Ellenwine v. Fairley

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Jerry Garau Edward L. Murphy, Jr.
Indianapolis, Indiana Heidi K. Koeneman
Fort Wayne, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 71S03-0605-CV-164

MICHELLE ELLENWINE and
ALVIE ELLENWINE, as Parents
and Natural Guardians of
Dustin Ellenwine, Deceased,

Appellants (Plaintiffs below),

v.

DAWN FAIRLEY, D.O.,

Appellee (Defendant below).

_________________________________

Appeal from the St. Joseph Superior Court, No. 71D06-0110-CP-1497
The Honorable William C. Whitman, Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 71A03-0403-CV-124
_________________________________

May 3, 2006

Sullivan, Justice.

Michelle Ellenwine gave birth to a son, Dustin, on December 19, 1996. Dr. Dawn
Fairley was Michelle’s treating physician throughout the pregnancy. Complications arose during
the delivery and within days of the birth one of Dustin’s physicians informed Dustin’s parents,
Michelle and Alvie, that Dustin had suffered brain damage and was experiencing seizures as a
result of oxygen deprivation during delivery. Dustin died on February 2, 1999, when he was two
years old.

On October 12, 1999, the Ellenwines filed a proposed medical malpractice complaint
against Dr. Fairley with the Indiana Department of Insurance. In the proposed complaint, the
Ellenwines alleged that Dr. Fairley’s failure to meet the applicable standard of care was the
proximate cause of Dustin’s injuries and death. On October 23, 2001, the statutory medical re-
view panel issued a unanimous written opinion in favor of the Ellenwines, and seven days later,
on October 30, the Ellenwines filed a claim in the trial court under Indiana’s Child Wrongful
Death Act, Indiana Code Section 34-23-2-1 (“CWDA”).

Dr. Fairley filed a motion for summary judgment, arguing that the action was barred by
the requirement of the Indiana Medical Malpractice Act, Indiana Code Sections 34-18-1-1, et
seq. (“MMA”), that any claim based on medical malpractice be filed within two years of the al-
leged malpractice. Ind. Code § 34-18-7-1(b) (2004). The trial court agreed and granted the mo-
tion. The Court of Appeals reversed, holding that the two-year medical malpractice statute of
limitations could not be constitutionally applied to bar the Ellenwines’ wrongful death claim be-
cause the wrongful death claim did not arise until after the two-year period had lapsed. Ellen-
wine v. Fairley, 818 N.E.2d 961, 969-70 (Ind. Ct. App. 2004).

Discussion

I

The Ellenwines’ lawsuit maintains that Dustin’s injuries and death were due to the negli-
gence of Dr. Fairley on December 19, 1996. As such, their claim was subject to the provisions
of the MMA, a statute that applies to claims of personal injury or death proximately caused by a
“health care provider,” as that term is defined in the MMA. It is worth pausing here to empha-
size, as the Court of Appeals correctly did in its opinion, that the substantive claim or cause of
action at stake in such cases is the common law claim of negligence by a health care provider
proximately causing personal injury or death. We will usually refer to this type of claim in this

2
opinion as “medical malpractice” 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).

One of the requirements of the MMA is that a proposed medical malpractice complaint
first be filed with the Department of Insurance for review by a medical panel before the com-
plaint is filed in court. Another—and central to the resolution of this case—is that the proposed
complaint be filed within the limitations period specified in the MMA. The statute of limitations
reads as follows:

A claim, whether in contract or tort, may not be brought against a
health care provider based upon professional services or health
care that was provided or that should have been provided unless
the claim is filed within two (2) years after the date of the alleged
act, omission, or neglect, except that a minor less than six (6) years
of age has until the minor’s eighth birthday to file.

Ind. Code § 34-18-7-1(b) (2004).

As is readily apparent, the Legislature has created a special rule for children who are vic-
tims of medical malpractice committed before their sixth birthdays. This case requires us to ex-
amine in great detail the applicability of this rule. For ease of discussion, we will simply use the
terms “child” or “children” when we are talking about a child or children who is or are the vic-
tims of malpractice or alleged malpractice prior to the age of six.

