Chaffin v. Nicosia, 3--173A5

• Decision Date: 27 June 1973
• Docket Number: No. 3--173A5,3--173A5
• Citation: 297 N.E.2d 904
• Parties: Ronald E. CHAFFIN, Plaintiff-Appellant, v. John B. NICOSIA, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 904

297 N.E.2d 904

Ronald E. CHAFFIN, Plaintiff-Appellant, v. John B. NICOSIA, Defendant-Appellee.

No. 3--173A5.

Court of Appeals of Indiana, Third District.

June 27, 1973.

Rehearing Denied Sept. 6, 1973.

Martin H. Kinney and Nick Katich, of Addison, Stiles, Greenwald & Kinney, Gary, for plaintiff-appellant.

Richard J. Lesniak, of Given, Dawson & Cappas, E. Chicago, for defendant-appellee.

Richard L. Fairchild, of Stewart, Irwin, Gillion, Fuller & Meyer, Indianapolis, for amicus curiae.

HOFFMAN, Chief Judge.

This is an appeal by plaintiff-appellant Ronald E. Chaffin (Chaffin) from a judgment sustaining defendant-appellee's motion for judgment on the pleadings and overruling plaintiff-appellant's subseqent motion to correct errors.

The complaint filed by plaintiff-appellant alleged medical malpractice on the part of defendant-appellee John B. Nicosia (Dr. Nicosia), and further alleged, inter alia, that the malpractice arose from Dr. Nicosia's treatment of Chaffin's mother during pregnancy and also his treatment of she and Chaffin during the breach birth of Chaffin on August 28, 1942.

Chaffin filed this action on August 27, 1965. The filing was within two years after he reached majority and was pursuant to IC 1971, 34--1--2--5, Ind.Ann.Stat. § 2--605 (Burns Code Edition), which reads as follows:

'Any person, being under legal disabilities when the cause of action accrues, may bring his action within two (2) years after the disability is removed.'

To the aforementioned complaint, the defendant demurred. Such demurrer was later withdrawn and the defendant then moved for judgment on the pleadings pursuant to TR. 12(C), Ind.Rules of Procedure, IC 1971, 34--5--1--1. The motion was based upon the fact that the complaint itself disclosed that the incident in question took place on August 28, 1942, 23 years before this action was commenced. Further, the motion stated that at the time the cause of action arose there was in full force and effect a two-year statute of limitation on medical malpractice actions. IC 1971, 34--4--19--1, Ind.Ann.Stat. § 2--627 (Burns Code Edition), reads as follows:

'No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two (2) years from the date of the act, omission or neglect complained of.'

The defendant thereafter asserted that the cause was not within any exception which would prevent the above statute of limitations from running. This motion for judgment on the pleadings was sustained by the trial court. Subsequently, a motion by plaintiff to correct errors was overruled and this appeal ensued.

The first issue presented for our consideration is whether the two-year statute of limitations for medical malpractice actions, § 2--627, supra, is an exception to, or in irreconcilable conflict with, a statute allowing minors to sue within two years after reaching majority. IC 1971, 34--1--2--5, Ind.Ann.Stat. § 2--605 (Burns Code Edition).

The legal disability statute is not an exception to the subsequently enacted medical malpractice statute.

The medical malpractice statute is firm in its language. Section 2--627, supra, states, in pertinent part, that '(n)o action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, * * * against physicians, * * * surgeons, * * * or others, unless said action is filed within two (2) years from the date of the act, omission or neglect complained of.' (Emphasis supplied.) Clearly, this language is unambiguous and is not susceptible to the exception urged.

As to the question of whether the legal disability statute is, therefore, in conflict with the medical malpractice statute there can be no doubt. The former allows a party to bring an action no later than two years from the time the disability is removed while the latter allows an action to be brought no later than two years after accrual of the cause. The latter leaves no room for such an exception.

Burd v. McCullough (7 Cir. 1954), 217 F.2d 159, was a malpractice action brought by a minor more than two years after the accrual of the cause. The court in Burd applied Indiana law and concluded that the medical malpractice statute being enacted in 1941, repealed the 1881 legal disability statute to the extent of malpractice actions.

In reaching this conclusion, the court applied two rules well-established in Indiana courts. The first, as expressed in Hamilton County Council, et al. v. State ex rel. Groff (1949), 227 Ind. 608, 613, 87 N.E.2d 810, states that the last expression of the Legislature is controlling. Thus, when two statutes are in conflict the later statute in time will control. See also: Brumfield, Tr. v. State ex rel. Wallace (1934), 206 Ind. 647, 190 N.E. 863.

