FOR PUBLICATION


ATTORNEYS FOR APPELLANTS CARL     ATTORNEYS FOR APPELLEE:
S. WROBLESKI, M.D., CHRISTOPHER ZEE-    
CHENG, M.D., AND GARY HAMBEL, M.D.:     PHILLIP W. OGDEN
     TIMOTHY A. OGDEN
CALVERT S. MILLER    Ogden & Ogden LLP
DIANA S. BAUER    Warsaw, Indiana
Miller, Carson, Boxberger & Murphy LLP
Fort Wayne, Indiana

ATTORNEY FOR APPELLANTS TIMOTHY
CHAMBERLAIN, M.D., AND TIMOTHY
CHAMBERLAIN, M.D., P.C.:

ROBERT F. PARKER
Burke, Costanza & Cuppy LLP
Merrillville, Indiana

ATTORNEY FOR APPELLANTS C. BRYAN
WAIT, M.D., AND WHITLEY MEMORIAL
HOSPITAL, INC.:

N. JEAN SCHENDEL
Hunt Suedhoff Kalamaros LLP
Fort Wayne, Indiana

ATTORNEY FOR APPELLANT ALFRED
F. ALLINA, D.O.:

MARY R. FELDHAKE
Locke Reynolds LLP
Indianapolis, Indiana

     IN THE COURT OF APPEALS OF INDIANA

Timothy R. Chamberlain, M.D.,          )
Timothy R. Chamberlain, M.D., P.C.,         )
C. Bryan Wait, M.D., Alfred F. Allina,      )
D.O., CARL S. WROBLESKI, M.D.,              )



                                       Christopher Zee-Cheng, M.D.,                )
Gary Hambel, M.D., Whitley Memorial         )
Hospital, Inc., a/k/a Whitley County        )
Memorial Hospital, Inc., and Lutheran       )
Hospital of Indiana a/k/a Lutheran          )
Hospital of Indiana, Inc.,                  )
                                            )
      Appellants-Defendants,                )
                                            )
vs.                                         )    No. 02A04-0302-CV-92
                                            )
RICHARD STEVEN WALPOLE,                     )
                                            )
Appellee-Plaintiff.                         )

    INTERLOCUTORY APPEAL FROM THE ALLEN SUPERIOR COURT
    The Honorable Daniel G. Heath, Judge
    Cause No. 02D01-0201-CT-14

    October 6, 2003

    OPINION - FOR PUBLICATION

BROOK, Chief Judge

SHARPNACK, J. concurring


     I concur with the lead opinion. However, I write separately to emphasize the relationship between the Indiana Medical Malpractice Act, Ind. Code § 34-18, (“MMPA”) and the Indiana Wrongful Death Act, Ind. Code § 34-23-1, (“WDA”). The tort of wrongful death predates the MMPA and was created by the WDA. See Gen. Motors Corp. v. Arnett, 418 N.E.2d 546, 548 (Ind. Ct. App. 1981) (noting that the “right to maintain an action for wrongful death is purely statutory and did not exist at common law”). The tort of wrongful death did not come about as a development in the common law as did the tort of medical malpractice. Compare id. (discussing the development of tort of wrongful death) with Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 387, 404 N.E.2d 585, 594 (1980) (discussing development of tort of medical malpractice), abrogated on other grounds by Collins v. Day, 644 N.E.2d 72 (Ind. 1994). The WDA provided the cause of action and specified who could bring it, against whom it could be brought, what damages could be recovered, and for whose benefit those damages were recoverable.     See I.C. § 34-23-1.
The tort of medical malpractice also predates the MMPA and came as a development of the common law. See Johnson, 273 Ind. at 387, 404 N.E.2d at 594 (noting that the relationship of health care provider and patient imposed a common law legal duty upon the health care provider). So, too, did derivative causes of action for loss of services, etc., for tortious injuries to spouses and children. See Dearborn Fabricating and Eng’g Corp., Inc. v. Wickham, 551 N.E.2d 1135, 1136 (Ind. 1990) (discussing a parent’s common law claim for injuries to a child and a person’s common law claim for injuries to a spouse). Children, at common law, have no claim for loss of services, etc., by reason of tortious injury to a parent. See Dearborn Fabricating, 551 N.E.2d at 1139 (holding that, at common law, a child “may not maintain an action for loss of parental consortium when the parent is negligently injured by a third person”).
    If this case were for the death or injury to Walpole’s father caused by the tort of a negligent truck driver, Walpole would have no cause of action because he is a nondependent child and not the personal representative of the decedent. See I.C. § 34-23-1. However, Walpole brought this action under the MMPA. Thus, the issue is whether the MMPA created causes of action with respect to medical malpractice that did not exist before its adoption, or merely required that already recognized causes of action for death or injury by reason of medical malpractice be processed through the MMPA for purposes of determining liability and limiting damages.
The dissent in this case essentially comes to the conclusion this court came to, over dissent, in Warrick Hosp., Inc. v. Wallace, 435 N.E.2d 263 (Ind. Ct. App. 1982), an opinion authored by Judge Ratliff. There, a widow brought an action based on the death of her husband resulting from alleged medical malpractice on the part of the defendant. Id. at 265. She also claimed a loss of consortium and services for the time from her husband’s admission to the defendant hospital until his death there some twelve days later. Id. The widow was not the personal representative of her husband’s estate at the time she brought the action. Id. She was not appointed personal representative until more than a year later, and nearly three years after her husband’s death. Id. Under the authority of Gen. Motors Corp. v. Arnett, 418 N.E.2d 546 (Ind. Ct. App. 1981), the widow would have had no cause of action for the death of her husband by reason of failing to meet the requirement of becoming the personal representative and bringing the action in that capacity within two years of his death as required by the WDA. Warrick, 435 N.E.2d at 266.
    Our court in Warrick put the issue as “[d]oes the Medical Malpractice Act create a cause of action for wrongful death separate and distinct from that created by the Wrongful Death Act?” Id. at 265. Our court held that:
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.) [ See footnote ] 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.

