dissenting.
I respectfully dissent from the majority's determination that Walpole-a non-dependent adult child-may recover non-pecuniary damages in this medical malpractice case. I cannot agree with the majority's view that the Wrongful Death and Medical Malpractice Acts "are mutually exclusive." Op. at 821. The Wrongful Death Act applies in such instances to bar plaintiffs other than surviving spouses and dependent next of kin from seeking non-pecuniary damages for loss of consortium, love, and services. Moreover, inasmuch as the Medical Malpractice Act mentions "derivative claims," it restricts them, bringing them within a regime that requires a medical review panel and award caps.
I. Wrongful Death and Medical Malpractice Acts
I would note that no cause of action for wrongful death existed at common law. Wolf v. Boren, 685 N.E.2d 86, 87 (Ind.Ct.App.1997). With the passage of the first Wrongful Death Act in 1881, a cause of action was established such that a plaintiff could seek redress for the loss sustained by the death of another in certain cireum-stances. Holmes v. ACandS, 709 N.E.2d 36, 39 (Ind.Ct.App.1999). Our current Wrongful Death Act reads, in relevant part:
When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefore against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission.
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That part of the damages which is recovered for reasonable medical, hospital, fu*827neral and burial expense shall inure to the exclusive benefit of the decedent's estate for the payment thereof. The remainder of the damages, if any, shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin.
Ind.Code § 34-28-1-1 (emphasis added). Thus, it is apparent to me that the plain language of the Wrongful Death Act limits recovery for non-pecuniary damages-the "remainder of the damages" mentioned in the statute-to surviving spouses and dependents when the person sustaining the injury died as a result of a tortfeasor's actions. Necessary v. Inter-State Towing, 697 N.E.2d 73, 76 (Ind.Ct.App.1998).
With the Wrongful Death Act already in existence, the General Assembly passed the Medical Malpractice Act in 1975, an Act whose policy was "one of limitation of liability." Garrison v. Foy, 486 N.E.2d 5, 9 (Ind.Ct.App.1985). Indeed, under our 9 (Ind.Ct.App.1985). current Medical Malpractice Act, a plaintiff must first file a proposed complaint with the Indiana Department of Insurance. Ind.Code § 34-18-7-3. Then, either party may request the formation of a medical review panel to review the evidence of malpractice. IC. § 34-18-10-2. The panel's decision, while not final, is persuasive. Finally, damages are capped, as any claimant may not recover more than $1.25 million. IC. § 384-18-14-8. Quite simply, nothing in the text or legislative history of the Medical Malpractice Act indicates that an expansion of recovery for plaintiffs was envisioned by our General Assembly. It would be remarkably contrary to the intent of the Medical Malpractice Act if, as Walpole argues, that Act expanded the seope of lability.
In my view, a more reasonable reading of Indiana Code section 34-18-2-22 is the one voiced in Warrick Hospital, Inc. v. Wallace, 435 N.E.2d 263 (Ind.Ct.App.1982). In Wallace, the decedent's wife sued the hospital for wrongful death and loss of consortium due to negligent medical treatment. However, the wife was not timely appointed as administratrix for her decedent's estate. The Wallace court first noted that the Medical Malpractice Act did not create "any separate cause of action for wrongful death or that the legislature intended to do so." Id. at 267. Thus, the Wallace court held that the wife's failure to be appointed administratrix was fatal to her claim because "the right to prosecute a claim for wrongful death based upon medical malpractice is governed by the wrongful death statute with regard to parties eligible to institute such [a] proceeding." Id. at 268. Moreover, the Wallace court stated that "the procedural requirements of the Medical Malpractice Act, the filing of the proposed complaint and submission to the medical review panel, must be met." Id.
A more reasonable reading of Indiana Code section 34-18-2-22 is that the Medical Malpractice Act "folds" the common law non-pecuniary derivative claims into the Medical Malpractice Act's administrative requirements and award caps. Thus, if a common law non-pecuniary derivative claim is brought by a "parent or parents, guardian, trustee, child, relative, attorney, or any other representative" of an injured patient that still lives, the plaintiff must adhere to the Medical Malpractice Act's procedures and cannot immediately bring a claim in court. I.C. § 34-18-2-22.
Moreover, at common law, no cause of action could be brought for non-pecuniary damages after the injured spouse-or "patient"-died. Bemenderfer v. Williams, 745 N.E.2d 212, 219 (Ind.2001) (holding that common law rule was that consortium damages were not recoverable after in*828jured spouse died). Thus, but for the Wrongful Death Act, claims for non-pecuniary damages would be barred. The Wrongful Death Act operates to allow non-pecuniary claims involving a deceased patient, but only spouses and dependents, going through the Medical Malpractice Act, may bring them. In sum, a plaintiff suing for a non-pecuniary derivative claim because an injury was done to a living patient is required to comply with the Medical Malpractice Act's procedures. Pursuant to the Wrongful Death Act, a non-pecuniary derivative claim for an injury suffered by a patient who died as a result of medical malpractice may be brought but only by a spouse or dependent.
