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.