Comm'r Of The Ind. Dep't Of Ins. v. Cmty. Hosp.

• Decision Date: 01 September 2010
• Docket Number: No. 45S03-1001-CV-33.,45S03-1001-CV-33.
• Citation: 932 N.E.2d 1239
• Parties: Suzanne EADS and James Atterholt, Commissioner of the Indiana Department of Insurance, Appellants (Respondents Below), v. COMMUNITY HOSPITAL, Appellee (Petitioner Below).
• Court: Indiana Supreme Court

932 N.E.2d 1239

Suzanne EADS and James Atterholt, Commissioner of the Indiana Department of Insurance, Appellants (Respondents Below),

v.COMMUNITY HOSPITAL, Appellee (Petitioner Below).

No. 45S03-1001-CV-33.

Supreme Court of Indiana.

Sept. 1, 2010.

COPYRIGHT MATERIAL OMITTED.

R. Cordell Funk, Schererville, IN, Attorney for Appellants.

Sharon L. Stanzione, Merrillville, IN, Attorney for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-0807-CV-350

BOEHM, Justice.

A patient was injured leaving the hospital on crutches. She sued, asserting a general premises liability claim, and claiming the hospital was negligent in refusing her a wheelchair. The medical malpractice limitations period expired before her general negligence complaint was dismissed for failure to comply with the requirement of the Medical Malpractice Act that a medical malpractice complaint be filed with the Department of Insurance before it is presented to a court. We hold that under these circumstances a medical malpractice complaint alleging the same facts as the dismissed complaint may be deemed a continuation of the first complaint for purposes of the Journey's Account Statute.

Factual and Procedural Background

On August 15, 2004, Suzanne Eads's leg was placed in a cast at Community Hospital. Eads's request for a wheelchair was denied and she left the hospital on crutches, but fell attempting to exit the lobby. On August 8, 2006, Eads filed a premises liability negligence complaint in Lake Superior Court. The Hospital moved to dismiss for lack of jurisdiction, arguing that the complaint alleged medical malpractice, and no proposed complaint had been filed with the Indiana Department of Insurance (IDOI), as required by the Medical Malpractice Act (MMA). On April 12, 2007, the Superior Court dismissed the case without prejudice for failure to comply with this procedural requirement of the MMA. No appeal was taken.

On March 26, 2007, approximately two weeks before the Superior Court dismissed the complaint, Eads submitted a proposed complaint to IDOI based on the same circumstances alleged in the Superior Court complaint. ¹ Eads explained to IDOI that the purpose of filing the complaint with IDOI was to preserve her right to bring her claim should the Superior Court case be dismissed. The Hospital responded by filing a motion in Lake Circuit Court for a preliminary determination of law under Indiana Code § 34-18-11-1 (1998), contending that the IDOI complaint was barred by the MMA's two-year statute of limitations. I.C. § 34-18-7-1(b). The Circuit Court granted the Hospital's motion for summary judgment, and Eads appealed, contending that the Journey's Account Statute (JAS), I.C. § 34-11-8-1(b), saved the IDOI complaint as a continuation of the Superior Court action. Eads v. Cmty. Hosp., 909 N.E.2d 1009, 1012 (Ind.Ct.App.2009). The Court of Appeals affirmed, with Judge Kirsch dissenting. The majority concluded that a medical malpractice claim is different from a general negligence claim so the IDOI complaint was not a continuation of the original action and was therefore barred by the MMA's two-year statute of limitations. Id. at 1014. In a footnote, the majority observed that even if the JAS applied, the complaint was filed with the IDOI too late to preserve a medical malpractice claim. Id. at n. 7. We granted transfer.

Standard of Review

We review an appeal from summary judgment de novo. Bules v. Marshall County, 920 N.E.2d 247, 250 (Ind.2010). Summary judgment is proper when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Indiana Trial Rule 56(C). All facts established by the designated evidence and inferences therefrom are to be construed in favor of the nonmoving party. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). A defendant who asserts an affirmative statute of limitations defense must establish that the action was commenced after the limitation period has run. Overton v. Grillo, 896 N.E.2d 499, 502 (Ind.2008). The burden then shifts to the plaintiff to show a material fact that precludes summary judgment. Id.

The Journey's Account Statute and Medical Malpractice Claims

The JAS provides in relevant part:

(a) This section applies if a plaintiff commences an action and:

(1) the plaintiff fails in the action from any cause except negligence in the prosecution of the action;

...

(b) If subsection (a) applies, a new action may be brought not later than the later of:

(1) three (3) years after the date of the determination under subsection (a); or

(2) the last date an action could have been commenced under the statute of limitations governing the original action;

and be considered a continuation of the original action commenced by the plaintiff.

