Ellenwine v. Fairley

• Decision Date: 07 December 2004
• Docket Number: No. 71A03-0403-CV-124.,71A03-0403-CV-124.
• Citation: 818 N.E.2d 961
• Parties: Michelle ELLENWINE and Alvie Ellenwine, as Parents and Natural Guardians of Dustin Ellenwine, Deceased, Appellants-Plaintiffs, v. Dawn FAIRLEY, D.O., Appellee-Defendant.
• Court: Indiana Appellate Court

818 N.E.2d 961

Michelle ELLENWINE and Alvie Ellenwine, as Parents and Natural Guardians of Dustin Ellenwine, Deceased, Appellants-Plaintiffs, v. Dawn FAIRLEY, D.O., Appellee-Defendant.

No. 71A03-0403-CV-124.

Court of Appeals of Indiana.

December 7, 2004.

Jerry Garau, Findling Garau Germano & Pennington, P.C., Indianapolis, IN, Attorney for Appellants.

Edward L. Murphy, Jr., Heidi K. Koeneman, Miller Murphy & Miller, LLP, Fort Wayne, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Michelle and Alvie Ellenwine ("the Parents"), as parents and natural guardians of Dustin Ellenwine, appeal from the trial court's grant of summary judgment in favor of Dr. Dawn Fairley on their claim arising out of her alleged malpractice. They present several issues for our review, which we restate as whether the Medical Malpractice Act precluded the filing of a claim to recover damages arising out of the alleged malpractice suffered by Dustin which resulted in his death.¹

We reverse and remand.

On December 18, 1996, Michelle Ellenwine gave birth to twins Dustin and Bronson. Dr. Fairley was at all relevant times the treating physician. Complications arose during the delivery, and Dustin allegedly suffered severe neurological deficiencies as a result. Within days of his birth, one of Dustin's physicians informed the Parents that their son had suffered brain damage and was experiencing seizures as a result of oxygen deprivation during delivery. Dustin died on February 2, 1999.

Our review of this case starts with a most basic question: what is the exact nature of the claim before us. The claim arises out of the alleged malpractice of Dr. Fairley which resulted in the death of Dustin. The Parents did not attempt to file a malpractice claim until after Dustin's death. As a result, Dr. Fairley successfully challenged their claims through two motions for summary judgment. Both motions alleged that the claims were filed outside of the two-year statute of limitations which applies to medical malpractice claims.

Upon review of a ruling upon a motion for summary judgment, we apply the same standard as the trial court. Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind.2003). Summary judgment is appropriate where the evidence shows that there are no genuine issues of material fact and that a party is entitled to judgment as a matter of law. Id. All facts and reasonable inferences are viewed in the favor of the non-moving party. Id. Our review is limited to those materials designated to the trial court. Id. When the moving party asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 695 (Ind.2000).

Indiana Code § 34-18-7-1 (Burns Code Ed. Repl.1998) states:

"(b) A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor's eighth birthday to file."

Upon appeal, the Parents admit that while the two-year statute of limitations had passed before they filed their action, the exception which exists for minor children should be applied. Dr. Fairley counters by asserting that the exception for minor children only applies to actions filed on behalf of the child and only if the child is alive. She asserts that upon the death of the minor, the exception is extinguished.

This argument necessarily highlights an important distinction between the types of claims which may be brought as a result of alleged malpractice. The first is a negligence claim brought by or on behalf of the injured party. The second, which is at issue in this case, is a wrongful death claim² brought by the survivors of the party physically injured by the alleged malpractice. What is clear and obvious is that a negligence claim and a wrongful death claim are two wholly separate causes of actions which must be brought by different parties and which, for the most part, provide damages for separate types of injuries.

