dissenting.
I respectfully dissent.
I believe the outcome of this case is controlled by Martin v. Richey, 711 N.E.2d 1273 (Ind.1999), and Van Dusen v. Stotts, 712 N.E.2d 491 (Ind.1999).
In Martin, the plaintiff alleged that she did not discover that she had been the victim of medical malpractice until more than two years after the alleged malpractice actually occurred. We held that the Medical Malpractice Act’s two-year occurrence-based statute of limitations violated the Indiana Constitution as applied because, inter alia, it was not “uniformly applicable” to medical malpractice plaintiffs who did not discover the malpractice until more than two years after occurrence. Martin, 711 N.E.2d at 1281.
In Van Dusen, the plaintiff also alleged that he did not discover that he had been the victim of medical malpractice until more than two years after the alleged malpractice actually occurred. We held, consistent with Martin, that the Indiana Constitution saved his claim from application of the two-year statute of limitations. Van Dusen, 712 N.E.2d at 493. We then went on to address the question of the amount of time after discovery that the plaintiff had to file his claim. We concluded that the Act permitted plaintiffs in such circumstances to file their claims “within two years of the date when they discover the malpractice.” Id.
Van Dusen dealt with a situation where the alleged malpractice was discovered more than two years after the alleged malpractice actually occurred; in this case, Boggs discovered the alleged malpractice within two years. But Van Dusen held that the statutory two-year time period is available to plaintiffs who do not discover malpractice until more than two years after occurrence. And, of course, plaintiffs who discover malpractice at the time of occurrence also have two years within which to file their claims. The majority opinion today, therefore, creates a class of plaintiffs to whom “the medical malpractice statute of limitations is not ‘uniformly applicable.’ ” See Martin, 711 N.E.2d at 1281. This class consists of plaintiffs like Boggs who discover the malpractice after, but within two years of, occurrence. It seems to me that, paraphrasing Van Du-sen, in order to effectuate legislative intent without doing violence to the Indiana Constitution, 712 N.E.2d at 496, we cannot make the two-year medical malpractice statute of limitations available to plaintiffs who do not discover the malpractice until more than two years after occurrence but deny it to those who discover within two years of occurrence.
I did not join the majority opinion in Martin v. Richey, believing precedent dictated that the occurrence-based Medical *701Malpractice Act statute of limitations was constitutional. Martin, 711 N.E.2d at 1285 (Sullivan, J., concurring in result). But we established new precedents in Martin and Van Dusen to the effect that (1) the medical malpractice statute of limitations must be “uniformly applicable” to medical malpractice plaintiffs who do not discover the malpractice until more than two years after occurrence and (2) medical malpractice plaintiffs who discover the malpractice more than two years after occurrence have two years from the date of discovery to file their claims. It seems to me that these new precedents demand that if the medical malpractice statute of limitations is to be “uniformly applicable” to medical malpractice plaintiffs, all medical malpractice plaintiffs must-have two years from the date of discovery to file their claims.
RUCKER, J., concurs.