Dennis Powell & Barbara Powell v. Porter Hospital, LLC d/b/a Porter Hospital

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose May 28 2013, 9:42 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRIAN D. LARSON STEPHEN M. BRANDENBURG
Law Offices of Charles P. Dargo, P.C. Johnson & Bell, Ltd.
Demotte, Indiana Chicago, Illinois
SHARON L. STANZIONE
Johnson & Bell, Ltd.
Crown Point, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DENNIS POWELL and BARBARA POWELL, )
)
Appellants-Defendants, )
)
vs. ) No. 64A03-1210-CT-413
)
PORTER HOSPITAL, LLC d/b/a )
PORTER HOSPITAL, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Mary R. Harper, Judge
Cause No. 64D01-1011-CT-11564
May 28, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Dennis and Barbara Powell appeal the trial court’s dismissal of their complaint
against Porter Hospital, LLC, d/b/a/ Porter Hospital (“Hospital”). We reverse and
remand.
Issue
The Powells raise two issues, which we consolidate and restate as whether the
Powells’ claim falls under the Medical Malpractice Act (“the Act”).
Facts
On June 23, 2009, Dennis was a patient at the Hospital when he slipped and fell on
water or another liquid in the hallway outside of the shower area. On October 27, 2010,
the Powells filed a premises liability complaint against the Hospital.1 The Hospital filed
an answer alleging that it was not the proximate cause of Dennis’s injuries, that his
injuries were caused by his own negligence, and that the danger was open and obvious.
On May 31, 2012, the Hospital filed a motion to dismiss without prejudice for lack
of jurisdiction. The Hospital argued that Dennis was a “high fall risk” patient.
Appellee’s App. p. 4. According to the Hospital, Dennis’s medical condition and
treatment at the time of the fall would be part of the negligence claim and, therefore, the
matter must be reviewed by a medical review panel under the Medical Malpractice Act.
In support of its motion, the Hospital submitted the following exhibits: (1) the Powells’
complaint; (2) an “Event Detail Summary”; (3) its answers to the Powells’
1
Community Health Systems Professional Services Corp. was also a defendant in the action, but it was
later dismissed. Count II of the complaint alleged a loss of consortium claim.
2
interrogatories; (4) its answer to the Powells’ complaint; (5) an affidavit regarding the
Hospital’s status as a qualified healthcare provider; and (6) a portion of Dennis’s
deposition.
The Event Detail Summary noted that Dennis was admitted for a left calf
hematoma and cellulitis and states:
[P]atient requested to take a shower as ordered, nurse
informed patient to wait in room, will return with towels and
escort to shower. [P]atient found on the floor near the linen
room stating that he fell because of water on floor in shower
room. . . . . [P]atient was then informed to stay in bed for
now and ask for assistance when getting up. [P]atient refused
suggestion, states that he is going to shower anyway.
Id. at 21. One of the interrogatory answers provided:
Mr. Powell requested to take a shower and the nurse
instructed him to wait until she returned with towels.
However, he refused to comply with her request and
proceeded to the shower without assistance. Mr. Powell
knew that he had problems walking due to the cellulitis and
hematoma on his leg, but decided to ignore this risk and
shower without assistance. Moreover, a reasonable person
would infer that the area near a shower room could have
slick, wet floors. Mr. Powell accepted this risk and proceeded
to the shower area without assistance. If Mr. Powell had
appropriately followed the nurse’s instructions, the accident
would not have happened.
Id. at 30. The interrogatories were completed by Gerard Kalbfell, director of the
Hospital’s risk management department. Dennis’s deposition provided that he was never
told to ask for assistance before getting up or walking around and that he did not need
assistance.
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The Powells responded to the motion to dismiss by arguing that their claim was a
premises liability claim, not a claim that related to Dennis’s medical care. The Powells
presented Dennis’s deposition testimony in which he testified that he was never
instructed to ask for assistance when getting up and that he slipped on a puddle of water
in the hallway. They also argued that there was no evidence Dennis was a high fall risk
patient. The Powells also contended that the Event Detail Summary and interrogatory
answers were inadmissible hearsay and should have been excluded from consideration.
The trial court granted the motion to dismiss. The trial court entered findings of
fact and conclusions thereon as follows:
FINDINGS
1. Mr. Powell was a patient at Porter Hospital on June 23,
2009. The shower available to Mr. Powell was located
down the hall from his hospital room. When he
wanted to take a shower, Mr. Powell did not call the
nursing staff for assistance but walked down the
hallway by himself and subsequently slipped and fell
on a puddle of water near the shower.
2. The parties are in dispute regarding many of the
important facts of this case. The Plaintiff claims Mr.
Powell had not been instructed to wait for assistance
before showering, nor had he been deemed a “high fall
risk” prior to the fall. The Defendant contends that
Mr. Powell had indeed been instructed by the nurses to
wait for assistance before walking to the shower
because he had been deemed a “high fall risk” based
on a large hematoma on his leg and a weak gait.
