concurring.
There is nothing in the Indiana Malpractice Act which prohibits the plaintiff from filing a dismissal of his or her proposed complaint pending before the Department of Insurance. I.C. 16-9.5-1-1 et eq.3 However, when a proposed complaint is dismissed "with prejudice" the parties should have a right to rely on that dismissal. The parties seeking a dismissal are requesting the medical review panel to cease any further action against the named doctor or health care provider and thus those parties would no longer participate in preparation for litigation. To allow the plaintiff to file a proposed complaint almost two years after dismissal, as in this case, would certainly prejudice the rights of Dr. Ilagan since he has not been involved in the medical review procedure for the last two years. Other states do permit a plaintiff to withdraw his or her complaint while it is pending before an administrative agency and they have treated that withdrawal as binding. See Dalessandro v. Monk (2d Cir.1988), 864 F.2d 6.
Furthermore, the proposed complaint was voluntarily dismissed and this does not toll the statute of limitations. Kohlman v. Finkelstein (1987), Ind.App., 509 N.E.2d 228, reh. denied, trans. denied. In fact, a complaint which is voluntarily dismissed is treated as if it never existed, and thus cannot toll the statute of limitations. Id. at 232.
Onee Dr. Ilagan raised the statute of limitations issue in his "Motion for Additional Preliminary Determination of a Question of Law," it became the plaintiffs' burden to prove that the statute should have been tolled because of fraudulent concealment or continuing wrong. Conard v. Waugh (1985), Ind.App., 474 N.E.2d 130. This they have failed to do. The second "amended" proposed complaint (which was the same complaint that had been voluntarily dismissed), was filed more than 2 years after the date of the alleged malpractice and would not relate back to the first complaint. The plaintiffs' proposed and amended complaints allege the malpractice of Dr. Ilagan occurred in April and May, 1988. The plaintiffs did not attempt to reinstate their action until April, 1992, almost two years after the statute of limitations had expired. Accordingly, the proposed amended complaint is barred by 1.C. 16-9.5-3-4(a)4 and should have been dismissed.
. Now covered at L.C. 27-12-7-1.
. Repealed by P.L. 2-1993, § 209. Subject matter is now covered at L.C. 27-12-2-1 et seq.