Doe by Roe v. Madison Center Hosp.

• Decision Date: 22 June 1995
• Docket Number: No. 71A04-9501-CV-9,71A04-9501-CV-9
• Citation: 652 N.E.2d 101
• Parties: Jane DOE, a minor, by Mary ROE, her parent, and Mary Roe, Appellants-Plaintiffs, v. MADISON CENTER HOSPITAL and Bryant King, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 101

652 N.E.2d 101

Jane DOE, a minor, by Mary ROE, her parent, and Mary Roe Appellants-Plaintiffs, v. MADISON CENTER HOSPITAL and Bryant King, Appellees-Defendants.

No. 71A04-9501-CV-9.

Court of Appeals of Indiana.

June 22, 1995.

Rehearing Denied Aug. 14, 1995.

Lennie C. Zappia, Loris P. Zappia, Zappia Flagella & Zappia, South Bend, for appellants.

Robert J. Palmer, D. Andrew Spalding, May, Oberfell & Lorber, South Bend, John F. Schmoll, Kristin A. Mulholland, Spangler, Jennings & Dougherty, Merrillville, for appellees.

OPINION

RILEY, Judge.

This appeal arises out of the dismissal of Plaintiffs-Appellants' complaint for lack of subject matter jurisdiction. The sole issue before us is whether a complaint, which alleges coerced sexual intercourse between a minor patient and a hospital employee, falls within the purview of the Indiana Medical Malpractice Act. ¹

We reverse and remand.

FACTS

Jane Doe, a minor, entered Madison Center Hospital (the Hospital) on September 14, 1992, for psychiatric evaluation, care, and treatment. She remained under a continuous course of treatment at the Hospital until November 24.

Bryant King was employed in the children's psychiatric ward of the Hospital as a mental health counselor/orderly. (R. at 13). Previous to his position at the Hospital, King was a production worker and a hospital volunteer. Until June, 1992, he was employed as a desk clerk at the University of Notre Dame. (R. at 146). During the relevant time period, King was infected with chlamydia, a venereal disease.

On September 29, 1992, and on subsequent dates, while under residential hospitalization and care, Jane Doe was subjected to inappropriate conduct: King sexually assaulted and molested her, and coerced her into engaging in sexual intercourse. (R. at 12). As a result of this conduct, Jane Doe contracted chlamydia, became sick and disabled, and suffered physical and emotional distress.

On April 26, 1994, Jane Doe, through her mother Mary Roe, and Mary Roe, individually (hereinafter referred to collectively as "Doe"), initiated an action in nine counts alleging negligence, intentional torts, and breach of contract against King and the Hospital. Doe amended her complaint on May 9, 1994.

On August 1, 1994, the Hospital and King filed motions to dismiss pursuant to Ind.Trial Rule 12(B)(1) for lack of subject matter jurisdiction, arguing that Doe's allegations fell within the purview of the Indiana Medical Malpractice Act, IND.CODE 27-12-1-1 et seq. (1993) (hereinafter referred to as "the Act"), and Doe had failed to file her complaint with the Indiana Department of Insurance. The Hospital contended that the claim sounded in medical malpractice because King had mishandled the transference phenomenon; or that King had acted outside the scope of his employment. King adopted the Hospital's motion with the exception of the claim that he was acting outside the scope of his employment.

Doe conceded, in her memorandum in opposition to the motions to dismiss, that Count 2, paragraphs 14-18, Counts 3, 6 (excluding paragraph 45), 7, 8, and 9 were within the purview of the Act. However, she asserted that the remaining allegations were not covered by the Act. Specifically, the remaining counts assert:

Count 1 requests a jury trial.

Count 2, paragraphs 1-13, recites the operative facts of the action and alleges that the Hospital is liable for King's conduct based on the theory of respondeat superior.

Count 4 alleges that King's conduct constituted the intentional tort of assault and battery, and Jane Doe suffered severe physical and mental injuries.

Count 5 alleges that King's conduct constituted the intentional tort of intentional infliction of mental distress.

Count 6, paragraph 45, alleges that the Hospital assumed a non-delegable duty to be responsible for the care and safety of Jane Doe even if King's conduct does not constitute a rendition of health care.

(R. at 99-100).

On September 26, 1994, the trial court dismissed the remaining counts of Doe's complaint, finding that "[t]he substance of the allegations in the plaintiffs' Complaint are subject to the requirements of the Indiana Medical Malpractice Act ... [and t]he plaintiffs have not presented their proposed Complaint to the Medical Review Panel." (Supp.R. at 3).

