Ellenwine v. Fairley

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE

Jerry Garau Edward L. Murphy, Jr.

Indianapolis, Indiana Heidi K. Koeneman

Fort Wayne, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court

_________________________________

No. 71S03-0605-CV-164

MICHELLE ELLENWINE and

ALVIE ELLENWINE, as Parents

and Natural Guardians of

Dustin Ellenwine, Deceased,

Appellants (Plaintiffs below),

v.

DAWN FAIRLEY, D.O.,

Appellee (Defendant below).

_________________________________

Appeal from the St. Joseph Superior Court, No. 71D06-0110-CP-1497

The Honorable William C. Whitman, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 71A03-0403-CV-124

_________________________________

May 3, 2006

Sullivan, Justice.

Michelle Ellenwine gave birth to a son, Dustin, on December 19, 1996. Dr. Dawn

Fairley was Michelle’s treating physician throughout the pregnancy. Complications arose during

the delivery and within days of the birth one of Dustin’s physicians informed Dustin’s parents,

Michelle and Alvie, that Dustin had suffered brain damage and was experiencing seizures as a

result of oxygen deprivation during delivery. Dustin died on February 2, 1999, when he was two

years old.

On October 12, 1999, the Ellenwines filed a proposed medical malpractice complaint

against Dr. Fairley with the Indiana Department of Insurance. In the proposed complaint, the

Ellenwines alleged that Dr. Fairley’s failure to meet the applicable standard of care was the

proximate cause of Dustin’s injuries and death. On October 23, 2001, the statutory medical re-

view panel issued a unanimous written opinion in favor of the Ellenwines, and seven days later,

on October 30, the Ellenwines filed a claim in the trial court under Indiana’s Child Wrongful

Death Act, Indiana Code Section 34-23-2-1 (“CWDA”).

Dr. Fairley filed a motion for summary judgment, arguing that the action was barred by

the requirement of the Indiana Medical Malpractice Act, Indiana Code Sections 34-18-1-1, et

seq. (“MMA”), that any claim based on medical malpractice be filed within two years of the al-

leged malpractice. Ind. Code § 34-18-7-1(b) (2004). The trial court agreed and granted the mo-

tion. The Court of Appeals reversed, holding that the two-year medical malpractice statute of

limitations could not be constitutionally applied to bar the Ellenwines’ wrongful death claim be-

cause the wrongful death claim did not arise until after the two-year period had lapsed. Ellen-

wine v. Fairley, 818 N.E.2d 961, 969-70 (Ind. Ct. App. 2004).

Discussion

I

The Ellenwines’ lawsuit maintains that Dustin’s injuries and death were due to the negli-

gence of Dr. Fairley on December 19, 1996. As such, their claim was subject to the provisions

of the MMA, a statute that applies to claims of personal injury or death proximately caused by a

“health care provider,” as that term is defined in the MMA. It is worth pausing here to empha-

size, as the Court of Appeals correctly did in its opinion, that the substantive claim or cause of

action at stake in such cases is the common law claim of negligence by a health care provider

proximately causing personal injury or death. We will usually refer to this type of claim in this

2

opinion as “medical malpractice” or just “malpractice.” The MMA did not create or establish the

medical malpractice claim; it only imposed procedural requirements on the prosecution of them.

Chamberlain v. Walpole, 822 N.E.2d 959, 961 (Ind. 2005).

One of the requirements of the MMA is that a proposed medical malpractice complaint

first be filed with the Department of Insurance for review by a medical panel before the com-

plaint is filed in court. Another—and central to the resolution of this case—is that the proposed

complaint be filed within the limitations period specified in the MMA. The statute of limitations

reads as follows:

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 or that 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 less than six (6) years

of age has until the minor’s eighth birthday to file.

Ind. Code § 34-18-7-1(b) (2004).

As is readily apparent, the Legislature has created a special rule for children who are vic-

tims of medical malpractice committed before their sixth birthdays. This case requires us to ex-

amine in great detail the applicability of this rule. For ease of discussion, we will simply use the

terms “child” or “children” when we are talking about a child or children who is or are the vic-

tims of malpractice or alleged malpractice prior to the age of six.

