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49D01-2406-CT-027073 Filed: 6/18/2024 10:38 AM
Clerk
Marion Superior Court 1 Marion County, Indiana
STATE OF INDIANA ) IN THE MARION SUPERIOR COURT
) SS:
COUNTY OF MARION ) CAUSE NO._______________________
KAY KIM, )
)
Plaintiff, )
)
v. )
)
ANONYMOUS MD #1 )
ANONYMOUS MD #2, )
ANONYMOUS MD #3, )
ANONYMOUS MD #4, )
ANONYMOUS PA-C #1, )
ANONYMOUS MD #5, )
LISA HARRIS CEO OF ESKENAZI HOSPITAL )
DENNIS MUPRHY CEO OF IU HEALTH, )
)
Defendants. )
DENNIS MURPHY’S BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY
DETERMINATION OF LAW AND SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, TO DISMISS
Defendant, Dennis Murphy CEO of IU Health (“Murphy”), by counsel, and
pursuant to Indiana Code §34-18-11-1 and Indiana Trial Rules 12(B) (6) and 56,
respectfully requests this Court for an order granting him summary judgment against
Plaintiff Kay Kim’s (“Plaintiff”) claim of medical malpractice, or in the alternative, to
dismiss her complaint for failure to state a claim.
On February 20, 2024, Plaintiff filed her Proposed Complaint for Damages (the
“Complaint”) with the Indiana Department of Insurance (the “IDOI”) pursuant to the
Indiana Medical Malpractice Act, Indiana Code §340-18-1 et seq (the “MMA”). Exhibit
A, Complaint. On March 11, 2024, Plaintiff filed her First Amended Complaint (the
“Complaint”). Exhibit B, First Amended Complaint. The Complaint’s sole allegation
against Murphy is that he, along with the other Defendants, “engaged in the
systematically silenced patient, intimidation, threat, and to disguise their criminal
activity under the civil matter which nothing short of perpetual living harvesting
orgarns and my case under the ‘practicing’ for their many forms of sordid gains [Sic
throughout].” Ex. B at 2. Plaintiff does not allege that she and Murphy were bound by a
physician-patient relationship, or that he provided her with medical care, two
deficiencies that are fatal to her claim against Murphy.
Plaintiff has also failed to produce any evidence to support the existence of a
physician-patient relationship between herself and Murphy, nor will she be able to;
Murphy is not a physician and has never provided medical care to Plaintiff or anyone
else in the course of his professional career as a healthcare administrator. Summary
judgment for Murphy is, therefore, appropriate and should be entered without delay.
Statement of Facts
Murphy is the president and chief executive office of Indiana University Health
(“IU Health”). Exhibit C, Murphy Affirmation at ¶ 2. He is not a physician, nor has he
ever practiced medicine or held himself out to be a physician. Id. at ¶¶ 4-5. Murphy has
2
never provided medical care to Plaintiff; indeed, he has never had any interaction with
her at any time. Id. at ¶¶ 6-7.
On February 20, 2024, Plaintiff filed her initial Complaint with the IDOI and filed
an Amended Complaint on March 11, 2024 (the “Complaint”). Ex B. The Complaint
broadly alleges that Plaintiff received medical care that fell below the applicable
standard of care and has suffered damages as a result. Id. at ¶¶ 1-3. The Complaint does
not allege that Plaintiff received any medical care from Murphy personally. To the
extent that the Complaint sets forth any allegations against Murphy, the allegations are
conclusory and appear to be premised on a letter from Eskenazi Health requesting that
Plaintiff cease her abuse of the MyChart messaging function. See Ex. B.
Plaintiff has not alleged any facts to support, much less produced any
information or documentation showing, that she received medical care from Murphy at
IU Health. On April 15, 2024, counsel for Murphy served Requests for Production and
Interrogatories on Plaintiff. Exhibit D, Murphy discovery requests. On May 29, 2024,
counsel for Murphy wrote to Plaintiff inquiring about the status of her answers to the
pending discovery requests. To date, Plaintiff has provided only deficient responses
and has not produced any information or documentation to support her claims, to the
extent the Complaint alleges any, against Murphy. See Exhibit E, Plaintiff’s Responses
to Murphy’s Requests for Production; Exhibit F, Plaintiff’s Responses to Murphy’s
Interrogatories.