*****
CONCLUSIONS OF LAW
*****
4
In their complaint, Plaintiffs allege that the Act does
not apply because Mr. Powell’s fall resulted from
Defendant’s failure to maintain hospital premises in a
reasonably safe manner, rather than from medical
“malpractice.” However, the Defendant contends that the
allegations made by Plaintiffs do fall within the definition of
“malpractice” because the parties are in dispute over facts
specifically related to Mr. Powell’s medical treatment. The
Court has weighed the evidence and resolved these factual
disputes to determine its jurisdiction.
*****
[T]he Court finds that in this case there was “a causal
connection between the conduct and the nature of the patient
and healthcare provider relationship.” Ob-Gyn Assocs. of N.
Ind., P.C. v. Ransbottom, 885 N.E.2d 734, 738 (Ind. Ct. App.
2008). Although floor cleaning may not involve the
professional skill of a healthcare provider, requiring that an
admitted patient be assisted when walking based on his
medical condition, and then failing to assist that patient when
he walks in an area where water is likely to be on the floor,
does implicate professional skill. The causal connection
between Mr. Powell’s injury and nature of the relationship
with Porter Hospital lies in question of whether hospital staff
failed to assist Mr. Powell in accordance with a medical
recommendation at the time of the injury. Because Mr.
Powell was being treated for leg related circulatory issues, his
ability to walk may have been the subject of a medical
recommendation, this case falls within the realm of medical
malpractice.
Appellant’s App. pp. 5-8.
Regarding the admissibility of the Hospital’s exhibits, the trial court found:
The Defendant submitted exhibits to support Porter
Hospital’s assertion that Mr. Powell was deemed a “high fall
risk” and instructed not to walk without assistance. The
Plaintiffs argue that the assertions contained in those exhibits
are inadmissible hearsay as defined by Ind. R. Evid. 801(c).
However, the evidence was not submitted by the Defendant to
5
prove that Mr. Powell was deemed a “high fall risk” and
instructed not to walk without assistance, but was submitted
to demonstrate that this dispute involves a question of proper
medical treatment. When submitted for this purpose, the
Exhibits do not contain inadmissible hearsay. Ind. R. Evid.
801(c).
Id. at 9-10. The trial court dismissed the complaint without prejudice. The Powells now
appeal.
Analysis
The Powells argue that the trial court erred when it determined that the Act is
applicable to their claim rather than general premises liability principles. The Hospital
claims that the trial court correctly determined that the Powells’ complaint alleges
medical malpractice and must be presented to a medical review panel. “Before a medical
malpractice action may be commenced in any court of this state, the Medical Malpractice
Act requires that a proposed complaint be presented to a medical review panel and an
opinion rendered by the panel.” H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 853
(Ind. Ct. App. 2008) (citing Ind. Code § 34-18-8-4). “Essentially, the Act grants subject
matter jurisdiction over medical malpractice actions first to the medical review panel, and
then to the trial court.” Id.
In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial
court may consider not only the complaint and motion but also any affidavits or evidence
submitted in support. GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind. 2001). In
addition, the trial court may weigh the evidence to determine the existence of the
requisite jurisdictional facts. Id.
6
If the facts before the trial court are not in dispute, then the question of subject
matter jurisdiction is purely one of law. Id. Under those circumstances no deference is
afforded 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.” Id. (quoting Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000)).
We review de novo a trial court’s ruling on a motion to dismiss under Trial Rule 12(B)(1)
where the facts before the trial court are undisputed. Id.
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. Id. Under those
circumstances, the court typically engages in its classic fact-finding function, often
evaluating the character and credibility of witnesses. Id. Where a trial court conducts an
evidentiary hearing, we give its factual findings and judgment deference. Id. 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 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.” Id. (quoting MHC Surgical Ctr. Assocs., Inc. v. State Office of Medicaid
Policy & Planning, 699 N.E.2d 306, 308 (Ind. Ct. App. 1998)). 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. Id. The facts here were disputed and the trial
court ruled on a paper record. Thus, we conduct a de novo review of the trial court’s
judgment.
7
The Act, Indiana Code Article 34-18, applies to a patient or the representative of a
patient who has a claim “for bodily injury or death on account of malpractice . . . .” Ind.
Code § 34-18-8-1. “Malpractice” is defined as “a tort or breach of contract based on
health care or professional services that were provided, or that should have been
provided, by a health care provider, to a patient.” I.C. § 34-18-2-18. Further, “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. § 34-18-2-13.
Indiana Code Section 34-18-8-4 provides that “an action against a health care
provider may not be commenced in a court in Indiana before: (1) the claimant’s proposed
complaint has been presented to a medical review panel established under IC 34-18-10
(or IC 27-12-10 before its repeal); and (2) an opinion is given by the panel.” Thus,
whether the Powells’ claim must first be submitted to a medical review panel is the issue
here.
