ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Barry D. Rooth David C. Jensen
Merrillville, Indiana David J. Beach
Robert D. Brown
SUPREME COURT OF INDIANA
NADINE GOLESKI, as Personal )
Representative of the Estate of Dorothy )
M. Vetter, Deceased, )
Appellant (Plaintiff Below) )
) Indiana Supreme Court
v. ) Cause No. 75S05-0205-CV-296
WALTER FRITZ, M.D., ) Indiana Court of Appeals
M.J. SUBBA RAO, M.D., ) Cause No. 75A05-0005-CV-186
THACH NGUYEN, M.D., )
USHA SHARMA, M.D., )
DONALD GIBERTINI, M.D., )
STARKE MEMORIAL HOSPITAL, )
Appellees (Defendants Below) )
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable David P. Matsey, Judge
Cause No. 75C01-9910-CT-037
ON PETITION FOR TRANSFER
May 28, 2002
We hold that claims made by a patients representative under the Medical Malpractice
Act survive the death of the representative and pass to the representatives estate.
Derivative claims for medical malpractice such as a claim by a spouse
for loss of consortium generally survive the death of the claimant under the
Factual and Procedural Background
Lawrence Vetter was admitted to Starke Memorial Hospital on March 21, 1995.
He was treated by defendant physicians Walter Fritz, M.J. Subba Rao, Thach Nguyen,
Usha Sharma, and Donald Gibertini and died the next day. Dorothy Vetter,
Lawrences wife, filed a claim with the Department of Insurance seeking damages from
the hospital and the physicians for lost financial support, love, affection, kindness, attention
and companionship as well as reasonable funeral, burial and medical expenses. All
defendants are providers of health care under the Indiana Medical Malpractice Act.
The medical review panel unanimously determined that two of the defendant physicians, Drs.
Gibertini and Fritz, failed at times to meet the applicable standards of care,
but the panel was unable to determine whether that failure was a factor
in Lawrences death. One panel member concluded that Dr. Nguyen also failed
to comply with the applicable standard of care, and that his failure was
a factor in Lawrences death. The panel found no negligence on the
part of the other defendants.
Dorothy died before the claim review process was completed. Nadine Goleski, the
couples daughter, was appointed personal representative of Dorothys estate and filed an amended
malpractice claim, contending that Dorothys claim survived Dorothys death and passed to Dorothys
estate. Goleski sued in Lake Superior Court and venue was transferred to
Starke County. The trial court granted summary judgment for the defendants, holding
that Goleski could not maintain an action under any of three theories.
Goleski had no cause under the Wrongful Death Act because she was not
the personal representative of Lawrences estate. She could not claim under the
Medical Malpractice Act because she was not Lawrences representative as that term appears
in that statute. And the Survival Statute did not help Goleski because
she was not the personal representative of Lawrences estate and was not alleging
that something other than the defendants negligence caused Lawrences death. The Court
of Appeals affirmed in an unpublished memorandum opinion. Goleski v. Fritz, 741
N.E.2d 810 (Ind. Ct. App. 2001) (mem.). Judge Kirsch dissented, concluding that
[a] tortfeasor whose negligence wrongfully causes the death of another should not escape
liability because of the vagaries of Indianas probate and wrongful death statutes and
the delay attendant to the medical review process. Goleski v. Fritz, No.
75A05-0005-CV-186, slip op. at 6 (Ind. Ct. App. Jan. 23, 2001). This
Court granted transfer.
We agree Goleski cannot maintain an action under the Wrongful Death Act.
Indiana Code section 34-23-1-1 provides that when a persons death is caused by
the negligence of another, and the deceased could have maintained an action had
he or she survived, the personal representative of the deceased may bring an
action within two years. Ind. Code § 34-23-1-1 (1998). Case law
has consistently interpreted the statute to mean that only a personal representative appointed
within two years of the decedents death may file the action. Gen.
Motors Corp. v. Arnett, 418 N.E.2d 546, 548 (Ind. Ct. App. 1981); Hosler
v. Caterpillar, Inc., 710 N.E.2d 193, 196 (Ind. Ct. App. 1999), trans. denied.
Here, neither Goleski nor anyone else was appointed personal representative of Lawrences
estate. Because more than two years have passed since Lawrences death, a
timely appointment cannot now be made. Thus, there can be no action
under the Wrongful Death Act. However, we conclude that Goleski can proceed
under the Medical Malpractice Act and the Survival Statute.
I. Dorothys Derivative Claims
The Medical Malpractice Act allows a patient or the representative of a patient
to bring a malpractice claim for bodily injury or death. Ind. Code
§ 34-18-8-1 (1998). A patient is an individual who receives or should
have received health care . . . and includes a person having a
claim of any kind, whether derivative or otherwise, as a result of alleged
malpractice. I.C. § 34-18-2-22. Derivative claims include the claim of a
parent or parents, guardian, trustee, child, relative, attorney, or any other representative of
the patient, and include claims for loss of services, loss of consortium, expenses,
and other similar claims. Id. Accordingly, 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.