Dustin died on February 2, 1999, about two years and 45 days after the alleged malprac-

tice. The Ellenwines’ claim was filed on October 12, 1999, about ten months after Dustin’s

death. The claim was filed well after the second anniversary of the alleged malpractice but well

before what would have been Dustin’s eighth birthday.

Assume for the moment that the Ellenwines were properly acting as his legal representa-

tives. Were they entitled under applicable law to file a claim on Dustin’s behalf on October 12,

1999, alleging that his injuries and death were caused by medical malpractice? Dr. Fairley ar-

3

gues that they were not because the exception in the MMA allowing a child to file until his

eighth birthday “can only apply if the child is alive at the time suit is filed.” Pet. to Transfer at 3

(citing Randolph v. Methodist Hosp., 793 N.E.2d 231, 236 (Ind. Ct. App. 2003), transfer denied,

812 N.E.2d 790 (Ind. 2004)).

We agree with Dr. Fairley that the Ellenwines could not file a claim on Dustin’s behalf

on October 12, 1999, alleging that his injuries and death were caused by medical malpractice.

But the reason they could not is not a function of the MMA but rather of the Indiana Survival

Statute (“Survival Act”), Indiana Code Sections 34-9-3-1, et seq.

The Survival Act sets forth a series of rules dictating when particular claims or causes of

action may and may not be brought by or against the representative of the deceased party. Sec-

tions 1 and 4 of the Survival Act provide that if an individual who has a personal injury claim or

cause of action dies, the claim or cause of action does not survive and may not be brought by the

representative of the deceased party unless the individual dies from causes other than those per-

sonal injuries. Ind. Code §§ 34-9-3-1, 34-9-3-4; Kohn v. Norfolk & Western Ry. Co., 966

F.Supp. 789, 791 (N.D. Ind. 1997); Goleski v. Fritz, 768 N.E.2d 889, 891-92 (Ind. 2002). Here

the Ellenwines affirmatively contend that the injuries that form the basis of the alleged malprac-

tice caused Dustin’s death. As such, the Survival Act mandates that the medical malpractice

claim does not survive Dustin’s death and may not be brought.

However, had Dustin died from causes other than the alleged malpractice—had he per-

ished, for example, in an automobile accident on February 2, 1999—the Survival Act would

have permitted the Ellenwines as Dustin’s representatives to bring the malpractice claim because

he would have died from another cause. Goleski, 768 N.E.2d at 892. Dr. Fairley contends that

in such a circumstance, the Ellenwines would be prohibited from bringing their claim for the rea-

son set forth a moment ago—because the “eighth birthday” exception only applies if the child is

alive at the time the suit is filed. We will return to this point in greater detail later in this opin-

ion. Suffice it to say for now that we believe considerations of statutory construction and fair-

ness dictate a different result than Dr. Fairley advances.

4

II

When the Ellenwines filed their lawsuit on October 30, 2001, they appear to have recog-

nized that the Survival Act prevented them from filing a medical malpractice claim as Dustin’s

representatives. In any event, they did not do so. What they did do was to file a lawsuit against

Dr. Fairley in their own rights—not as Dustin’s representatives—under the CWDA.

A

Before we discuss Dr. Fairley’s contention that it was also too late for the Ellenwines to

file under the CWDA, we think it would be useful to try to have clearly in mind two sets of dis-

tinctions: (1) the distinction between wrongful death claims generally and child wrongful death

claims under the CWDA, and (2) the distinction between medical malpractice claims and CWDA

claims. The Court of Appeals also set forth a discussion of these two sets of distinctions, and we

do not think we can improve on its explanations.

As to the distinction between wrongful death claims generally and child wrongful death

claims under the CWDA, the Court of Appeals said:

There are two statutory sections which provide the right of

a party to bring a wrongful death claim for the death of another.