3
A medical review panel has not yet been established and, accordingly, the panel
has not issued its opinion in accordance with Ind. Code 34-18-10-22. This Court,
therefore, may properly consider this matter in accordance with Ind. Code 24-18-11-1.
Legal Standard
The Indiana Medical Malpractice Act (the “MMA”) grants subject matter
jurisdiction over claims of medical malpractice first to a medical review panel, and
subsequently to the trial court. B.R. ex rel. Todd v. State, 1 N.E.3d 708, 712 (Ind. Ct. App.
2013), citing H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 853 (Ind.Ct.App.2008),
trans. denied. However, Ind. Code § 34–18–11–1 “provides that material issues of fact,
not requiring expert opinion, bearing on liability for consideration by the court or jury,
may be preliminarily determined in summary judgment proceedings prior to a medical
review panel reviewing the case.” Miller v. Martig, 754 N.E.2d 41, 44–45 (Ind. Ct. App.
2001). In essence, an issue that “does not require expert opinion is not reserved to the
medical review panel.” Id., citing Santiago v. Kilmer, 605 N.E.2d 237, 240–41
(Ind.Ct.App.1992), trans. denied; Dixon v. Siwy, 661 N.E.2d 600, 607 (Ind. Ct. App.
1996)(determining that issue of whether a physician-patient relationship existed
between the plaintiff and defendant was “a legal question for the court, and is not
reserved for the medical review panel.”).
Judgment for the moving party “shall be rendered forthwith” where, as here,
“the designated evidentiary matter shows that there is no genuine issue as to any
4
material fact and the moving party is entitled to judgment as a matter of law.” Ind.
Trial R. 56(C). “The burden is on the moving party to prove there are no genuine issues
of material fact and he is entitled to judgment as a matter of law.” Stephenson v.
Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992). A party opposing summary judgment must
“respond by setting forth specific facts showing a genuine issue for trial; he may not
simply rest on the allegations of his pleadings.” Id., citing T.R. 56(E). In a medical-
malpractice case, a “’unanimous opinion of the medical review panel’ in favor of the
movant is typically enough to satisfy [the movant’s] threshold burden.” Korakis v. Mem'l
Hosp. of S. Bend, 225 N.E.3d 760, 764 (Ind. 2024), citing Stafford v. Szymanowski, 31 N.E.3d
959, 961 (Ind. 2015). The burden then shifts to the plaintiff, who must designate contrary
evidence (normally expert opinions), and a plaintiff’s failure to do so entitles a moving
defendant to summary judgment. Id.
A motion to dismiss under Trial Rule 12(B)(6) for failure to state a claim “tests
the legal sufficiency of the claim, not the facts supporting it.” Kitchell v. Franklin, 997
N.E.2d 1020, 1025 (Ind. 2013). When ruling on a motion to dismiss, the court must “view
the pleadings in the light most favorable to the nonmoving party, with every reasonable
inference construed in the non-movant’s favor.” Id. Dismissal is appropriate if “the facts
alleged in the challenged pleading are incapable of supporting relief under any set of
circumstances.” City of E. Chicago v. E. Chicago 2d Century, Inc., 908 N.E.2d 611, 617 (Ind.
2009). However, a court need not accept as true allegations that are contradicted by
5
other allegations or exhibits attached to or incorporated in the pleading. Courts also
need not accept as true conclusory, nonfactual assertions or legal conclusions.” Tr. Ind.
Univ. v. Speigel, 186 N.E.3d 1151, 1157 (Ind. Ct. App. 2022).
Argument
The Complaint does not set forth facts adequate to support a claim of medical
malpractice against Muphy. Plaintiff’s claim must fail because the Complaint does not
allege that a physician-patient relationship existed between Plaintiff and Murphy, and
in fact states that Plaintiff did not receive medical care from Murphy. In the alternative,
Plaintiff’s claim against Murphy should be dismissed for failing to set forth a claim for
which relief can be granted because her allegations are vague and conclusory and fail to
satisfy Indiana’s pleading standard.
1. The Complaint does not allege that Plaintiff and Murphy were bound by a
physician-patient relationship.
Plaintiff’s failure to establish that she and Murphy had a physician-patient
relationship is fatal to her allegation of medical malpractice. The Indiana Supreme
Court has “observed that the duty owed by a physician arises from the physician-
patient relationship. Thus, a physician-patient relationship is a legal prerequisite to a
medical malpractice cause of action.” Miller v. Martig, 754 N.E.2d 41, 44–45 (Ind. Ct.