Dustin died on February 2, 1999, about two years and 45 days after the alleged malprac-
tice. The Ellenwines’ claim was filed on October 12, 1999, about ten months after Dustin’s
death. The claim was filed well after the second anniversary of the alleged malpractice but well
before what would have been Dustin’s eighth birthday.

Assume for the moment that the Ellenwines were properly acting as his legal representa-
tives. Were they entitled under applicable law to file a claim on Dustin’s behalf on October 12,
1999, alleging that his injuries and death were caused by medical malpractice? Dr. Fairley ar-

3
gues that they were not because the exception in the MMA allowing a child to file until his
eighth birthday “can only apply if the child is alive at the time suit is filed.” Pet. to Transfer at 3
(citing Randolph v. Methodist Hosp., 793 N.E.2d 231, 236 (Ind. Ct. App. 2003), transfer denied,
812 N.E.2d 790 (Ind. 2004)).

We agree with Dr. Fairley that the Ellenwines could not file a claim on Dustin’s behalf
on October 12, 1999, alleging that his injuries and death were caused by medical malpractice.
But the reason they could not is not a function of the MMA but rather of the Indiana Survival
Statute (“Survival Act”), Indiana Code Sections 34-9-3-1, et seq.

The Survival Act sets forth a series of rules dictating when particular claims or causes of
action may and may not be brought by or against the representative of the deceased party. Sec-
tions 1 and 4 of the Survival Act provide that if an individual who has a personal injury claim or
cause of action dies, the claim or cause of action does not survive and may not be brought by the
representative of the deceased party unless the individual dies from causes other than those per-
sonal injuries. Ind. Code §§ 34-9-3-1, 34-9-3-4; Kohn v. Norfolk & Western Ry. Co., 966
F.Supp. 789, 791 (N.D. Ind. 1997); Goleski v. Fritz, 768 N.E.2d 889, 891-92 (Ind. 2002). Here
the Ellenwines affirmatively contend that the injuries that form the basis of the alleged malprac-
tice caused Dustin’s death. As such, the Survival Act mandates that the medical malpractice
claim does not survive Dustin’s death and may not be brought.

However, had Dustin died from causes other than the alleged malpractice—had he per-
ished, for example, in an automobile accident on February 2, 1999—the Survival Act would
have permitted the Ellenwines as Dustin’s representatives to bring the malpractice claim because
he would have died from another cause. Goleski, 768 N.E.2d at 892. Dr. Fairley contends that
in such a circumstance, the Ellenwines would be prohibited from bringing their claim for the rea-
son set forth a moment ago—because the “eighth birthday” exception only applies if the child is
alive at the time the suit is filed. We will return to this point in greater detail later in this opin-
ion. Suffice it to say for now that we believe considerations of statutory construction and fair-
ness dictate a different result than Dr. Fairley advances.

4
 II

When the Ellenwines filed their lawsuit on October 30, 2001, they appear to have recog-
nized that the Survival Act prevented them from filing a medical malpractice claim as Dustin’s
representatives. In any event, they did not do so. What they did do was to file a lawsuit against
Dr. Fairley in their own rights—not as Dustin’s representatives—under the CWDA.

A

Before we discuss Dr. Fairley’s contention that it was also too late for the Ellenwines to
file under the CWDA, we think it would be useful to try to have clearly in mind two sets of dis-
tinctions: (1) the distinction between wrongful death claims generally and child wrongful death
claims under the CWDA, and (2) the distinction between medical malpractice claims and CWDA
claims. The Court of Appeals also set forth a discussion of these two sets of distinctions, and we
do not think we can improve on its explanations.

