dissenting
[¶ 51.] From the manner in which the majority opinion is written, I believe the it started from premise that wrongful death actions arising from medical malpractice are within SDCL 15-2-14.1. The majority then eliminated any opposition by utilizing defensive arguments, irrelevant observations, inaccurate analysis, and overruling legal precedent. The majority finally concludes that the legislature intended a clear public policy of special considerations for medical providers and practitioners of the healing arts, and by virtue thereof SDCL 15-2-14.1 is now a statute of repose. A statute of repose limits the time within which an action may be brought, however it begins to run from the occurrence of a specific event which is unrelated to the date of the injury. A citizen may now be barred from filing a lawsuit based on medical malpractice even before the cause of action has arisen. From this position the majority will not deviate.
ISSUE FOR RESOLUTION
[¶ 52.] The majority states that the issue for resolution is: Does the three-year wrongful death statute of limitations in SDCL 21-5-3 extend the two-year medical malpractice statute of limitations set forth in SDCL 15-2-14.1? As between the two statutes, this phraseology automatically determines that wrongful death actions based on medical malpractice fall within the two-year limitation. It puts those who rely on SDCL 21-5-3 on the defensive, requiring some showing that SDCL 21-5-3 is intended to affect (by extension) SDCL 15-2-14.1. I believe this to be an unfair way of setting forth the issue.
[¶ 53.] I believe the issue for resolution is: In South Dakota if a wrongful death action is based on medical malpractice, does the two-year statute of limitation for medical malpractice apply or does the three-year statute of limitations for wrongful death apply?
[¶ 54.] An annotation entitled, “Medical Malpractice: Statute of Limitations in Wrongful Death Action Based on Medical *573Malpractice,” found at 70 A.L.R.4th 535 sets forth the decisions from other jurisdictions. After review, some jurisdictions hold that the wrongful death statute applies and some hold that the medical malpractice statute applies. However, it is noteworthy that several of the jurisdictions which hold that a wrongful death based on medical malpractice is governed by the medical malpractice action, the term “injury or death” or its equivalent is specific ally provided for in the statute. No such term is present in our medical malpractice statute.
[¶ 55.] Examination of our statutes, the applicable rules of construction, and our legal precedent will also assist in resolving the issue. SDCL 21-5-3 provides that “Every action for wrongful death shall be commenced within three years after the death of such deceased person.” (emphasis supplied). This statute is plain, clear, and unambiguous. It provides no exception based on medical malpractice.
[¶ 56.] SDCL 15-2-14.1 is the medical malpractice statute and does not specifically include wrongful death as a permissible cause of action thereunder. I believe if the legislature intended this they would have done so and made the appropriate exception in the wrongful death statute. The legislature had four separate opportunities to do so.
[¶ 57.] Historically in South Dakota a cause of action growing out of wrongful death and a cause of action growing out of personal injury are two different subjects. The wrongful death statute (1909) created a new cause of action separate and distinct from, and not a continuation of, the common-law cause of action given a party for his own physical injury. Further, a cause of action for physical injury is personal and accrues on the occurrence of the wrong and during the lifetime of a person. A cause of action for wrongful death does not accrue until after the death and is in favor of the beneficiaries designated by statute. The rights under the wrongful death statute arise only by reason of death and the rights under the malpractice actions abate upon the death of a plaintiff. Simons v. Kidd, 73 S.D. 41, 38 N.W.2d 883 (1949); Pexa v. Clark, 85 S.D. 37, 176 N.W.2d 497 (S.D.1970).
[¶ 58.] The majority applies the two-year medical malpractice statute of limitation from the date of the alleged malpractice, whether the action is for personal injury or death. All plaintiffs are allowed two years whether they live or die. Therefore, the majority decision allows the limitation time for a cause of action for wrongful death based on medical malpractice to start running before the person is dead. The majority allows an expiration before an accrual. This is contrary to our history and legal precedent.
[¶ 59.] SDCL 15-2-14.1 is not now and never was intended to be a statute of repose. The majority has now held that the citizens of this state have no cause of action for medical malpractice after two years have passed from a specific “event,” which is unrelated to the date of an injury. The statute does not provide what the specific “event” is nor when the specific “event” occurs but two years thereafter there no longer exists a cause of action for medical malpractice no matter how flagrant the wrong nor how extensive the injury.
OCCURRENCE RULE AND DATE OF DAMAGES
[¶ 60.] Since the occurrence rule commences at the time of the malpractice and the date of damages rule commences at the time of death, the rules are diametrically opposed to each other unless they occur at the same time (malpractice act results in immediate death). They can be *574simultaneous, but they cannot be an exception to each other. Each rule is applicable to its individual action and in favor of different parties. Historically in South Dakota actions for wrongful death are separate and distinct from personal injury actions. The majority has combined them and disregarded legal precedent.
[¶ 61.] The majority further comments on the problem that a person can be kept alive on life support for years. The two-year statute of limitations for medical malpractice could expire while the body continued to exist on life support. Years later, death could revive a medical malpractice action long after the statute of limitations had run. Contingent liability could linger for years. All this may be accurate; however, this is matter for the legislature to address. By the same token, if a person does not die within two years of the medical malpractice then his action is barred from recovery for wrongful death. And how can a wrongful death action be commenced prior to the wrongful death?
