Citation:Caitlin Doherty, Health Law - Indiana Appellate CourtRules That Medical Malpractice Statute of LimitationsApplies to Minors in Derivative Claims, 13 J. HEALTH &BIOMEDICAL L. 158 (2017).Provided by: Moakley Law Library at Suffolk University Law School

Content downloaded/printed from HeinOnline

Sat Jul 6 20:22:49 2019

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use:

Copyright Information

Use QR Code reader to send PDF to your smartphone or tablet device

158

Journal of Health & Biomedical Law, XIII (2017) 158-170© 2017 Journal ofHealth & Biomedical Law

Suffolk University Law School

Health Law - Indiana Appellate Court Rules thatMedical Malpractice Statute of Limitations Applies toMinors in Derivative Claims - Anonymous M.D. v.Lockridge, 60 N.E.3d 249 (Ind. Ct. App. 2016).

Caitlin Doherty*

Indiana has a specific statute of limitations for medical malpractice claims that

bars claims not filed within two years of the alleged malpractice.1 Enacted under

Indiana's Medical Malpractice Act ("MMA"), the medical malpractice statute of

limitations has a unique exception specifically for minors that can delay the running of

the limitations period, referred to as the "tolling provision." 2 The exception gives

* Caitlin Doherty is a third-year law student in the Evening Program at Suffolk University LawSchool. Her expected graduation date is in December, 2017. Caitlin graduated from TuftsUniversity in 2013 with a B.A. in History and Economics. She currently works full-time atHolland & Knight LLP as a paralegal while attending law school in the evenings. She can bereached at cdoherty3@suffolk.edu.1 See IND. CODE § 34-18-7-1(1998) (requiring medical malpractice claims to be filed within twoyears after the alleged act). Under Indiana's Medical Malpractice Act, the medical malpractice

statute of limitations states in Section (b):

A claim, whether in contract or tort, may not be brought against a health care

provider based upon professional services or health care that was provided orthat should have been provided unless the claim is filed within two (2) years

after the date of the alleged act, omission, or neglect, except that a minor lessthan six (6) years of age has until the minor's eight birthday to file.

Id. See a/so McGill v. Ling, 801 N.E.2d 678, 682 (Ind. Ct. App. 2004) (concluding that failure tofile a timely malpractice claim is fatal to the claim).2 See IND. CODE § 34-18-7-1(1998) (allowing an exception for minors under age six). Themedical malpractice statute of limitations was enacted under the Indiana Medical Malpractice Act

in 1975. Overview of Indiana Medical Ma/practice Act, IND. STATE MED. Ass'N,http://www.ismanet.org/legal/malpractice/ (last visited Apr. 15, 2017) (providing an overview

of the Indiana MMA). See a/so Anonymous M.D. v. Lockridge, 60 N.E.3d 249, 254 (Ind. Ct.App. 2016) (referring to the exception in the statute as the tolling provision). See asoChamberlain v. Walpole, 822 N.E.2D 959, 961 (Ind. 2005) (outlining the procedural

2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 159

minors under the age of six at the time of the alleged malpractice until their eighth

birthday to file medical malpractice claims.3 The recent Indiana Appellate Court ruling

in Anonymous M.D. v. Lockridge addressed an issue of first impression as to whether a

minor included in this statute must be the party directly injured by the alleged

malpractice, or whether they can bring a derivative claim.4 The court ruled that the

tolling provision must apply whether or not the minors are derivative or direct

claimants.'

In July of 2011, Traci Leach had a CT scan for a lung tumor at a hospital

'Hospital').' The scan was later interpreted by a physician ('Doctor'), who allegedly

failed to identify a lung tumor on the scan.7 On August 30, 2012, Traci learned that she

had lung cancer, and subsequently died on July 17, 2014.8 Traci had five children, three

of whom were under the age of six at the time of the complaint in July 2011: Lily, Rose,

and Kenneth Jr. ('Children').9 The Children filed a complaint for medical malpractice

with the Indiana Department of Insurance.10 The Hospital and the Doctor responded

by filing a motion for summary judgment, arguing that the Children's complaint was not

requirements under the MMA). The MMA did not create the medical malpractice claim, butinstead created procedural requirements in order to assert such a claim. Id.

