Ledbetter v. Hunter, 49A02-9412-CV-722

• Decision Date: 30 June 1995
• Docket Number: No. 49A02-9412-CV-722,49A02-9412-CV-722
• Citation: 652 N.E.2d 543
• Parties: Trenda LEDBETTER, Appellant-Plaintiff, v. Robert HUNTER, M.D., Lawrence Benken, M.D., and Ball Memorial Hospital, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 543

652 N.E.2d 543

Trenda LEDBETTER, Appellant-Plaintiff, v. Robert HUNTER, M.D., Lawrence Benken, M.D., and Ball Memorial Hospital, Appellees-Defendants.

No. 49A02-9412-CV-722.

Court of Appeals of Indiana.

June 30, 1995.

Vernon J. Petri, Janet C. Halline, Vernon J. Petri & Associates, Indianapolis, Kenneth J. Chesebro, Michael J. Hartley, Cambridge, MA, for appellant.

David J. Mallon, Jr., Kelly J. Pitcher, Ice Miller Donadio & Ryan, Indianapolis, for Robert Hunter, M.D. and Ball Memorial Hosp.

James W. Brauer, Stewart & Irwin, Indianapolis, for Lawrence Benken, M.D.

OPINION

KIRSCH, Judge.

Trenda Ledbetter appeals the adverse entry of summary judgment in her medical malpractice suit against Robert Hunter, M.D., Lawrence Benken, M.D., and Ball Memorial Hospital. Ledbetter raises the following consolidated and restated issues:

1. Whether the Indiana Medical Malpractice Act's provision which tolls its statute of limitations for a minor until the minor's sixth birthday violates due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 12 of the Indiana Constitution?

2. Whether the Act's provision which tolls its statute of limitations for a minor until the minor's sixth birthday violates equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 23 of the Indiana Constitution?

We reverse.

FACTS

Ledbetter was born at Ball Memorial Hospital (the Hospital) in Muncie, Indiana on November 25, 1974. Drs. Hunter and Benken were attending physicians at Ledbetter's birth. Ledbetter alleges that medical malpractice by the Hospital, Hunter, and Benken (collectively, the Defendants) caused her serious and permanent physical and mental injuries.

Ledbetter filed a medical malpractice claim against the Defendants on April 22, 1994, within two years of her eighteenth birthday. The Defendants moved to dismiss Ledbetter's complaint, contending that her claim was barred by the Indiana Medical Malpractice Act (the Act) ¹ statute of limitation, which provided that a minor's claim for medical malpractice must be filed by the minor's eighth birthday or within two years of the malpractice, whichever is later. The trial court granted the Defendants' motion.

DISCUSSION AND DECISION

STANDARD OF REVIEW

In considering constitutional challenges to a statute, our supreme court has directed that we accord the statute "every reasonable presumption supporting its validity and place the burden upon the party challenging it to show unconstitutionality. Before a statute will be declared repugnant to the Constitutions its fatal constitutional defects must be clearly apparent." Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374, 381, 404 N.E.2d 585, 591 (citations omitted). The presumption of validity controls until it is clearly overcome by a showing to the contrary. See Miller v. State (1987), Ind., 517 N.E.2d 64, 71. And we may not declare a statute to be unconstitutional merely because we "consider it born of unwise, undesirable, or ineffectual policies." Johnson, 273 Ind. at 381, 404 N.E.2d at 591.

ISSUE ONE: Does the Act's disability tolling provision for

minors violate due process guarantees?

The Act's statute of limitation bars suit on medical malpractice claims unless they are filed within two years of the occurrence of the alleged malpractice. That statute of limitation also has a disability tolling provision for minors which tolls the limitation period for a minor who is a victim of medical malpractice until the minor's sixth birthday. The statute of limitation and the disability tolling provision provide in relevant part:

"(a) This section applies to all persons regardless of minority or other legal disability....

"(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."

IC 27-12-7-1(a) and (b) (1993 Ed.).