NATURE OF THE CLAIM
[¶ 62.] I respectfully submit that the nature of the claim is wrongful death and the basis of the claim is medical malpractice. The wrongful death statute applies.
THE MORE SPECIFIC STATUTE
[¶ 63.] When construing statutes, terms of a statute relating to a particular subject will prevail over general terms of another statute. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180 (S.D.1986). The majority states that the wrongful death statute of limitations covers deaths caused by intentional homicide, reckless homicide, negligent homicide or by other wrongful act, neglect or default, not just wrongful deaths caused by medical malpractice. If the different ways a wrongful death can occur are significant then it must also be significant as to how many different ways medical malpractice can occur, based on contract or tort. Further, the majority feels that the medical malpractice statute is applicable to personal injury and death. We know the wrongful death statute is restricted to only death. The wrongful death- statute is more specific.
THE MORE RECENT STATUTE
[¶ 64.] The majority cites State v. Harris, 494 N.W.2d 619, 622 (S.D.1993) for the statutory construction rule that the more recent statute supercedes the older statute. This case addressed rewritten statutes dealing with a juvenile transfer hearing. Both statutes dealt with a transfer hearing and therefore were relating to the same subject matter. At present, we are not dealing with statutes dealing with the same subject matter. Historically this state had held that a cause of action growing out of personal injury and one growing out of death by negligence constitute two different subjects. Simons v. Kidd, 73 S.D. 41, 38 N.W.2d 883 (1949).
[¶ 65.] The wrongful death statute was enacted in 1909 and has always had a three-year statute of limitation. The medical malpractice statute was enacted in 1945 and experienced amendments in 1963, 1976, and 1977. At its enactment and each time this statute was amended the legislature was aware of the wrongful death statute. If the legislature fairly and reasonably intended that wrongful death actions based on medical malpractice were to be included in the medical malpractice statute it could easily have so provided.
THE WORDS OF THE STATUTE
[¶ 66.] Under SDCL 21-5-3 (wrongful death) the word “every” is provided. The all-inclusiveness of this word is irrefutable. *575There is no exception for medical malpractice in this statute.
[IT 67.] Under SDCL 15-2-14.1 the statute starts out with the words “an action.” “An” action does not mean “every” action. The majority acknowledges that the medical malpractice statute does not mention “wrongful death,” but states the medical malpractice statute also does not mention “personal injury.” The majority thus concludes that because Burns argues that the absence of the term “wrongful death” in the medical malpractice action indicates that it does not include wrongful death actions, that Burns must concede that the medical malpractice statute would not cover actions for “personal injury.” Thus, Burns would have to concede that the medical malpractice statute is rendered meaningless, because it would cover neither wrongful death nor personal injury.
[¶ 68.] First of all, I think that any effort to “extend” the argument of Burns in this fashion is patently unfair. Burns has never taken this posture and to state that he must is untenable.
[¶ 69.] Secondly, the medical malpractice statute provides that the “action” must be based on malpractice, error, mistake or failure to cure, and can be based upon tort. SDCL 15-1-1 provides in part: “An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement, determination, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” (emphasis supplied). SDCL 20-9-1 provides for a person’s responsibility for injury caused by willful acts or negligence. A reasonable interpretation of these statutes provides that a “personal injury” action is allowed under our medical malpractice statute. In fact I believe it is exclusively allowed.
[¶ 70.] Lastly, the term “wrongful death” is conspicuously absent from the medical malpractice statute but conspicuously present in the wrongful death statute.
[¶ 71.] The majority later acknowledges that “an action” does encompass “personal injury.” The majority cannot have this both ways. If they acknowledge that “personal injury” is provided for in the medical malpractice statute they must acknowledge that “wrongful death” is not.
[¶ 72.] In determining whether it is a fair construction that SDCL 15-2-14.1 includes wrongful deaths, I feel further scrutiny is required. SDCL 15-2-14.1 provides that an action can be brought against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts. SDCL ch 86-2 deals with practitioners of healing arts, and pursuant to SDCL 36-2-1(3) “healing art” is defined. “Healing, art of healing, practicing healing, practicing of healing, ány system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, injury, unhealthy or abnormal physical or mental condition.” With this broad definition this statute could also include optometry, podiatry, physical therapists and even masseurs.
[¶ 73.] Wrongful death actions against a chiropractor, dentist, sanitarium, optometrist, podiatrist, physical therapist, and perhaps a masseur! Is this a reasonable construction of this statute? I don’t believe so.
[¶ 74.] A clear and reasonable interpretation of SDCL 15-2-14.1 is that at its inception and through its three amend*576ments, it covers actions for personal injury, not wrongful death actions.