See IND. CODE. § 34-18-7-1(1998).4 Lockridge, 60 N.E. 3d at 254 (identifying whether direct injury is predicate to tolling claim ofminor child).s Id. at 256. The Court underscored that the legislature "decided to treat children under the age ofeight in a special way for the purpose of the medical malpractice limitations period" and had "notlimited the special treatment to direct claimants." Id.6 Id. at 251.7 Id.8 Id.9 Lockridge, 60 N.E. 3d at 251. Traci Leach also had two older children, Dustin and AshleyLeach, over the age of eight at the time of the complaint and whose claims were found by thetrial court to be barred under the statute of limitations. Id.1o Lockridge, 60 N.E. 3d at 251. Dustin and Ashley Leach, as well as Traci's Estate, also filed acomplaint of medical malpractice. Id. However, the trial court granted the motion for summaryjudgment because the claims were untimely filed. Id. at 251.

JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. VIII ISSUE 1

timely filed.1 Since the Children were under the age of six in July 2011, the trial court

did not grant the motion for summary judgment for the Children's claims.1 2 Instead, the

trial court held that the Children's claims were derivative claims under the statute, since

they were not the direct claimants.3 The trial court concluded that a derivative claim

may be maintained even if the underlying claim would be time-barred.14

The Hospital and the Doctor appealed the denial of the summary judgment

motion, and the Indiana Appellate Court reviewed the summary judgment motion de

novo.1 s The court addressed three main issues: (1) the date on which the statute of

limitations began to run; (2) whether an exception applied; and (3) whether the

Children's derivative claim could survive after the underlying claim was dismissed as

untimely.16 While the Indiana Supreme Court had already answered the first two issues

in previous cases, the third issue regarding the Children's derivative claim was an issue

of first impression.7 The court held that even though the underlying malpractice claim

1 Id. See a/so McGill v. Ling, 801 N.E.2d 678, 682 (Ind. Ct. App. 2004) (stating failure to file acomplaint within the statute of limitations warrants summary judgment).12 Lockridge, 60 N.E. 3d at 251. The Children were under the age of six in July 2011, and stillunder the age of eight at the time the complaint was filed. Id. A minor less than six years of agehas until their eighth birthday to file a medical malpractice claim. IND. CODE § 34-18-7-1 (1998).13 Lockidge, 60 N.E. 3d at 251. See aso IND. CODE § 34-18-2-22 (1998). The statute defines apatient as "an individual who receives or should have received health care from a health careprovider . . . and includes a person having a claim of any kind, whether derivative or otherwise, asa result of alleged malpractice." Id. It also defines derivative claims as including "the claim of aparent or parents, guardian, trustee, child. . . ." Id.14 Lockridge, 60 N.E.3d at 251.1s Id. at 252. See Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C))

(explaining standard for reviewing summary judgment de novo).16 Lockridge, 60 N.E.3d at 253.17 Id. See a/so Ellenwine v. Fairley, 846 N.E.2d 657, 665 (Ind. 2006) (concluding two-year statuteof limitations begins to run on date of alleged negligence). The Ellenwine court analyzed thepurpose of the MMA's statute of limitations, concluding that it was to "foster prompt litigationof medical malpractice claims." Id. at 664. Following this legislative intent, the Lockridge Courtinterpreted the two-year statute of limitations period to start at the occurrence of the allegedmalpractice, as opposed to the date of the death. Lockridge, 60 N.E.3d at 254. See aso Booth v.Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005) (providing framework of analysis when exceptionapplies to statute of limitations). The Booth Court evaluated when the statute of limitation periodcan be extended in certain medical malpractice claims. Id. First, the court should determine the

160

JOURNAL OF HEALTH & BIOMEDICAL LAW

may have been time-barred, the tolling provision exception for minors under the age of

six applied regardless of whether their claims were direct or derivative."

