Warrick Hospital, Inc. v. Wallace

• Decision Date: 17 May 1982
• Docket Number: No. 1-981A288,1-981A288
• Citation: 435 N.E.2d 263
• Parties: WARRICK HOSPITAL, INC., Syed Ali, Jorge Quiros, and Santi Vibul, Defendants-Appellants, v. Mary E. WALLACE, Individually and As Administratrix of the Estate of Clarence A. Wallace, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 263

435 N.E.2d 263

WARRICK HOSPITAL, INC., Syed Ali, Jorge Quiros, and Santi Vibul, Defendants-Appellants, v. Mary E. WALLACE, Individually and As Administratrix of the Estate of Clarence A. Wallace, Plaintiffs-Appellees.

No. 1-981A288.

Court of Appeals of Indiana, First District.

May 17, 1982.

James V. Donadio, Margaret C. A. Young, Ice, Miller, Donadio & Ryan, Indianapolis, for defendant-appellant Warrick Hospital, Inc.

Michael McCray, Clark, Statham, McCray, Clark & Thomas, Evansville, for defendant-appellant Santi Vibul, M.D.

Joe Tipton, Edna M. Koch, William T. Rosenbaum, Dillon, Hardamon & Cohen, Indianapolis, for defendant-appellant Jorge Quiros, M.D.

Thomas H. Bryan, Fine, Hatfield, Sparrenberger & Fine, Evansville, for defendant-appellant Syed Ali, M.D. Gerald G. Fuchs, David K. Robinson, Richard L. Schultheis, Evansville, for defendants-appellees.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Warrick Hospital, Inc. (Hospital), Syed Ali, Jorge Quiros, and Santi Vibul bring an interlocutory appeal challenging the denial of their motions for summary judgment in an action for wrongful death and loss of consortium based upon alleged medical malpractice.

We affirm in part and reverse in part.

STATEMENT OF THE FACTS

Clarence Wallace was admitted to the Hospital on April 11, 1978, and was treated there until he died on April 23, 1978, allegedly as the result of the medical malpractice of the Hospital and treating physicians. Mary E. Wallace, his widow, filed this action for wrongful death and loss of consortium on April 14, 1980, purportedly both individually and as administratrix of Clarence's estate. However, Mary did not apply for appointment as administratrix, and was not so appointed, until April 21, 1981.

Separate motions for summary judgment were filed by the Hospital and the physicians asserting (1) that Wallace did not comply with the provisions of the Wrongful Death Act, Ind.Code 34-1-1-2, and (2) that she failed to demonstrate the existence of a material issue of fact concerning the standard of care received by her husband. The trial court denied these motions for summary judgment and this appeal follows. ¹ Additional facts necessary to our decision are stated in our discussion of the issues.

ISSUES

We have renumbered and restated the issues presented for our review in the interest of clarity.

1. Does the Medical Malpractice Act create a cause of action for wrongful death separate and distinct from that created by the Wrongful Death Act?

2. Was Mary E. Wallace's failure to be appointed personal representative of Clarence Wallace's estate within two years of his death fatal to her wrongful death action?

3. Did Mary E. Wallace individually have a cause of action for wrongful death of Clarence based upon medical malpractice?

4. Did the trial court err in denying defendants' motions for summary judgment as to the loss of consortium claim because of lack of a genuine issue as to standard of care?

DISCUSSION AND DECISION

Issues One, Two, and Three

The underlying question with regard to these three issues is whether or not a plaintiff in a wrongful death action based upon alleged medical malpractice must, nevertheless, satisfy the conditions precedent imposed by the Indiana wrongful death statute, or if the Medical Malpractice Act gives rise to an action for death caused by medical malpractice independent of the Wrongful Death Act. Therefore, we will discuss these issues together.

The right to maintain an action for wrongful death did not exist at common law. General Motors Corp. v. Arnett, (1981) Ind.App., 418 N.E.2d 546, trans. denied; White, Admx. v. Allman, (1952) 122 Ind.App. 208, 103 N.E.2d 901. The right to bring such an action is purely statutory. Id. The wrongful death statute abrogated the common law, and its purpose was to create a cause of action whereby the decedent's dependent next of kin may be compensated for the loss sustained by reason of such death. Fisk v. United States, (7th Cir. 1981) 657 F.2d 167 (Indiana law). The statute created a new and independent cause of action for wrongful death. Id.

