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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

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  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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