A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPELLEE

Alan VerPlanck Milford M. Miller Daniel G. McNamara Edward L. Murphy, Jr. Fort Wayne, Indiana Michael A. Barranda Fort Wayne, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 90S05

- 0812

- CV

- 768

T HERESE N EWKIRK , P ERSONAL R EPRESENTATIVE OF THE E STATE OF M ARTHA O’N EAL , D ECEASED , Ap pellant (Plaintiff below)
,

v.

B ETHLEHEM W OODS N URSING AND R EHABILITATION C ENTER , LLC,
Appellee (Defendant below)

.

_________________________________ Appeal from the Wells Circuit Court, No. 90C01

- 0409

- PL

- 0008 The Honorable David L. Hanselman, Sr., Judg e

_________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 90A05

- 0705

- CV

- 271

_________________________________

December 24 , 2008

Sullivan, Justice.

This is one of two cases we decide today involving the interact ion of the statute of limit ations provision of the Indiana Wrongful Death A ct (“WDA”) and the statute of limitations prov ision for an underlying substantive tort claim. In this case, the limitations period for the underl y-2

ing tort claim had expired before the lawsuit was filed
, but the limitations period under the WDA
had not. In Technisand, Inc. v. Estate of Melton ex rel. Melton
, the other case we decide today, the sequence was r e versed: the limitations period under the WDA had expired befor e the lawsuit
was filed
, but the limitations period for the underlying tort claim had not

. --- N.E.2d

--- , No.
30S01

- 08 01

- CV

- 28, slip op. (Ind. Dec. 24 , 2008). Our decision in Ellenwine v. Fairley , 846 N.E.2d 657 (Ind. 2006), provides the answer in both cases, as exp lained below with respect to this case and in our sep a rate opinion with respect to Melton

.

Background

On September 10, 2001, Martha O’Neal was admitted to Bethlehem Woods Nur s ing and Rehabilitation Center (“Bethlehem”) for rehabilitation following surger y. During her stay at Bethlehem, O’Neal was the victim of several acts of medical malpractice. On September 22, 2001, a Bethlehem employee discovered O’Neal lying in a pool of her own blood. She was transferred to the hospital. O’Neal died on November 6, 2001.

On October 22, 2003, more than two years after the medical negligence occurred
, but within two years of O’Neal’s death, the Estate of Martha O’Neal (“Estate”) filed a complaint u nder the WDA, Ind. Code § 34

- 23

- 1

- 2, against Bethlehem alleging th at Bethlehem provided ne gligent medical care to O’Neal that ultimately led to her death. Bethlehem moved for summary jud g ment, arguing that the Estate’s action was barred by the requirement to bring an action for
med i cal malpractice within two years of th e alleged act or omission. The trial court agreed and granted Bethlehem’s motion.

The Court of Appeals reversed. It held (as had the trial court) that the Estate’s claim arose under the Indiana Professional Services Statute (“PSS”), I.C. § 34

- 11

- 2

- 3 , not the Indiana Medical Malpra ctice Act (“MMA”), I.C. § 34

- 18

- 7

- 1(b) , because Bethlehem was not a “qualified provider” under the MMA and, there fore, not eligible for its protections. But the Court of A ppeals went on to hold that because the Estate’s lawsu it had been filed within the limitations p eriod of the WDA, its claim was timely filed

. Estate of O’Neal ex rel. Newkirk v. Bethlehem Woods Nursing and Rehab. Ctr. LLC , 878 N.E.2d 303 (Ind. Ct. App. 2007), aff’d on reh’g , 8873

N.E.2d 1019. We grant Bethle hem’s petition for transfer. Ind. Appe l late Rule 58 (A)

.

Discussion

Ellenwine presented a question involving the interaction of Indiana’s Child Wrongful Death Act (“CWDA”), I.C. § 34

- 23

- 2

- 1, and the special limitations period of the MMA applic able to yo ung children. In the course of resolving that question, it was necessary for us not only to discuss the CWDA and the MMA child limitations periods, but also the WDA limitations p eriod, the MMA adult limitations period, and the tort of medical malpractice generally. In doing so, we discussed several scenarios, one of which resolves the issue presented in this case. See
Ellenwine , 846 N.E.2d 657 (Ind. 2006).

In Ellenwine , the child victim’s personal representative filed a wrongful death claim
based on t he defendant’s medical malpractice within the limitations period under the CWDA. Id.
at 659. The issue in the case was whether the claim also had to have be en filed within two years
of the al leged mal practice. See id. To help resolve this issue, we exa mined the situation of an
adult who dies as a r e sult of medical malpractice. Id. at 664

- 65 . We said:

If the death was caused by the malpractice, (a) the malpractice claim (whether brought by the patient or another as the representative of the pat ient) t erminates at the patient’ s death, Ind. Code § 34

- 9

- 3

- 1(a)(6) (2004); and (b) a wrongful death claim must be filed within two years of the occurrence of the malpractice, see Frady [ v. Hedgcock , 497 N.E.2d 620, 622 (I nd. Ct. App. 1986), tran s . de nied ].

Ell enwine , 846 N.E.2d at 665.

This quotation precisely describes this case: O’Neal’s death was caused by medical ma lpractice; the malpractice claim terminated at her death; and the wrongful death claim was r equired to be filed by her personal representative within two years of the occurrence of the ma lpractice.

