The Court of Appeals of Indiana (“Appellate Court”) filed its opinion on June 29, 2016 in a case where it held that the minor children of a mother who died of lung cancer allegedly due to the medical negligence of the defendants were not time-barred because of the two-year statute of limitations period governing the underlying claim from which their claim derives, stating that the Indiana Legislature has decided to treat children under the age of eight in a special way for the purpose of the medical malpractice limitations period and has not limited that special treatment to direct claimants: the tolling provision must apply whether the children are derivative or direct claimants.
The Alleged Underlying Facts
The minor children’s mother had a CT scan at the defendant hospital on July 6, 2011. The CT scan was later interpreted by the defendant doctor, who failed to identify a lung tumor that was allegedly present and should have been diagnosed on the CT scan. The mother learned on August 30, 2012 that she had lung cancer, and she died on July 17, 2014.
On August 27, 2014, the surviving children and the mother’s estate filed a complaint with the Indiana Department of Insurance, alleging that the defendants had acted negligently and that their medical negligence resulted in the mother’s death. In July 2011, at the time of the alleged medical negligence, the children were under the age of six, and at the time the complaint was filed, they were under the age of eight.
On December 12, 2014, the defendants filed a motion for summary judgment in the trial court, arguing that they were entitled to judgment as a matter of law because the complaint was not timely filed. On July 20, 2015, the trial court issued an order granting summary judgment with respect to the claims of the estate but denied summary judgment with respect to the minor children who were under the age of six in July 2011.
The Appellate Court held that the occurrence-based two-year statute of limitations contained within the Indiana Medical Malpractice Act (“MMA”) applies notwithstanding the fact that the mother died as a result of the alleged negligence: that is, the two-year limitations period began to run on July 6, 2011, the date on which the alleged negligence occurred, and had lapsed by the time the parties filed their complaint on August 27, 2014, unless an exception applies.
The Tolling Provision
The MMA provides that “[a] claim” sounding in medical malpractice must be filed within two years of the alleged negligence, “except that a minor less than six (6) years of age has until the minor’s eighth birthday to file.” I.C. § 34-18-7-1(b). The Appellate Court stated that the central question presented by this case—whether the minor included in this statute must be the party injured by the alleged negligence or, instead, may be a non-injured party bringing a derivative claim—is an issue of first impression in Indiana.
In the MMA, “Patient” is defined as follows: an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider. Derivative claims include the claim of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient including claims for loss of services, loss of consortium, expenses, and other similar claims.
The Appellate Court stated that the plain language of this statute includes derivative claimants as “patients,” and includes the claims of children as derivative claims, noting that the Indiana Legislature could have drafted the definition of “patients” to exclude derivative claimants, but it elected not to do so. The Appellate Court stated that is was bound by the language of the statute, which clearly includes derivative claimants as patients.
The Appellate Court further stated that the portion of the statute that tolls the two-year limitations period likewise contains no limitation excluding derivative claimants. Instead, it merely says that the two-year limitations period applies “except that a minor less than six (6) years of age has until the minor’s eighth birthday to file.” I.C. § 34-18-7- 1(b). Given that the statute applies to “health care” negligence claims, that “health care” is provided to “patients,” that “patients” explicitly includes derivative claimants, and that there is no further limitation of these terms, the Appellate Court concluded that the tolling provision applies to children whether they are bringing direct or derivative medical malpractice claims.
Source Anonymous M.D. v. Lockridge, 39A01-1509-CT-1498.
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