HARMONIZING THE STATUTES
[¶75.] Where conflicting statutes appear, it is the responsibility of the court to give reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable. After doing so I find that these statutes cannot be harmonized by including a wrongful death action in the medical malpractice statute. As stated earlier, the medical malpractice statute commences to run on the date of occurrence and the wrongful death statute commences to run upon the death of the person. It is difficult to conceive that the occurrence statute of limitation can have any effect on a statute of limitation that commences only upon the death of an individual. The majority holds that the statute of limitations for wrongful death based on medical malpractice starts running before the person is dead! Thé actions are separate and distinct. These two statutes do not mesh and no amount of intellectual rationalization will accomplish this.
[¶ 76.] Even assuming that the majority is correct, then there is a conflict between these statutes since there would be an action for wrongful death under both statutes and two different time limitations. When this occurs, the statute providing the longer period of time applies. Zoss v. Schaefers, 1999 SD 105, 598 N.W.2d 550.
STATUTE OF REPOSE
[¶ 77.] The majority holds that SDCL 15-2-14.1 is a statute of repose. As per the majority a statute of repose bars all actions after a specified period of time has run from the occurrence of some event other than the occurrence of an injury that gives rise to a cause of action. All statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. However, since a statute of repose begins to run from a date unrelated to the date of an injury, it is not designed to allow a reasonable time for the filing of an action once it arises. Therefore, a statute of repose may bar the filing of a lawsuit even though the cause of action did not even arise until after it was barred and even though the injured person was diligent in seeking a judicial remedy. Berry v. Beech Aircraft, 717 P.2d 670, 672 (Utah 1985).
[¶ 78.] 54 CJS Limitations of Actions § 4 (1987) provides: “A statute of repose ... limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.” (emphasis supplied).
[¶ 79.] If SDCL 15-2-14.1 is a statute of repose and not a statute of limitation then the occurrence rule regarding the date of injury is inapplicable. South Dakota precedent in this regard is overruled. Further, SDCL 15-2-14.1 does not provide what the specific “event” is that will trigger the commencement of the two-year time limit? Is it the time the physician started his/her medical practice? The first treatment date for patient? Subsequent treatment dates? What if you switch physicians? SDCL 15-2-14.1 is not restricted to physicians but also applies to various medical providers, practitioners of the healing arts, and to hospitals and sanitariums. What is the specific “event” for these people and institutions?
*577[¶ 80.] Whatever and whenever the specific “event” happens, a citizen no longer has a right to sue after two years has expired therefrom. Once the two years has passed, the medical treatment or services rendered can be negligent, causing personal injuries of whatever kind, nature, and extent, and the citizens of this state have no legal recourse. I do not believe the legislature of this state intended as a matter of public policy to protect the medical profession to this extent.
CONCLUSION
[¶ 81.] By virtue of this ruling I believe the following has occurred:
1. The inclusion of the term “wrongful death” (An action, including wrongful death, * ⅜) into SDCL 15-2-14.1, and the inclusion of the language “except wrongful death based on medical malpractice” into SDCL 21-5-3. This is a legislative function nor judicial.
2. Actions for personal injury and actions for wrongful death are no longer separate and distinct actions. History and precedent are set aside. The limitation for wrongful death based on medical malpractice can now commence running even though a person is not yet dead.
3. The party injured through medical malpractice must die within two years of the date of occurrence. Actually this is modified by the holding that SDCL 15-2-14.1 is a statute of repose so, depending on what the specific “event” is and when the specific “event” occurred, a party may still not be able to bring the action.
4. A reasonable construction of SDCL 15-2-14.1 includes wrongful death, and therefore applies to any dentist, sanitarium, nurse, chiropractor, or other practitioner of the healing art such as a podiatrist, optometrist, physical therapist and perhaps a masseur. This allows an action in the event any of these people negligently killed someone during the rendering of their respective services. Remembering of course that this statute is a statute of repose and therefore the liability exposure will depend on the specific “event” and when it triggered the running of the two-year limitation.
5.Finally, that SDCL 15-2-14.1 is a statute of repose. Depending on what the specific “event” is and when the specific “event” occurs the statutory period of two years commences to run. This “event” is completely unrelated to the date of an injury and may bar the filing of a lawsuit even though the cause of action did not even arise until after it was barred. After this two-year period has expired regarding a party then this party no longer has a right to commence an action based on medical malpractice, no matter how egregious the services rendered or how extensive the injury.
[¶ 82.] The majority holds that Johnson and Eiesland are no longer proper parties to the lawsuit. However, since SDCL 15-2-14.1 is a statute of repose this may not be accurate. The uncertainty is because we do not know when the two-year limitation of SDCL 15-2-14.1 commences to run. It is not related to the date of injury but depends on a specific “event” and when the “event” occurred. This determination will not only decide whether Johnson and Eiesland are dismissed but also whether Burns is no longer a proper party. If the “event” occurred over two years prior to Burns getting involved in the lawsuit then perhaps the permissible limitation had run and the lawsuit was no longer viable.
[¶ 83.] SDCL 15-2-14.1 does not provide this specific “event.” Apparently the legislature has again left this decision for the judiciary.
[¶ 84.] Therefore, I believe the majority must provide what specific “event” is *578and when the specific “event” occurs so the trial court and the attorneys involved know how to determine if the plaintiff has been barred completely by the statute of repose, SDCL 15-2-14.1 and so the bar association and judiciary may also be appraised for future reference.