Although Indiana adopted the Act after Ledbetter's birth and the acts or omissions which give rise to her malpractice claims, the Act provides for retroactive application:

"Notwithstanding IC 27-12-1-1, any claim, whether in contract or tort, by a minor or other person under legal disability against a health care provider stemming from professional services or health care provided based on an alleged act, omission, or neglect that occurred before July 1, 1975, shall be brought only within the longer of the following:

(1) Two (2) years after July 1, 1975.

(2) The period described in section 1 of this chapter."

IC 27-12-7-2 (1993 Ed.).

Indiana also has a general legal disability tolling provision which provides that "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." IC 34-1-2-5 (1993 Ed.). The applicable definition of legal disability "includes persons less than eighteen (18) years of age, mentally incompetent, or out of the United States." IC 1-1-4-5(21) (1993 Ed.). The Act's legal disability tolling provision, as the later and more specific provision, controls claims brought under the Act. Johnson, 273 Ind. at 403, 404 N.E.2d at 603.

Ledbetter asserts that the Act's limitation period and disability tolling provision which required her to file her claim by her eighth birthday impinged upon her fundamental right of meaningful access to the courts, violating the due process provisions of the state and federal constitutions. She maintains that this violation of her due process rights renders these provisions of the Act unconstitutional unless there is a compelling governmental interest served by requiring minors to file malpractice claims no later than their eighth birthday or two years after the cause arose, whichever is later. Because of the alleged unconstitutionality of the Act's disability tolling provision, she contends that Indiana's general disability tolling provision should be applied to medical malpractice claims, thus tolling the statute of limitations during a claimant's minority.

The due process clause of the Fourteenth Amendment to the United States Constitution in relevant part provides that: "No state shall ... deprive any person of life, liberty, or property, without due process of law...." Article 1, § 12 of the Indiana Constitution provides that: "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay."

The Texas Supreme Court, in Sax v. Votteler (1983), Tex., 648 S.W.2d 661, held that a similar malpractice act disability tolling provision for minors denied due process and was, therefore, unconstitutional. The disability tolling provision for minors in the Texas malpractice act, like that in the Indiana act, tolled the statute of limitation for a minor until the minor's sixth birthday. The court considered whether the Texas act's short tolling period unreasonably abridged the minor's remedy for medical malpractice, and held that:

"[T]he length of time that insureds are exposed to potential liability has a bearing on the rates that insurers must charge. We cannot agree, however, that the means used by the legislature to achieve this purpose ... are reasonable when they are weighed against the effective abrogation of a child's right to redress."

Id. at 667. One factor contributing to the court's holding is a minor's inability under Texas law to bring suit on his or her own behalf. Id. at 666-67. Indiana, on the other hand, allows a minor to sue in his or her own name, or by a guardian or next friend. Ind.Trial Rule 17(C).

The Seventh Circuit has rejected a similar due process attack on the Indiana Act's disability tolling provision:

"Plaintiffs contend that due process requires an indefinite length of time in which to access the courts for the purpose of adjudicating malpractice claims as allowed by the general tolling statute prior to the malpractice statute of limitations. However, a tolling statute, like any other procedural rule, cannot vest plaintiffs with a substantive right in the continued protection of that rule.

....

"Due process in the modification of procedural rules is provided by the legislative process itself, subject to a minimal requirement of rationality. '[I]t remains true that the state's interest in fashioning its own rules of tort law is paramount to any discernible federal interest except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.' Martinez v. California, 444 U.S. 277, 282, 100 S.Ct. 553, 557, 62 L.Ed.2d 481 (1980).

"[T]he malpractice statute of limitations is clearly rationally related to its goal of relieving the malpractice insurance crisis. It is the province of the Indiana legislature to allocate the increased cost of health care between the health care providers, insurance carriers and patients and to determine under what circumstances it is appropriate to delay the running of the statute of limitations in spite of the increased risk of lost evidence and lapse of memory. The state need not provide a tolling provision for minority ... in order to comply with the due process guarantees of a meaningful opportunity to be heard."

Douglas v. Hugh A. Stallings, M.D., Inc. (7th Cir.1989), 870 F.2d 1242, 1249-50.

The State of Missouri's medical malpractice act also has a two-year statute of limitation, with a disability tolling provision for minors that tolls the two-year statute of limitation until the minor's tenth birthday....