ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
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
FILED
Dec 24 2008, 12:46 pm
_________________________________
CLERK
of the supreme court,
No. 90S05-0812-CV-768 court of appeals and
tax court
THERESE NEWKIRK, PERSONAL
REPRESENTATIVE OF THE ESTATE
OF MARTHA O’NEAL, DECEASED,
Appellant (Plaintiff below),
v.
BETHLEHEM WOODS NURSING AND
REHABILITATION CENTER, LLC,
Appellee (Defendant below).
_________________________________
Appeal from the Wells Circuit Court, No. 90C01-0409-PL-0008
The Honorable David L. Hanselman, Sr., Judge
_________________________________
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 interaction of the statute of limita-
tions provision of the Indiana Wrongful Death Act (“WDA”) and the statute of limitations provi-
sion for an underlying substantive tort claim. In this case, the limitations period for the underly-
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 reversed: the limitations period under the WDA had expired before the lawsuit
was filed, but the limitations period for the underlying tort claim had not. --- N.E.2d ---, No.
30S01-0801-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 explained below with respect to
this case and in our separate opinion with respect to Melton.
Background
On September 10, 2001, Martha O’Neal was admitted to Bethlehem Woods Nursing and
Rehabilitation Center (“Bethlehem”) for rehabilitation following surgery. 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 un-
der the WDA, Ind. Code § 34-23-1-2, against Bethlehem alleging that Bethlehem provided neg-
ligent medical care to O’Neal that ultimately led to her death. Bethlehem moved for summary
judgment, arguing that the Estate’s action was barred by the requirement to bring an action for
medical malpractice within two years of the 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 Malpractice Act (“MMA”), I.C. § 34-18-7-1(b), because Bethlehem was not a “qualified
provider” under the MMA and, therefore, not eligible for its protections. But the Court of Ap-
peals went on to hold that because the Estate’s lawsuit had been filed within the limitations pe-
riod 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, 887
2
N.E.2d 1019. We grant Bethlehem’s petition for transfer. Ind. Appellate 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 applica-
ble to young 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 pe-
riod, 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 the 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 been filed within two years
of the alleged malpractice. See id. To help resolve this issue, we examined the situation of an
adult who dies as a result 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 patient) terminates 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 (Ind. Ct. App. 1986), trans. denied].
Ellenwine, 846 N.E.2d at 665.
This quotation precisely describes this case: O’Neal’s death was caused by medical mal-
practice; the malpractice claim terminated at her death; and the wrongful death claim was re-
quired to be filed by her personal representative within two years of the occurrence of the mal-
practice.
The Ellenwine case spent some time explaining the policy behind its conclusion. We
said in part:
3
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 liti-
gation of medical malpractice claims. Because a patient who has been the victim
of medical negligence could well live many more than two years beyond the oc-
currence 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 pa-
tient dies from the malpractice seems to us totally inconsistent with this legislative
goal. Furthermore, just as a fair reading 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 question about our reading of the
legislative intent, we believe that a sufficient period of time has passed since Fra-
dy was decided that there has been legislative acquiescence.
Id. at 664.
This policy discussion in Ellenwine speaks repeatedly of the MMA. The 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 Ste-
phens, 867 N.E.2d 148, 150 (Ind. 2007). We noted above that both the trial court and the 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. Ra-
ther, the trial court and the Court of Appeals concluded – and we again agree – that the malprac-
tice claim in this case is subject to provisions of the PSS.1
The Court of Appeals found the fact that this case is governed by the PSS and not the
MMA to be a sufficient distinction 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 pro-
fessional 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, omission, or neglect complained of.
I.C. § 34-11-2-3.
4
Newkirk, 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). That 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 comprehensive procedural requirements. Where the MMA governs,
the Court of Appeals says, the limitations period of the MMA will apply because the MMA is
“comprehensive.” See Estate of O’Neal ex rel. Newkirk, 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 “comprehensiveness” of the procedural re-
quirements that the Legislature attaches to an underlying substantive tort claim relevant to decid-
ing 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 negligence by a health care provider proximately caus-
ing personal injury or death[,] . . . usually refer[red] to . . . as “medical malprac-
tice” or just “malpractice.” The MMA did not create or establish the medical
malpractice claim; it only imposed procedural 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 scenario: medical malpractice. The PSS did not
create or establish the medical malpractice claim but the Legislature did establish a two-year li-
mitations period for filing such claims. As we said in Ellenwine:
Because a patient who has been the victim of medical negligence could well live
many more than two years beyond the occurrence of the malpractice only to ulti-
mately 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 malpractice 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 legislative goal would be anything different on these facts.
The Estate filed its complaint on October 22, 2003, more than two years after the last date
5
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 malpractice, the malpractice
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 Bethlehem’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 con-
cluded 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 Bethlehem.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
6