As to the distinction between wrongful death claims generally and child wrongful death
claims under the CWDA, the Court of Appeals said:

There are two statutory sections which provide the right of
a party to bring a wrongful death claim for the death of another.
Indiana Code § 34-23-1-1, the Wrongful Death Statute, and Indi-
ana Code § 34-23-2-1, the Child Wrongful Death Statute, . . . pro-
vide for recovery. Because the Parents[’] claim arises out of the
death of their child, only the Child Wrongful Death Statute applies
in this case. See Bailey v. Martz, 488 N.E.2d 716, 723 (Ind. Ct.
App. 1986) (in discussing the predecessor statutes to the current
versions of both wrongful death statutes, held that the Child
Wrongful Death Statute provided the only cause of action for
wrongful death of a child), trans. denied, superceded on other
grounds by statute. Nonetheless, the discussion of the issues in
this case is generally applicable to both statutes, and in those in-
stances, we will refer to the cause of action as “wrongful death,”
which is not to be construed as being solely the Wrongful Death
Statute or the Child Wrongful Death Statute. . . . However, recog-
nizing that the two claims are entirely separate, we do not intend to
imply that the requirements to file a claim or the damages available
under the Wrongful Death Statute are the same as those under the

5
 CWD[A]. See State v. Guziar, 680 N.E.2d 553 (Ind. Ct. App.
1997).

Ellenwine, 818 N.E.2d at 964 n.2. As to the distinction between medical malpractice claims and
CWDA claims, the Court of Appeals said:

This argument necessarily highlights an important distinc-
tion between the types of claims which may be brought as a result
of alleged malpractice. The first is a negligence claim brought by
or on behalf of the injured party. The second, which is at issue in
this case, is a wrongful death claim brought by the survivors of the
party physically injured by the alleged malpractice. What is clear
and obvious is that a negligence claim and a wrongful death claim
are two wholly separate causes of actions which must be brought
by different parties and which, for the most part, provide damages
for separate types of injuries.

A person injured by the negligence of another is entitled to
reasonable compensation, which is such sum as would reasonably
compensate the victim both for bodily injuries and pain and suffer-
ing. Evans v. Buffington Harbor River Boats, LLC, 799 N.E.2d
1103, 1111 (Ind. Ct. App. 2003), trans. denied. To that sum is
added past, present, and future expenses reasonably necessary for
the plaintiff’s treatment and all financial losses suffered, or to be
suffered, as a result of the inability to perform one’s usual occupa-
tion. Id. A claim jointly brought by a child’s parents under the
CWD[A] allows for the recovery of damages that inure to the
benefit of the parents. Ind. Code § 34-23-2-1 (Burns Code Ed.
Repl. 1998). The damages which may be recovered include:
“(1) for the loss of the child’s services;
(2) for the loss of the child’s love and companion-
ship; and
(3) to pay the expenses of:
(A) health care and hospitalization necessi-
tated by the wrongful act or omission that
caused the child’s death;
(B) the child’s funeral and burial;
(C) the reasonable expense of psychiatric
and psychological counseling incurred by a
surviving parent or minor sibling of the
child that is required because of the death of
the child;

6
 (D) uninsured debts of the child, including
debts for which a parent is obligated on be-
half of the child; and
(E) the administration of the child’s estate,
including reasonable attorney’s fees.” Id.
The only measure of damages which is consistent between those
recoverable in a negligence action and those recoverable in a
wrongful death action are those for the hospital and health care ex-
penses which arise as a result of the wrongful act which caused the
death. As noted by our Supreme Court, the “purpose of the
Wrongful Death Statute is not to compensate for the injury to the
decedent but rather to create a cause of action to provide a means
by which the decedent’s survivors may be compensated for the loss
sustained by reason of the death.” Reeder [v. Harper], 788 N.E.2d
[1236, 1242 (Ind. 2003)].

A second important distinction between the two types of
claims is when they come into being. A negligence claim arises as
soon as the negligent act occurs. A claim for wrongful death, al-
though the negligent act may have ultimately triggered the death,
does not exist until the exact moment that the individual dies. See
Holmes v. ACand S, Inc., 709 N.E.2d 36, 39 (Ind. Ct. App. 1999)
(holding that the wrongful death cause of action accrues when the
injured person dies), affirmed on reh’g, 711 N.E.2d 1289, trans.
denied. In effect, the fact which gives rise to the wrongful death
claim—the death—exhausts the negligence claim. This conclusion
is demonstrated by the Survivorship Statute, Indiana Code § 34-9-
3-4 (Burns Code Ed. Repl. 1998).

Id. at 964-65 (footnote omitted).