Indiana was the first state to pass medical malpractice reform legislation in an

attempt to counter the rising malpractice insurance costs." Indiana passed the MMA in

1975 and included the statute of limitations chapter.20 Indiana courts have interpreted

this medical malpractice statute and constructed standards and exceptions at various

points over the years.21 The statute of limitations reads as follows:

A claim, whether in contract or tort, may not be brought against ahealth care provider based upon professional services or health carethat was provided or that should have been provided unless the claim isfiled within two (2) years after the date of the alleged act, omission, orneglect, except that a minor less than six (6) years of age has until theminor's eighth birthday to file.2 2

date at which the alleged malpractice occurred, and second, determine the "trigger date." Id. Atrigger date is defined as the period in which a claimant has sufficient information so that areasonably diligent person would have discovered the alleged malpractice. Id.18 Lockidge, 60 N.E.3d at 256.1 Neal F. Eggeson, Jr., Snatching Confusion from the Jaws of Clarfy: The PuZZling Evolution of the

Discovery Rule Vis-a-vis Indiana's Medical Malp ractice Statute of Limitations, 8 IND. HEALTH L. REV. 95,100 (2010) (citing rising medical malpractice insurance costs as a reason for the MMA). Prior to

the MMA, excessive medical malpractice suits led to costly medical malpractice insurance, which

resulted in a decrease of medical services. Id.20 1975 Ind. Acts 146 (formerly codified at Ind. Code §16-9.5-1-1); See also Ind. Code ¶ 34-18 forsimilar current provisions. See supra note 1.21 See Eggeson, supra note 19. Seegenerally Martin v. Richey 711 N.E.2d 1273, 1279 (Ind. 1999)(ruling the Indiana statute of limitations is unconstitutional in this specific case); Van Dusen v.

Stotts, 712 N.E.2d 491,493-494 (Ind. 1999) (permitting medical malpractice victims to file theirclaims within two years of the discovery); Booth v. Wileg, 839 N.E.2d at 1172 (Ind. 2005)(differentiating between knowledge of injury and knowledge of malpractice when determining a

trigger date); Ellenwine v. Fairley, 846 N.E.2d 657, 664-665 (Ind. 2006) (confirming that themedical malpractice claim must be filed within two years of the occurrence). See also Boggs v.

Tri-State Radiology, Inc. 730 N.E.2d 692, 697-98 (Ind. 2000) (concluding the two-year statute oflimitations applies so long as there is enough time remaining). The Boggs court found that there is

usually a lag between the occurrence and the discovery of the malpractice. Id. at 698. The court

held that as long as the amount of time left in the statute of limitations is not "so unreasona[ble]

that it is impractical for a plaintiff to file a claim at all," then the two-year limitations rule applies.

Id. at 697.22 See IND. CODE § 34-18-7-1(b) (1998).

2017 161

162 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. VIII ISSUE 1

Indiana courts initially interpreted the statute as having an occurrence-based standard.23

The standard provides the patient two years after the alleged malpractice to file a claim,

rather than allowing them to file two years after the discovery of the malpractice or

resulting injury.24

The Indiana Supreme Court departed from this occurrence-based standard by

creating exceptions in two separate cases in 1999.25 In Martin v. Richg, the court found

that this standard was unconstitutional when applied to a patient's situation where it is

impossible to know about the malpractice until after two years.26 Rather than declaring

the entire statute unconstitutional, however, the Indiana Supreme Court set forth

principles in Van Dusen v. Stotts to reconfigure the statute of limitations to avoid an

unconstitutional application.27 These principles would help guide the court to choose

the trigger date for when the statute of limitations begins to run.28 The Van Dusen court

created the 'discovery rule,' the original standard that focuses on the discovery date

when determining when the statute of limitations is triggered.29

23 See Eggeson, supra note 19 at 101 (explaining that Indiana Courts treated the statute asoccurrence-based). See also Hosp. Corp. of Am. v. Hiland, 547 N.E.2d 869, 872 (Ind. Ct. App.1989) (using the occurrence-based standard to bar a medical malpractice claim). In Hospital Corp.ofAmerica r. Hiland, the court described the Indiana statute of limitations as "an 'occurrence'rather than a 'discovery' statute." Id. The court explained that a medical malpractice claim mustbe filed within two years of the date in which the alleged negligent act occurred, rather than thedate it was discovered. Id.24 See supra note 23 and accompanying text (describing the occurrence-based standard forinterpreting statutes).25 See Ma/////, 711 N.E.2d at 1279 (ruling the statute of limitations can be unconstitutional whenapplied in certain cases); see also Van Dusen v. Stotts, 712 N.E.2d 491, 497 (Ind. 1999) (ruling thestatute of limitations can sometimes be triggered at the discovery date). The Van Dusen courtruled that if the medical conditions have "long latency periods", and the patients are thereforeunable to discover the malpractice within the two-year statutory period, then the discovery ruleshould apply. Id.26 See Martin, 711 N.E.2d at 1279 (comparing discovery statutes versus occurrence statutes).27 Van Dusen v. Stotts, 712 N.E.2d 491, 493 (Ind. 1999).28 See id. at 493-94, 497.29 Eggeson, supra note 19, at 116 (referring to original formulation of discovery rule in VanDusen). See also Van Dusen, 712 N.E.2d at 499-500 (holding that two-year period is triggered upondiscovery of malpractice).

