Chamberlain v. Walpole

Attorneys for Appellants Attorneys for Appellee
Milford M. Miller Phillip W. Ogden
Calvert S. Miller Timothy A. Ogden
Diana C. Bauer Warsaw, Indiana
Fort Wayne, Indiana
Amicus Curiae
Amicus Curiae The Indiana Trial
Lawyers Association
Indiana State Medical Association; Mark A. Scott
National Association of Independent Kokomo, Indiana
Insurers, and The Insurance Institute
of Indiana
Eric D. Johnson
Indianapolis, Indiana

Amicus Curiae
Defense Trial Counsel of Indiana
Peter H. Pogue
Donald B. Kite, Sr.
Carmel, Indiana

James D. Johnson
Evansville, Indiana
____________________________________________________________________________
__

In the
Indiana Supreme Court
_________________________________

No. 02S04-0403-CV-143

Timothy R. Chamberlain, M.D., et al.,
Appellants (Defendants below),

v.

Richard Steven Walpole,
Appellee (Plaintiff below).
_________________________________

Appeal from the Allen Superior Court, No. 02D01-0201-CT-14
The Honorable Daniel G. Heath, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 02A04-0302-
CV-92
_________________________________

February 24, 2005

Boehm, Justice.

We hold that the Medical Malpractice Act does not provide a cause of
action for damages for a wrongful death where the Wrongful Death Act does
not allow such an action.

Factual and Procedural Background

Richard Walpole’s father died following surgery for a hernia repair.
Walpole filed a proposed medical malpractice complaint with the Indiana
Department of Insurance, seeking recovery from six physicians and two
hospitals for funeral and burial expenses, “lost love, care, affection,
society, companionship, and services of his father,” and “extreme mental
anguish.” Three of the physicians filed a motion for preliminary
determination under the Medical Malpractice Act, arguing that the Wrongful
Death Act precluded recovery for the loss of Walpole’s father’s love, care,
and affection. The remaining defendants later joined that motion. The
trial court denied the motion and certified the order for interlocutory
appeal. The Court of Appeals affirmed with Judge Baker dissenting.
Chamberlain v. Walpole, 796 N.E.2d 818, 819 (Ind. Ct. App. 2003). This
Court granted transfer. Chamberlain v. Walpole, 812 N.E.2d 800 (Ind.
2004).

Walpole’s Right to Non-pecuniary Damages

Walpole argues that although he cannot recover non-pecuniary damages
for his father’s death under the Wrongful Death Act (WDA), the Medical
Malpractice Act (MMA) allows him to do so. All parties agree that this
appeal turns on the interpretation of these two acts. This presents a
question of law that we review de novo.

No cause of action for wrongful death existed at common law. South
v. White River Farm Bureau Coop., 639 N.E.2d 671, 673 (Ind. Ct. App. 1994).
An action for wrongful death is therefore purely statutory and is strictly
construed. Durham v. U-Haul Int’l, 745 N.E.2d 755, 759 (Ind. 2001). The
WDA permits claims for wrongful death and authorizes suits by a personal
representative of a decedent for death caused by the “wrongful act or
omission of another.” Ind. Code § 34-23-1-1 (2004). If the decedent had
no surviving “widow, widower, or dependent children, or dependent next of
kin” the statute limits damages to “hospitalization or hospital service,
medical and surgical services, such funeral expenses, and such costs and
expenses of administration, including attorney fees.” Id. Walpole
concedes that, as a non-dependent adult he is not entitled to recover
damages for non-pecuniary loss under the WDA. See Necessary v. Inter-State
Towing, 697 N.E.2d 73, 76 (Ind. Ct. App. 1998); Ed Wiersma Trucking Co. v.
Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994). He asserts, however, that
the MMA creates a claim independent of the WDA.