The concurrence argues that Community Hosp. of Anderson and Madison County v. McKnight, 493 N.E.2d 775 (Ind.1986), is controlling. There, the wife and son of the decedent brought a medical malpractice action against the hospital. Neither wife nor son was appointed personal representative as required by the Wrongful Death Act. Thus, our supreme court noted that "the specific issue on appeal is whether the trial court erred in denying summary judgment where neither plaintiffs nor any other person or entity has been appointed as a personal representative authorized to prosecute a wrongful death claim." Id. at 776. The McKnight court allowed the wife's claim under the Medical Malpractice Act to continue, noting that the Medical Malpractice act was "plain and unambiguous in designating who qualifies as a representative and in designating those who are eligible to pursue derivative claims." Id. at 777. Here, by way of analogy, the concurrence claims that since Walpole falls under the provisions of the Medical Malpractice Act, he may assert a claim for loss of services and consortium. Op. at 822.
IIL Equal Privileges and Immunities
The majority's interpretation of the Medical Malpractice Act not only contravenes the intent behind that Act but violates Article I, Section 28 of our constitution. Under the majority's view, a non-dependent child would be allowed to sue medical providers for non-pecuniary damages if his father died because of the providers' malpractice. Yet, the same non-dependent child would be prohibited by the Wrongful Death Act from seeking non-pecuniary damages if a truck negligently ran over his father.
Article I, Section 28 of our constitution states that "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Our supreme court announced a test to determine whether legislation violates Article I, Section 23 in Collins v. Day:
First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative disceretion.
644 N.E.2d 72, 80 (Ind.1994). In Martin v. Richey, our supreme court upheld the constitutionality of the Medical Malpractice Act against charges that it unreasonably treated medical malpractice victims different than victims of other torts:
[Thhis Court has held that a classification scheme which distinguishes between victims of medical malpractice and vice-tims of other torts, or viewed from an*829other perspective, between health care providers and other tortfeasors, is reasonably related to the goal of maintaining sufficient medical treatment and controlling malpractice insurance costs in Indiana, and therefore is not unreasonable.
711 N.E.2d 1273, 1281 (Ind.1999) (emphasis added). In my view, the majority's opinion turns Martin on its head by expanding the recovery for vietims of medical malpractice.
Moreover, the majority's opinion violates the first prong of Collins In applying Collins, the Martin court held that the disparate treatment afforded to medical malpractice victims was rationally related to the goal of maintaining an adequate pool of medical professionals in Indiana and limiting insurance costs. Id. Here, the majority's decision to espand the lability of medical providers is rationally related to no expressed overarching goal10 and in fact does violence to the goals stated in Martin. Simply put, the majority's interpretation of the Medical Malpractice Act in this circumstance unconstitutionally treats similarly situated persons differently and completely ignores a central tenet of Martin.
III. Goleski v. Fritz
I also believe that an analysis of an additional case is warranted here, even though the majority has not discussed it in its opinion. Walpole argues that Goleski v. Fritz, 768 N.E.2d 889 (Ind.2002), establishes an independent claim for loss of consortium, love, and services. However, Walpole's reliance on Goleski v. Fritz, 768 N.E.2d 889 (Ind.2002), is misplaced. Goleski held that Dorothy Vetter-the deceased patient's wife-had a derivative claim for loss of consortium within the context of the Medical Malpractice Act. Id. at 891. Dorothy's husband Lawrence allegedly died on account of the defendant's medical malpractice. Dorothy filed a proposed complaint with the Indiana Department of Insurance, yet she died before her case could be brought to a conclusion. Id. at 890. However, Goleski-Dorothy's daughter-was appointed administratrix of Dorothy's estate and argued that the cause of action survived Dorothy's death and became part of Dorothy's estate.
The trial court ruled that Goleski could not maintain the action for loss of consortium. The Wrongful Death Act provided no cause of action, the trial court held, because Goleski was not the personal representative of Lawrence's estate. The trial court also held that the Medical Malpractice Act provided no help for Goleski because she was not Lawrence's "representative" as that word was defined in the Medical Malpractice Act. Our supreme court reversed the trial court, holding that, as a relative, Dorothy had a "derivative" claim for loss of consortium and that Indiana's survival statute operated to preserve that "derivative" claim. Id. at 891-92. Thus, the "derivative" claim passed to Dorothy's estate. Goleski was free to bring the claim as administratrix of Dorothy's estate but not in her own name. Id. at 892. In sum, our supreme court's opinion is nothing more than an affirmation that the Medical Malpractice Act allows non-pecuniary awards to spouses of deceased patients and that such actions survive the death of the spouse. Goleski does not apply here because Walpole is not a spouse, as was Dorothy, or a dependent child. Furthermore, there is no question *830regarding the survivability of an action, as was the case in Goleski.
Inasmuch as the majority's view has the potential of creating certain anomalous results in these cireumstances, is contrary to the public policy embodied in our Medical Malpractice Act, and violates Article I, Section 28 of our state constitution, I dissent and therefore vote to reverse the denial of the appellants' motion for preliminary determination.
. While the desire to compensate victims of medical malpractice is certainly a legitimate goal, decisions balancing the needs to compensate tort victims and to preserve the cost and availability of medical care are best left to the political branches of government.