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Chamberlain v. Walpole2/24/2005
, kindness, attention, companionship, and reasonable funeral and burial expenses. As the wife of Lawrence, she clearly was a `relative.' She therefore met the statutory requirements to bring these claims as a `patient' and was entitled to assert `derivative' claims for these items under the Medical Malpractice Act." Id. at 891. The Survival Statute permits a personal representative to pursue a claim of a decedent unless it is a claim for personal injuries to the decedent. I.C. § 34-9-3-1(a)(6). Here, the claim was for personal injury to Lawrence, not to Dorothy. In short, the claim for Lawrence's death, properly asserted by Dorothy before her death, was an asset of Dorothy's estate when she died. As such, it was properly pursued by Goleski as Dorothy's personal representative. Id. at 892.
Walpole argues that these two cases require the conclusion that he is a "patient," entitled to pursue a "derivative claim" for the loss of love, care, and affection of his father. We disagree. McKnight did not expand the types of claims that could be pursued or hold that the MMA created a new set of claims. McKnight merely allowed a claimant to take advantage of the procedures provided in the MMA to pursue a claim directly that could be pursued under the WDA by a personal representative for the claimant's benefit. In Goleski, when Lawrence Vetter died, his wife, Dorothy had a recognized claim under the WDA for damages for non-pecuniary losses. Specifically, Dorothy, as a widow, was entitled to, and did, bring a claim for lost financial support, love, affection, kindness, attention, and companionship allowed by the WDA. McKnight permitted Dorothy to assert the claim directly rather than as personal representative of Lawrence's estate. After Dorothy died, Goleski could not bring her own claim under the WDA for Lawrence's death because no personal representative had been appointed for Lawrence and the two years for appointing a personal representative for his estate had expired. However, under the Survival Statute, I.C. § 34-9-3- 1(a), Goleski could pursue Dorothy's claim which survived Dorothy's death because it was not a claim for personal injury to Dorothy. Thus Goleski, like McKnight, did not find the MMA to create any new cause of action. Rather, both cases addressed only the procedure for asserting damage actions otherwise allowed under the WDA, and in Goleski, the Survival Statute.
The MMA's definition of a "patient" to include both the person who was injured and a person who has a derivative claim because of that person's injury does not imply that the MMA creates a new claim. It merely requires that claims for medical malpractice that are otherwise recognized under tort law and applicable statutes be pursued through the procedures of the MMA. The MMA's recognition of "derivative" claims is found only in the definition of "patient." The effect of this provision is merely to require that any person who has a "derivative claim" for medical malpractice follow the requirements of the MMA in filing a proposed complaint with the Insurance Commissioner, etc. The MMA's listing of what qualifies as a "derivative claim" is to ensure that the MMA applies to all available claims for medical malpractice. But the MMA does not create new substantive rights or create new causes of action. As the defendants point out, the MMA was designed to curtail liability for medical malpractice, not to expand it. Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 379-80, 404 N.E.2d 585, 589-90 (1980). The language of the definition of patient, as it fits in the statute and as applied in McKnight and Goleski leads to the conclusion that the MMA is procedural and did not create new causes of action.
In Breece v. Lugo, 800 N.E.2d
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