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FOR PUBLICATION


ATTORNEYS FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

JAMES O. McDONALD DAVID S. ALLEN
ADAM N. COOK SANDRA BOYD WILLIAMS
Everett Everett & McDonald Locke Reynolds Boyd & Weisell
Terre Haute, Indiana Indianapolis, Indiana


IN THE

COURT OF APPEALS OF INDIANA 

                                                                                )
M.V.,                                                                                )
                                                                                     )
    Appellant-Plaintiff,                                                             )
                                                                                     )
        vs.                                                                          )     No. 84A05-9807-CV-373
                                                                                     )
CHARTER TERRE HAUTE                                                                  )
BEHAVIORAL HEALTH                                                                    )
SYSTEM, INC.,                                                                        )
                                                                                     )
    Appellee-Defendant.                                                              )

APPEAL FROM THE VIGO CIRCUIT COURT

The Honorable Phillip I. Adler, Judge

Cause No. 84D02-9610-CT-1728


February 10, 1999


OPINION - FOR PUBLICATION


BROOK, Judge

Case Summary

    On October 15, 1996, M.V.See footnote 1 , who had voluntarily presented himself to Charter Terre Haute Behavioral Health System, Inc. ("Charter") for treatment, filed a complaint against Charter alleging that Charter detained him after he wished to leave, thereby constituting false imprisonment. On May 26, 1998, the trial court granted Charter's motion to dismiss for lack of subject-matter jurisdiction pursuant to Ind. Trial Rule 12(B)(1). Charter's motion to dismiss contended that M.V.'s complaint was actually for medical malpractice and should have been filed under the Indiana Medical Malpractice Act ("the act").See footnote 2 M.V. now appeals the trial court's July 1, 1998, order denying his motion to correct errors.
Issue

    M.V. presents one issue for our review, which we restate as whether the trial court committed error by granting Charter's motion to dismiss, finding that the court lacked subject-matter jurisdiction.

Facts and Procedural History

    On February 11, 1996, M.V., who was 35 years old at the time, voluntarily signed himself into Charter Hospital in Terre Haute due to feelings of depression. During the initial interview it was ascertained that M.V. was having marital, financial and health problems.

M.V. had not worked in three months; he was feeling guilty over an affair; and he was considering leaving his wife, who had given birth to a baby three months before his admission. The nursing admission notes also indicated he was having suicidal ideation and daily thoughts of self-harm for two weeks preceding admission.
    On February 11, 1996, Dr. Paras Harshawat reviewed the assessment findings and recommended in-patient treatment. That same night, Dr. Harshawat gave a telephone order taken by S. Turner, R.N., ordering M.V. to be admitted to Charter's Skilled Adult Unit with Dr. Harshawat as the attending physician. M.V. signed a consent form authorizing any "therapy, treatment, tests and procedures considered advisable." The consent form also provided that the patient understands "that the use of reasonable restraint and/or confinement may be necessary." M.V. was placed on a suicide watch and slept on a thin mattress on the floor. He also claims that day he was forced to ingest mind-altering drugs. Dr. Harshawat saw M.V. for the first time on the evening of February 12, 1996.
     In his deposition, M.V. claims that he requested in writing to be released on the morning of February 14, 1996. M.V. remained an inpatient at Charter until the morning of February 17, 1996, when he left the hospital on a day pass and did not return. It was noted in his chart that M.V.'s departure without return was against medical advice. On October 15, 1996, M.V. filed a complaint alleging, inter alia, that he 1) checked himself into Charter; 2) was forced to take medication; 3) was forced to sleep on a thin mattress in a lobby/ recreation area; and 4) was prevented from leaving. He did not file a proposed complaint

with the Indiana Department of Insurance under the Indiana Medical Malpractice Act before filing this action.
     On May 26, 1998, the trial court granted Charter's motion to dismiss for lack of subject-matter jurisdiction which was filed pursuant to T.R. 12(B)(1) and contended that M.V.'s complaint was actually for medical malpractice and therefore had to be filed under the Indiana Medical Malpractice Act. On July 1, 1998, the trial court denied M.V.'s motion to correct errors.