B

So what is the applicable statute of limitations when parents seek to recover damages suf-
fered as a result of the wrongful death of their child? The Wrongful Death Act says that they
have two years from the date of the child’s death. Ind. Code § 34-23-1-1 (2004). Dr. Fairley
argues that, where the death is caused by medical malpractice, the two-year occurrence-based
statute of limitations contained in the MMA applies. Dr. Fairley cites several decisions of the
Court of Appeals to support this position. While we find that authority less than persuasive, in
the end we agree that Dr. Fairley is right.

7
 The first case to which Dr. Fairley points is Randolph v. Methodist Hosp., 793 N.E.2d
231 (Ind. Ct. App. 2003), which we have mentioned and will discuss in detail later in this opin-
ion. Randolph, simply reciting the holding of another case, held that “the two-year statute of
limitations found in the medical malpractice act applied to an action for wrongful death based on
medical malpractice.” Randolph, 793 N.E.2d at 237 (citing Hopster v. Burgeson, 750 N.E.2d
841, 852-53 (Ind. Ct. App. 2001), transfer not sought). Hopster gave the issue more extended
treatment but concluded by relying on still a third case, Frady v. Hedgcock, 497 N.E.2d 620, 622
(Ind. Ct. App. 1986), transfer denied. It was Frady, then, that established the principle that the
MMA’s two-year occurrence-based statute of limitations applies to wrongful death actions based
on medical malpractice.

But Frady’s entire discussion on this point is relatively brief:

The statute of limitations for the Medical Malpractice Act,
Indiana Code section 16-9.5-3-1, provides that any claim against a
health care provider must be brought “within two [2] years from
the date of the alleged act, omission or neglect.” In contrast, Indi-
ana Code section 34-1-1-2 provides that any action for wrongful
death must be brought “by the personal representative of the dece-
dent within two (2) years.” We thus confront the issue of which
statute of limitations to apply.

In Warrick Hospital, Inc. v. Wallace (1982), Ind. App., 435
N.E.2d 263, trans. denied, this court held that a plaintiff in a
wrongful death action based upon alleged medical malpractice
must satisfy the conditions precedent of the wrongful death statute,
one of which is the appointment of a personal representative within
two (2) years of the death. However, Warrick was overruled this
year by our supreme court in Community Hospital v. McKnight
(1986), Ind., 493 N.E.2d 775. In that case, the court held that a per-
son pursuing a wrongful death claim need not be appointed the
personal representative of the decedent when the claim is based
upon alleged medical malpractice. The court’s rationale was cen-
tered on the clear language of the Medical Malpractice Act pertain-
ing to who may file such an action. This result is harmonious with
our conclusion that, “Viewed from the historical perspective we
believe the conclusion is inescapable that our General Assembly
intended that all actions the underlying basis of which is alleged
medical malpractice are subject to the [medical malpractice] act.”

8
 Sue Yee Lee v. Lafayette Home Hospital, Inc. (1980), Ind. App.,
410 N.E.2d 1319, 1324, trans. denied.

We see no reason why Community Hospital is not applica-
ble to the case under consideration. We hold that the statute of
limitations for the Medical Malpractice Act is applicable instead of
the time period imposed for wrongful death actions. Therefore, an
action for wrongful death based upon medical malpractice must be
filed within two years of “the date of the alleged act, omission or
neglect,” not within two years of the date of the death.

Frady, 497 N.E.2d at 621-22.

Thus, the ruling of the Court of Appeals in Frady, upon which it relied in Hopster and
Randolph, and which Dr. Fairley presses upon us here, was based on its reading of our decision
in Community Hospital. With respect, Community Hospital seems inapposite. First, it did not
deal with statutes of limitation at all. More importantly, Community Hospital was a medical
malpractice claim; it did not involve a wrongful death claim. The question was whether the pro-
cedures of the wrongful death statute were required to be followed when bringing a medical mal-
practice claim where the patient had died from the alleged malpractice. Answer: no, only the
provisions of the MMA had to be followed. We do not see this as precedent one way or the
other for answering the issue presented here: whether the procedures of the MMA (specifically,
the limitations procedures) are required to be followed when bringing a wrongful death claim
where the patient had died from the alleged malpractice.

