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Thursday, February 24, 2005

Ind. Decisions - Supreme Court posts one today

Timothy R. Chamberlain, M.D., et al. v. Richard Steven Walpole (2/24/05 IndSCt) [Medical Malpractice; Statutory Construction]
Boehm, Justice

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.

Richard Walpole’s 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 Walpole’s father’s 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)

Walpole argues that although he cannot recover non-pecuniary damages for his father’s 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. * * *

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 case.

Conclusion. 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.

Posted by Marcia Oddi on February 24, 2005 02:38 PM
Posted to Ind. Sup.Ct. Decisions