Discussion and Decision

    M.V. contends that the Indiana Medical Malpractice Act is inapplicable because the decisions made by his physician after he was voluntarily admitted to Charter, involving the prescription of medication, placing him on a suicide watch, and making decisions concerning his discharge, constituted false imprisonment. Even though M.V.'s complaint attempted to characterize all of Charter's actions as false imprisonment, some of their actions could conceivably be medical negligence. While intentional torts are not specifically excluded from the Medical Malpractice Act, the alleged acts must be analyzed to determine if the acts were performed in furtherance of the patient's health or involve the health care provider's professional judgment or skill.
    Generally, all of Charter's actions, including the discharge decision, would fall under the Medical Malpractice Act. However, M.V.'s voluntary admission to a mental health facility coupled with Charter's refusal to release him, pursuant to his written request, require analysis of : 1) the Medical Malpractice Act; and 2) certain procedural requirements of the

mental health statutes codified at IND. CODE § 12-26-3-4.See footnote 3 In this case, Charter's adherence to procedural requirements of relevant mental health statutes is necessary if jurisdiction is to fall under the Medical Malpractice Act.
    In reviewing a T.R. 12(B)(1) motion to assess subject-matter jurisdiction, a trial court examines the complaint, the motion, any affidavits and any other evidence to determine its authority to further adjudicate the action. Doe by Roe v. Madison Center Hospital, 652 N.E.2d 101, 103 (Ind. Ct. App. 1995), trans. dismissed. M.V. presented affidavits and other evidence for his motion to assess subject-matter jurisdiction. When there are affidavits or other evidence for the trial court to consider, in addition to the allegations in the complaint, the court may weigh the evidence in order to assess whether it has jurisdiction. Lawson v. Raney Mfg., Inc., 678 N.E.2d 122, 126 (Ind. Ct. App. 1997), trans. denied.
    If the trial court finds the case is one of medical malpractice as defined by the Medical Malpractice Act, then it lacks subject-matter jurisdiction unless the plaintiff has filed a proposed complaint with the Department of Insurance and met other conditions precedent as enumerated under the Act. IND. CODE §§ 34-18-1-1 et. seq.;See footnote 4 Putnam County Hospital v. Sells, 619 N.E.2d 968, 970 (Ind. Ct. App. 1993). IND. CODE § 34-18-2-18 defines "malpractice" 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. A "tort" is a legal wrong, breach of duty, or negligence or unlawful act or omission proximately

causing injury or damage to another. IND. CODE § 34-18-2-28. "Health care" means 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. IND. CODE § 34-18-2-13. While intentional torts are not specifically excluded from the definition of malpractice under the Act, the Act is designed to apply to acts 1) performed in furtherance of the patient's health; or 2) that involve the provider's exercise of professional expertise, skill or judgment. Doe, 652 N.E.2d at 104.
    However, merely labeling acts performed by a health care provider as intentional torts in the complaint does not automatically mean that the Act is not implicated; rather, we look to the substance of the complaint. Boruff v. Jesseph, 576 N.E.2d 1297, 1298 (Ind. Ct. App. 1991). In Boruff, Mrs. Boruff requested that Dr. Jesseph perform her surgery without Dr. Jesseph's partner, Dr. Milan. On the day of the surgery, Dr. Jesseph was delayed due to a scheduling conflict and Dr. Milan performed the surgery after Boruff was informed of the change. The Boruffs claimed that the doctors maintained negligent office procedures because Dr. Jesseph did not inform Dr. Milan that she did not want him to do the surgery. They also claimed that Dr. Milan committed battery because Boruff did not consent to the change of surgeons. In Boruff, we held that the surgical assignments and conduct of an operation were health care decisions promoting the patient's health and required physicians to exercise professional skill, expertise, and judgment and therefore fell within the scope of the Act. Id.