Having concluded that Frady (and, by extension, Hopster and Randolph) were wrong to
rely on Community Hospital in concluding that the two-year occurrence-based statute of limita-
tions applies in wrongful death cases where the patient dies from alleged malpractice, we never-
theless conclude that that is the correct result. 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 litigation of medical malpractice claims. Because a patient who has been the vic-
tim of medical negligence could well live many more than two years beyond the occurrence of
the malpractice only to ultimately die as a result of it, applying the two-years-after-death limita-
tions period of the wrongful death statute where a patient dies from the malpractice seems to us

9
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 or-
der to bring a wrongful death claim based on medical malpractice, so too for the limitations pro-
vision. 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 Frady was decided that there has been
legislative acquiescence.

To summarize our conclusions to this point, consider an adult patient who is the victim of
medical negligence who dies within two years of the occurrence of the malpractice. 1 (1) 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. (2) If the death was from a cause other than the malpractice, (a)
the malpractice claim (brought by the patient’s legal representative) must be filed within two
years of the occurrence of the malpractice, Ind. Code §§ 34-18-7-1(b) (2004); and (b) any
wrongful death claim must be filed within two years of the date of death, Ind. Code § 34-23-1-1
(2004).

III

One point remains for us to consider. Frady and Hopster both were claims under the
general wrongful death statute; they did not involve children. Only Randolph implicates the
CWDA and only in dicta, as it is very clear from that case that the parent in that case was seek-
ing to bring a medical malpractice claim as the representative of her deceased child and not a
claim under the CWDA. Randolph v. Methodist Hosp., 793 N.E.2d 231, 237 (Ind. Ct. App.
2003).

1
We assume (both here and throughout this opinion) that the discovery of the occurrence of the medical
malpractice takes place when it is reasonably possible to file the claim within the limitations period. Spe-
cial filing rules can apply when it is not. See Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005); Boggs
v. Tri-State Radiology, Inc., 730 N.E.2d 692, 697-98 (Ind. 2000); Martin v. Richey, 711 N.E.2d 1273,
1284-85 (Ind. 1999).

10
 Randolph requires further analysis. This was a case in which a child, Kwabene
Randolph, not unlike Dustin Ellenwine, suffered severe injuries at birth from which he died
seven months later. His mother filed her medical malpractice claim approximately 5-1/2 years
later, i.e., almost six years after the alleged malpractice and just before what would have been
Kwabene’s sixth birthday.

The Court of Appeals grounded its analysis entirely in the MMA; there is no reference to
the Survival Act. It concluded that the MMA statute of limitations cut off Kwabene’s malprac-
tice claim because the “eighth birthday” exception “applies only to living children and does not
apply to extend Kwabene’s window for timely filing of a medical malpractice action beyond two
years after the occurrence causing the injuries.” Id. at 235.

We agree with the result of the Court of Appeals in Randolph but not its reasoning.

We see nothing in the language of the MMA that suggests that the “eighth birthday” ex-
ception only applies to children who are living, just as there is nothing in the language of the
generally applicable two-year provision that suggests that it only applies to living patients. That
is, no one contends that the MMA cuts off the two-year limitations period applicable to adults if
the adult dies before the end of the two years. To be sure, the Survival Act does so if, but only if,
the death is caused by the malpractice. If the death is from another cause, the claim is still avail-
able until the MMA’s two-year period expires.

The language used by the Legislature both in the MMA itself and in the Survival Act
does not suggest to us in any way an intent to cut off the limitations period otherwise provided
for children upon their death. As in the adult situation, the Survival Act (not the MMA) termi-
nates a child’s malpractice claim if the death is caused by the malpractice. But Dr. Fairley con-
tends (and Randolph’s reasoning suggests) that a child’s malpractice claim would also be termi-
nated even if the child’s death was from other causes. We think this interpretation clearly con-
travenes the Legislature’s intent expressed in Section 4 of the Survival Act.

