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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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