Carmichael v. Silbert

• Decision Date: 14 July 1981
• Docket Number: No. 1-1280A367,1-1280A367
• Citation: 422 N.E.2d 1330
• Parties: Kenneth CARMICHAEL, and Leah Carmichael, Appellants (Defendants Below), and Indiana Department of Insurance, H. P. Hudson, Commissioner, (Defendant Below), v. Michael SILBERT and Bloomington Hospital, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 1330

422 N.E.2d 1330

Kenneth CARMICHAEL, and Leah Carmichael, Appellants (Defendants Below) and Indiana Department of Insurance, H. P. Hudson, Commissioner (Defendant Below), v. Michael SILBERT and Bloomington Hospital, Appellees (Plaintiffs Below).

No. 1-1280A367.

Court of Appeals of Indiana, First District.

July 14, 1981.

Dollie Stafford Manns, Alphonso Manns, Manns & Manns, Bloomington, for appellants.

Linley E. Pearson, Atty. Gen., Dan S. LaRue, Deputy Atty. Gen., Indianapolis, for the State of Indiana.

James V. Donadio, Margaret C. A. Young, Frederick Wm. LaCava, Ice, Miller, Donadio & Ryan, Indianapolis, for appellees.

Len E. Bunger, Joseph D. O'Connor, III, Bunger, Harrell & Robertson, Bloomington, for appellee Silbert.

ROBERTSON, Judge.

Kenneth and Leah Carmichael (Carmichaels) appeal the ruling on a Motion for Preliminary Determination of Law filed by Michael Silbert (Dr. Silbert) and the Bloomington Hospital (hospital). The Carmichaels initiated the lawsuit by filing a complaint which alleged Dr. Silbert and the hospital committed medical malpractice in treating Mrs. Carmichael. This appeal concerns the constitutionality of the statute of limitations contained in the Indiana Medical Malpractice Act.

We affirm.

In February of 1977, Mrs. Carmichael was admitted to the Bloomington Hospital for the removal of warts and tumors under her arm. Dr. Silbert performed the operation. Due to some resulting complications, Dr. Silbert performed a second operation on March 25, 1977. The last time Dr. Silbert treated Mrs. Carmichael was on March 27, 1977. Mrs. Carmichael now claims that a nervous disorder she currently suffers is a result of Dr. Silbert's treatment. The Carmichaels met with an attorney to discuss the possibility of a malpractice action in March of 1977. The Carmichaels filed their complaint with the Department of Insurance on February 5, 1980. Dr. Silbert and the hospital filed a Motion for a Preliminary Determination of Law pursuant to Ind.Code 16-9.5-10-1, claiming that the Carmichaels' complaint was outside the statute of limitations for a malpractice claim, Ind.Code 16-9.5-3-1, and therefore, that the Carmichaels' claim was barred. The trial court agreed and this appeal followed.

The Carmichaels raise five issues on appeal: that the trial court erred by failing to make a preliminary determination of the constitutionality of IC 16-9.5-3-1, that IC 16-9.5-3-1 violates the equal protection clause and the due process clause of the Fourteenth Amendment of the United States Constitution; that IC 16-9.5-3-1 violates the privileges and immunities clause of the Indiana Constitution, and that the trial court erred by determining the Carmichaels' claim was barred.

It must be noted that the Carmichaels' brief does not contain a verbatim statement of the judgment as required by Ind. Rules of Procedure, Appellate Rule 8.3(A)(4), but due to the importance of the issues raised, we shall go forward with the appeal.

The first issue raised by the Carmichaels is whether the trial court erred by failing to make a preliminary determination of law regarding the constitutionality of IC 16-9.5-3-1. This issue was not included in the Carmichaels' motion to correct errors and therefore, it is waived. State v. Holder, (1973) 260 Ind. 336, 295 N.E.2d 799.

The second issue raised on appeal is whether the statute of limitations contained in the Medical Malpractice Act violates the equal protection clause of the Fourteenth Amendment because it treats victims of malpractice differently than the victims of other tortfeasors.

The essence of the Carmichaels' appeal is that IC 16-9.5-3-1 creates two classes of tort victims: those who are subject to medical malpractice and those who are subject to general tortious conduct. IC 16-9.5-3-1 provides:

No claim, whether in contract or tort may be brought against a health care provider based upon professional services or health care rendered or which should have been rendered unless filed within two (2) years from the date of the alleged act, omission or neglect except that a minor under the full age of six years shall have until his eighth birthday in which to file. This section applies to all persons regardless of minority or other legal disability.

The general statute of limitations, Ind.Code 34-1-2-2, provides that actions for personal injuries are to be brought within two years after the cause of action has accrued whereas the Medical Malpractice Act provides that the action must be brought within two years from the "alleged act, omission, or neglect."

In examining an equal protection question, it is necessary to determine the nature of the interest which is allegedly subjected to discriminatory treatment. It is the nature of the interest at stake which determines the applicable equal protection test. Strict judicial scrutiny of legislative classifications is only required when the classifications impinge impermissibly upon the exercise of fundamental rights or operate to the peculiar disadvantage of a suspect class of people. San Antonio Independent School District v. Rodriguez, (1973) 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. Where neither a fundamental right nor a suspect class is involved, the standard of review requires a "fair and substantial" relationship between the classification and the legislative purpose and the classification must not be arbitrary or unreasonable. Sidle v. Majors, (1976) 264 Ind. 206, 341 N.E.2d 763. The present case does not involve either a suspect class or a fundamental right.

Our supreme court recently found that the Medical Malpractice Act was passed by the General Assembly in an attempt to preserve medical treatment and control malpractice insurance costs, both of which were threatened by the increasing number of malpractice claims. Johnson v. St. Vincent Hospital, Inc., (1980) Ind., 404 N.E.2d 585. In that case, the supreme court ruled that IC 16-9.5-3-1 does not violate the equal protection clause by requiring that children from ages six to twenty-one be subject to the same two year limitation that adults must satisfy. Certainly, since it has been found that children are subject to the strict two year statute of limitations, because the statute of limitations bears a fair and substantial relationship to the provision of health care services, Johnson v. St. Vincent Hospital, Inc., supra, logic dictates that a similar relationship must exist for adults. The statute does not violate the equal protection clause because the legislative classifications are rationally related to maintaining sufficient medical treatment and are not arbitrary or unreasonable.

The Carmichaels allege that IC 16-9.5-3-1 violates the due process clause of the Fourteenth Amendment because the statute fails to provide a sufficient time to pursue legal action. It must be noted that the present case does not involve a question...