APPLICATION OF THE MEDICAL MALPRACTICE ACT’S STATUTE OF
LIMITATIONS IN CASES INVOLVING DEATH OF A CHILD
Robert F. Parker
July, 2006
 Indiana’s Medical Malpractice Act (“MMA”) provides that a claim for medical malpractice must be filed within two years of the “act, occurrence or neglect complained of.” However, a child who is a victim of malpractice occurring prior to his sixth birthday, including birth injuries, has until his eighth birthday to file a claim. Indiana’s Child Wrongful Death Act (“CWDA”), on the other hand, provides that the survivors of a child who dies due to the wrongful act of another has two years from the date of death to commence a lawsuit to recover. In the recent case of Ellenwine v. Fairley , 846 N.E.2d 657 ( Ind.2006), decided May 3, 2006, the Supreme Court was called upon to decide how to reconcile these two statutes.
The case involved the death of a child who had suffered a brain injury at birth, allegedly as a result of medical malpractice. The child eventually died at age 25 ½ months, and the parents commenced a malpractice action against the obstetrician who delivered the baby 8 months later. A medical review panel concluded that the obstetrician’s negligence lead to oxygen deprivation which caused brain damage and the eventual death. Upon receipt of the panel opinion, the parents immediately filed suit under the CWDA. The doctor then defended by contending that the suit was barred by the MMA’s statute of limitations, because the malpractice claim had not been commenced until more than 2 yrs. after the alleged “act, omission or neglect,” and the MMA’s “8 th birthday” exception applied only to medical malpractice claims by living children, not wrongful death claims. After painstaking analysis of the statutes involved, the Supreme Court announced the following rule in a unanimous opinion:
[W]ith respect to a child patient who is the victim of medical negligence prior to the child's sixth birthday who dies [as a result of the malpractice] prior to the child's eighth birthday… any wrongful death claim must be filed within the first to expire of either the MMA limitations period (the child's eighth birthday) or the CWDA limitations period (two years from the date of death).
Since the Ellenwines' suit was commenced within the time frame indicated by the Supreme Court, the trial judge’s grant of summary judgment on statute of limitations grounds in favor of the defendant physician was reversed, and the Ellenwines were permitted to proceed with their claim.
|
