Attorneys for Appellants Attorneys for Appellee
Milford M. Miller Phillip W. Ogden
Calvert S. Miller Timothy A. Ogden
Diana C. Bauer Warsaw, Indiana
Fort Wayne, Indiana
Amicus Curiae The Indiana Trial Lawyers Association
Indiana State Medical Association; Mark A. Scott
National Association of Independent Kokomo, Indiana
Insurers, and The Insurance Institute
Eric D. Johnson
Defense Trial Counsel of Indiana
Peter H. Pogue
Donald B. Kite, Sr.
James D. Johnson
Indiana Supreme Court
Timothy R. Chamberlain, M.D., et al.,
Appellants (Defendants below),
Richard Steven Walpole,
Appellee (Plaintiff below).
Appeal from the Allen Superior Court, No. 02D01-0201-CT-14
The Honorable Daniel G. Heath, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 02A04-0302-CV-92
February 24, 2005
We hold that the Medical Malpractice Act does not provide a cause of
action for damages for a wrongful death where the Wrongful Death Act does
not allow such an action.
Factual and Procedural Background
Richard Walpoles father died following surgery for a hernia repair. Walpole filed
a proposed medical malpractice complaint with the Indiana Department of Insurance, seeking recovery
from six physicians and two hospitals for funeral and burial expenses, lost love,
care, affection, society, companionship, and services of his father, and extreme mental anguish.
Three of the physicians filed a motion for preliminary determination under the Medical
Malpractice Act, arguing that the Wrongful Death Act precluded recovery for the loss
of Walpoles fathers love, care, and affection. The remaining defendants later joined
that motion. The trial court denied the motion and certified the order
for interlocutory appeal. The Court of Appeals affirmed with Judge Baker dissenting.
Chamberlain v. Walpole, 796 N.E.2d 818, 819 (Ind. Ct. App. 2003).
This Court granted transfer. Chamberlain v. Walpole, 812 N.E.2d 800 (Ind. 2004).
Walpoles Right to Non-pecuniary Damages
Walpole argues that although he cannot recover non-pecuniary damages for his fathers death
under the Wrongful Death Act (WDA), the Medical Malpractice Act (MMA) allows him
to do so. All parties agree that this appeal turns on the
interpretation of these two acts. This presents a question of law that
we review de novo.
No cause of action for wrongful death existed at common law. South
v. White River Farm Bureau Coop., 639 N.E.2d 671, 673 (Ind. Ct. App.
1994). An action for wrongful death is therefore purely statutory and is
strictly construed. Durham v. U-Haul Intl, 745 N.E.2d 755, 759 (Ind. 2001).
The WDA permits claims for wrongful death and authorizes suits by a
personal representative of a decedent for death caused by the wrongful act or
omission of another. Ind. Code § 34-23-1-1 (2004). If the decedent
had no surviving widow, widower, or dependent children, or dependent next of kin
the statute limits damages to hospitalization or hospital service, medical and surgical services,
such funeral expenses, and such costs and expenses of administration, including attorney fees.
Id. Walpole concedes that, as a non-dependent adult he is not
entitled to recover damages for non-pecuniary loss under the WDA. See Necessary
v. Inter-State Towing, 697 N.E.2d 73, 76 (Ind. Ct. App. 1998); Ed Wiersma
Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994).
He asserts, however, that the MMA creates a claim independent of the WDA.
The MMA defines malpractice as a tort or breach of contract based on
health care or professional services that were provided, or that should have been
provided, by a health care provider, to a patient. I.C. § 34-18-2-18.
The statute provides the procedure to assert such a claim. Cacdac
v. West, 705 N.E.2d 506, 510 (Ind. Ct. App. 1999). The MMA
does not by its terms create an express cause of action for wrongful
death. However, the MMA includes the following definition:
Patient means an individual who receives or should have received health care from
a health care provider, under a contract, express or implied, and includes a
person having a claim of any kind, whether derivative or otherwise, as a
result of alleged malpractice on the part of a health care provider.
Derivative claims include the claim of a parent or parents, guardian, trustee, child,
relative, attorney, or any other representative of the patient including claims for loss
of services, loss of consortium, expenses, and other similar claims.
I.C. § 34-18-2-22.
Walpole argues that because he was the decedents child and representative he
is a patient as defined by the MMA, and therefore can assert a
derivative claim. He reasons that because the MMA identifies derivative claims as
including claims for loss of services, loss of consortium, expenses, and other similar
claims he should be able to pursue a claim for loss of his
fathers love, care, and affection under that statute. The defendants, all health
care providers under the MMA, respond that the MMA imposes unique procedures on
claims for medical malpractice but does not create causes of action that otherwise
do not exist. The issue is therefore whether the MMA expanded the
types of damages a non-dependent child may recover when a parent dies of
medical malpractice. The defendants argue that it would be inconsistent for an
adult non-dependent child to be barred from recovering damages for non-pecuniary loss under
the WDA, yet be permitted to recover such damages under the MMA.
That result, they contend, is contrary to the purposes of the MMA and
is not required by its language.
Walpole contends that Community Hospital of Anderson and Madison County v. McKnight, 493
N.E.2d 775 (Ind. 1986), and Goleski v. Fritz 768 N.E.2d 889 (Ind. 2002),
both support of the view that the MMA creates independent causes of action.
In McKnight, Donald McKnight died while under the care of the hospital.