App. 2001), citing Dixon v. Siwy, 661 N.E.2d 600, 607 (Ind.Ct.App.1996). Murphy is
entitled to summary judgment because the absence of a physician-patient relationship
defeats Plaintiff’s claim against him as a matter of law. See Id. (“In the absence of a
6
physician-patient relationship, there can be no liability on the part of the defendant
physician, and the entry of summary judgment is appropriate.”).
The legal deficiency of Plaintiff’s claim against Murphy is apparent on the face of the
Complaint, which states that Murphy did not provide medical treatment to the Plaintiff.
The Complaint is explicit that “’Defendants’ means who directly treated
Plaintiff/patient and not Eskenazi and IU CEO [sic] unless stated [sic throughout].” Ex. B at
1, emphasis added. Underscoring that Plaintiff’s allegations of medical malpractice do
not pertain to Murphy, the Complaint’s first paragraph lists each of the Defendants
from whom Plaintiff alleges she “received medical care and/or treatment” and omits
Murphy and co-Defendant Lisa Harris, CEO of Eskenazi Hospital. Ex. B at ¶ 1.
Plaintiff’s discovery responses do not—and cannot—ameliorate the Complaint’s
failure to allege a physician-patient relationship. In response to Murphy’s written
discovery requests, Plaintiff has not produced any information or documentation
showing that she and Murphy were bound by a physician-patient relationship. See Ex.
E; Ex. F. Moreover, Murphy is not a physician and has never professionally provided
medical care to Plaintiff or anyone else. Ex. B at ¶¶ 4-6. Plaintiff cannot, therefore,
produce any evidence to establish a physician-patient relationship and her claim against
Murphy must fail. See Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389 (Ind. Ct. App.
2014) (“T]he test is whether the claim is based on the provider's behavior or practices
while acting in his professional capacity as a provider of medical services.” citation omitted,
7
emphasis added); Dixon v. Siwy, 661 N.E.2d 600, 606 (Ind. Ct. App. 1996) (“the facts
before the trial court demonstrate that a physician-patient relationship was never
established between Siwy and Dixon, and that therefore summary judgment is proper
in this case.”).
2. Plaintiff’s allegation against Murphy is outside the scope of the MMA.
Plaintiff does not contend that Murphy provided her with medical care or that he
committed any tort against her in the course of providing medical care or treatment,
consequently, her claim against Murphy is outside of the MMA’s scope. Plaintiff alleges
that:
Defendants includes Eskenazi and IU CEO are engaged in the systematically
silenced patient, intimidation, threat, and to disguise their criminal activity
under the civil matter which nothing short of perpetual living harvesting
orgarns and my case under the “practicing” for their many forms of sordid
gains. (See Attachment.) 1
[Sic throughout]. Ex. B at 2. The MMA covers “curative or salutary conduct of a health
care provider acting within his or her professional capacity, but not conduct unrelated
to the promotion of a patient's health or the provider's exercise of professional expertise,
skill, or judgment.” Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389 (Ind. Ct. App.
2014), citing Howard Reg'l Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind.2011)
(emphasis added) (citation and quotation marks omitted); see also H.D. v. BHC Meadows
1
The Attachment Plaintiff references is a letter from Eskenazi Health regarding her “Non-Compliance with
Behavior Agreement” and requesting that she desist from certain “disruptive behaviors,” including, “[e]xcessive use
of MyChart messaging to voice complaints, question treatment decisions…[s]ending confrontational MyChart
messages with demeaning, accusatory, and disrespectful comments to members of [her] healthcare team [and]
[s]ending MyChart messages making demands regarding treatments and surgery.” See Ex. B at 9-10.
8
Hosp., Inc., 884 N.E.2d 849, 853 (Ind. Ct. App. 2008) (“[W]e have repeatedly held that
when plaintiffs articulate claims for ordinary negligence, unrelated to the provision of
medical care or treatment, those claims do not fall within the scope of the Medical
Malpractice Act.”) citing Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288
(Ind.Ct.App.2006).
As a matter of law, Plaintiff’s claims—to the extent they exist—are not properly
included in an action for medical malpractice and preliminary determination by this
Court granting summary judgment for Murphy is proper.
3. The Complaint’s sole allegation against Murphy is conclusory and fails to
satisfy Indiana’s pleading standard or state a claim upon which relief can be
granted.