The Ellenwine case spent some time explaining the policy behind its conclusion. We said in part:4

One of the principal legislative purposes behind the MMA in general and the two

year occurrence

- based statute of limitations in particular was to foster prompt lit igation of medical ma l practice claims. Because a patient who has been the victim of medical negligence could well live many more than two years beyond the o ccurrence of the malpractice only to ultimately die as a result of it, applying the two

- years

- after

- death limitations period of the wrongful death statute where a p atient dies from the malpractice seems to us totally inconsistent with this legisl a tive goal. Furthermore, just as a fair readin g of the MMA indicates that the medical review panel requirements of the MMA must be complied with in order to bring a wrongful death claim based on medical malpractice, so too for the limitations provision. Finally, to the extent that there is any questi on about our reading of the legislative intent, we believe that a sufficient period of time has passed since Fr ady was decided that there has been legislative acquiescence.

Id . at 664.

This policy discussion in Ellenwine speaks repeatedly of the MMA. Th e MMA, which is applicable to acts of malpractice occurring after June 30, 1975, set up a system under which health care providers meeting qualifications set forth in the act enjoy certain benefits. In re St ephens , 867 N.E.2d 148, 150 (Ind. 2007). We no ted above that both the trial court and t he Court of Appeals concluded

– and we agree

– that the malpractice claim in this case is not subject to the provisions of the MMA because Bethlehem does not meet the applicable qualifications. R ather, the trial co urt and the Court of Appeals concluded

– and we again agree

– that the malpra ctice claim in this case is subject to provisions of the PSS

. 1

T he Court of Appeals found the fact that this case is governed by the PSS and not the
MMA to be a sufficient distin ction from Ellenwine to enable it to conclude that Ellenwine did not apply

. It looked at the policy justifications set forth above and found them grounded in the “comprehensiveness” of the procedural requirements of the MMA. Estate of O’Neal ex rel.

1 The PSS provides in relevant part:
An action of any kind for damages, whether brought in contract or tort, based upon pr ofessional services rendered or which should have been rendered, may not be brought, commenced, or maintained, in any of the courts of Indiana against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless the action is filed within two (2) years from the date of the act, omi s sion, or neglect complained of.

I.C. § 34

- 11

- 2

- 3

.5

Newk irk , 878 N.E.2d at 314 ( quoting Holmes v. ACand S, Inc. , 709 N.E.2d 36, 44 (Ind. Ct. App. 1999), aff’d on reh’ g , 711 N.E.2d 1289, trans. denied )

. Th at is, the Court of Appeals concluded, the limitations period of the WDA will apply unless the Legislature has imbued the underlying substantive tort claim with compr e hensive procedural requirements. Where the MMA governs, the Court of Appeals says, the limitations period of the MMA will apply because the MMA is “comprehe n sive.” See Estate of O’Neal ex rel. N ewkirk , 878 N.E.2d at 314. Here, where the PSS governs, it says that the limitations period of the PSS does not apply because the PSS is not “comprehensive.” See id.

Unlike our colleagues, we do not find the “comprehensive ness ” of the procedural r equi rements that the Legislature attaches to an underlying substantive tort claim relevant to deci ding the issue at hand. In Ellenwine
, we :

emphasize[d] . . . that the substantive claim or cause of action at stake . . . [was] the common law claim of neglig ence by a health care provider proximately cau sing personal injury or death[,] . . . us ually refer[red] to . . . as “ medical malpra ctice” or just “malpractice.” The MMA did not create or establish the medical malpractice claim; it only imposed procedura l requirements on the prosecution of them. Chamberlain v. Walpole , 822 N.E.2d 959, 961 (Ind. 2005).

846 N.E.2d at 660. In this case
, the substantive tort claim underlying the wrongful death action is precisely the same as it was in the Ellenwine scenari o: medical malpractice. The PSS did not create or establish the medical malpractice claim but the Legislature did establish a two

- year l imitations period for filing such claims. As we said in Ellenwine :

Because a patient who has been the victim of medic al negligence could well live many more than two years beyond the occurrence of the malpractice only to ult imately die as a result of it, applying the two

- years

- after

- death limitations period of the wrongful death statute where a patient dies from the malp ractice seems to us totally inconsistent with this legislative goal.

846 N.E.2d at 664. We see no basis, including the lack of “comprehensiveness” of the PSS
, for concluding that the l egislative goal would be anything different on these facts.

The Est ate filed its complaint on October 22, 2003, more than two years after the last date6

upon which Bethlehem’s alleged negligent conduct could have occurred, but less than two years
from O’Neal’s death. As discussed above , if death is caused by the malpracti ce, the malpra c tice
claim terminates at the patient’s death, and a wrongful death claim must be filed by the personal representative within two years of the occurrence of the malpractice. Id. at 665. O’Neal’s death

was alleged to have been caused by Beth lehem’s medical malpractice. As such, the wrongful
death claim was required to have been filed by her personal representative within two years of the occurrence of the malpractice. The Estate did not do so and the trial court properly co ncluded that its claim was not timely filed.

Conclusion

We grant transfer , thereby vacating the decision of the Court of Appeals, App. R. 58(A), and affirm the judgment of the trial court with respect to its decision to grant summary judgment
in favor of Bethl e hem.

Sh epard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.