Methodist Hosp. of Indiana, Inc. v. Ray

• Decision Date: 14 March 1990
• Docket Number: No. 49A02-8806-CV-0246,49A02-8806-CV-0246
• Parties: METHODIST HOSPITAL OF INDIANA, INC., Appellant (Defendant Below), v. Robert W. RAY, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 463

551 N.E.2d 463

METHODIST HOSPITAL OF INDIANA, INC., Appellant (Defendant Below), v. Robert W. RAY, Appellee (Plaintiff Below).

No. 49A02-8806-CV-0246.

Court of Appeals of Indiana Second District.

March 14, 1990.

David S. Allen and Todd J. Kaiser, Locke Reynolds Boyd & Weisell, Indianapolis, for appellant.

Earl C. Townsend, Jr., Earl C. Townsend III, and Kathy A. Lee, Townsend Yosha & Cline, Indianapolis, for appellee.

SULLIVAN, Judge.

This is an interlocutory appeal brought by Methodist Hospital (defendant below) from the denial of its Motion to Dismiss.

We affirm.

On February 5, 1988, Robert W. Ray (Ray) filed a complaint against Methodist Hospital (Methodist). Ray's complaint alleged:

"1. That Plaintiff Robert W. Ray became a patient in Defendant's hospital on December 15, 1986, for the purpose of having a kidney stone destroyed and he remained there until December 17, 1986, until said kidney labistone was performed.

2. That during his hospitalization, Defendant negligently and carelessly caused and permitted its premises to become infested and infected with the deadly Legionnella Pneumonia virus bacteria commonly known as Legionnaire's Pneumonia Virus." Record at 3.

The complaint further alleged various injuries and sought compensation of One Million Dollars.

On March 11, 1988, Methodist filed a T.R. 12(B)(1) motion to dismiss, based upon its position that because plaintiff's case should have first been submitted to a Medical Review Panel under I.C. 16-9.5-1-1, et seq., the trial court lacked subject matter jurisdiction. Accompanying the motion was an affidavit by a representative of the Department of Insurance to the effect that a medical review panel opinion had not been rendered. ¹ The trial court denied the Motion and at Methodist's request, certified the following issue for appeal:

"Whether an action for the injury of a patient against a hospital, qualified under the Indiana Medical Malpractice Act, is governed by that Act, where the allegation is that the hospital failed to provide a clean and sterile environment for the patient's care." Record at 65.

It should be noted that in his brief Ray states that the issue as certified is not a correct statement of the issue to be decided. Specifically, Ray points out that his complaint did not allege that Methodist failed to provide a sterile environment and charges that Methodist is attempting to force this case within the grouping of cases holding that failure to provide a sterile environment falls under the Medical Malpractice Act. See e.g., Cashio v. Baton Rouge General Hospital (1979) 1st Cir., La.App., 378 So.2d 182.

Methodist responds that Ray is bound by the issue as certified because he did not object to the manner in which it was phrased. Methodist cites rather dubious support for this proposition: some general caselaw holding that failure to object to testimony or evidence at trial amounts to waiver on appeal. Methodist also cites to T. Smith and A. Debonis, Jr. Appellate Handbook for Indiana Lawyers Sec. 21:14 (1987) which notes that the Indiana Rules of Appellate Procedure provide no guidelines for the filing of objections to certification in the Court of Appeals.

Whether the issue as certified is correct and whether plaintiff has waived any opposition to it for failing to object before appeal are merely threshold issues which are not dispositive. The dispositive issue is whether or not the allegations of Ray's complaint sound in ordinary negligence for premises liability or whether they assert a failure to provide the type of care that would bring the claim within the Medical Malpractice Act and thus require dismissal for lack of subject-matter jurisdiction. This framing of the issue, of course, rests upon the assumption that if a complaint sounds in ordinary negligence it does not fall within the purview of the Medical Malpractice Act. Current caselaw supports this view. Winona Memorial Foundation of Indianapolis v. Lomax (1984) 4th Dist., Ind.App., 465 N.E.2d 731.

Our discussion turns upon who bears the burden on a 12(B)(1) motion and, more fundamentally, upon a determination of legislative intent with respect to the initial forum for complaints asserted by patients against health care providers. If the assumption is made that with the exception of some very limited circumstances all such cases were intended to be included within the Medical Malpractice Act (Act), then plaintiff must allege facts to take the claim outside the Act or suffer dismissal for failure to comply with the Act's jurisdictional prerequisite. See e.g., Methodist Hospital v. Rioux (1982) 4th Dist. Ind.App., 438 N.E.2d 315. On the other hand, if we begin with the assumption that only certain cases involving patients and providers were intended to come within the scope of the Act, then it is up to defendant-provider to demonstrate that a claim against the provider is within the Act and thus requires compliance with the Act's jurisdictional prerequisite.