The Complaint’s sole allegation directed to Murphy makes vague, conclusory
allegations that do not state a claim upon which relief can be granted. Indeed, the
precise nature of Plaintiff’s allegation against Murphy is unclear and thereby fails
Indiana’s pleading standard. Indiana Trial Rule 8(A) requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” “Although the
plaintiff need not set out in precise detail the facts upon which the claim is based, he
must still plead the operative facts necessary to set forth an actionable claim.”
McCalment v. Eli Lilly & Co., 860 N.E.2d 884, 890 (Ind. Ct. App. 2007), citation omitted.
The trial court “need not accept as true conclusory, nonfactual assertions or legal
9
conclusions.” Id., citing Richards & O'Neil, LLP v. Conk, 774 N.E.2d 540, 547
(Ind.Ct.App.2002).
Plaintiff’s allegation that Murphy “engaged in the systematically silenced patient,
intimidation, threat, and to disguise their criminal activity under the civil matter which
nothing short of perpetual living harvesting organs and my case under the “practicing”
for their many forms of sordid gains [Sic throughout]” does not set forth any facts, only
conclusions. Even under Indiana’s permissive pleading standard, a plaintiff “must still
plead the operative facts necessary to set forth an actionable claim.” ResCare Health
Servs., Inc. v. Indiana Fam. & Soc. Servs. Admin. - Off. of Medicaid Pol'y & Plan., 184 N.E.3d
1147, 1153 (Ind. 2022), citing Trail v. Boys and Girls Clubs of Nw. Ind., 845 N.E.2d 130, 135
(Ind. 2006). The sole element of explanation provided by plaintiff—a letter from
Eskenazi Health regarding her “Non-Compliance with Behavior Agreement”—does not
contain any facts that could plausibly support misconduct by Murphy, the CEO of IU
Health. Thus, Murphy cannot prepare to defend himself against Plaintiff’s allegation
because she simply concludes that he engaged in improper conduct. See Id., quoting
Bayer Corp. v. Leach, 147 N.E.3d 313, 315 (Ind. 2020) (“The purpose of notice pleading is
to inform a defendant of a claim's operative facts so the defendant can ‘prepare to meet
it.’”).
Because this Court “need not accept as true conclusory, nonfactual assertions or
legal conclusions,” it should not accept Plaintiff’s conclusory allegations against
10
Murphy. Stripped of these conclusions, the Complaint does not contain any claim
against Murphy and dismissal is appropriate. Hyzy v. Anonymous Provider 1, No. 23A-
CT-2581, 2024 WL 1985692, at *2 (Ind. Ct. App. May 6, 2024) citing Bellwether Props., LLC
v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017) (“Dismissal under T.R. 12(B)(6) is
proper if it appears to a certainty on the face of the complaint that the complaining
party is not entitled to any relief.”).
WHEREFORE, Murphy requests this Court for an order granting summary
judgment in his favor or, in the alternative, dismissing Plaintiff’s Proposed Complaint
filed with the Indiana Department of Insurance on February 20, 2024, and styled IDOI
Claim No. 1023927, pursuant to Indiana Trial Rule 56 or, in the alternative, 12(b)(6).
Respectfully submitted,
/s/ John David Hoover
John David Hoover, #7945-49
Clara P. Gutwein, #36838-49
HOOVER HULL TURNER LLP
111 Monument Circle, Suite 4400
P.O. Box 44989
Indianapolis, IN 46244-0989
(317) 822-4400
(317) 822-0234 (facsimile)
jdhoover@hooverhullturner.com
cgutwein@hooverhullturner.com
Counsel for Defendant Dennis Murphy, CEO
11
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 18th day of June, 2024, a true and
complete copy of the foregoing was served via email on:
Kay Kim (chang2597@gmail.com)
4250 Village Pkwy Cir E. Unit 2
Indianapolis, IN 46254
ProSe
Elliott I. Pinkie (epinkie@pinkielaw.com)
PINKIE LAW LLC
212 W. 10th Street, Suite A400
Indianapolis, IN 46202
Patricia B. Freije (Tricia.freije@skofirm.com)
Dominick D. Ellis (Dominick.ellis@skofirm.com)
STOLL KEENON OGDEN PLLC
334 N. Senate Avenue
Indianapolis, IN 46204
Lisa Harris, CEO of Eskenazi Hospital (Thomas.surber@eskenazihealth.edu)
