Mathias, J.
The issue presented in this appeal is whether the claim in this case alleges facts that fall under Indiana’s Medical Malpractice Act (“the Act”), or whether the facts allege pure negligence or premises liability outside the definitions of the Act. The St. Joseph Superior Court granted Oaklawn Psychiatric Center, Inc.’s (“Oaklawn”) motion to dismiss under Trial Rule 12(B)(1) for lack of subject matter jurisdiction. Linda Martinez, as the personal representative of the estate of Roy Martinez (“the Estate”), appeals the dismissal, arguing that Oaklawn is liable based on the theory of premises liability. [Footnote omitted.]
We affirm.
….
When deciding whether a claim falls under the provisions of the Medical Malpractice Act, we are guided by the substance of a claim to determine the applicability of the Act….
Application of these tests has resulted in “‘hairline distinctions between claims that sound in medical negligence and those that sound in ordinary negligence.’”…
Since these cases, however, our supreme court has handed down its decision in Cox v. Evansville Police Department, et al., 107 N.E.3d 453 (Ind. 2018). In Cox and Babi Beyer v. City of Fort Wayne, which were consolidated on appeal, the court was faced with illegal and sexually abusive conduct by two on duty police officers in uniform, each of whom raped a woman who was in the respective officer’s custody. Both officers’ employers claimed that the horrid conduct in question was far outside the scope of the officers’ respective employment as law enforcement officers and thereby outside the scope of the doctrine of respondeat superior, under which the employer can be held liable for an employee’s actions.
Our supreme court disagreed. The court observed that “the scope of employment encompasses the activities that the employer delegates to employees or authorizes employees to do, plus employees’ acts that naturally or predictably arise from those activities.” Id. at 461. Moreover, the scope of employment may include unauthorized acts, forbidden acts, acts that violate an employer’s instructions, acts that breach the employee’s professional duty, or acts that are malicious or criminal. Id…Ultimately, the court concluded that criminal conduct that violates an employee’s official duties or his or her employer’s express orders may nevertheless be within the scope of employment if “the tortious act arose naturally or predictably from the employment context.” Id. at 463–64.
Considering the nuances of all of the Indiana cases in this area together with our supreme court’s recent direction in Cox, we believe that the current test under Trial Rule 12(B)(1) as to whether the Medical Malpractice Act applies to specific misconduct is to determine whether that misconduct arises naturally or predictably from the relationship between the health care provider and patient or from an opportunity provided by that relationship. It is further important to realize that, under Cox, such conduct may include otherwise tortious or abusive conduct.
….
Conclusion
The undisputed record establishes that Oaklawn is a healthcare provider and Kafatia is, and was at the time of the incident at issue in this case, its employee. Martinez was, whether voluntarily or otherwise, Oaklawn’s patient in Metcalf House. In that setting, Kafatia’s attempt to enforce Martinez’s curfew was a part of Oaklawn’s provision of healthcare to Martinez. When the altercation occurred that injured Martinez, Kafatia was naturally responding to Martinez’s physically aggressive behavior by defending himself. Kafatia thereafter followed Oaklawn’s protocol by removing himself from Martinez’s immediate physical presence and waiting for law enforcement to assist with Martinez. These facts and circumstances, together with the broadened scope of employment set forth in Cox, place the incident and injuries squarely within the scope of the Medical Malpractice Act.
We therefore affirm the trial court in all respects.
Robb, J., and Altice, J., concur.