dissenting.
I believe that Barker is entitled to recover for only one incident of malpractice under the Indiana Medical Malpractice Act (the Act) and respectfully dissent from the majority’s conclusion to the contrary.
I agree with the majority to the extent that it characterizes the question as one involving “multiple breaches during a single procedure.” Op. at 33. The majority focuses upon the “multiple breaches” in concluding that there were two incidents of medical malpractice under the Act. I, on the other hand, believe that the dispositive fact is that Barker’s allegation’s stem from a single surgery.
Previous opinions of the Indiana Supreme Court and this court have acknowledged that the Act was a legislative response to an impending health care crisis in the 1970s.
Specifically, “the problem of expensive medical malpractice insurance, which had been simmering for over a decade, came to *35a boil and threatened to make such insurance completely unavailable.” Winona Memorial Hosp. Found. of Indianapolis v. Lomax, 465 N.E.2d 731, 738 (Ind.Ct.App.1984). The Act “was the legislative response to the crisis in the availability of medical malpractice insurance, which, in turn, was threatening the availability of the health care services to the public.” Id. at 739. Our supreme court noted in Roh-rabaugh v. Wagoner, 274 Ind. 661, 413 N.E.2d 891 (1980) that one of the methods conceived by the Legislature to remedy this problem involved limiting patient remedies against health care providers. Those limitations included restricting the amount of money a medical malpractice plaintiff could recover. It is beyond debate that the cap on recoveries under the Act is an integral part of the legislative scheme. As the majority notes, our courts have several times been called upon to determine issues relating to the cap. Since the cap aspect of the Act was declared constitutional, the question is seldom, if ever, presented in the form of a challenge to the actual amount of the cap. Rather, plaintiffs have sought to increase the amount of their recoveries on the basis of multiple claims of malpractice.
Thus far, the principles that have emerged on this question are that (1) a person may recover only once for a single injury, even where that injury was caused by multiple breaches of the standard of care, see, e.g., Bova v. Roig, 604 N.E.2d 1 (Ind.Ct.App.1992) and (2) multiple recoveries may result from multiple, separate breaches that cause multiple injuries. See, e.g., Miller v. Memorial Hosp. of South Bend, Inc., 679 N.E.2d 1329 (Ind.1997). I find those conclusions unassailable, in part because those principles are entirely consistent with the purpose and legislative intent underlying the Act.
With regard to the question at issue here, the Act neither expressly embraces nor rejects the concept of multiple recoveries for multiple breaches in a single surgical procedure. Indiana’s appellate courts have not decided a case that compels either result. Indeed, viewed strictly as an exercise in statutory construction, the majority’s analysis is not unreasonable. My disagreement with the law created in the instant case is based upon my conclusion that it contravenes the purpose of the Act, and therefore also contravenes the intent of the legislature that passed the Act.
The principles that emerge from the cases that have thus far grappled with this question embody the concept that, in order to justify multiple recoveries, there must be a separation in time and circumstance of the multiple breaches. See, e.g., Miller v. Memorial Hosp. of South Bend, Inc., 679 N.E.2d 1329 (involving prenatal and postnatal injury to a child). In my view, for purposes of the Act, a surgical procedure should be regarded as a single act of medical treatment, albeit one that may include many steps. The various steps in a surgery are not sufficiently distinct from one another in time and circumstance to justify multiple recoveries under the Act. In other words, the Act does not contemplate the possibility of as many recoveries of the cap amount as there are steps in a single surgical procedure. Such runs contrary to the very purpose of the Act. I believe that when the Legislature limited recovery to $750,000 for an act of malpractice, it did not envision or intend multimillion-dollar recoveries stemming from what is referred to in the common vernacular as a “botched” surgery, regardless of the number of ways in which it was botched.
I would reverse the trial court and limit the amount of Barker’s recovery to $750,000.