Vesolowski v. Repay, No. 45A03-8603-CV-86

• Docket Nº: No. 45A03-8603-CV-86
• Citation: 505 N.E.2d 130
• Case Date: March 23, 1987
• Court: Court of Appeals of Indiana

Page 130

505 N.E.2d 130 Donna J. VESOLOWSKI, Mother and Next Friend of Suzanne
Vesolowski, a Disabled Minor, and Donna and
Charles Vesolowski, Individually,
Appellants (Plaintiffs Below),
v.
Walter A. REPAY, M.D., Appellee (Defendant Below). No. 45A03-8603-CV-86. Court of Appeals of Indiana,
Third District. March 23, 1987.
Rehearing Denied May 7, 1987.

Page 131

Gary K. Matthews, Enslen, Enslen & Matthews, Rubino & Padula, Hammond, for appellants.

David C. Jensen, Charles W. Webster, Eichhorn, Eichhorn & Link, Hammond, for appellee.

STATON, Judge.

Suzanne Vesolowski, by her mother and next friend, Donna Vesolowski, and Donna and Charles Vesolowski, individually, appeal the dismissal of their medical malpractice action against Dr. Walter A. Repay. The trial court dismissed the Vesolowski's complaint on the ground that it was time-barred pursuant to Indiana's medical malpractice act statute of limitations, at Ind.Code 16-9.5-3-1. The Vesolowskis raise one issue on appeal:

Does Indiana's Journey's Account Statute, at IC 34-1-2-8, apply to medical malpractice actions?

We affirm.

Suzanne Vesolowski was born on January 3, 1975, with severe and permanent brain damage and motor and developmental disabilities. Repay was Donna Vesolowski's treating physician during Donna's pregnancy with Suzanne. On October 21, 1980, Donna filed suit in Illinois in Suzanne's behalf, alleging that Suzanne's brain damage resulted from various negligent acts or omissions of Repay, including the prescription of certain drugs, during Donna's pregnancy and labor. The Illinois court quashed serviced on Repay on December 23, 1981, thereby dismissing him from the action for lack of personal jurisdiction.

On May 11, 1985, in Illinois, the Vesolowskis filed an action for legal malpractice against the attorneys who had represented them against Repay. The defendant attorneys moved for dismissal on the ground that under Indiana's Journey's Account statute, IC 34-1-2-8, the Vesolowskis would still be able to file a medical malpractice action against Repay in Indiana. The Illinois court granted this dismissal on August 1, 1985.

On August 5, 1985, the Vesolowskis filed the instant medical malpractice action against Repay in Indiana, asserting that their claim was timely by virtue of the Journey's Account statute. Repay moved to dismiss on the ground the claim was time-barred, and the trial court dismissed the Vesolowski's complaint with prejudice. The Vesolowskis appeal this dismissal.

Under the statute of limitations set out in Indiana's medical malpractice act,

Page 132

[n]o 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 (6) years shall have until his eighth birthday in which to file. This section applies to all persons regardless of minority or other legal disability.

IC 16-9.5-3-1 (emphasis supplied). The trial court below dismissed the Vesolowskis' action against Repay because it was filed more than ten years after Suzanne was born.

Nonetheless, the Vesolowskis argue that Indiana's Journey's Account statute "saves" their claim against Repay. Repay argues that this statute does not apply. The Journey's Account statute provides as follows:

If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abate, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five (5) years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated.

IC 34-1-2-8 (emphasis supplied).

The question before us is whether the Journey's Account statute applies to save complaints that are filed outside the limitation period set out at IC 16-9.5-3-1. It is clear that, because it is phrased in terms of commencement and continuation of an action, it applies in conjunction with the many statutes of limitation that require merely that an action be commenced within the limitation period. See, e.g., IC 33-1-1.5-5 (product liability actions); IC 34-1-1-2 (wrongful death actions); IC 34-1-2-2 (general limitations). The medical malpractice act, on the other hand, requires that an action be filed within the limitation period. It is true, of course, that an action is commenced by the filing of a complaint. Ware v. Waterman (1969), 146 Ind.App. 237, 253...