720 Eskenazi Ave.
Indianapolis, IN 46202
/s/ John David Hoover
John David Hoover
HOOVER HULL TURNER LLP
Counsel for Defendant Dennis Murphy
CEO
12
Preview
49D01-2406-CT-027073 Filed: 6/18/2024 10:38 AM Clerk Marion Superior Court 1 Marion County, Indiana STATE OF INDIANA ) IN THE MARION SUPERIOR COURT ) SS: COUNTY OF MARION ) CAUSE NO._______________________ KAY KIM, ) ) Plaintiff, ) ) v. ) ) ANONYMOUS MD #1 ) ANONYMOUS MD #2, ) ANONYMOUS MD #3, ) ANONYMOUS MD #4, ) ANONYMOUS PA-C #1, ) ANONYMOUS MD #5, ) LISA HARRIS CEO OF ESKENAZI HOSPITAL ) DENNIS MUPRHY CEO OF IU HEALTH, ) ) Defendants. ) DENNIS MURPHY’S BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY DETERMINATION OF LAW AND SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, TO DISMISS Defendant, Dennis Murphy CEO of IU Health (“Murphy”), by counsel, and pursuant to Indiana Code §34-18-11-1 and Indiana Trial Rules 12(B) (6) and 56, respectfully requests this Court for an order granting him summary judgment against Plaintiff Kay Kim’s (“Plaintiff”) claim of medical malpractice, or in the alternative, to dismiss her complaint for failure to state a claim. On February 20, 2024, Plaintiff filed her Proposed Complaint for Damages (the “Complaint”) with the Indiana Department of Insurance (the “IDOI”) pursuant to the Indiana Medical Malpractice Act, Indiana Code §340-18-1 et seq (the “MMA”). Exhibit A, Complaint. On March 11, 2024, Plaintiff filed her First Amended Complaint (the “Complaint”). Exhibit B, First Amended Complaint. The Complaint’s sole allegation against Murphy is that he, along with the other Defendants, “engaged in the systematically silenced patient, intimidation, threat, and to disguise their criminal activity under the civil matter which nothing short of perpetual living harvesting orgarns and my case under the ‘practicing’ for their many forms of sordid gains [Sic throughout].” Ex. B at 2. Plaintiff does not allege that she and Murphy were bound by a physician-patient relationship, or that he provided her with medical care, two deficiencies that are fatal to her claim against Murphy. Plaintiff has also failed to produce any evidence to support the existence of a physician-patient relationship between herself and Murphy, nor will she be able to; Murphy is not a physician and has never provided medical care to Plaintiff or anyone else in the course of his professional career as a healthcare administrator. Summary judgment for Murphy is, therefore, appropriate and should be entered without delay. Statement of Facts Murphy is the president and chief executive office of Indiana University Health (“IU Health”). Exhibit C, Murphy Affirmation at ¶ 2. He is not a physician, nor has he ever practiced medicine or held himself out to be a physician. Id. at ¶¶ 4-5. Murphy has 2 never provided medical care to Plaintiff; indeed, he has never had any interaction with her at any time. Id. at ¶¶ 6-7. On February 20, 2024, Plaintiff filed her initial Complaint with the IDOI and filed an Amended Complaint on March 11, 2024 (the “Complaint”). Ex B. The Complaint broadly alleges that Plaintiff received medical care that fell below the applicable standard of care and has suffered damages as a result. Id. at ¶¶ 1-3. The Complaint does not allege that Plaintiff received any medical care from Murphy personally. To the extent that the Complaint sets forth any allegations against Murphy, the allegations are conclusory and appear to be premised on a letter from Eskenazi Health requesting that Plaintiff cease her abuse of the MyChart messaging function. See Ex. B. Plaintiff has not alleged any facts to support, much less produced any information or documentation showing, that she received medical care from Murphy at IU Health. On April 15, 2024, counsel for Murphy served Requests for Production and Interrogatories on Plaintiff. Exhibit D, Murphy discovery requests. On May 29, 2024, counsel for Murphy wrote to Plaintiff inquiring about the status of her answers to the pending discovery requests. To date, Plaintiff has provided only deficient responses and has not produced any information or documentation to support her claims, to the extent the Complaint alleges any, against Murphy. See Exhibit E, Plaintiff’s Responses to Murphy’s Requests for Production; Exhibit F, Plaintiff’s Responses to Murphy’s Interrogatories. 