See footnote As the wife of Lawrence,
she clearly was a relative. She therefore met the statutory requirement to
bring these claims as a patient and was entitled to assert derivative claims
for these items under the Medical Malpractice Act.
The Survival Statute provides that if an individual with a cause of action
dies, most causes of action survive and may be brought by the representative
of the deceased. I.C. § 34-9-3-1(a). When Dorothy died she became
the deceased under the Survival Statute, and when Goleski was appointed the personal
representative of Dorothys estate, Goleski became the representative under this statute.See footnote The
Survival Statute does not preserve causes of action for libel, slander, malicious prosecution,
false imprisonment, invasion of privacy, or personal injuries to the deceased. I.C.
§ 34-9-3-1(a). Only if Goleskis claims are for personal injuries to the
deceased would they fail to survive Dorothys death. They are not within
that term. To the extent Goleski asserts claims for personal injuries to
Lawrence, they survive Dorothys death because Dorothy, not Lawrence, is the deceased.
Other claims are for loss of consortium and Lawrences funeral expenses. Even
if these are claims for personal injury to Dorothy,See footnote the Survival Statute allows
Dorothys representative to sue for personal injuries to the deceased (Dorothy) if Dorothy
subsequently dies from causes other than those personal injuries. I.C. § 34-9-3-4(a).
Dorothy plainly died from causes other than her loss of consortium and
her incurring Lawrences funeral expenses. As a result, to the extent the
claims are for personal injuries, they remain alive because Dorothy did not die
as a result of those injuries. Finally, to the extent any of
the claims are not claims for personal injuries they are preserved by the
Survival Statute, which states that all claims other than those listed in it
II. Dorothys Claim as Lawrences Representative
As noted above, the Medical Malpractice Act allows a patient or the representative
of a patient to bring a malpractice claim for bodily injury or death.
Ind. Code § 34-18-8-1 (1998). The inclusion of the term death
plainly implies that the claim survives the death of Lawrence, the person treated
by the health care providers. A representative is the spouse, parent, guardian,
trustee, attorney, or other legal agent of the patient. Id. at §
34-18-2-25. Unlike the Wrongful Death Act, however, the Medical Malpractice Act does
not require that the representative be the legally appointed personal representative of the
patient. See Cmty. Hosp. v. McKnight, 493 N.E.2d 775, 776 (Ind. 1986).
Accordingly, Dorothys claim for Lawrences medical expenses was asserted as a representative
as that term is used in the Medical Malpractice Act. As Lawrences
spouse, Dorothy clearly met the statutory requirements to bring the claim as his
representative. The Survival Statute preserves this claim for Dorothys estate after her
death because it is neither a claim for personal injuries to Dorothy, nor
a claim for libel, slander, malicious prosecution, false imprisonment, or invasion of privacy.
Accordingly, it survived Dorothys death and passed to her estate.
The trial courts grant of summary judgment in favor of the defendants is
reversed. This case is remanded to the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
We note that in Ind. Patients Comp. Fund v. Wolfe, 735 N.E.2d
1187, 1192-93 (Ind. Ct. App. 2000), trans. denied, the Court of Appeals held
that a surviving parent is not a patient entitled to a separate statutory
damages cap under the Act. The court held a derivative claimant is
a subset of the patient and not a patient unto himself. Id.
at 1192. Although we believe the Court of Appeals reached the correct
result in Wolfe, we think that derivative claimants are patients within the meaning
of section 34-18-8-1 but are not the patients upon whom injury or death
is inflicted. The language of section 34-18-2-22 quoted above defines derivative claimants
as patients. However, section 34-18-14-3(a) was at issue in Wolfe. That
section caps the damages available for an injury or death of a patient.
Although there may be persons who are statutorily defined to be patients
and therefore may assert derivative claims for their own damages under the Act,
section 34-18-14-3(a) applies the damages cap to all claims, whoever may assert them,
for a single injury or death of a patient. The only injury
or death within the meaning of this section is the injury or death
suffered by the actual victim of the malpractice. Thus Wolfe reached the
correct conclusion on its facts, but was incorrect in suggesting that a derivative
claimant is not a patient for purposes of ability to assert a claim
under the Act.
Indiana case law has long allowed duly appointed personal representatives and successors
in interest to bring claims under the Survival Statute. See, e.g., Jose
v. Ind. Natl Bank of Indianapolis, 139 Ind. App. 272, 275, 218 N.E.2d
165, 167 (1966) and Burnett v. Milnes, 148 Ind. 230, 235, 46 N.E.
464, 465 (1897). Because Goleski is the duly appointed personal representative of
Dorothys estate, whether other representatives may bring an action under the Survival Statute
is not at issue in this case.
Goleski cites Merimee v. Brumfield, 397 N.E.2d 315, 318 (Ind. Ct. App.
1979), where the Court of Appeals held the term personal injuries in the
context of the Survival Statute includes not only injuries to the physical body,
but also malicious prosecution, false imprisonment, libel, slander, or any affront or detriment
to the body, psyche, reputation or liberty, as contradistinguished from injury to property