Indiana Code § 34-23-1-1, the Wrongful Death Statute, and Indi-

ana Code § 34-23-2-1, the Child Wrongful Death Statute, . . . pro-

vide for recovery. Because the Parents[’] claim arises out of the

death of their child, only the Child Wrongful Death Statute applies

in this case. See Bailey v. Martz, 488 N.E.2d 716, 723 (Ind. Ct.

App. 1986) (in discussing the predecessor statutes to the current

versions of both wrongful death statutes, held that the Child

Wrongful Death Statute provided the only cause of action for

wrongful death of a child), trans. denied, superceded on other

grounds by statute. Nonetheless, the discussion of the issues in

this case is generally applicable to both statutes, and in those in-

stances, we will refer to the cause of action as “wrongful death,”

which is not to be construed as being solely the Wrongful Death

Statute or the Child Wrongful Death Statute. . . . However, recog-

nizing that the two claims are entirely separate, we do not intend to

imply that the requirements to file a claim or the damages available

under the Wrongful Death Statute are the same as those under the

5

CWD[A]. See State v. Guziar, 680 N.E.2d 553 (Ind. Ct. App.

1997).

Ellenwine, 818 N.E.2d at 964 n.2. As to the distinction between medical malpractice claims and

CWDA claims, the Court of Appeals said:

This argument necessarily highlights an important distinc-

tion between the types of claims which may be brought as a result

of alleged malpractice. The first is a negligence claim brought by

or on behalf of the injured party. The second, which is at issue in

this case, is a wrongful death claim brought by the survivors of the

party physically injured by the alleged malpractice. What is clear

and obvious is that a negligence claim and a wrongful death claim

are two wholly separate causes of actions which must be brought

by different parties and which, for the most part, provide damages

for separate types of injuries.

A person injured by the negligence of another is entitled to

reasonable compensation, which is such sum as would reasonably

compensate the victim both for bodily injuries and pain and suffer-

ing. Evans v. Buffington Harbor River Boats, LLC, 799 N.E.2d

1103, 1111 (Ind. Ct. App. 2003), trans. denied. To that sum is

added past, present, and future expenses reasonably necessary for

the plaintiff’s treatment and all financial losses suffered, or to be

suffered, as a result of the inability to perform one’s usual occupa-

tion. Id. A claim jointly brought by a child’s parents under the

CWD[A] allows for the recovery of damages that inure to the

benefit of the parents. Ind. Code § 34-23-2-1 (Burns Code Ed.

Repl. 1998). The damages which may be recovered include:

“(1) for the loss of the child’s services;

(2) for the loss of the child’s love and companion-

ship; and

(3) to pay the expenses of:

(A) health care and hospitalization necessi-

tated by the wrongful act or omission that

caused the child’s death;

(B) the child’s funeral and burial;

(C) the reasonable expense of psychiatric

and psychological counseling incurred by a

surviving parent or minor sibling of the

child that is required because of the death of

the child;

6

(D) uninsured debts of the child, including

debts for which a parent is obligated on be-

half of the child; and

(E) the administration of the child’s estate,

including reasonable attorney’s fees.” Id.

The only measure of damages which is consistent between those

recoverable in a negligence action and those recoverable in a

wrongful death action are those for the hospital and health care ex-

penses which arise as a result of the wrongful act which caused the

death. As noted by our Supreme Court, the “purpose of the

Wrongful Death Statute is not to compensate for the injury to the

decedent but rather to create a cause of action to provide a means

by which the decedent’s survivors may be compensated for the loss

sustained by reason of the death.” Reeder [v. Harper], 788 N.E.2d

[1236, 1242 (Ind. 2003)].

A second important distinction between the two types of

claims is when they come into being. A negligence claim arises as

soon as the negligent act occurs. A claim for wrongful death, al-

though the negligent act may have ultimately triggered the death,

does not exist until the exact moment that the individual dies. See

Holmes v. ACand S, Inc., 709 N.E.2d 36, 39 (Ind. Ct. App. 1999)

(holding that the wrongful death cause of action accrues when the

injured person dies), affirmed on reh’g, 711 N.E.2d 1289, trans.

denied. In effect, the fact which gives rise to the wrongful death

claim—the death—exhausts the negligence claim. This conclusion

is demonstrated by the Survivorship Statute, Indiana Code § 34-9-

3-4 (Burns Code Ed. Repl. 1998).

