IncreMedical, LLC v. Alyssa Kennedy

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

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 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

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 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.

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 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

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 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.”).

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