ILNews

Court: Wrongful death claim timely filed

Jennifer Nelson
January 1, 2007
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Indiana's professional statute of limitations does not trump the state's Wrongful Death Act's statute of limitations, ruled the Indiana Court of Appeals.

In The Estate of Martha O'Neal, by personal representative Therese Newkirk v. Bethlehem Woods Nursing and Rehabilitation Center, LLC, No. 90A05-0705-CV-271, the appellate court was asked to decided if the statute of limitations had expired prior to O'Neal's estate filing a wrongful death complaint against Bethlehem on Oct 22, 2003. O'Neal was admitted to Bethlehem for rehabilitation on Sept. 10, 2001, for a fractured femur. She was given a wheelchair that was too small for her, causing her surgical incision to tear. She also was left on a bedpan for six hours once, causing her to contract severe decubitus ulcers. O'Neal was transferred to a hospital Sept. 22; she died Nov. 6, 2001.

The trial court granted Bethlehem's motion for summary judgment after determining a two-year statute of limitations for the estate to bring a suit had expired. The last day O'Neal was at Bethlehem was Sept. 22, 2001, so the suit needed to be brought within two years from that date. The trial court did not specify which statute the two-year statute of limitations applied.

The Court of Appeals took it upon themselves to determine in the opinion that the professional services statute, Indiana Code 34-11-2-3, applied to Bethlehem based on its relationship to O'Neal. Designated evidence showed there was a health care provider-patient relationship between the two, wrote Judge Margret Robb. The statute of limitation under the professional services statute is "occurrence based," which means it accrues when the conduct that caused the damage occurs, and expires after two years.

However, the professional services statute does not control over Indiana's Wrongful Death Act, I.C. 34-23-1-1. Bethlehem argued the professional services statute of limitations controls the WDA based on the Indiana Supreme Court decision in Ellenwine v. Fairley, 846 N.E.2d 657 (Ind. 2006), in which the court concluded if an adult victim of medical malpractice dies within two years of the occurrence of the malpractice, the victim's personal representative has to file a wrongful death claim within the medical malpractice act's statute of limitations. Bethlehem also argued Ellenwine should apply because the language of the medical malpractice act is similar to that of the professional services statute.

Judge Robb wrote this court was not convinced that Ellenwine leads to the conclusion the professional services statute of limitation controls over the WDA's statute of limitation because it lacks the procedural requirements that accompany the medical malpractice act.

Because the professional services statute of limitations is less comprehensive than the medical malpractice act, the WDA's statute of limitation should be used, meaning the estate's wrongful death claim was timely filed.

The appellate court reverses the trial court grant of summary judgment and remands the case to the trial court.
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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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