According to the Hospital, the Powells’ claim necessarily will include
consideration of the care the nurses provided for him, including whether they ensured that
the shower area was appropriately prepared and whether the nurses ordered him not to
shower by himself. Dennis counters that his complaint did not allege inappropriate care
by the nurses. Rather, Dennis argues that his claim is merely a premises liability claim
based on the water in the hallway.2
2
The Restatement (Second) of Torts § 343 (1965), provides:
8
We have observed that the Act “pertains to curative or salutary conduct of a health
care provider acting within his or her professional capacity[.]” OB-GYN Associates of
N. Indiana, P.C. v. Ransbottom, 885 N.E.2d 734, 738 (Ind. Ct. App. 2008) (quoting
Murphy v. Mortell, 684 N.E.2d 1185, 1188 (Ind. Ct. App. 2008), trans. denied), trans.
denied. The Act is designed to exclude conduct that is not related to “the promotion of a
patient’s health or the provider’s exercise of professional expertise, skill, or judgment.”
Id. “[T]he fact that conduct occurs in a health care facility cannot, by itself, transmute
the conduct into the rendition of health care or professional services.” Id. “Although the
location of the occurrence is indeed one factor to consider in deciding whether it falls
within the purview of the Medical Malpractice Act, it is not determinative.” Id. “There
must be more; there must be a causal connection between the conduct and the nature of
the patient and healthcare provider relationship.” Id. at 738-39. “ʻThe Act is not all-
inclusive as to claims against medical providers, and a claim against a medical provider
sounding in general negligence . . . rather than medical malpractice is outside the Act.’”
Id. at 740 (quoting Peters v. Cummins Mental Health, Inc., 790 N.E.2d 572, 576 (Ind. Ct.
App. 2003), trans. denied).
A possessor of land is subject to liability for physical harm caused to his
invitees by a condition on the land if, but only if, he
(a) knows or by exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of
harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will
fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind. Ct. App. 2012).
9
We find Winona Memorial Foundation of Indianapolis v. Lomax, 465 N.E.2d 731
(Ind. Ct. App. 1984), instructive. There, Lomax was receiving physical therapy at the
Winona hospital. Upon her arrival, she was instructed to change clothes in the dressing
room. While walking from the dressing room to the pool area, she tripped and fell on a
protruding floorboard. Winona filed a motion for summary judgment, alleging that the
Act applied, but the trial court denied the motion.
On appeal, we noted that “the conditions that were the impetus for the legislature’s
enactment of the Medical Malpractice Act had nothing to do with the sort of liability any
health care provider . . . risks when a patient, or anyone else, is injured by the negligent
maintenance of the provider’s business premises.” Lomax, 465 N.E.2d at 739. A
medical review panel has the duty of expressing its expert opinion on whether the
defendant acted within the appropriate standard of care. Id. at 740. However, “the
maintenance of reasonably safe premises are within the common knowledge and
experience of the average person” and “[h]ealth care providers, who must make up the
medical review panel . . . , are no more qualified as experts on such matters than the
average juror.” Id.
We further noted that Lomax’s complaint alleged only premises liability and did
not make allegations that would implicate the Act. Further, at the time of her fall, Lomax
was unattended by any Winona employees and she was not receiving care or treatment at
that time. We concluded that “[a] premises liability claim by a patient against a health
care provider . . . is not within the coverage of the Medical Malpractice Act.” Id. at 742.
Consequently, the trial court properly denied Winona’s motion for summary judgment.
10
Here, although Dennis’s slip and fall occurred at the Hospital, that fact is not
determinative. As in Lomax, the Powells’ complaint does not allege any medical
malpractice by the Hospital or its staff. The Powells do deny that Dennis was told not to
leave his bed, but they make no argument that a failure to do so was a breach of the
medical standard of care or the cause of his injury. Rather, the Powells’ complaint
alleges only a premises liability claim. Further, Dennis was not receiving care or
treatment at the time of his fall. He was merely walking to the shower room and slipped
on a liquid in the hallway. The Hospital makes much of describing Dennis as a “high fall
risk” patient because of his leg injury and its claim that nurses told him to wait in bed.3
Those facts might be relevant to a determination regarding Dennis’s comparative fault,
but those facts do not establish as a matter of law that the Act applies. We conclude that,
as in Lomax, the Act is inapplicable here. Rather, the Powells’ complaint makes a
premises liability claim against the Hospital. As a result, the trial court erred by granting
the Hospital’s motion to dismiss.
Conclusion
The trial court erred by concluding that the Act governed the Powells’ claim.
Consequently, the trial court erred by granting the Hospital’s motion to dismiss. We
reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
NAJAM, J., and BAILEY, J., concur.
3
The Powells’ argue the trial court erred when it failed to exclude the Hospital’s allegedly inadmissible
exhibits. We need not address that argument because, even if we consider the exhibits, we conclude that
the Act does not apply to the Powells’ action against the Hospital.
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