APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Heather A. Welch, Judge. Cause No. 49D12-1305-PL-20721.
ATTORNEYS FOR APPELLANT: ROBERT M. OAKLEY, DANIEL K. DILLEY, Dilley & Oakley, P.C., Carmel, Indiana.
ATTORNEYS FOR APPELLEE: ROBERT G. ZEIGLER, MARILYN A. YOUNG, Zeigler Cohen & Koch, Indianapolis, Indiana.
BAKER, J., and KIRSCH,
Case Summary and Issue
Shacare Terry was admitted at Community Hospital (" Community" ) while unconscious. During her treatment, it was discovered that Terry was under the influence of a drug and suffered from possible vaginal trauma. The physician performed a medical evaluation but did not complete a rape kit or preserve possible evidence of sexual assault. While treating Terry, staff members of the hospital also made several derogatory statements about her.
Terry sued Community for breach of duty and intentional infliction of emotional distress (" IIED" ), but the trial court dismissed the case for lack of subject matter jurisdiction. Terry now appeals, raising two issues that we consolidate and restate as one: whether the trial court erred in determining that it lacked subject matter jurisdiction over Terry's claims because they fall within the terms of the Indiana Medical Malpractice Act (" the Act" ) and Terry did not follow the Act's procedures before filing her claims in the trial court. Concluding that the trial court did not have subject matter jurisdiction over Terry's breach of duty claim, we affirm that portion of the trial court's order. Concluding, however, that the trial court had subject matter jurisdiction over Terry's IIED claim, we reverse that portion of the court's order and remand.
Facts and Procedural History
On the night of August 5, 2011, Terry celebrated her
twenty-first birthday by going
to a club. While at the club, and without her knowledge, Terry
was given phencyclidine, a drug that has been associated with date rape. At some
point, Terry blacked out and was taken to Community where its emergency
department treated her. Both a full body exam and a toxicology screening were
performed. During the exam, the physician noted possible vaginal trauma but did
not complete a rape kit. No evidence for a rape investigation was preserved, and
the incident was not reported. Terry also was not informed that she may have
been raped, and it is unclear as to how she gained this knowledge. Because no
evidence of a rape was preserved, the Indianapolis Metropolitan Police
Department could not thoroughly investigate the incident.
While being treated at Community, Terry fell victim to several derogatory remarks. Staff members called Terry an " addict" and told her that they did not " like treating addicts." Appellant's Appendix at 3. A staff member also made light of the incident by writing the words " Happy Birthday" next to the physician's notation regarding Terry's possible vaginal trauma. Id. at 8. These actions caused Terry to suffer ...