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Chamberlain v. Walpole2/24/2005
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Walpole argues that because he was the decedent's "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 father's 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 WDA's 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 couple's daughter, was appointed personal representative of Dorothy's estate and filed an amended malpractice claim, contending that Dorothy's 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 Lawrence's 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
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