Id. at 964-65 (footnote omitted).

B

So what is the applicable statute of limitations when parents seek to recover damages suf-

fered as a result of the wrongful death of their child? The Wrongful Death Act says that they

have two years from the date of the child’s death. Ind. Code § 34-23-1-1 (2004). Dr. Fairley

argues that, where the death is caused by medical malpractice, the two-year occurrence-based

statute of limitations contained in the MMA applies. Dr. Fairley cites several decisions of the

Court of Appeals to support this position. While we find that authority less than persuasive, in

the end we agree that Dr. Fairley is right.

7

The first case to which Dr. Fairley points is Randolph v. Methodist Hosp., 793 N.E.2d

231 (Ind. Ct. App. 2003), which we have mentioned and will discuss in detail later in this opin-

ion. Randolph, simply reciting the holding of another case, held that “the two-year statute of

limitations found in the medical malpractice act applied to an action for wrongful death based on

medical malpractice.” Randolph, 793 N.E.2d at 237 (citing Hopster v. Burgeson, 750 N.E.2d

841, 852-53 (Ind. Ct. App. 2001), transfer not sought). Hopster gave the issue more extended

treatment but concluded by relying on still a third case, Frady v. Hedgcock, 497 N.E.2d 620, 622

(Ind. Ct. App. 1986), transfer denied. It was Frady, then, that established the principle that the

MMA’s two-year occurrence-based statute of limitations applies to wrongful death actions based

on medical malpractice.

But Frady’s entire discussion on this point is relatively brief:

The statute of limitations for the Medical Malpractice Act,

Indiana Code section 16-9.5-3-1, provides that any claim against a

health care provider must be brought “within two [2] years from

the date of the alleged act, omission or neglect.” In contrast, Indi-

ana Code section 34-1-1-2 provides that any action for wrongful

death must be brought “by the personal representative of the dece-

dent within two (2) years.” We thus confront the issue of which

statute of limitations to apply.

In Warrick Hospital, Inc. v. Wallace (1982), Ind. App., 435

N.E.2d 263, trans. denied, this court held that a plaintiff in a

wrongful death action based upon alleged medical malpractice

must satisfy the conditions precedent of the wrongful death statute,

one of which is the appointment of a personal representative within

two (2) years of the death. However, Warrick was overruled this

year by our supreme court in Community Hospital v. McKnight

(1986), Ind., 493 N.E.2d 775. In that case, the court held that a per-

son pursuing a wrongful death claim need not be appointed the

personal representative of the decedent when the claim is based

upon alleged medical malpractice. The court’s rationale was cen-

tered on the clear language of the Medical Malpractice Act pertain-

ing to who may file such an action. This result is harmonious with

our conclusion that, “Viewed from the historical perspective we

believe the conclusion is inescapable that our General Assembly

intended that all actions the underlying basis of which is alleged

medical malpractice are subject to the [medical malpractice] act.”

8

Sue Yee Lee v. Lafayette Home Hospital, Inc. (1980), Ind. App.,

410 N.E.2d 1319, 1324, trans. denied.

We see no reason why Community Hospital is not applica-

ble to the case under consideration. We hold that the statute of

limitations for the Medical Malpractice Act is applicable instead of

the time period imposed for wrongful death actions. Therefore, an

action for wrongful death based upon medical malpractice must be

filed within two years of “the date of the alleged act, omission or

neglect,” not within two years of the date of the death.

Frady, 497 N.E.2d at 621-22.

Thus, the ruling of the Court of Appeals in Frady, upon which it relied in Hopster and

Randolph, and which Dr. Fairley presses upon us here, was based on its reading of our decision

in Community Hospital. With respect, Community Hospital seems inapposite. First, it did not

deal with statutes of limitation at all. More importantly, Community Hospital was a medical

malpractice claim; it did not involve a wrongful death claim. The question was whether the pro-

cedures of the wrongful death statute were required to be followed when bringing a medical mal-

practice claim where the patient had died from the alleged malpractice. Answer: no, only the

provisions of the MMA had to be followed. We do not see this as precedent one way or the

other for answering the issue presented here: whether the procedures of the MMA (specifically,

the limitations procedures) are required to be followed when bringing a wrongful death claim

where the patient had died from the alleged malpractice.