A person injured by the negligence of another is entitled to reasonable compensation, which is such sum as would reasonably compensate the victim both for bodily injuries and pain and suffering. Evans v. Buffington Harbor River Boats, LLC, 799 N.E.2d 1103, 1111 (Ind.Ct.App.2003),trans. denied. To that sum is added past, present, and future expenses reasonably necessary for the plaintiff's treatment and all financial losses suffered, or to be suffered, as a result of the inability to perform one's usual occupation. Id. A claim jointly brought by a child's parents under the CWDS allows for the recovery of damages that inure to the benefit of the parents. Ind.Code § 34-23-2-1 (Burns Code Ed. Repl.1998). The damages which may be recovered include:

"(1) for the loss of the child's services;

(2) for the loss of the child's love and companionship; and

(3) to pay the expenses of:

(A) health care and hospitalization necessitated by the wrongful act or omission that caused the child's death;

(B) the child's funeral and burial;

(C) the reasonable expense of psychiatric and psychological counseling incurred by a surviving parent or minor sibling of the child that is required because of the death of the child;

(D) uninsured debts of the child, including debts for which a parent is obligated on behalf of the child; and

(E) the administration of the child's estate, including reasonable attorney's fees." Id.

The only measure of damages which is consistent between those recoverable in a negligence action and those recoverable in a wrongful death action are those for the hospital and health care expenses which arise as a result of the wrongful act which caused the death. As noted by our Supreme Court, the "purpose of the Wrongful Death Statute is not to compensate for the injury to the decedent but rather to create a cause of action to provide a means by which the decedent's survivors may be compensated for the loss sustained by reason of the death." Reeder, 788 N.E.2d at 1242.

A second important distinction between the two types of claims is when they come into being. A negligence claim arises as soon as the negligent act occurs. A claim for wrongful death, although the negligent act may have ultimately triggered the death, does not exist until the exact moment that the individual dies. See Holmes v. ACandS, Inc., 709 N.E.2d 36, 39 (Ind.Ct.App.1999) (holding that the wrongful death cause of action accrues when the injured person dies), affirmed on reh'g 711 N.E.2d 1289, trans. denied. In effect, the fact which gives rise to the wrongful death claim-the death-exhausts the negligence claim. This conclusion is demonstrated by the Survivorship Statute, Indiana Code § 34-9-3-4 (Burns Code Ed. Repl.1998).

According to the clear language of the Survivorship Statute, it applies only when a person receives personal injuries caused by the wrongful act or omission of another and subsequently dies from causes other than those personal injuries. Id. In other words, if the decedent dies from injuries sustained by the negligent act, the case becomes one for wrongful death and may not be maintained under the Survivorship Statute. See Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct.App.1999). Only if the decedent dies from unrelated causes will the action fall under the Survivorship Statute.³ Id. Additionally, a tortfeasor may be held liable under a wrongful death claim or the Survivorship Statute, but not both.⁴ Id. It has been consistently held that the statute of limitations found in the Medical Malpractice Act applies to claims under the CWDS and the Wrongful Death Statute. See Randolph v. Methodist Hosps., Inc., 793 N.E.2d 231, 237 (Ind.Ct.App.2003),trans. denied; Hopster v. Burgeson, 750 N.E.2d 841, 853 (Ind.Ct.App.2001). Indeed, as will be demonstrated, the Medical Malpractice Act clearly indicates that claims brought under the wrongful death statutes are subject to the requirements of the Medical Malpractice Act when the cause of death is medical malpractice.

In Goleski v. Fritz, 768 N.E.2d 889, 891 (Ind.2002), our Supreme Court discussed the types of claims which fall within the purview of the Medical Malpractice Act. Specifically, it stated:

"The Medical Malpractice Act allows a `patient or the representative of a patient' to bring a malpractice claim `for bodily injury or death.' Ind.Code § 34-18-8-1 (1998). A `patient' is `an individual who receives or should have received health care ... and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice.' I.C. § 34-18-2-22. `Derivative' claims `include the claim of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient,' and include `claims for loss of services, loss of consortium, expenses, and other similar claims.' Id. Accordingly, 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 requirement to bring these claims as a `patient' and was entitled to assert `derivative' claims for these items under the Medical Malpractice Act." 768 N.E.2d at 891 (footnote omitted).

Given the definition of "patient" and "derivative" and our Supreme Court's holding in Goleski, there is little doubt that wrongful death claims which arise as a result of medical malpractice are subject to...