3 A medical review panel has not yet been established and, accordingly, the panel has not issued its opinion in accordance with Ind. Code 34-18-10-22. This Court, therefore, may properly consider this matter in accordance with Ind. Code 24-18-11-1. Legal Standard The Indiana Medical Malpractice Act (the “MMA”) grants subject matter jurisdiction over claims of medical malpractice first to a medical review panel, and subsequently to the trial court. B.R. ex rel. Todd v. State, 1 N.E.3d 708, 712 (Ind. Ct. App. 2013), citing H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 853 (Ind.Ct.App.2008), trans. denied. However, Ind. Code § 34–18–11–1 “provides that material issues of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury, may be preliminarily determined in summary judgment proceedings prior to a medical review panel reviewing the case.” Miller v. Martig, 754 N.E.2d 41, 44–45 (Ind. Ct. App. 2001). In essence, an issue that “does not require expert opinion is not reserved to the medical review panel.” Id., citing Santiago v. Kilmer, 605 N.E.2d 237, 240–41 (Ind.Ct.App.1992), trans. denied; Dixon v. Siwy, 661 N.E.2d 600, 607 (Ind. Ct. App. 1996)(determining that issue of whether a physician-patient relationship existed between the plaintiff and defendant was “a legal question for the court, and is not reserved for the medical review panel.”). Judgment for the moving party “shall be rendered forthwith” where, as here, “the designated evidentiary matter shows that there is no genuine issue as to any 4 material fact and the moving party is entitled to judgment as a matter of law.” Ind. Trial R. 56(C). “The burden is on the moving party to prove there are no genuine issues of material fact and he is entitled to judgment as a matter of law.” Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992). A party opposing summary judgment must “respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings.” Id., citing T.R. 56(E). In a medical- malpractice case, a “’unanimous opinion of the medical review panel’ in favor of the movant is typically enough to satisfy [the movant’s] threshold burden.” Korakis v. Mem'l Hosp. of S. Bend, 225 N.E.3d 760, 764 (Ind. 2024), citing Stafford v. Szymanowski, 31 N.E.3d 959, 961 (Ind. 2015). The burden then shifts to the plaintiff, who must designate contrary evidence (normally expert opinions), and a plaintiff’s failure to do so entitles a moving defendant to summary judgment. Id. A motion to dismiss under Trial Rule 12(B)(6) for failure to state a claim “tests the legal sufficiency of the claim, not the facts supporting it.” Kitchell v. Franklin, 997 N.E.2d 1020, 1025 (Ind. 2013). When ruling on a motion to dismiss, the court must “view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the non-movant’s favor.” Id. Dismissal is appropriate if “the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances.” City of E. Chicago v. E. Chicago 2d Century, Inc., 908 N.E.2d 611, 617 (Ind. 2009). However, a court need not accept as true allegations that are contradicted by 5 other allegations or exhibits attached to or incorporated in the pleading. Courts also need not accept as true conclusory, nonfactual assertions or legal conclusions.” Tr. Ind. Univ. v. Speigel, 186 N.E.3d 1151, 1157 (Ind. Ct. App. 2022). Argument The Complaint does not set forth facts adequate to support a claim of medical malpractice against Muphy. Plaintiff’s claim must fail because the Complaint does not allege that a physician-patient relationship existed between Plaintiff and Murphy, and in fact states that Plaintiff did not receive medical care from Murphy. In the alternative, Plaintiff’s claim against Murphy should be dismissed for failing to set forth a claim for which relief can be granted because her allegations are vague and conclusory and fail to satisfy Indiana’s pleading standard. 