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FOR PUBLICATION

FILED
Apr 10 2008, 10:30 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANTS: BETSY K. GREENE Greene & Schultz Bloomington, Indiana SCOTT WEATHERS The Weathers Law Office Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: SUSAN E. CLINE JULIA BLACKWELL GELINAS LUCY R. DOLLENS Locke Reynolds LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
H.D., JOHN DOSS, and JUNE DOSS, ) ) Appellants-Plaintiffs, ) ) vs. ) ) BHC MEADOWS HOSPITAL, INC., ) d/b/a BLOOMINGTON MEADOWS HOSPITAL, ) ) Appellee-Defendant. )

No. 53A04-0707-CV-410

APPEAL FROM THE MONROE CIRCUIT COURT VI The Honorable Stephen R. Galvin, Judge Cause No. 53C06-0511-PL-2132

April 10, 2008 OPINION - FOR PUBLICATION RILEY, Judge

STATEMENT OF THE CASE Appellants-Plaintiffs, H.D., John Doss (Father), and June Doss (Mother) (collectively, the Dosses), appeal the trial court's dismissal of their claims against Appellee-Defendant, BHC Meadows Hospital Inc. d/b/a Bloomington Meadows Hospital (Meadows), for lack of subject matter jurisdiction. 1 We reverse and remand. ISSUE The Dosses raise one issue for our review, which we restate as: Whether the Indiana Medical Malpractice Act applies to the Dosses' claims against Meadows. FACTS AND PROCEDURAL HISTORY On November 17, 2003, Mother and Father found what they believed to be a suicide note authored by their fourteen-year-old daughter, H.D. As a result, arrangements were made for H.D. to be counseled the next day at her school in eastern Illinois. H.D.'s school counselor recommended Meadows, an adolescent psychiatric hospital, to H.D. and her parents. That evening, Meadows provided an assessment to the Dosses, performed by a psychiatric nurse in Terre Haute, Indiana. After meeting individually with H.D., Mother, and Father, the psychiatric nurse recommended that H.D. be admitted to the Meadows. The Dosses resisted initially because of concerns for H.D.'s reputation at school, and concerns for their own confidentiality because they were both schoolteachers in the

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Oral argument was held on February 26, 2008, at Wabash College, Crawfordsville, IN. We thank Wabash College for their hospitality and counsel for their excellent advocacy.

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school system where H.D. attended. However, they agreed to admit H.D. after they were assured that the hospitalization would be private and that it would never be shared with the school. When signing a confidentiality agreement, the Dosses specifically indicated that they did not wish for information concerning H.D.'s hospitalization to be shared with her school counselor or the school. Later that same evening, H.D. was admitted to Meadows. On November 19th, she began receiving counseling and other services at Meadows. H.D.'s therapist at Meadows, having not reviewed the form which noted the specific agreement that H.D.'s school counselor not be contacted, sent a fax to H.D.'s school directed to her counselor. The message was labeled "re: [H.D.'s first name] D.," and stated: Thanks for referral. Addressing issues of depressional stress. Doing well, withdrawn and anxious @ times. Please call @ 812-961-2476 to discuss issues. Thanks again. (Appellant's Appendix p. 99). The fax machine at H.D.'s school was located in the general secretarial pool in the main office of the high school and students also worked in this area. When H.D.'s school counselor arrived at the school the next day, teachers already knew that H.D. had been hospitalized and that she had been diagnosed with depression. When H.D. returned to school after Thanksgiving break, her school counselor asked about her well-being and about Meadows. Later that day, her basketball coach asked her when she was going to tell her teammates about her hospitalization. H.D. became upset

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and distraught because people knew that she had been hospitalized for psychiatric reasons and again she began demonstrating suicidal behavior. H.D. was re-assessed by the psychiatric nurse who noted her depression caused by her perception that everyone at her school knew she had been hospitalized. A release of information form, which again precluded H.D.'s school from being contacted, was completed at the time of this assessment. However, on January 20, 2004, two additional letters were sent to H.D.'s school counselor regarding H.D.'s hospitalization at the Meadows. The letters were satisfaction surveys sent by Meadows' CEO. On November 8, 2005, the Dosses filed a Complaint in Indiana seeking compensation and punitive damages for invasion of privacy, negligent infliction of emotional distress, intentional/reckless infliction of emotional distress, and violations of the Illinois Mental Health and Developmental Disabilities Confidentiality Act. Meadows responded by moving to dismiss, alleging that the Dosses' claims were subject to the Indiana Medical Malpractice Act, which requires submission of the matter to a medical review panel prior to filing an action in an Indiana court. The trial court denied

Meadows' Motion to Dismiss. However, on June 6, 2007, Meadows filed a renewed Motion to Dismiss pursuant to Indiana Trial Rule 12(B)(1), again arguing that the Indiana Medical Malpractice Act applied to the Dosses' claims. On July 9, 2007, the trial court granted this motion and ordered dismissal of the Dosses' action. The Dosses now appeal. Additional facts will be provided as necessary.

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DISCUSSION AND DECISION I. Standard of Review In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to T.R. 12(B)(1), the relevant question is whether the type of claim presented falls within the general scope of the authority conferred upon the court by constitution or statute. Community Hosp. v. Avant, 790 N.E.2d 585, 586 (Ind. Ct. App. 2003). A motion to dismiss for lack of subject matter jurisdiction presents a threshold question with respect to a court's power to act. Id. The standard of appellate review of a trial court's grant or denial of a motion to dismiss pursuant to T. R. 12(B)(1) is a function of what occurred in the trial court and is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if the trial court resolved disputed facts, whether it conducted an evidentiary hearing or ruled on a paper record. Id. If the facts before the trial court are not in dispute, then the question of subject matter jurisdiction is purely one of law and no deference is afforded to the trial court's conclusion. Id. If the facts before the trial court are in dispute, then appellate review focuses on whether the trial court conducted an evidentiary hearing. Kuester v. Inman, 758 N.E.2d 96, 100 (Ind. Ct. App. 2001). Where the trial court conducts an evidentiary hearing, we give its factual findings and judgment deference. Id. 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" to determine whether the trial court has subject matter jurisdiction. Id. (quoting MHC Surgical Ctr. Assocs., Inc. v. 5

State Office of Medicaid Policy & Planning, 699 N.E.2d 306, 308 (Ind. Ct. App. 1998)). Here, the trial court did not hold an evidentiary hearing, but rather relied upon paper exhibits to determine factual issues relevant to jurisdiction. II. Medical Malpractice and Subject Matter Jurisdiction 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. Ind. Code

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