11
 Granted, Dustin did die from the alleged malpractice, but the distinction just drawn is im-
portant here for the following reason. If it is the Survival Act, and not the MMA, that terminates
his malpractice claim at death, then there is no basis for saying that the MMA required the El-
lenwines to have their CWDA claim on file prior to Dustin’s death. Rather, it seems to us that
the MMA and CWDA operated together to require the Ellenwines to get their claim on file
within the first to expire either of the MMA limitations period (Dustin’s eighth birthday) or of
the CWDA limitations period (two years from date of death). This, of course, they did and the
trial court was wrong to grant Dr. Fairley summary judgment on statute of limitations grounds.

Note that this is entirely consistent with the result in Randolph. The alleged malpractice
occurred at Kwabene’s birth on October 7, 1991. He died as a result of the alleged malpractice
seven months later on May 7, 1992. The medical malpractice claim was filed on September 26,
1997, shortly before what would have been little Kwabene’s sixth birthday. As noted several
times in this opinion, this claim was properly dismissed because it did not survive Kwabene’s
death by operation of the Survival Act. And had Kwabene’s mother attempted to file a CWDA
claim on September 25, 1997, it would have been properly dismissed as not having been filed
within two years of the date of death. However, Kwabene’s mother could have filed a CWDA
claim during the two-year period following his death because that would have been within the
MMA limitations period (which ran until Kwabene’s eighth birthday) as well as the CWDA limi-
tations period.

This approach seems to us to conform to the language of the relevant statutes and also to
the Legislature’s broader purposes in fostering prompt litigation of medical malpractice claims
while allowing some leeway in cases involving children. Under our formulation, the wrongful
death claim of a child who dies due to medical malpractice in infancy or in the first few years of
life does not hang over the heads of the health care providers all the way until what would have
been the child’s eighth birthday. But it does continue for two years after the date of the child’s
death. This seems to be the balance struck by the Legislature in furthering these broader pur-
poses, and it seems to be a fair and workable one.

12
 There is one remaining type of case that warrants mention. Suppose a child with a medi-
cal malpractice claim dies in infancy or in the first few years of life from causes other than the
malpractice. Remember that in this circumstance, the Survival Act provides that the malpractice
claim survives. Ind. Code § 34-9-3-4 (2004). What are the limitations periods applicable, first,
to the malpractice claim (brought by the child’s legal representative) and, second, to any CWDA
claim? We think it apparent that any CWDA claim must be brought no later than two years of
the date of death; that is what the plain language of the statute provides. Ind. Code § 34-23-1-1
(2004). The malpractice claim is more problematic. Certainly one could argue from the lan-
guage of the MMA that the child’s representative has until the child’s eighth birthday to bring
the claim. Recognizing that it is only dicta for purposes of this case, we nevertheless believe that
the fairest and most workable rule is one closely analogous to the one described above (where
the death was caused by the malpractice): that both the malpractice claim and the CWDA claim
must be brought within the first to expire either of the MMA limitations period (the child’s
eighth birthday) or of the CWDA limitations period (two years from date of death).

We summarize as follows our conclusions with respect to a child patient who is the vic-
tim of medical negligence prior to the child’s sixth birthday who dies prior to the child’s eighth
birthday. (1) If the death was caused by the malpractice, (a) the malpractice claim (brought by
the legal representative of the child) terminates at the child’s death, Ind. Code § 34-9-3-1(a)(6)
(2004); and (b) any wrongful death claim must be filed within the first to expire of either the
MMA limitations period (the child’s eighth birthday) or the CWDA limitations period (two years
from the date of death). (2) If the death was from a cause other than the malpractice, both (a) the
malpractice claim (whether brought by the patient or another as the representative of the patient)
and (b) any wrongful death claim must be filed within first to expire either of the MMA limita-
tions period (the child’s eighth birthday) or of the CWDA limitations period (two years from
date of death).

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 IV

Because the relevant statutes permit the Ellenwines to proceed with their CWDA claim,
we have no need to address whether the Open Courts Clause or the Privileges and Immunities
Clause of the Indiana Constitution limit their applicability to the Ellenwines’ claim.

Conclusion

We grant transfer, thereby vacating the decision of the Court of Appeals in this case, and
reverse the trial court’s grant of summary judgment in favor of Dr. Fairley.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

14