1. The Complaint does not allege that Plaintiff and Murphy were bound by a physician-patient relationship. Plaintiff’s failure to establish that she and Murphy had a physician-patient relationship is fatal to her allegation of medical malpractice. The Indiana Supreme Court has “observed that the duty owed by a physician arises from the physician- patient relationship. Thus, a physician-patient relationship is a legal prerequisite to a medical malpractice cause of action.” Miller v. Martig, 754 N.E.2d 41, 44–45 (Ind. Ct. App. 2001), citing Dixon v. Siwy, 661 N.E.2d 600, 607 (Ind.Ct.App.1996). Murphy is entitled to summary judgment because the absence of a physician-patient relationship defeats Plaintiff’s claim against him as a matter of law. See Id. (“In the absence of a 6 physician-patient relationship, there can be no liability on the part of the defendant physician, and the entry of summary judgment is appropriate.”). The legal deficiency of Plaintiff’s claim against Murphy is apparent on the face of the Complaint, which states that Murphy did not provide medical treatment to the Plaintiff. The Complaint is explicit that “’Defendants’ means who directly treated Plaintiff/patient and not Eskenazi and IU CEO [sic] unless stated [sic throughout].” Ex. B at 1, emphasis added. Underscoring that Plaintiff’s allegations of medical malpractice do not pertain to Murphy, the Complaint’s first paragraph lists each of the Defendants from whom Plaintiff alleges she “received medical care and/or treatment” and omits Murphy and co-Defendant Lisa Harris, CEO of Eskenazi Hospital. Ex. B at ¶ 1. Plaintiff’s discovery responses do not—and cannot—ameliorate the Complaint’s failure to allege a physician-patient relationship. In response to Murphy’s written discovery requests, Plaintiff has not produced any information or documentation showing that she and Murphy were bound by a physician-patient relationship. See Ex. E; Ex. F. Moreover, Murphy is not a physician and has never professionally provided medical care to Plaintiff or anyone else. Ex. B at ¶¶ 4-6. Plaintiff cannot, therefore, produce any evidence to establish a physician-patient relationship and her claim against Murphy must fail. See Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389 (Ind. Ct. App. 2014) (“T]he test is whether the claim is based on the provider's behavior or practices while acting in his professional capacity as a provider of medical services.” citation omitted, 7 emphasis added); Dixon v. Siwy, 661 N.E.2d 600, 606 (Ind. Ct. App. 1996) (“the facts before the trial court demonstrate that a physician-patient relationship was never established between Siwy and Dixon, and that therefore summary judgment is proper in this case.”). 2. Plaintiff’s allegation against Murphy is outside the scope of the MMA. Plaintiff does not contend that Murphy provided her with medical care or that he committed any tort against her in the course of providing medical care or treatment, consequently, her claim against Murphy is outside of the MMA’s scope. Plaintiff alleges that: Defendants includes Eskenazi and IU CEO are engaged in the systematically silenced patient, intimidation, threat, and to disguise their criminal activity under the civil matter which nothing short of perpetual living harvesting orgarns and my case under the “practicing” for their many forms of sordid gains. (See Attachment.) 1 [Sic throughout]. Ex. B at 2. The MMA covers “curative or salutary conduct of a health care provider acting within his or her professional capacity, but not conduct unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill, or judgment.” Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389 (Ind. Ct. App. 2014), citing Howard Reg'l Health Sys. v. Gordon, 952 N.E.2d 182, 185 (Ind.2011) (emphasis added) (citation and quotation marks omitted); see also H.D. v. BHC Meadows 1 The Attachment Plaintiff references is a letter from Eskenazi Health regarding her “Non-Compliance with Behavior Agreement” and requesting that she desist from certain “disruptive behaviors,” including, “[e]xcessive use of MyChart messaging to voice complaints, question treatment decisions…[s]ending confrontational MyChart messages with demeaning, accusatory, and disrespectful comments to members of [her] healthcare team [and] [s]ending MyChart messages making demands regarding treatments and surgery.” See Ex. B at 9-10. 8 Hosp., Inc., 884 N.E.2d 849, 853 (Ind. Ct. App. 2008) (“[W]e have repeatedly held that when plaintiffs articulate claims for ordinary negligence, unrelated to the provision of medical care or treatment, those claims do not fall within the scope of the Medical Malpractice Act.”) citing Madison Ctr., Inc. v. R.R.K., 853 N.E.2d 1286, 1288 (Ind.Ct.App.2006). As a matter of law, Plaintiff’s claims—to the extent they exist—are not properly included in an action for medical malpractice and preliminary determination by this Court granting summary judgment for Murphy is proper. 