The MMA defines “malpractice” as “a tort or breach of contract based
on health care or professional services that were provided, or that should
have been provided, by a health care provider, to a patient.” I.C. § 34-18-
2-18. The statute provides the procedure to assert such a claim. Cacdac
v. West, 705 N.E.2d 506, 510 (Ind. Ct. App. 1999). The MMA does not by its
terms create an express cause of action for wrongful death. However, the
MMA includes the following definition:

“Patient” means an individual who receives or should have received
health care from a health care provider, under a contract, express or
implied, and includes a person having a claim of any kind, whether
derivative or otherwise, as a result of alleged malpractice on the
part of a health care provider. Derivative claims include the claim
of a parent or parents, guardian, trustee, child, relative, attorney,
or any other representative of the patient including claims for loss
of services, loss of consortium, expenses, and other similar claims.

I.C. § 34-18-2-22.

Walpole argues that because he was the decedent’s “child” and
“representative” he is a “patient” as defined by the MMA, and therefore can
assert a “derivative claim.” He reasons that because the MMA identifies
derivative claims as “including claims for loss of services, loss of
consortium, expenses, and other similar claims” he should be able to pursue
a claim for loss of his father’s love, care, and affection under that
statute. The defendants, all health care providers under the MMA, respond
that the MMA imposes unique procedures on claims for medical malpractice
but does not create causes of action that otherwise do not exist. The
issue is therefore whether the MMA expanded the types of damages a non-
dependent child may recover when a parent dies of medical malpractice. The
defendants argue that it would be inconsistent for an adult non-dependent
child to be barred from recovering damages for non-pecuniary loss under the
WDA, yet be permitted to recover such damages under the MMA. That result,
they contend, is contrary to the purposes of the MMA and is not required by
its language.

Walpole contends that Community Hospital of Anderson and Madison
County v. McKnight, 493 N.E.2d 775 (Ind. 1986), and Goleski v. Fritz 768
N.E.2d 889 (Ind. 2002), both support of the view that the MMA creates
independent causes of action. In McKnight, Donald McKnight died while
under the care of the hospital. His wife and son sued for damages with the
Indiana Insurance Commissioner and then filed a complaint for damages in
trial court. 493 N.E.2d at 776. The hospital pointed out that the WDA
requires that a person pursuing a claim involving a death must first be
appointed personal representative and argued that because no personal
representative had been appointed, Mrs. McKnight and her son could not
pursue a wrongful death claim. Id. at 777. This Court disagreed,
reasoning “the Medical Malpractice Act is plain and unambiguous in
designating who qualifies as a representative and in designating those who
are eligible to pursue derivate claims.” Id. We therefore held that the
procedure of the MMA rendered the WDA’s requirement that a personal
representative be appointed unnecessary. Id. We concluded that Mrs.
McKnight and her son qualified under the MMA to pursue a claim, as a
representative or through a patient derivative claim. Id.

In Goleski, Lawrence Vetter died while in the hospital. 768 N.E.2d at
890. His widow, Dorothy filed a claim with the Department of Insurance
seeking damages from the hospital and his physicians for lost “financial
support, love, affection, kindness, attention, and companionship” as well
as reasonable funeral, burial, and medical expenses but died before the
claim review process was completed. Id. After Dorothy died, Nadine
Goleski, the couple’s daughter, was appointed personal representative of
Dorothy’s estate and filed an amended malpractice claim, contending that
Dorothy’s claim survived her death and passed to her estate. Id. The
trial court held that Goleski could not maintain an action under the WDA,
the MMA, or the Survival Statute. Id. This Court reversed in part,
holding that Goleski could not maintain a claim for Lawrence’s death under
the WDA because that act requires the appointment of a personal
representative within two years of the death and no personal representative
had been appointed within that time. Id. at 890-91. We held, however,
that under the Survival Statute Goleski could pursue the claim initially
filed by Dorothy under the MMA. This Court reasoned, following McKnight,
that “under the terms of the Medical Malpractice Act, before Dorothy died
she was a ‘patient’ with ‘derivative’ claims insofar as she asserted claims
for lost financial support, love, affection, kindness, attention,
companionship, and reasonable funeral and burial expenses. As the wife of
Lawrence, she clearly was a ‘relative.’ She therefore met the statutory
requirements to bring these claims as a ‘patient’ and was entitled to
assert ‘derivative’ claims for these items under the Medical Malpractice
Act.” Id. at 891. The Survival Statute permits a personal representative
to pursue a claim of a decedent unless it is a claim for personal injuries
to the decedent. I.C. § 34-9-3-1(a)(6). Here, the claim was for personal
injury to Lawrence, not to Dorothy. In short, the claim for Lawrence’s
death, properly asserted by Dorothy before her death, was an asset of
Dorothy’s estate when she died. As such, it was properly pursued by
Goleski as Dorothy’s personal representative. Id. at 892.