2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 163

In Booth v. Wilg, the Indiana Supreme Court further determined the framework

of when the discovery rule may apply.0 The court examined the facts necessary to

trigger a discovery date that would allow the statute of limitations to extend past the two

years from the date of malpractice.1 First, a court must determine the date on which

the alleged malpractice occurred.3 2 Second, it must determine the "trigger date", which

occurs when the claimant has sufficient information so that a reasonably diligent person

would have discovered the alleged malpractice.3 The court distinguished between

knowledge of a patient's injury and the knowledge of a physician's malpractice, stressing

the importance of a physician's input rather than just a patient's symptoms when

triggering the statute of limitations.3 4

In 2006, the Indiana Supreme Court reasserted the principal purpose of the

medical malpractice statute's occurrence-based standard in El/enwine v. Fairg, a case in

which the patient's death was caused by medical malpractice." If the patient's death was

caused by malpractice more than two years after the occurrence, the court said the claim

must still be filed within the two years of the occurrence of the malpractice.6 In these

instances, the court confirmed that the two-year statute of limitations begins on the date

30 Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005).31 See id. at 1175-76 (noting importance of physician input in selecting trigger date).32 Id. at 1172.33 Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005) (identifying trigger date under discoveryrule). In setting forth a rule to determine when the discovery date is triggered, the court clarified

that it was merely "synthesizing" the rulings in both Martin and Van Dusen. Id. See Martin v.

Richey, 711 N.E.2d 1273, 1279 (Ind. 1999); See also Van Dusen, 712 N.E.2d 491at 499.34 Booth, 839 N.E.2d at 1175-76 (distinguishing between knowledge of injury and knowledge ofmalpractice).3s See Elenwine, 846 N.E.2d at 666-67 (concluding that a claim must be filed within two years

after the occurrence of malpractice). The court summarized its conclusions by outlining the

statutes as applied to "an adult patient who is the victim of medical negligence who dies within

two years of the occurrence of the malpractice." Id. at 664-65. The court confirmed that if the

patient's death was caused by the malpractice, the claim must be filed within two years of the

occurrence of the medical malpractice. Id. at 665.36 Id. at 665 (confirming that a claim must be filed within two years of the occurrence).

164 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. VIII ISSUE 1

of the occurrence of the malpractice.7 The Ellenwine court, however, discussed the

exception rule for children under the medical malpractice statute of limitations, but its

analysis only discussed situations when the child is a direct victim of medical malpractice

rather than a derivative claim."

In Anonymous M.D. v. Lockridge, the court examined whether the minor included

in the MMA statute must be the one who is directly injured by the alleged negligence, or

if they may bring a derivative claim. 9 The court evaluated the plain language of the

statute.40 Since the medical malpractice statute applies to claims relating to health care,

it looked to the definition of "health care," within the statute.41 "Health care" is defined

as "an act or treatment performed or furnished... by a health care provider for, to, or on

behalf of a patient."42 The court then looked to the definition of a patient, and found

that it includes "a person having a claim of any kind, whether derivative or otherwise, as

a result of alleged malpractice."43 It made the connection that the MMA statute applies

7 See Id. at 666. The court examined the "principal legislative purpose" behind the MMA,concluding "the two-year occurrence-based statute of limitations in particular was to fosterprompt litigation of medical malpractice claims." Id. at 665.38 See Elenwine, 846 N.E.2d at 665-66 (confirming conclusions "with respect to a child patientwho is the victim of medical negligence. . . ").39 Lockridge, 60 N.E.3d at 254 (analyzing the central question of the case).); see also IND. CODE34-18-7-1(b) (2016) (defining the tolling provision in the MMA statute). The tolling provisionrefers to the last phrase, "except that a minor less than six (6) years of age has until the minor'seighth birthday to file." Id.40 Lockridge, 60 N.E.3d at 255; see also supra note 37 (regarding legislative purpose behindlanguage).41 Lockridge, 60 N.E.3d at 255; see IND. CODE § 34-18-7-1 (b)(2016).42 Lockidge, 60 N.E.3d at 254-55; see also IND. CODE § 34-18-2-13 (2016) (defining "health care").The statute defines "health care" as, "an act or treatment performed or furnished, or that shouldhave been performed or furnished, by a health care provider for, to, or on behalf of a patientduring the patient's medical care, treatment, or confinement." Id. The Lockidge courtemphasizes the specific part of the definition that says, "for, to, or on behalf of a patient."Lockidge, 60 N.E.3d at 255.43 Lockridge, 60 N.E.3d at 255. See IND. CODE ¶34-18-2-22 (2016). The statute reads,

