenefield v. Barrette, 716
N.E.2d 1, 4-5 (Ind. Ct. App. 1999), this court indicated that when conflicting
information is provided to the claimant concerning the qualified status of a
physician under the Act, there is an affirmative obligation on the part of the
claimant to determine from the IDOI whether the doctor is qualified.
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 8 of 12
[15] Here, Appellants submitted an affidavit by Mary Wilson (Wilson), the Director
of Dedicated Funds of the Indiana Patient’s Compensation Fund, Medical
Malpractice Division. As part of her duties, as Director of Dedicated Funds,
Wilson is “responsible for maintaining the records of all individuals and entities
who have applied for and are qualified health care providers under the Indiana
Medical Malpractice Act, I.C. § 34-18-1-1 et seq.” (Appellants’ App. Vol. II, p.
68). She affirmed to have “reviewed the IDOI’s records and related documents
regarding [IncreMedical] and [AT Gonzalez’s] status as qualified health care
providers under the Act.” (Appellants’ App. Vol. II, p. 68). In her affidavit,
Wilson concluded that “[IncreMedical] and their employee, [AT Gonzalez][,]
were qualified health care providers under the Act for the time periods
identified in [Kennedy’s] Complaint.” (Appellants’ App. Vol. II, p. 69).
[16] Even without Wilson’s affidavit, we would reach the same conclusion that
IncreMedical and AT Gonzalez are health care providers, as defined within the
province of the MMA. Pursuant to the MMA, a “health care provider” is
defined 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, health facility, emergency ambulance service ([I.C. §]
16-18-2-107), dentist, registered or licensed practical nurse,
physician assistant, certified nurse midwife, anesthesiologist
assistant, optometrist, podiatrist, chiropractor, physical therapist,
respiratory care practitioner, occupational therapist, psychologist,
paramedic, advanced emergency medical technician, or
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 9 of 12
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.
Ind. Code § 34-18-2-14(1)(a). Not contesting the status of IncreMedical as a
health care provider under the MMA, Kennedy focuses her argument on AT
Gonzalez, claiming that because athletic trainers are not specifically listed in
the statute, AT Gonzalez is not a health care provider and, therefore, not
subject to the confines of the MMA. In support of her argument, Kennedy
refers this court to Kroger Company v. Estate of Hinders, 773 N.E.2d 303 (Ind. Ct.
App. 2002), trans. denied.
[17] In Kroger, the Kroger court observed, with respect to the grocery store pharmacy
which was determined to be an unqualified health care provider under the
MMA:
The language of Indiana Code section 34-18-2-14 within the
Medical Malpractice Act has been revised several times since its
enactment in 1975. The following ten health care providers have
been added to the definition since 1975: psychiatric hospital,
health facility, emergency ambulance service, physician assistant,
midwife, respiratory care practitioner, occupational therapist,
paramedic, emergency medical technician, and advanced
emergency medical technician. At no point have pharmacists
and pharmacies been added to this carefully considered and
exclusive list of health care providers afforded the protections of
the Medical Malpractice Act by the General Assembly.
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 10 of 12
Id. at 306. Analogizing to the Kroger court’s determination, Kennedy maintains
that because athletic trainers have not “been added to this carefully considered
and exclusive list of health care providers,” the MMA clearly does not protect
AT Gonzalez. (Appellee’s Br. p. 9).
[18] Even though Kroger was decided within the context of statute of limitation
provisions and represented dicta with respect to its interpretation of statutorily
defined health care providers, we find Kroger to be unavailing to the situation
before us for another reason. Unlike the enumerated and exclusive list which
the Kroger court relied on to exclude pharmacists from the application of the
MMA, Appellants posit the argument—and we agree—that AT Gonzalez is
protected under the MMA pursuant to the catch-all provision included in
Indiana Code section 34-18-2-14. Specifically, the MMA is applicable to AT
Gonzalez by virtue of being “a person who is an [] employee [] of the []
professional corporation, facility, or institution [and who was] acting in the
course and scope of the person’s employment.” See I.C. § 34-18-2-14. In their
affidavits, Wilson confirmed that IncreMedical and AT Gonzalez were
qualified health care providers under the MMA, and Miller averred AT
Gonzalez was an employee of IncreMedical and was acting within the course
and scope of her employment at the time of the incident.
[19] Accordingly, as IncreMedical and AT Gonzalez are qualified health care
providers under the MMA, Kennedy must present her proposed complaint to a
medical review panel prior to commencing an action in the trial court. I.C. §
34-18-8-4. Kennedy failed to do so. Because the trial court lacked subject
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 11 of 12
matter jurisdiction, we reverse the trial court’s denial of Appellants’ motion to
dismiss. 2
CONCLUSION
[20] Based on the foregoing, we hold that the trial court erred by denying
Appellants’ motion to dismiss because IncreMedical and AT Gonzalez are
qualified health care providers pursuant to the MMA and Kennedy failed to
present her proposed complaint to the medical review panel prior to
commencing this cause before the trial court.
[21] Reversed and dismissed.
[22] Bradford, J. and Weissmann, J. concur
2
Kennedy also claims that AT Gonzalez was not covered by the MMA pursuant to Indiana Code section 34-
18-3-3. Kennedy failed to raise this argument before the trial court, therefore, we find the issue waived.
Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 834 (Ind. Ct. App. 2005), trans. denied (“A party
generally waives appellate review of an issue or argument unless that party presented that issue or argument
before the trial court.”).
Court of Appeals of Indiana | Opinion 22A-CT-2929 | June 14, 2023 Page 12 of 12
IncreMedical, LLC v. Alyssa Kennedy
Combined Opinion