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Court rules on tort claims and wrongful death

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The Indiana Supreme Court tackled the issue of the interaction of the statute of limitations provision under the state's Wrongful Death Act and the statute of limitations provision for an underlying substantive tort claim in two opinions released Dec. 24. In both opinions, the high court relied on its ruling in Ellenwine v. Farley, 846 N.E.2d 657, 666 (Ind. 2006).

In Therese Newkirk, personal representative of the estate of Martha O'Neal, deceased v. Bethlehem Woods Nursing and Rehabilitation Center, LLC, No. 90S05-0812-CV-168, the Supreme Court affirmed the trial court's grant of summary judgment in favor of Bethlehem Woods in the estate's complaint under the WDA after Martha O'Neal died. O'Neal went to Bethlehem Woods for rehab following surgery and was the victim of medical malpractice. She died in November 2001. More than two years after the medical negligence occurred, but within two years of her death, the estate filed the complaint alleging Bethlehem providing negligent medical care that led to O'Neal's death.

Citing Ellenwine, the Supreme Court ruled the wrongful death claim was required to be filed within two years of the malpractice. The provisions of the Medical Malpractice Act don't apply in this case because Bethlehem doesn't meet the applicable qualifications and the claim is subject to the provisions of the state's Professional Services Statute. Ellenwine still applies because the substantive tort claim underlying the wrongful death action is precisely the same as it was in the Ellenwine scenario, wrote Justice Frank Sullivan. If a death is caused by malpractice, the malpractice claim terminates at the patient's death and a wrongful death claim must be filed within two years of the occurrence of the malpractice. O'Neal's wrongful death claim should have been filed within two years of the occurrence of the malpractice since her death is alleged to have been caused by the malpractice, Justice Sullivan wrote.

In Technisand Inc. v. Jessie Melton, personal representative of the estate of Patty Melton, deceased, No. 30S01-0801-CV-28, the Supreme Court ruled Jessie Melton couldn't use the Indiana Products Liability Act's statute of limitations as an alternative to the statute of limitations within the WDA. Melton's wife, Patty, developed a form of leukemia and died in July 2002. Patty may have been exposed to a carcinogen at work through a resin-coated sand made by Technisand. In February 2005, Melton added Technisand as a defendant in his lawsuit against Patty's employer and another company.

The trial court denied Technisand's motion for summary judgment. The Indiana Court of Appeals held the PLA provided the relevant limitations period for Melton to file his claim against Technisand. However, since Patty died from personal injuries allegedly caused by Technisand, Melton's claim was a claim for wrongful death once Patty died, wrote Justice Sullivan. Again looking to Ellenwine, the high court reversed the denial of Technisand's motion for summary judgment.

The injuries forming the basis of Melton's substantive tort claim caused his wife's death and pursuant to Indiana's Survival Statute, her products liability claim against the company ended at her death, leaving only the WDA claim. The WDA requires an action be filed within two years of the decedent's date of death, and since Melton didn't bring the suit against Technisand within two years, his suit wasn't timely filed.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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