'Patient' means an individual who receives or should have received health carefrom a health care provider, under a contract, express or implied, and includesa person having a claim of any kind, whether derivative or otherwise, as a

2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 165

to negligence claims pertaining to "health care" given to "patients," the definition of

which specifically includes derivative claimants. 44 Furthermore, this statute defines

derivative claimants, which includes children.45 The court reasoned that this clear and

unambiguous language meant that children can be included in derivative claims under

the MMA statute.46

If the legislature intended to exclude derivative claimants, it would not have

included them in the definition of patients.47 The portion of the MMA statute that

includes the tolling provision for minors does not specifically exclude derivative

claimants.48 The court reasoned that the legislature would have specified that the minor

had to be the one who was treated.49 Given that there is no explicit limitation, the court

concluded that the tolling provision applies to minors whether they are bringing a

derivative or direct medical malpractice claim. 0

The court also addressed the issue of whether the underlying claim would be

dismissed as untimely under the MMA statute.5 The Doctor argued that even if

derivative claims brought by children were included under the tolling provision, the

result of alleged malpractice on the part of a health care provider. Derivativeclaims 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.

Id.44 Lockridge, 60 N.E.3d at 255.45 See IND. CODE § 34-18-7-1(b) (2016) (stating that minors less than six years of age have untileighth birthday to file).46 Lockridge, 60 N.E.3d at 255.47 See id. (concluding the General Assembly could have excluded derivative minors within thestatute).48 See id. (stating that derivative claims includes representatives of the patient). See also IND. CODE§ 34-18-7-1(b)(1998)(stating age requirements for minors in filing a claim against the healthcareprovider).49 See Lockridge, 60 N.E. 3d at 255 (clarifying that children can be both direct and derivativeclaimants).50 Id.

s1 Id. at 13-14.

JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. VIII ISSUE 1

original claim was untimely.52 The Doctor referenced the case Ellenwine v. Fairg, in

which the Indiana Supreme Court held that if the underlying claim is time-barred, the

claim that it derives from is also time-barred.53 The Lockridge court specified that this

type of reasoning does not apply to the tolling exception in the MMA statute.54 Since

there is a specific exception to the two-year statute of limitations for minors, the

Lockridge court stated that applying the Ellenwine reasoning would make the exception

meaingless.55 The court bolstered its argument by citing Henderson v. Coutee, which

established that a court may not interpret one part of a statute in a way that leaves other

parts of the statute meaningless.56

The Lockridge court ruled on the basis of a strict interpretation of the tolling

provision in the MMA statute rather than interpreting the original intent of the statute.5

The court expressed a sense of frustration that it was "bound by the language [the

legislature] selected, which clearly includes derivative claimants as patients."58 Rather

than attempting to rule based on the original intent of the statute, the court left it to the

legislature to amend the language of the statute to reflect its intent.s1 Under the

52 Id.s3 See id. at 14. See also Ellenwine, 846 N.E.2d at 664 (holding a claim is time-barred when theunderlying claim is time-barred). The Indiana Supreme Court held that when a patient dies as aresult of medical malpractice negligence, a derivative action under a wrongful death claim must

be filed within the MMA's two-year statute of limitations. Id. The MMA statute of limitations

applies, rather than the statute of limitations pertaining to wrongful death actions. Id.54 See Lockridge, 60 N.E.3d 249 at 255 (distinguishing case-in-chief from Ellenwine).ss See id.56 See id. at 255-56 (citing Henderson v. Coutee, 829 N.E.2d 1028, 1030 (Ind. Ct. App. 2005))