3. The Complaint’s sole allegation against Murphy is conclusory and fails to satisfy Indiana’s pleading standard or state a claim upon which relief can be granted. The Complaint’s sole allegation directed to Murphy makes vague, conclusory allegations that do not state a claim upon which relief can be granted. Indeed, the precise nature of Plaintiff’s allegation against Murphy is unclear and thereby fails Indiana’s pleading standard. Indiana Trial Rule 8(A) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Although the plaintiff need not set out in precise detail the facts upon which the claim is based, he must still plead the operative facts necessary to set forth an actionable claim.” McCalment v. Eli Lilly & Co., 860 N.E.2d 884, 890 (Ind. Ct. App. 2007), citation omitted. The trial court “need not accept as true conclusory, nonfactual assertions or legal 9 conclusions.” Id., citing Richards & O'Neil, LLP v. Conk, 774 N.E.2d 540, 547 (Ind.Ct.App.2002). Plaintiff’s allegation that Murphy “engaged in the systematically silenced patient, intimidation, threat, and to disguise their criminal activity under the civil matter which nothing short of perpetual living harvesting organs and my case under the “practicing” for their many forms of sordid gains [Sic throughout]” does not set forth any facts, only conclusions. Even under Indiana’s permissive pleading standard, a plaintiff “must still plead the operative facts necessary to set forth an actionable claim.” ResCare Health Servs., Inc. v. Indiana Fam. & Soc. Servs. Admin. - Off. of Medicaid Pol'y & Plan., 184 N.E.3d 1147, 1153 (Ind. 2022), citing Trail v. Boys and Girls Clubs of Nw. Ind., 845 N.E.2d 130, 135 (Ind. 2006). The sole element of explanation provided by plaintiff—a letter from Eskenazi Health regarding her “Non-Compliance with Behavior Agreement”—does not contain any facts that could plausibly support misconduct by Murphy, the CEO of IU Health. Thus, Murphy cannot prepare to defend himself against Plaintiff’s allegation because she simply concludes that he engaged in improper conduct. See Id., quoting Bayer Corp. v. Leach, 147 N.E.3d 313, 315 (Ind. 2020) (“The purpose of notice pleading is to inform a defendant of a claim's operative facts so the defendant can ‘prepare to meet it.’”). Because this Court “need not accept as true conclusory, nonfactual assertions or legal conclusions,” it should not accept Plaintiff’s conclusory allegations against 10 Murphy. Stripped of these conclusions, the Complaint does not contain any claim against Murphy and dismissal is appropriate. Hyzy v. Anonymous Provider 1, No. 23A- CT-2581, 2024 WL 1985692, at *2 (Ind. Ct. App. May 6, 2024) citing Bellwether Props., LLC v. Duke Energy Ind., Inc., 87 N.E.3d 462, 466 (Ind. 2017) (“Dismissal under T.R. 12(B)(6) is proper if it appears to a certainty on the face of the complaint that the complaining party is not entitled to any relief.”). WHEREFORE, Murphy requests this Court for an order granting summary judgment in his favor or, in the alternative, dismissing Plaintiff’s Proposed Complaint filed with the Indiana Department of Insurance on February 20, 2024, and styled IDOI Claim No. 1023927, pursuant to Indiana Trial Rule 56 or, in the alternative, 12(b)(6). Respectfully submitted, /s/ John David Hoover John David Hoover, #7945-49 Clara P. Gutwein, #36838-49 HOOVER HULL TURNER LLP 111 Monument Circle, Suite 4400 P.O. Box 44989 Indianapolis, IN 46244-0989 (317) 822-4400 (317) 822-0234 (facsimile) jdhoover@hooverhullturner.com cgutwein@hooverhullturner.com Counsel for Defendant Dennis Murphy, CEO 11 CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 18th day of June, 2024, a true and complete copy of the foregoing was served via email on: Kay Kim (chang2597@gmail.com) 4250 Village Pkwy Cir E. Unit 2 Indianapolis, IN 46254 ProSe Elliott I. Pinkie (epinkie@pinkielaw.com) PINKIE LAW LLC 212 W. 10th Street, Suite A400 Indianapolis, IN 46202 Patricia B. Freije (Tricia.freije@skofirm.com) Dominick D. Ellis (Dominick.ellis@skofirm.com) STOLL KEENON OGDEN PLLC 334 N. Senate Avenue Indianapolis, IN 46204 Lisa Harris, CEO of Eskenazi Hospital (Thomas.surber@eskenazihealth.edu) 720 Eskenazi Ave. Indianapolis, IN 46202 /s/ John David Hoover John David Hoover HOOVER HULL TURNER LLP Counsel for Defendant Dennis Murphy CEO 12