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Chamberlain v. Walpole2/24/2005
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 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). This Court granted transfer. Chamberlain v. Walpole, 812 N.E.2d 800 (Ind. 2004).
Walpole's Right to Non-pecuniary Damages
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.
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 Int'l, 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.
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