Having concluded that Frady (and, by extension, Hopster and Randolph) were wrong to

rely on Community Hospital in concluding that the two-year occurrence-based statute of limita-

tions applies in wrongful death cases where the patient dies from alleged malpractice, we never-

theless conclude that that is the correct result. One of the principal legislative purposes behind

the MMA in general and the two-year occurrence-based statute of limitations in particular was to

foster prompt litigation of medical malpractice claims. Because a patient who has been the vic-

tim of medical negligence could well live many more than two years beyond the occurrence of

the malpractice only to ultimately die as a result of it, applying the two-years-after-death limita-

tions period of the wrongful death statute where a patient dies from the malpractice seems to us

9

totally inconsistent with this legislative goal. Furthermore, just as a fair reading of the MMA

indicates that the medical review panel requirements of the MMA must be complied with in or-

der to bring a wrongful death claim based on medical malpractice, so too for the limitations pro-

vision. Finally, to the extent that there is any question about our reading of the legislative intent,

we believe that a sufficient period of time has passed since Frady was decided that there has been

legislative acquiescence.

To summarize our conclusions to this point, consider an adult patient who is the victim of

medical negligence who dies within two years of the occurrence of the malpractice. 1 (1) If the

death was caused by the malpractice, (a) the malpractice claim (whether brought by the patient or

another as the representative of the patient) terminates at the patient’s death, Ind. Code § 34-9-3-

1(a)(6) (2004); and (b) a wrongful death claim must be filed within two years of the occurrence

of the malpractice, see Frady. (2) If the death was from a cause other than the malpractice, (a)

the malpractice claim (brought by the patient’s legal representative) must be filed within two

years of the occurrence of the malpractice, Ind. Code §§ 34-18-7-1(b) (2004); and (b) any

wrongful death claim must be filed within two years of the date of death, Ind. Code § 34-23-1-1

(2004).

III

One point remains for us to consider. Frady and Hopster both were claims under the

general wrongful death statute; they did not involve children. Only Randolph implicates the

CWDA and only in dicta, as it is very clear from that case that the parent in that case was seek-

ing to bring a medical malpractice claim as the representative of her deceased child and not a

claim under the CWDA. Randolph v. Methodist Hosp., 793 N.E.2d 231, 237 (Ind. Ct. App.

2003).

1

We assume (both here and throughout this opinion) that the discovery of the occurrence of the medical

malpractice takes place when it is reasonably possible to file the claim within the limitations period. Spe-

cial filing rules can apply when it is not. See Booth v. Wiley, 839 N.E.2d 1168, 1172 (Ind. 2005); Boggs

v. Tri-State Radiology, Inc., 730 N.E.2d 692, 697-98 (Ind. 2000); Martin v. Richey, 711 N.E.2d 1273,

1284-85 (Ind. 1999).

10

Randolph requires further analysis. This was a case in which a child, Kwabene

Randolph, not unlike Dustin Ellenwine, suffered severe injuries at birth from which he died

seven months later. His mother filed her medical malpractice claim approximately 5-1/2 years

later, i.e., almost six years after the alleged malpractice and just before what would have been

Kwabene’s sixth birthday.

The Court of Appeals grounded its analysis entirely in the MMA; there is no reference to

the Survival Act. It concluded that the MMA statute of limitations cut off Kwabene’s malprac-

tice claim because the “eighth birthday” exception “applies only to living children and does not

apply to extend Kwabene’s window for timely filing of a medical malpractice action beyond two

years after the occurrence causing the injuries.” Id. at 235.

We agree with the result of the Court of Appeals in Randolph but not its reasoning.