    Here, M.V.'s complaint labeled the allegedly tortious acts committed at Charter as false imprisonment. However, as in Boruff, an analysis of the conduct that allegedly occurred leads us to conclude that the actions undertaken by Charter, before M.V.'s written request to be discharged, are within the purview of the Act. Actions such as admitting a patient; requesting a patient to put on a hospital gown; ordering him to sleep on a thin mattress on the floor as part of a suicide watch; and requiring him to take medicine are professional judgments made by health care providers in psychiatric facilities.
    M.V. correctly asserts that the fact the alleged actions occurred in a health care facility does not automatically implicate the Act; it is the nature of the defendant's actions that control. Doe, 652 N.E.2d at 104 . However, M.V.'s reliance on Doe to bolster his arguments is misplaced. In Doe, the orderly's alleged coercion of a minor to engage in sexual intercourse was held not to be designed to promote her health and not to involve the exercise of professional judgment; therefore, it did not fall under the Medical Malpractice Act, even though the acts occurred in a psychiatric hospital. Id. M.V.'s case is distinguishable from Doe. Even though Dr. Harshawat did not see M.V. until the second day he was at Charter, M.V. was placed under his care, and decisions involving the suicide watch and medication were made pursuant to the doctor's orders, were designed to promote the patient's health, and involved his expertise and professional judgment.
    Discharge decisions are designed to promote patient health and involve professional judgment and thereby generally fall under the Indiana Medical Malpractice Act. However, M.V. contends that he ceased being a patient after Charter failed to release him pursuant to

statutory authority and his written request to be discharged from his voluntary commitment; he therefore contends that Charter's refusal to release him took his claims outside the Indiana Malpractice Act. We agree.
    Under the Medical Malpractice Act, a "patient" is an individual who receives or should have received health care from a health care provider, under a contract, express or implied. IND. CODE § 12-26-3-4, which outlines a release procedure for patients who are voluntarily committed, reads as follows:
        Except as provided in section 5 of this chapter, an individual who has been admitted to a facility under this chapter shall be released within twenty- four (24) hours of a written request for release made to the superintendent or the individual's attending physician by:
        (1) the individual; or
        (2) if the individual is less than eighteen (18) years of age, the parent     or guardian who applied for the individual's admission to the facility.

    IND. CODE § 12-26-3-5, which provides a mechanism for the facility to retain the individual if certain procedures are followed, reads as follows:
    (a) The superintendent or attending physician is not required to release an individual under section 4 of this chapter if the superintendent or the attending physician has reason to believe the individual is mentally ill and either dangerous or gravely disabled.
    (b) If the superintendent or the attending physician makes a determination under subsection (a), the superintendent or the attending physician must make a written report to a court:
        (1) that has jurisdiction;
        (2) in the county:
            (A) of the residence of the individual; or
            (B) where the facility is located; and
        (3) not later than five (5) days of receiving the request made under                      section 4 of this chapter.
    (c) A report under subsection (b) must:
        (1) state that there is probable cause to believe that the individual is                      mentally ill and either dangerous or gravely disabled;

        (2) state that the individual requires continuing care and treatment in     the facility;
        (3) request a hearing on the report.

    Here, M.V. presented his written request to be released on February 14, 1996, and did not leave Charter until he left on a day pass on February 17 , 1998 and failed to return, without being discharged. Accordingly, Charter failed to follow the dictates of IND. CODE § 12-26-3-4 , which requires them to release a voluntarily committed patient within 24 hours of a written request unless the procedures under IND. CODE § 12-26-3-5 are followed. We hold that the physician-patient relationship terminated at the time Charter failed to follow the statutory mandate of IND. CODE § 12-26-3-4; therefore, Charter's decision to detain M.V. in contravention of statutory authority took the entire suit outside the scope of the Medical Malpractice Act.
    Because we hold that Charter's decision not to release M.V. in contravention of his written request removes his suit from the operation of the Indiana Medical Malpractice Act, his false imprisonment action remains. However, in upholding M.V.'s claim, we note that the evidence of Charter's health care decisions prior to its refusal to release him may not be considered relevant in this regard.
    For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
RILEY, J., and STATON, J., concur.

Footnote:     1 We recognize that when an adult is a party to a lawsuit, the party's name is available to the public in an opinion published by this Court. Generally, absent a motion, adults would be referred to by their full names. However, given the sensitive nature of the mental health issues discussed in this opinion, the Court chooses to use M.V.'s initials.
Footnote:     2 IND. CODE § 34-18-1-1 et. seq.
Footnote:     3 IND. CODE § 12-26-3-4 proscribes a release procedure for persons voluntarily committed under states governing mentally ill individuals.
Footnote:     4 IND. CODE §§ 27-12-1-1 et. seq. at the time this case was filed.

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