    There things stood until 1986, when our supreme court decided Cmty. Hosp. of Anderson and Madison County v. McKnight, 493 N.E.2d 775, 776 (Ind. 1986), reh’g denied. There, a widow and her son (it does not appear whether the son was a dependent or a minor) filed a proposed complaint under the MMPA. Id. at 776. Neither of them was acting as personal representative of the decedent. Id. The trial court denied the defendants’ motion for summary judgment. Id. Our court, on the authority of Warrick, reversed. See Cmty. Hosp. of Anderson and Madison County v. McKnight, 482 N.E.2d 280 (Ind. Ct. App. 1985), reh’g denied. Our supreme court granted transfer and vacated the court of appeals opinion. See McKnight, 493 N.E.2d at 777. In doing so, it wrote as follows:
    The resolution of this case turns on whether a person pursuing a claim, which involves the death of a patient, against a health care provider must first be appointed personal representative under the Wrongful Death Statute, I.C. § 34-1-1-2. We hold that the clear language of the Medical Malpractice Act I.C. § 16-9.5-1-1 et seq. renders such a requirement unnecessary. The pertinent parts of the act are set forth here:

I.C. § 16-9.5-1-1-(c)

(c) “Patient” means a natural person who receives or should have received health care from a licensed health care provider, under a contract, express or implied, and includes any and all persons having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of health care provider. Derivative claims include, but are not limited to, the claim of a parent or parents, guardian, trustee, child, relative attorney, or any other representative of such patient including claims for loss of services, loss of consortium, expenses and all such similar claims.

I.C. § 16-9.5-1-1(f)

(f) “Representative” means the spouse, parent, guardian, trustee, attorney, or other legal agent of the patient.

I.C. § 16-9.5-1-6

Subject to chapter 9 [of this article], a patient or his representative having a claim under this article for bodily injury or death on account of malpractice may file a complaint in any court of law having requisite jurisdiction and demand right of trial by jury. No dollar amount or figure shall be included in the demand in any malpractice complaint, but the prayer shall be for such damages as are reasonable in the premises. [I.C. § 16-9.5-1-6, as added by Acts 1975, P.L. 146, § 1.]

    The above provisions clearly designate who is qualified to prosecute a claim. Plaintiffs-Appellees here fall within the scope of qualified persons: Lucille McKnight as spouse, and Shane Keith McKnight as child.

    Defendants-Appellants argue that the above provisions should be construed in conjunction with the Wrongful Death Statute, I.C. § 34-1-1-2, and that such a construction supports a requirement that a plaintiff must first be appointed personal representative. Traditional rules of statutory construction do not support appellant’s position.

    When the meaning of a statute is plain and unambiguous, there is no room for judicial construction. See State v. Jacobs (1924), 194 Ind. 327, 142 N.E. 715. The Medical Malpractice Act is plain and unambiguous in designating who qualifies as a representative and in designating those who are eligible to pursue derivative claims. The Medical Malpractice Act is also plain and unambiguous in designating that such claims can be for bodily injury or death.

    To the extent that the holding in Warrick Hospital, Inc. v. Wallace (1982), Ind.App., 435 N.E.2d 263 conflicts with the holding here, it is expressly overruled.

McKnight, 493 N.E.2d at 776-777.

As I see it, McKnight is controlling here. One could argue that the widow and son would be the ones for whose benefit a wrongful death action could be brought, but it remains the case that neither of them, as individuals, could maintain a wrongful death action under the WDA. In McKnight, their right to proceed was based on the provisions of the MMPA. The plaintiff here is a child of the deceased patient. He falls within the provisions of the MMPA and may assert a claim for “loss of services, loss of consortium expenses, and all such similar claims.” Ind. Code § 34-18-2-22. Therefore, I concur.

Baker, Judge, dissenting


     I respectfully dissent from the majority’s determination that Walpole—a non-dependent adult child—may recover non-pecuniary damages in this medical malpractice case. I cannot agree with the majority’s view that the Wrongful Death and Medical Malpractice Acts “are mutually exclusive.” Slip op. at 7. The Wrongful Death Act applies in such instances to bar plaintiffs other than surviving spouses and dependent next of kin from seeking non-pecuniary damages for loss of consortium, love, and services. Moreover, inasmuch as the Medical Malpractice Act mentions “derivative claims,” it restricts them, bringing them within a regime that requires a medical review panel and award caps.