Indiana Code 34-1-1-2 provides: "When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years ...." (Emphasis added.) It is clear that the personal representative is the only one who can prosecute an action pursuant to the wrongful death statute. General Motors Corp. v. Arnett, supra; White, Admx. v. Allman, supra. Here, Clarence Wallace died on April 23, 1978, allegedly the result of defendants' malpractice. Mary E. Wallace, his widow, filed this action for wrongful death on April 14, 1980, purportedly both individually and as administratrix of Clarence's estate. However, Mary did not apply for appointment as administratrix, and was not so appointed, until April 21, 1981, two days short of three years after Clarence's death. This is analogous to the factual situation which existed in General Motors Corp. v. Arnett, supra. In Arnett, the decedent died on January 28, 1978. His wife filed a wrongful death action on January 28, 1979, but she was not appointed as the personal representative of his estate until May 27, 1980, four months after the statutory period had expired. Judge Sullivan, writing for this court, after reciting the well settled rule that only a personal representative can bring a statutory action for wrongful death, stated:

"It was a condition precedent that the action against G.M. be brought by someone in the capacity of the personal representative. Mrs. Arnett failed to meet that condition, because she did not have that capacity within two years of her husband's death. She lost her statutorily conferred right to bring a wrongful death action under I.C. 34-1-1-2 and thus cannot maintain her action against G.M."

418 N.E.2d at 548.

The Arnett case further rejected the claim that Mrs. Arnett's appointment as personal representative could relate back to the time of filing suit because of the Indiana view that the two year period within which a wrongful death action may be commenced is not a statute of limitation, but rather is a condition precedent which the plaintiff must meet. Bocek v. Inter-Insurance Exchange of Chicago Motor Club, (1977) Ind.App., 369 N.E.2d 1093. It is, therefore, crystal clear that unless this present action for wrongful death is outside the purview of IC 34-1-1-2, and not governed by General Motors Corp. v. Arnett, supra, defendants' motion for summary judgment should have been granted as to the wrongful death claim.

The dissent seeks to distinguish Arnett on the ground it does not involve medical malpractice, arguing that the Indiana Medical Malpractice Act (Ind.Code 16-9.5-1-1 et seq.) created a new cause of action for wrongful death independent of IC 34-1-1-2, where the alleged cause is medical malpractice and that the definition of the term "representative" in IC 16-9.5-1-1(f) granted the wife a right to bring such an action without having been duly appointed as personal representative within the two year period. Wallace argues that the provision in the Medical Malpractice Act tolling the running of the statute of limitations during the pendency of the proceedings before the medical review panel ² operates to extend the time for appointment of a personal representative. We do not agree with either of these positions.

The wrongful death statute was enacted to provide a remedy which did not exist at common law, that is, a cause of action for damages for death caused by the wrongful act of another. On the other hand, the Indiana Medical Malpractice Act was enacted to meet the problems of the rapidly escalating cost to physicians of malpractice insurance, the near unavailability of such coverage to physicians engaged in certain high risk specialties, and because "(h)ealth care providers had become fearful of the exposure to malpractice claims and at the same time were unable to obtain adequate malpractice insurance at reasonable prices." Johnson v. St. Vincent Hospital, Inc., (1980) Ind., 404 N.E.2d 585, 589-90. The legislature thus responded to the vital needs of the community to preserve the availability of health care services to the citizens of this state. Id. The obvious purpose of the Medical Malpractice Act is to provide some measure of protection to health care providers from malpractice claims, thus to preserve the availability of such professional health care services to the community. Sue Yee Lee v. Lafayette Home Hospital, Inc., (1980) Ind.App., 410 N.E.2d 1319, trans. denied.

We do not believe that the Medical Malpractice Act (IC 16-9.5-1-1 et seq.) created any separate cause of action for wrongful death or that the legislature intended to do so. The obvious purpose of the act was to protect health care providers from malpractice claims, Sue Yee Lee v. Lafayette Home Hospital, Inc., supra, not to create new and additional causes of action. Were it to create a separate cause of action it would increase the incidence of such claims rather than protect against them.

The language which the dissent finds to give birth to a cause of action independent of the wrongful death statute simply states that "a patient or his representative having a claim under this article for bodily injury or death on account of malpractice may file a complaint ...." IC 16-9.5-1-6. "Malpractice" is defined as meaning "any tort or breach of contract based on health care or professional services rendered, or which should have been rendered ...." IC 16-9.5-1-1(h). "Tort," as defined by the act, "means any legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another." IC 16-9.5-1-1(g). The source of the action is dependent upon traditional concepts of tort law and is derived either from the common law or statutory law already existing, but does not spring from the...