(explaining guidelines for interpreting MMA statutory language).s7 See id. at 255 (claiming to be bound by language chosen by legislature).58 See Id. at 255 (interpreting language of tolling provision of MMA statute). The court deferredto the General Assembly and suggested that they could have explicitly specified that "the 'minor'included within the tolling provision must be the person who underwent the allegedly negligent

medical treatment." Id.s9 See Lockridge, 60 N.E.3d at 255 (determining that Indiana legislature could have excluded

derivative claimants). The original intention of the Indiana MMA was to cap total damages so

that more physicians are able to afford to practice in Indiana, which allows patients to have more

access to care. See IND. STATE MED. Ass'N, Key Features of Indiana's MedicalMalpractice Act, available

166

JOURNAL OF HEALTH & BIOMEDICAL LAW

Lockridge ruling, minor children will potentially be able to bring derivative medical

malpractice claims long after the two-year statute of limitation.60 A child born on the

date of the alleged malpractice could have up to eight years to file a derivative claim.6 1

The intention of enacting the MMA statute was to reduce medical malpractice insurance

expenditures to ensure that the availability of medical services would not be cost

prohibitive.62 The court's ruling highlights the complication of an exception which may

lead to high costs in medical malpractice insurance premiums.63 The original intention

of the statute was to balance the rights of the patient while also protecting the medical

professional and minimizing costs of medical malpractice insurance premiums.64 This

ruling may open the door to drawn-out law suits and higher medical malpractice

claims.6 s

This Indiana Appellate Court's strict interpretation of the MMA differs from

the Indiana Supreme Court's analysis of medical malpractice cases, where it used judicial

at http://www.ismanet.org/pdf/legal/Overview MedMalActsummary.pdf (last visited Apr.15, 2017) (outlining key features of the MAIA). The Act was also enacted to prevent "excessiveand unjustifiable malpractice judgments and settlements," expensive attorney fees, and"prolonged time limitations for bringing malpractice actions." Eggeson, supra note 19, at 100.60 See Lockridge, 60 N.E.3d at 255-56.61 Id. See IND. CODE § 34-18-7-1(1998) (specifying that children under the age of six have untilthey are eight years old).62 IND. STATE MED. Ass'N, Overview of Indiana Medical Mapractice Act,http://www.ismanet.org/legal/malpractice/#act (accessed on Jan. 24, 2017) (explaining thatMMA has kept medical malpractice insurance premiums affordable).63 See In re Stephens, 867 N.E.2d 148, 150-51 (Ind. 2007) (discussing the Indiana MMA). Thecourt explains that there the Indiana legislature had labeled the inability to obtain adequate

medical malpractice insurance coverage at affordable prices as a "health care crisis." Id. The

MMA set up a Patient Compensation Fund which limited the liability of physicians by capping

the total amount recoverable for malpractice, and for limiting a lawyers' recovery. Id. at 150.However, there is no limit to attorney fees recovered directly from a healthcare provider. Id. at

151.64 IND. STATE MED. Ass'N, Overview of Indiana Medical Mapractice Act,http://www.ismanet.org/legal/malpractice/#act (last visited Apr. 9, 2017) (explaining that theact has kept medical malpractice insurance premiums affordable).65 See Lockridge, 60 N.E. 3d at 255-56 (explaining attorney fees are not capped from healthcareproviders). IND. CODE § 34-18-7-1 (1998) (allowing claims in contract or tort violations againstproviders within two years of alleged act)

2017 167

JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. VIII ISSUE 1

construction to interpret the MMA. 6 6 Before the Indiana Supreme Court case Van

Dusen v. Stotts in 1999, the MMA statute of limitations had been interpreted as

"occurrence-based," meaning that the occurrence of the alleged negligent act triggered

the statute of limitations."67 Rather than strictly interpreting the language in the statute,

the Van Dusen court construed the statute of limitations under the MMA statute so that

it would allow claims to be filed two years after the date of discovery of the malpractice

and the injury.68 This interpretation changed the statute from being occurrence-based to

an "accrual-based" standard.69 The Van Dusen court could have strictly interpreted the

statute, but instead ruled that the interpretation should be a question of fact, and created

a rule for determining the date in which the statute of limitations would begin to run.70

