ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Barry D. Rooth David C. Jensen
Merrillville, Indiana David J. Beach
Hammond, Indiana
Mark Lienhoop
LaPorte, Indiana
Robert D. Brown
Merrillville, Indiana
Lara Engelking
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
NADINE GOLESKI, as Personal )
Representative of the Estate of Dorothy )
M. Vetter, Deceased, )
)
Appellant (Plaintiff Below) )
) Indiana Supreme Court
v. ) Cause No. 75S05-0205-CV-296
)
WALTER FRITZ, M.D., ) Indiana Court of Appeals
M.J. SUBBA RAO, M.D., ) Cause No. 75A05-0005-CV-186
THACH NGUYEN, M.D., )
USHA SHARMA, M.D., )
DONALD GIBERTINI, M.D., )
STARKE MEMORIAL HOSPITAL, )
)
Appellees (Defendants Below) )
__________________________________________________________________
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable David P. Matsey, Judge
Cause No. 75C01-9910-CT-037
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
May 28, 2002
BOEHM, Justice.
We hold that claims made by a patient’s “representative” under the
Medical Malpractice Act survive the death of the representative and pass to
the representative’s estate. Derivative claims for medical malpractice
such as a claim by a spouse for loss of consortium generally survive the
death of the claimant under the Survival Statute.
Factual and Procedural Background
Lawrence Vetter was admitted to Starke Memorial Hospital on March 21,
1995. He was treated by defendant physicians Walter Fritz, M.J. Subba Rao,
Thach Nguyen, Usha Sharma, and Donald Gibertini and died the next day.
Dorothy Vetter, Lawrence’s wife, filed a claim with the Department of
Insurance seeking damages from the hospital and the physicians for lost
“financial support, love, affection, kindness, attention and companionship”
as well as reasonable funeral, burial and medical expenses. All defendants
are “providers” of health care under the Indiana Medical Malpractice Act.
The medical review panel unanimously determined that two of the
defendant physicians, Drs. Gibertini and Fritz, failed at times to meet the
applicable standards of care, but the panel was unable to determine whether
that failure was a factor in Lawrence’s death. One panel member concluded
that Dr. Nguyen also failed to comply with the applicable standard of care,
and that his failure was a factor in Lawrence’s death. The panel found no
negligence on the part of the other defendants.
Dorothy died before the claim review process was completed. Nadine
Goleski, the couple’s daughter, was appointed personal representative of
Dorothy’s estate and filed an amended malpractice claim, contending that
Dorothy’s claim survived Dorothy’s death and passed to Dorothy’s estate.
Goleski sued in Lake Superior Court and venue was transferred to Starke
County. The trial court granted summary judgment for the defendants,
holding that Goleski could not maintain an action under any of three
theories. Goleski had no cause under the Wrongful Death Act because she
was not the personal representative of Lawrence’s estate. She could not
claim under the Medical Malpractice Act because she was not Lawrence’s
“representative” as that term appears in that statute. And the Survival
Statute did not help Goleski because she was not the personal
representative of Lawrence’s estate and was not alleging that something
other than the defendants’ negligence caused Lawrence’s death. The Court
of Appeals affirmed in an unpublished memorandum opinion. Goleski v.
Fritz, 741 N.E.2d 810 (Ind. Ct. App. 2001) (mem.). Judge Kirsch dissented,
concluding that “[a] tortfeasor whose negligence wrongfully causes the
death of another should not escape liability because of the vagaries of
Indiana’s probate and wrongful death statutes and the delay attendant to
the medical review process.” Goleski v. Fritz, No. 75A05-0005-CV-186, slip
op. at 6 (Ind. Ct. App. Jan. 23, 2001). This Court granted transfer.
We agree Goleski cannot maintain an action under the Wrongful Death
Act. Indiana Code section 34-23-1-1 provides that when a person’s death is
caused by the negligence of another, and the deceased could have maintained
an action had he or she survived, “the personal representative” of the
deceased may bring an action within two years. Ind. Code § 34-23-1-1
(1998). Case law has consistently interpreted the statute to mean that
only a personal representative appointed within two years of the decedent’s
death may file the action. Gen. Motors Corp. v. Arnett, 418 N.E.2d 546,
548 (Ind. Ct. App. 1981); Hosler v. Caterpillar, Inc., 710 N.E.2d 193, 196
(Ind. Ct. App. 1999), trans. denied. Here, neither Goleski nor anyone else
was appointed personal representative of Lawrence’s estate. Because more
than two years have passed since Lawrence’s death, a timely appointment
cannot now be made. Thus, there can be no action under the Wrongful Death
Act. However, we conclude that Goleski can proceed under the Medical
Malpractice Act and the Survival Statute.
I. Dorothy’s “Derivative” Claims
The Medical Malpractice Act allows a “patient or the representative of
a patient” to bring a malpractice claim “for bodily injury or death.” Ind.
Code § 34-18-8-1 (1998). A “patient” is “an individual who receives or
should have received health care . . . and includes a person having a claim
of any kind, whether derivative or otherwise, as a result of alleged
malpractice.” I.C. § 34-18-2-22. “Derivative” claims “include the claim
of a parent or parents, guardian, trustee, child, relative, attorney, or
any other representative of the patient,” and include “claims for loss of
services, loss of consortium, expenses, and other similar claims.” Id.