Doe appeals. ²

DISCUSSION

A. Standard of Review

Subject-matter jurisdiction is the power of a court to hear and decide a particular class of cases. Putnam County Hosp. v. Sells (1993), Ind.App., 619 N.E.2d 968, 970; Behme v. Behme (1988), Ind.App., 519 N.E.2d 578, 582, reh'g denied. The issue of subject-matter jurisdiction is resolved by determining whether the claim involved falls within the general scope of authority conferred on a court by the Indiana Constitution or by statute. Sells, 619 N.E.2d at 970; State ex rel. Hight v. Marion Super. Ct. (1989), Ind., 547 N.E.2d 267, 269.

When a trial court is confronted with a motion to dismiss under T.R. 12(B)(1), it must decide upon the complaint, the motion, and any affidavits or other evidence submitted whether it possesses the authority to further adjudicate the action. Cooper v. County Bd. of Review of Grant County (1971), 150 Ind.App. 232, 237, 276 N.E.2d 533, 536. In reaching its decision, the trial court may weigh the evidence. Indiana Dept. of Highways v. Dixon (1989), Ind., 541 N.E.2d 877, 884. On appeal from a motion to dismiss pursuant to T.R. 12(B)(1), we accept as true the facts as alleged in the complaint. Sells, 619 N.E.2d at 970; United States Steel v. Northern Indiana Pub. Serv. (1985), Ind.App., 482 N.E.2d 501, 503, reh'g denied, trans. denied. Because the facts are not in dispute for the purposes of this appeal, and we could have raised the question of subject matter jurisdiction sua sponte, "we are in as good a position as the trial court to determine it." Id.

B. Nature of the Claim

Doe contends that the trial court erred when it dismissed her intentional tort claims for lack of subject matter jurisdiction because the substance of her allegations of assault, battery, and intentional infliction of emotional distress are unrelated to medical care and were not designed to promote Jane Doe's health. Further, she asserts that King's conduct does not call into question his skill or expertise as a medical professional, and thus her allegations are not subject to the requirements of the Act.

We address whether certain deliberate wrongs committed by a qualified health care provider during a patient's medical care, treatment, or confinement in a health care facility are "health care" or "professional services rendered" within the meaning of the Act. ³ It is undisputed that both the Hospital and King, as an employee of the Hospital, are qualified health care providers. See I.C. 27-12-2-14.

For the purposes of this appeal, malpractice is a tort based on health care or professional services rendered by a health care provider, to a patient. I.C. 27-12-2-18. A tort is a legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another. I.C. 27-12-2-28. 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. 27-12-2-13.

The Act does not specifically exclude intentional torts from the definition of malpractice, Van Sice v. Sentany (1992), Ind.App., 595 N.E.2d 264, 266; however, the Act pertains to curative or salutary conduct of a health care provider acting within his or her professional capacity, and is designed to exclude that conduct " 'unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill, or judgment.' " ⁴ Boruff v. Jesseph (1991), Ind.App., 576 N.E.2d 1297, 1298 (quoting Collins v. Thakkar (1990), Ind.App., 552 N.E.2d 507, 510, trans. denied ). Further, we have specifically held that we are guided by the substance of a claim to determine the applicability of the Act. Van Sice, 595 N.E.2d at 266; see St. Anthony Medical Ctr. v. Smith (1992), Ind.App., 592 N.E.2d 732, 736, trans. denied.

Doe's allegations, that 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. See Collins, 552 N.E.2d at 511. 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.

The Appellees rely on the location and time of King's conduct to establish that Doe's claims fall within the scope of the Act; however, the fact that conduct occurs in a health care facility or during a continuous course of treatment cannot, by itself, transmute the conduct into rendition of health care or professional services. The location of an occurrence does not determine whether it falls within the purview of the Act absent some causal connection between the conduct and the nature of the patient-health care provider relationship. As in Van Sice, we look to the substance of the claim to determine the applicability of the Act. Van Sice, 595 N.E.2d at 266; see also Lindheimer v. St. Paul Fire & Marine Ins. (1994), Fla.App., 643 So.2d 636, reh'g denied. Doe's allegations do not describe professional services, rather they present "factual issues capable of resolution by a jury without application of the standard of care prevalent in the local medical community." ⁵ Collins, 552 N.E.2d at 511; see also Methodist Hosp. v. Ray (1990), Ind.App., 551 N.E.2d 463, trans. granted and opinion adopted by Ind., 558 N.E.2d 829 (allegations of ordinary premises liability not governed by Act); Midtown Community Mental Health Ctr. v. Estate of Gahl (1989), Ind.App., 540 N.E.2d 1259, trans....