His wife and son sued for damages with the Indiana Insurance Commissioner
and then filed a complaint for damages in trial court. 493
N.E.2d at 776. The hospital pointed out that the WDA requires that
a person pursuing a claim involving a death must first be appointed personal
representative and argued that because no personal representative had been appointed, Mrs. McKnight
and her son could not pursue a wrongful death claim. Id. at
777. This Court disagreed, reasoning the Medical Malpractice Act is plain and
unambiguous in designating who qualifies as a representative and in designating those who
are eligible to pursue derivate claims. Id. We therefore held that
the procedure of the MMA rendered the WDAs requirement that a personal representative
be appointed unnecessary. Id. We concluded that Mrs. McKnight and her
son qualified under the MMA to pursue a claim, as a representative or
through a patient derivative claim. Id.
In Goleski, Lawrence Vetter died while in the hospital. 768 N.E.2d at
890. His widow, Dorothy filed a claim with the Department of Insurance
seeking damages from the hospital and his physicians for lost financial support, love,
affection, kindness, attention, and companionship as well as reasonable funeral, burial, and medical
expenses but died before the claim review process was completed. Id.
After Dorothy died, Nadine Goleski, the couples daughter, was appointed personal representative of
Dorothys estate and filed an amended malpractice claim, contending that Dorothys claim survived
her death and passed to her estate. Id. The trial court
held that Goleski could not maintain an action under the WDA, the MMA,
or the Survival Statute. Id. This Court reversed in part, holding
that Goleski could not maintain a claim for Lawrences death under the WDA
because that act requires the appointment of a personal representative within two years
of the death and no personal representative had been appointed within that time.
Id. at 890-91. We held, however, that under the Survival
Statute Goleski could pursue the claim initially filed by Dorothy under the MMA.
This Court reasoned, following McKnight, that under the terms of the Medical
Malpractice Act, before Dorothy died she was a patient with derivative claims insofar
as she asserted claims for lost financial support, love, affection, kindness, attention, companionship,
and reasonable funeral and burial expenses. As the wife of Lawrence, she clearly
was a relative. She therefore met the statutory requirements to bring these
claims as a patient and was entitled to assert derivative claims for these
items under the Medical Malpractice Act. Id. at 891. The Survival
Statute permits a personal representative to pursue a claim of a decedent unless
it is a claim for personal injuries to the decedent. I.C. §
34-9-3-1(a)(6). Here, the claim was for personal injury to Lawrence, not to
Dorothy. In short, the claim for Lawrences death, properly asserted by Dorothy
before her death, was an asset of Dorothys estate when she died.
As such, it was properly pursued by Goleski as Dorothys personal representative.
Id. at 892.
Walpole argues that these two cases require the conclusion that he is a
patient, entitled to pursue a derivative claim for the loss of love, care,
and affection of his father. We disagree. McKnight did not expand
the types of claims that could be pursued or hold that the MMA
created a new set of claims. McKnight merely allowed a claimant to
take advantage of the procedures provided in the MMA to pursue a claim
directly that could be pursued under the WDA by a personal representative for
the claimants benefit. In Goleski, when Lawrence Vetter died, his wife, Dorothy
had a recognized claim under the WDA for damages for non-pecuniary losses.
Specifically, Dorothy, as a widow, was entitled to, and did, bring a claim
for lost financial support, love, affection, kindness, attention, and companionship allowed by the
WDA. McKnight permitted Dorothy to assert the claim directly rather than as
personal representative of Lawrences estate. After Dorothy died, Goleski could not bring
her own claim under the WDA for Lawrences death because no personal representative
had been appointed for Lawrence and the two years for appointing a personal
representative for his estate had expired. However, under the Survival Statute, I.C.
§ 34-9-3-1(a), Goleski could pursue Dorothys claim which survived Dorothys death because it
was not a claim for personal injury to Dorothy. Thus Goleski, like
McKnight, did not find the MMA to create any new cause of action.
Rather, both cases addressed only the procedure for asserting damage actions otherwise
allowed under the WDA, and in Goleski, the Survival Statute.
The MMAs definition of a patient to include both the person who was
injured and a person who has a derivative claim because of that persons
injury does not imply that the MMA creates a new claim. It
merely requires that claims for medical malpractice that are otherwise recognized under tort
law and applicable statutes be pursued through the procedures of the MMA.
The MMAs recognition of derivative claims is found only in the definition of
patient. The effect of this provision is merely to require that any
person who has a derivative claim for medical malpractice follow the requirements of
the MMA in filing a proposed complaint with the Insurance Commissioner, etc.
The MMAs listing of what qualifies as a derivative claim is to ensure
that the MMA applies to all available claims for medical malpractice. But
the MMA does not create new substantive rights or create new causes of
action. As the defendants point out, the MMA was designed to curtail
liability for medical malpractice, not to expand it. Johnson v. St. Vincent
Hosp., Inc., 273 Ind. 374, 379-80, 404 N.E.2d 585, 589-90 (1980). The
language of the definition of patient, as it fits in the statute and
as applied in McKnight and Goleski leads to the conclusion that the MMA
is procedural and did not create new causes of action.
In Breece v. Lugo, 800 N.E.2d 224 (Ind. Ct. App. 2003), a different
panel of the Court of Appeals (Judges Ratliff, Robb, and Vaidik) recently rejected
the contention that the MMA created a claim for death of a fetus
even though, as recently held in Bolin v. Wingert, 764 N.E.2d 201, 203
(Ind. 2002), no such claim could be pursed under the Child Wrongful Death
Act. I.C. § 34-18-1-1. We agree with the analysis of the
Breece panel and therefore today deny the pending petition for transfer in that
The decision of the trial court is reversed. This case is remanded
for proceedings consistent with this opinion.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.