I.C. § 34-11-8-1. Thus, under some circumstances the JAS permits a filing after the applicable limitation period to be deemed a “continuation” of an earlier claim. Specifically, the JAS can revive a claim subject to the MMA. Vesolowski v. Repay, 520 N.E.2d 433, 435 (Ind.1988). The JAS also applies in the cases of several other statutory schemes. Willman v. Railing, 571 N.E.2d 590, 592 (Ind.Ct.App.1991) (Will Contest Statute); City of Evansville v. Moore, 563 N.E.2d 113, 115 (Ind.1990) (Wrongful Death Act); Ullom v. Midland Industries, Inc., 663 F.Supp. 491, 492 (S.D.Ind.1987) (Products Liability Act).

To invoke the benefits of the JAS, a claimant must have commenced a timely action that failed for reasons other than “negligence in the prosecution.” I.C. § 34-11-8-1(a). The timeliness of Eads's first complaint and its failure are not in dispute. ² The Hospital, however, contends that Eads gets no relief from the JAS for two reasons: The Superior Court complaint failed due to negligence in prosecuting the claim, and the IDOI complaint arises from a different claim that cannot be a “continuation” of the Superior Court claim.

The Hospital cites as instances of negligence failure to appeal the Superior Court dismissal, and filing a general negligence claim. At oral argument before this court the Hospital suggested that because Eads did not appeal the dismissal of her complaint, she did not make an “unavailing effort to succeed,” and therefore “voluntarily dismissed” her case. The Hospital is correct that a voluntary dismissal of the earlier claim can preclude invocation of the JAS. Al-Challah v. Barger Packaging, 820 N.E.2d 670, 673 (Ind.Ct.App.2005); Ferdinand Furniture Co., Inc. v. R.M. Anderson, 399 N.E.2d 799, 803 (Ind.Ct.App.1980); Pennsylvania Co. v. Good, 56 Ind.App. 562, 567-68, 103 N.E. 672, 674 (1913). But we do not agree that failure to appeal the dismissal of the earlier action precludes invocation of the JAS. Indeed, such a contention amounts to an implicit claim that the Superior Court erred in dismissing the claim before it. Moreover, it is not negligent to fail to generate more delay and expense if the claimant reasonably concludes that the dismissal will likely be upheld.

Eads's original action also did not fail for “negligence in the prosecution” by reason of her filing initially as a premises liability claim. The Hospital is correct that “negligence in the prosecution” is broader than its origin in “failure to ... prosecute as required by Indiana Trial Rule 41(E),” and the term has been said to apply to “any failure of the action due to negligence in the prosecution.” Zambrana v. Anderson, 549 N.E.2d 1078, 1081 (Ind.Ct.App.1990). Examples of negligence in the prosecution beyond ordinary failure to prosecute are failure to pay the filing fee, Parks v. Madison County, 783 N.E.2d 711, 721 (Ind.Ct.App.2002), and naming the wrong party. Zambrana, 549 N.E.2d at 1081.

There may be instances where the incorrect assertion of a general negligence claim is “negligence in the prosecution.” But we do not agree that dismissal of a general negligence claim for failure to comply with the MMA necessarily precludes application of the JAS. As Judge Kirsch noted in dissent, “[f]or more than thirty years, claimants and courts have wrestled with the question of what activities fall within the MMA.” Eads, 909 N.E.2d at 1016. Examples of grey areas on the fringe of the MMA are found in Winona Memorial Foundation of Indianapolis v. Lomax, 465 N.E.2d 731, 733 (Ind.Ct.App.1984) (injuries resulting from a patient's fall inside a hospital did not implicate the MMA), Pluard v. Patients Compensation Fund, 705 N.E.2d 1035, 1036 (Ind.Ct.App.1999), trans. denied (injuries resulting from surgical lamp which fell after a nurse's adjustment did not implicate the MMA), and OB-GYN Assocs. of N. Ind. v. Ransbottom, 885 N.E.2d 734, 735 (Ind.Ct.App.2008), trans. denied (burns resulting from cosmetic laser hair removal by a registered nurse did not implicate the MMA). Given this lack of clarity as to the precise boundaries of the MMA's application, it is not necessarily negligent to have failed to predict where the courts would come down on the application of the statute to a set of facts alleging negligence at the periphery of medical malpractice.

Though the JAS does not explicitly refer to good faith in the filing of the original action, Indiana courts have implied a good faith requirement. E.g., Basham v. Penick, 849 N.E.2d 706, 709 (Ind.Ct.App.2006). For the same reason we do not find negligence in the prosecution, we are not persuaded that Eads exhibited bad faith when she filed her original claim sounding in general negligence.

The Hospital cites Mayfield v. Continental Rehabilitation Hospital of Terre Haute, 690 N.E.2d 738 (Ind.Ct.App.1998), where the court found negligence in the prosecution precluded a proposed IDOI complaint for medical malpractice. The claim in that case related to a hospital's treatment of a patient in failing to restrain him while disoriented. In response to the motion to dismiss their original action, the plaintiffs offered to amend the complaint to...