Walpole argues that these two cases require the conclusion that he is
a “patient,” entitled to pursue a “derivative claim” for the loss of love,
care, and affection of his father. We disagree. McKnight did not expand
the types of claims that could be pursued or hold that the MMA created a
new set of claims. McKnight merely allowed a claimant to take advantage of
the procedures provided in the MMA to pursue a claim directly that could be
pursued under the WDA by a personal representative for the claimant’s
benefit. In Goleski, when Lawrence Vetter died, his wife, Dorothy had a
recognized claim under the WDA for damages for non-pecuniary losses.
Specifically, Dorothy, as a widow, was entitled to, and did, bring a claim
for lost financial support, love, affection, kindness, attention, and
companionship allowed by the WDA. McKnight permitted Dorothy to assert the
claim directly rather than as personal representative of Lawrence’s estate.
After Dorothy died, Goleski could not bring her own claim under the WDA
for Lawrence’s death because no personal representative had been appointed
for Lawrence and the two years for appointing a personal representative for
his estate had expired. However, under the Survival Statute, I.C. § 34-9-3-
1(a), Goleski could pursue Dorothy’s claim which survived Dorothy’s death
because it was not a claim for personal injury to Dorothy. Thus Goleski,
like McKnight, did not find the MMA to create any new cause of action.
Rather, both cases addressed only the procedure for asserting damage
actions otherwise allowed under the WDA, and in Goleski, the Survival
Statute.

The MMA’s definition of a “patient” to include both the person who was
injured and a person who has a derivative claim because of that person’s
injury does not imply that the MMA creates a new claim. It merely requires
that claims for medical malpractice that are otherwise recognized under
tort law and applicable statutes be pursued through the procedures of the
MMA. The MMA’s recognition of “derivative” claims is found only in the
definition of “patient.” The effect of this provision is merely to require
that any person who has a “derivative claim” for medical malpractice follow
the requirements of the MMA in filing a proposed complaint with the
Insurance Commissioner, etc. The MMA’s listing of what qualifies as a
“derivative claim” is to ensure that the MMA applies to all available
claims for medical malpractice. But the MMA does not create new
substantive rights or create new causes of action. As the defendants point
out, the MMA was designed to curtail liability for medical malpractice, not
to expand it. Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 379-80,
404 N.E.2d 585, 589-90 (1980). The language of the definition of patient,
as it fits in the statute and as applied in McKnight and Goleski leads to
the conclusion that the MMA is procedural and did not create new causes of
action.

In Breece v. Lugo, 800 N.E.2d 224 (Ind. Ct. App. 2003), a different
panel of the Court of Appeals (Judges Ratliff, Robb, and Vaidik) recently
rejected the contention that the MMA created a claim for death of a fetus
even though, as recently held in Bolin v. Wingert, 764 N.E.2d 201, 203
(Ind. 2002), no such claim could be pursed under the Child Wrongful Death
Act. I.C. § 34-18-1-1. We agree with the analysis of the Breece panel and
therefore today deny the pending petition for transfer in that case.

Conclusion

The decision of the trial court is reversed. This case is remanded
for proceedings consistent with this opinion.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.