Accordingly, under the terms of the Medical Malpractice Act, before Dorothy
died she was a “patient” with “derivative” claims insofar as she asserted
claims for lost financial support, love, affection, kindness, attention,
companionship, and reasonable funeral and burial expenses.[1] As the wife
of Lawrence, she clearly was a “relative.” She therefore met the statutory
requirement to bring these claims as a “patient” and was entitled to assert
“derivative” claims for these items under the Medical Malpractice Act.
The Survival Statute provides that if an individual with a cause of
action dies, most causes of action survive and may be brought by the
“representative” of the deceased. I.C. § 34-9-3-1(a). When Dorothy died
she became the “deceased” under the Survival Statute, and when Goleski was
appointed the personal representative of Dorothy’s estate, Goleski became
the “representative” under this statute.[2] The Survival Statute does not
preserve causes of action for libel, slander, malicious prosecution, false
imprisonment, invasion of privacy, or personal injuries to the deceased.
I.C. § 34-9-3-1(a). Only if Goleski’s claims are for “personal injuries to
the deceased” would they fail to survive Dorothy’s death. They are not
within that term. To the extent Goleski asserts claims for “personal
injuries” to Lawrence, they survive Dorothy’s death because Dorothy, not
Lawrence, is “the deceased.” Other claims are for loss of consortium and
Lawrence’s funeral expenses. Even if these are claims for “personal
injury” to Dorothy,[3] the Survival Statute allows Dorothy’s representative
to sue for personal injuries to the deceased (Dorothy) if Dorothy
“subsequently dies from causes other than those personal injuries.” I.C. §
34-9-3-4(a). Dorothy plainly died from causes other than her loss of
consortium and her incurring Lawrence’s funeral expenses. As a result, to
the extent the claims are for personal injuries, they remain alive because
Dorothy did not die as a result of those injuries. Finally, to the extent
any of the claims are not claims for “personal injuries” they are preserved
by the Survival Statute, which states that all claims other than those
listed in it survive.
II. Dorothy’s Claim as Lawrence’s “Representative”
As noted above, the Medical Malpractice Act allows a “patient or the
representative of a patient” to bring a malpractice claim “for bodily
injury or death.” Ind. Code § 34-18-8-1 (1998). The inclusion of the term
“death” plainly implies that the claim survives the death of Lawrence, the
person treated by the health care providers. A “representative” is “the
spouse, parent, guardian, trustee, attorney, or other legal agent of the
patient.” Id. at § 34-18-2-25. Unlike the Wrongful Death Act, however,
the Medical Malpractice Act does not require that the “representative” be
the legally appointed personal representative of the patient. See Cmty.
Hosp. v. McKnight, 493 N.E.2d 775, 776 (Ind. 1986). Accordingly, Dorothy’s
claim for Lawrence’s medical expenses was asserted as a “representative” as
that term is used in the Medical Malpractice Act. As Lawrence’s spouse,
Dorothy clearly met the statutory requirements to bring the claim as his
“representative.” The Survival Statute preserves this claim for Dorothy’s
estate after her death because it is neither a claim for personal injuries
to Dorothy, nor a claim for libel, slander, malicious prosecution, false
imprisonment, or invasion of privacy. Accordingly, it survived Dorothy’s
death and passed to her estate.
Conclusion
The trial court’s grant of summary judgment in favor of the defendants
is reversed. This case is remanded to the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] We note that in Ind. Patient’s Comp. Fund v. Wolfe, 735 N.E.2d 1187,
1192-93 (Ind. Ct. App. 2000), trans. denied, the Court of Appeals held that
a surviving parent is not a “patient” entitled to a separate statutory
damages cap under the Act. The court held “a derivative claimant is a
subset of the patient and not a patient unto himself.” Id. at 1192.
Although we believe the Court of Appeals reached the correct result in
Wolfe, we think that derivative claimants are “patients” within the meaning
of section 34-18-8-1 but are not the patients upon whom “injury or death”
is inflicted. The language of section 34-18-2-22 quoted above defines
derivative claimants as “patients.” However, section 34-18-14-3(a) was at
issue in Wolfe. That section caps the damages available “for an injury or
death of a patient.” Although there may be persons who are statutorily
defined to be “patients” and therefore may assert derivative claims for
their own damages under the Act, section 34-18-14-3(a) applies the damages
cap to all claims, whoever may assert them, for a single “injury or death
of a patient.” The only “injury or death” within the meaning of this
section is the injury or death suffered by the actual victim of the
malpractice. Thus Wolfe reached the correct conclusion on its facts, but
was incorrect in suggesting that a derivative claimant is not a “patient”
for purposes of ability to assert a claim under the Act.
[2] Indiana case law has long allowed duly appointed personal
representatives and successors in interest to bring claims under the
Survival Statute. See, e.g., Jose v. Ind. Nat’l Bank of Indianapolis, 139
Ind. App. 272, 275, 218 N.E.2d 165, 167 (1966) and Burnett v. Milnes, 148
Ind. 230, 235, 46 N.E. 464, 465 (1897). Because Goleski is the duly
appointed personal representative of Dorothy’s estate, whether other
“representatives” may bring an action under the Survival Statute is not at
issue in this case.
[3] Goleski cites Merimee v. Brumfield, 397 N.E.2d 315, 318 (Ind. Ct. App.
1979), where the Court of Appeals held the term “personal injuries” in the
context of the Survival Statute includes not only injuries to the physical
body, but also “malicious prosecution, false imprisonment, libel, slander,
or any affront or detriment to the body, psyche, reputation or liberty, as
contradistinguished from injury to property rights.”