Both the Rioux and the Lomax cases were "slip and fall" cases decided by the Fourth District of this court. In the Rioux case, the complaint alleged that the hospital negligently and carelessly failed to provide appropriate care to prevent plaintiff's fall and injury. Presiding Judge Young with Judges Miller and Conover, concurring, determined that the complaint was within the Act upon grounds that the Act applied to:

"any legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury to another based on any act or treatment performed or furnished, or which should have been performed or furnished by the hospital for, to, or on behalf of a patient during the patient's medical care, treatment or confinement." Rioux, supra, 438 N.E.2d at 316.

The Lomax case involved a complaint which alleged negligent maintenance of the floor area where the plaintiff fell. Judge Miller, with Presiding Judge Conover and Judge Young, concurring, first determined that the complaint sounded in premises liability and, second, that the Act, taken as a whole, was ambiguous as to whether such a claim by a patient against a health care provider is within the scope of the Act. The Fourth District of our Court then turned to issue of legislative intent. The court cited and quoted from Johnson v. St. Vincent Hospital, Inc. (1980) 273 Ind. 374, 404 N.E.2d 585, 590, in which our Supreme Court discussed the purpose of the Act in terms of the "high cost and even unavailability" of malpractice insurance. These considerations were connected to perceived excessive settlements/judgments in large part based on "the processes by which evidence of negligent conduct was being gathered, evaluated and used." Johnson, 404 N.E.2d at 590. The Fourth District in Lomax concluded that the purpose of the Act's passage had nothing to do

"with the sort of liability any health care provider--whether a hospital or a private practitioner--risks when a patient, or anyone else, is injured by the negligent maintenance of the provider's business premises." Lomax, supra, 465 N.E.2d at 739. (Emphasis supplied.)

Therefore, Lomax's complaint, sounding in ordinary negligence and "within the common knowledge and experience" of the jury was not within the scope of the Act. Lomax, supra, 465 N.E.2d at 740. To the extent that Rioux was contrary, it was held to be dictum. Lomax, supra, 465 N.E.2d 731, 742.

Another Indiana case pertinent to our discussion is Ogle v. St. John's Hickey Memorial Hospital (1985) 2d Dist. Ind.App., 473 N.E.2d 1055. In that case, a patient in the psychiatric unit of defendant hospital was raped by another patient. Ogle's complaint alleged negligent failure to provide security and protection. We held that the complaint alleged a failure to provide health care because Ogle's proper confinement was "part and parcel of the diagnosis and treatment of her condition." Id. at 1059. In reaching this result, we relied upon Detterline v. Bonaventura (1984) 3d Dist. Ind.App., 465 N.E.2d 215, which held that the Act was applicable because the signing of commitment papers by a doctor constituted an act of health care and in light of I.C. 16-9.5-1-1(i) (Burns Code Ed.1983) which defines health care as including "the patient's medical care, treatment, or confinement." ² [Emphasis supplied.] We were also persuaded by the following analysis in Sue Yee Lee v. Lafayette Home Hospital, Inc. (1980) 1st Dist. Ind.App., 410 N.E.2d 1319, 1324, trans. denied:

"Viewed from the historical perspective we believe the conclusion is inescapable that our General Assembly intended that all actions the underlying basis for which is alleged medical malpractice are subject to the act."

On its face, Ray's complaint does not allege acts the underlying basis of which are necessarily medical malpractice. It does not allege failure of appropriate care. Rather it alleges negligent maintenance unrelated, at least on its surface, to any scheme of health care. In light of Indiana case law, we are not persuaded that a complaint which on its face sounds in ordinary negligence or premises liability requires dismissal for failure to comply with the Medical Malpractice Act. ³

Methodist cites Rioux, Lomax and Ogle, supra, as representing a "consistent line of reasoning" supporting dismissal of Ray's complaint. Appellant's brief, p. 6. We agree that these cases are consistent, but disagree that they support Methodist's view that its 12(B)(1) motion should have been granted.

The Rioux case, 438 N.E.2d 315, involved the filing of a Motion for Summary Judgment challenging a complaint which alleged acts or omissions bringing it within the malpractice act. Because plaintiffs did not respond with affidavits to demonstrate the case was properly outside the act, it was held error to deny defendant's motion for summary judgment.

In the Ogle case, 473 N.E.2d 1055, defendant-hospital filed a motion to dismiss for lack of jurisdiction and, in the alternative, a...