concurring in result in part and dissenting in part.
I concur in the result reached as to Donna and Charles Vesolowski individually and dissent as to the claim of Suzanne.
We are concerned with two distinct claims: a child's claim for medical malpractice occurring at or prior to birth and her parents' claim, presumably for loss of services, arising from the injury to the child.
The child was born January 3, 1975 and there is no contention that acts of malpractice were committed after that date.
Pursuant to IC 16-9.5-3-1 the right to bring a claim based upon medical malpractice is limited to "within two years from the date of the alleged act, omission or neglect except that a minor under the full age of six years shall have until his eighth birthday in which to file."
The child's eighth birthday was January 8, 1988.
Under the statute the parents' separate claim was barred when they had commenced no action by January 3, 1977. Merritt v. Economy Dept. Store (1955), 125 Ind.App. 560, 128 N.E.2d 279 (loss of spouse's services).
Concerning the child's own claim, an action was attempted in Illinois in 1980 but failed for want of personal jurisdiction on December 28, 1981. At the time Illinois law provided that an action commenced with the filing of the complaint. Jackson v. Navik (1974), 17 Ill.App.3d 672, 308 N.E.2d 143.
The Journey's Account Statute, IC 34-1-2-8, provides:
"If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abate, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five [5] . years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated."
If the statute applies, then the child's action which was commenced August 5, 1985 was timely.
By the plain language of the two statutes, they are not in conflict. IC 16-9.5-3-1 applies to the filing of claims. IC 34-1-2-8 presupposes the timely filing of a claim and applies to certain instances where the initial action has been defeated or abated. Both sections may be applied en toto with no conflict.
The majority seeks to avoid this simple result by distinguishing between IC 16-9.-5-8-1's use of the term "filed" rather than "commencement of an action."
Normally, of course, an action is "commenced" when it is filed. Trial Rule 3. Also, normally it is filed in court. I believe the legislature's purpose in using "filed" in *134IC 16-9.5-8-1 was with good cause but for a different purpose than that assigned by the majority. Under the Medical Malpractice Act, specifically IC 16-9.5-9-1, rather than simply commencing a civil action in court a plaintiff is required to first "file" his proposed complaint with a medical review panel.1 I believe for that reason the chosen term was employed in IC 16-9.5-3-1.
For all the traditional reasons IC 34-1-2-8 should apply to medical malpractice actions. See Abele v. A.L Dougherty Overseas, Inc. (N.D.Ind.1961), 192 F.Supp. 955; Eves v. Ford Motor Co. (1972), 152 Ind.App. 34, 281 N.E.2d 826, Ware v. Waterman (1969), 146 Ind.App. 237, 253 N.E.2d 708.
The trial court also found that IC 34-1-2-8 did not apply because more than a year remained during which the claim could have been timely commenced in Indiana after the Illinois action was dismissed. That doctrine concerning the tolling of limitation periods has no application because the specific language of IC 834-1-2-8 simply extends the time for bringing a new action for five years after the termination of the first action. Nothing in the statute presupposes expiration of the original period of limitation. '
I therefore concur in result as to dismissal of the parents' claim and dissent to dismissal of the child's claim.
. An amendment, IC 16-9.5-9-2.1, effective September 1, 1985, permits actions for no more than $15,000 to be commenced without submission to a panel. Absent that nrovician'e tion it may be that Suzanne's action fails for other reasons not here presented or considered by the trial court. See, eg., IC 16-9.5-1-5.