66 See Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999) (expanding the MMA when claimants are

unable to discover the malpractice within the two years). The Indiana Supreme Court held thatunder the MMA, medical malpractice victims can file their claims within two years of "the datewhen they discover the malpractice and the resulting injury or facts that, in the exercise of

reasonable diligence, should lead to the discovery of the malpractice..." Id. at 494. The court

also established that the trigger date could begin when a patient is told by a doctor of a,"reasonable possibility, if not a probability, that the specific injury was caused by a specific act at

a specific time." Id. at 498. See also Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005) (creatingan outline to determine the trigger date within the MMA).67 See Eggeson, supra note 19, at 101 (explaining that the MMA was interpreted as an occurrence-

based statute). See also Van Dusen, 712 N.E.2d at 493 (concluding the trigger date is the date ofdiscovery of the malpractice and resulting injury).68 See Van Dusen, 712 N.E.2d at 493 (concluding that the trigger date is the date of discovery). See

also Ind. Code § 34-18-7-1 (1998) (setting forth statute of limitations for medical malpractice

claims). The statute reads that a claim is banned unless it "is filed within two (2) years after the

date of the alleged act, omission, or neglect.69 See Van Dusen, 712 N.E.2d at 493 (determining occurrence-based statute of limitations cannot

be constitutionally applied). See also Eggeson, supra note 19, at 99 (increasing the likelihood of

lawsuits filed to protect the statute of limitations in malpractice cases).70 See Van Dusen, 712 N.E.2d at 499 (creating a framework for determining the trigger date of the

statute of limitations). The Van Dusen court created a rule to determine when the statute of

limitations begins to run. Id. The court said that first, determining when a plaintiff discovered

the facts of which "in the exercise of reasonable diligence, should lead to the discovery of the

medical malpractice and resulting injury, if often a question of fact." Id. Secondly, a plaintiffs

suspicion that there may have been malpractice is not enough to trigger the statute of limitations.

Id. Lastly, the court said that a plaintiff does not need to know "with certainty that malpractice

caused his injury" in order to trigger the limitations period. Id.

168

2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 169

Later in 2005, the Indiana Supreme Court examined which facts should trigger a

discovery date and provided an updated framework in Booth v. Wi/e.g 1 The court did

not strictly interpret the statute, but rather looked past judicial interpretations such as

Van Dusen to construe the statute.72 In the Booth v. Wilg dissenting opinion, Chief

Justice Randall Shepard challenged the interpretation and argued that this statute of

limitation standard is "far more elastic than Indiana applies in any other field of tort

law."7 3 The appellate court in Lockcridge avoided creating new catch-all rules within the

statute, as the Indiana Supreme Court did in Van Dusen and Booth, and instead strictly

and plainly interpreted the statute.74

The Lockridge court analyzed an issue of first impression regarding whether or

not children within the MMA statute's tolling provision may include direct and

derivative claims.75 Rather than interpret the intention of the statute or create a new

interpretation, as courts have done in the past, the Lockridge court looked to the wording

of the statute and the definitions of "patient" and "health care."7 6 In doing so, the court

held that the plain language of the statute included both direct and derivative claims and

included the claims of children as derivative claims.77 It left it to the Indiana legislature

7' See Booth v. Wiley, 839 N.E.2d 1168, 1172 (holding that courts must determine the date of

malpractice and discovery to initiate malpractice actions).72 See id. The Booth court took the rule in Van Dusen a step further by distinguishing the

knowledge of the injury from the knowledge of potential malpractice when determining thetrigger date. Id. First, a court must determine the date of the alleged malpractice and the date the

plaintiff discovered the malpractice. Id. If the date is more than two years after the date the

malpractice occurred, the claimant has two years after the discovery to file a claim. Id. If the

filing is not within the two years, then the statutory limitation applies and the lawsuit must beinitiated before the two-year period after discovery expires to be considered by a court. Id.7 See Booth, 839 N.E.2d at 1178 (Shepard, C.J., dissenting) (arguing that the majority's rule is an

overreaching application of the statute).74 See Lockridge, 60 N.E. 3d at 254.7s See id.76 See id. at 254-55. See supra notes 42-43 and accompanying text (expanding on statutory

definitions and the court's interpretation of "patient" and "health care").77 See Lockridge, 60 N.E.3d at 255.

170 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. VIII ISSUE 1

to further clarify the statute.7 If its interpretation of the statute does not align with the

intention of the statute, then the burden is on the Indiana General Assembly to update

the language to limit the statute's special treatment of children and only allow direct

claimants. 7

78 See id.9 See id.