. . . .
That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent’s estate for the payment thereof. The remainder of the damages, if any, shall, subject to the provisions of this article, inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin.

Ind. Code § 34-23-1-1 (emphasis added). Thus, it is apparent to me that the plain language of the Wrongful Death Act limits recovery for non-pecuniary damages—the “remainder of the damages” mentioned in the statute—to surviving spouses and dependents when the person sustaining the injury died as a result of a tortfeasor’s actions. Necessary v. Inter-State Towing, 697 N.E.2d 73, 76 (Ind. Ct. App. 1998).
    With the Wrongful Death Act already in existence, the General Assembly passed the Medical Malpractice Act in 1975, an Act whose policy was “one of limitation of liability.” Garrison v. Foy, 486 N.E.2d 5, 9 (Ind. Ct. App. 1985). Indeed, under our current Medical Malpractice Act, a plaintiff must first file a proposed complaint with the Indiana Department of Insurance. Ind. Code § 34-18-7-3. Then, either party may request the formation of a medical review panel to review the evidence of malpractice. I.C. § 34-18-10-2. The panel’s decision, while not final, is persuasive. Finally, damages are capped, as any claimant may not recover more than $1.25 million. I.C. § 34-18-14-3. Quite simply, nothing in the text or legislative history of the Medical Malpractice Act indicates that an expansion of recovery for plaintiffs was envisioned by our General Assembly. It would be remarkably contrary to the intent of the Medical Malpractice Act if, as Walpole argues, that Act expanded the scope of liability.
    In my view, a more reasonable reading of Indiana Code section 34-18-2-22 is the one voiced in Warrick Hospital, Inc. v. Wallace, 435 N.E.2d 263 (Ind. Ct. App. 1982). In Wallace, the decedent’s wife sued the hospital for wrongful death and loss of consortium due to negligent medical treatment. However, the wife was not timely appointed as administratrix for her decedent’s estate. The Wallace court first noted that the Medical Malpractice Act did not create “any separate cause of action for wrongful death or that the legislature intended to do so.” Id. at 267. Thus, the Wallace court held that the wife’s failure to be appointed administratrix was fatal to her claim because “the right to prosecute a claim for wrongful death based upon medical malpractice is governed by the wrongful death statute with regard to parties eligible to institute such [a] proceeding.” Id. at 268. Moreover, the Wallace court stated that “the procedural requirements of the Medical Malpractice Act, the filing of the proposed complaint and submission to the medical review panel, must be met.” Id.
    A more reasonable reading of Indiana Code section 34-18-2-22 is that the Medical Malpractice Act “folds” the common law non-pecuniary derivative claims into the Medical Malpractice Act’s administrative requirements and award caps. Thus, if a common law non-pecuniary derivative claim is brought by a “parent or parents, guardian, trustee, child, relative, attorney, or any other representative” of an injured patient that still lives, the plaintiff must adhere to the Medical Malpractice Act’s procedures and cannot immediately bring a claim in court. I.C. § 34-18-2-22.
    Moreover, at common law, no cause of action could be brought for non-pecuniary damages after the injured spouse—or “patient”—died. Bemenderfer v. Williams, 745 N.E.2d 212, 219 (Ind. 2001) (holding that common law rule was that consortium damages were not recoverable after injured spouse died). Thus, but for the Wrongful Death Act, claims for non-pecuniary damages would be barred. The Wrongful Death Act operates to allow non-pecuniary claims involving a deceased patient, but only spouses and dependents, going through the Medical Malpractice Act, may bring them. In sum, a plaintiff suing for a non-pecuniary derivative claim because an injury was done to a living patient is required to comply with the Medical Malpractice Act’s procedures. Pursuant to the Wrongful Death Act, a non-pecuniary derivative claim for an injury suffered by a patient who died as a result of medical malpractice may be brought but only by a spouse or dependent.
    The concurrence argues that Community Hosp. of Anderson and Madison County v. McKinght, 493 N.E.2d 775 (Ind. 1986), is controlling. There, the wife and son of the decedent brought a medical malpractice action against the hospital. Neither wife nor son was appointed personal representative as required by the Wrongful Death Act. Thus, our supreme court noted that “the specific issue on appeal is whether the trial court erred in denying summary judgment where neither plaintiffs nor any other person or entity has been appointed as a personal representative authorized to prosecute a wrongful death claim.” Id. at 776. The McKnight court allowed the wife’s claim under the Medical Malpractice Act to continue, noting that the Medical Malpractice act was “plain and unambiguous in designating who qualifies as a representative and in designating those who are eligible to pursue derivative claims.” Id. at 777. Here, by way of analogy, the concurrence claims that since Walpole falls under the provisions of the Medical Malpractice Act, he may assert a claim for loss of services and consortium. Slip op. p. 8.