The second rule is set forth in Detrich v. Howard (7 Cir. 1946), 155 F.2d 307, at 309,

'Where one statute deals clearly and specifically with a part of a general subject in a definite manner and is repugnant to the more general provisions of the same or another law covering the same general subject, the former specific act prevails.'

Therefore, a statute limited to a specific situation will repeal a general statute to the extent that they are inconsistent.

To harmonize the two statutes and to give effect to each would allow the general legal disability statute to modify the more specific medical malpractice statute and allow the earlier enacted legal disability statute to modify the later enacted medical malpractice statute. This is clearly not permissible in view of prior Indiana case law.

As to the question of legislative intent, it must be presumed that the Legislature had the prior legal disability statute before it when it enacted the medical malpractice statute. State, ex rel. v. Board, etc. (1911), 175 Ind. 400, 94 N.E. 716. Had the Legislature intended the legal disability statute to be an exception to the medical malpractice statute, it would have made express provisions to that effect in the latter. Where the Legislature has intended one statute to be an exception to another, it has so provided. Such an exception is exemplified in Burd, at 162 of 217 F.2d, which states that:

'In 1919 the legislature enacted a statute letting the owner or occupant of land sold for taxes redeem that land within two years. Sec. 64--2301, Burns' Repl. 1951. At the same time the legislature specifically provided that infants, etc., could redeem within two years after expiration of their disability. Sec. 64--2302, Burns' Repl.1951. If the 1919 legislature had thought that the 1881 statute was an exception to its 1919 limitation on redemption, it would have been unnecessary to specifically exclude minors, etc., in that act.'

Guy v. Schuldt, et al. (1956), 236 Ind. 101, 138 N.E.2d 891, held that the earlier disability statute is not an exception to the later malpractice statute. Our Supreme Court, at 105 of 236 Ind., at 893 of 138 N.E.2d, stated:

'The question is, therefore, are there any exceptions to the particular statute of limitations for malpractice actions set forth above? We do not believe the Acts of 1881 passed nearly fifty years prior to the 1941 statute of limitations on malpractice can be considered an exception thereto. The latter act is a special act, and is absolute in its language. It is clear and unambiguous. It seems to us the Legislature would have stated it was subject to the exceptions listed in the Acts of 1881 if it had so intended. Sherfey v. City of Brazil (1938), 213 Ind. 493, 13 N.E.2d 568; Allen v. Dovell (1948), 193 Md. 359, 66 A.2d 795.'

Further, in the recent case of Meier v. Combs (1970), Ind.App., 263 N.E.2d 194, at 196 (transfer denied), the court stated that the disability of unsound mind 'would serve to toll the running of the 1881 statute of limitations but not the * 1941 statute.' (Footnotes omitted.) The 1941 statute is Ind.Ann.Stat. § 6--627 (Burns 1968). Ind.Ann.Stat. § 2--605 (Burns 1968), which tolls the 1881 statute, does not apply to the 1941 statute to which there are no statutory exceptions, although an exception for fraudulent concealment has been judicially declared. ¹

In accordance with the aforementioned authorities, the 1941 medical malpractice statute repeals the 1881 legal disability statute to the extent of malpractice actions.

The next issue is whether a statute allowing doctors the special privilege of a shorter time within which they may be sued, and not extending this privilege to anyone else is a violation of the Equal Protection Clause of the Constitution of the United States (U.S.C.A.Const. Amend. XIV), and Art. 1, § 23 of the Constitution of Indiana.

Appellant contends that if the malpractice statute is viewed as repealing the legal disability statute, then the malpractice statute is unconstitutional. He argues that special privileges are given to physicians and not to other persons.

It is true that the medical malpractice statute has the effect of setting those performing medical services apart as a class, and that such class is protected by a statute of limitations where other persons are not.

However, this does not necessarily mean that the malpractice statute is in violation of the Equal Protection Clause of the Federal Constitution and Art. 1. § 23 of the Constitution of Indiana. 'These constitutional provisions do not forbid a classification of persons for legislative purposes.' Cincinnati, etc., R. Co. v. McCullom (1915), 183 Ind. 556, at 561, 109 N.E. 206, at 208 (Aff'd. 245 U.S. 632, 38 S.Ct. 64, 62 L.Ed. 521). The court in Cincinnati, at 561 of 183 Ind., at 208 of 109 N.E., further stated that,

'Laws which impose burdens and liabilities, or which grant privileges...