We see nothing in the language of the MMA that suggests that the “eighth birthday” ex-

ception only applies to children who are living, just as there is nothing in the language of the

generally applicable two-year provision that suggests that it only applies to living patients. That

is, no one contends that the MMA cuts off the two-year limitations period applicable to adults if

the adult dies before the end of the two years. To be sure, the Survival Act does so if, but only if,

the death is caused by the malpractice. If the death is from another cause, the claim is still avail-

able until the MMA’s two-year period expires.

The language used by the Legislature both in the MMA itself and in the Survival Act

does not suggest to us in any way an intent to cut off the limitations period otherwise provided

for children upon their death. As in the adult situation, the Survival Act (not the MMA) termi-

nates a child’s malpractice claim if the death is caused by the malpractice. But Dr. Fairley con-

tends (and Randolph’s reasoning suggests) that a child’s malpractice claim would also be termi-

nated even if the child’s death was from other causes. We think this interpretation clearly con-

travenes the Legislature’s intent expressed in Section 4 of the Survival Act.

11

Granted, Dustin did die from the alleged malpractice, but the distinction just drawn is im-

portant here for the following reason. If it is the Survival Act, and not the MMA, that terminates

his malpractice claim at death, then there is no basis for saying that the MMA required the El-

lenwines to have their CWDA claim on file prior to Dustin’s death. Rather, it seems to us that

the MMA and CWDA operated together to require the Ellenwines to get their claim on file

within the first to expire either of the MMA limitations period (Dustin’s eighth birthday) or of

the CWDA limitations period (two years from date of death). This, of course, they did and the

trial court was wrong to grant Dr. Fairley summary judgment on statute of limitations grounds.

Note that this is entirely consistent with the result in Randolph. The alleged malpractice

occurred at Kwabene’s birth on October 7, 1991. He died as a result of the alleged malpractice

seven months later on May 7, 1992. The medical malpractice claim was filed on September 26,

1997, shortly before what would have been little Kwabene’s sixth birthday. As noted several

times in this opinion, this claim was properly dismissed because it did not survive Kwabene’s

death by operation of the Survival Act. And had Kwabene’s mother attempted to file a CWDA

claim on September 25, 1997, it would have been properly dismissed as not having been filed

within two years of the date of death. However, Kwabene’s mother could have filed a CWDA

claim during the two-year period following his death because that would have been within the

MMA limitations period (which ran until Kwabene’s eighth birthday) as well as the CWDA limi-

tations period.

This approach seems to us to conform to the language of the relevant statutes and also to

the Legislature’s broader purposes in fostering prompt litigation of medical malpractice claims

while allowing some leeway in cases involving children. Under our formulation, the wrongful

death claim of a child who dies due to medical malpractice in infancy or in the first few years of

life does not hang over the heads of the health care providers all the way until what would have

been the child’s eighth birthday. But it does continue for two years after the date of the child’s

death. This seems to be the balance struck by the Legislature in furthering these broader pur-

poses, and it seems to be a fair and workable one.

12

There is one remaining type of case that warrants mention. Suppose a child with a medi-

cal malpractice claim dies in infancy or in the first few years of life from causes other than the

malpractice. Remember that in this circumstance, the Survival Act provides that the malpractice

claim survives. Ind. Code § 34-9-3-4 (2004). What are the limitations periods applicable, first,

to the malpractice claim (brought by the child’s legal representative) and, second, to any CWDA

claim? We think it apparent that any CWDA claim must be brought no later than two years of

the date of death; that is what the plain language of the statute provides. Ind. Code § 34-23-1-1

(2004). The malpractice claim is more problematic. Certainly one could argue from the lan-

guage of the MMA that the child’s representative has until the child’s eighth birthday to bring

the claim. Recognizing that it is only dicta for purposes of this case, we nevertheless believe that

the fairest and most workable rule is one closely analogous to the one described above (where

the death was caused by the malpractice): that both the malpractice claim and the CWDA claim

must be brought within the first to expire either of the MMA limitations period (the child’s

eighth birthday) or of the CWDA limitations period (two years from date of death).

We summarize as follows our conclusions with respect to a child patient who is the vic-

tim of medical negligence prior to the child’s sixth birthday who dies prior to the child’s eighth

birthday. (1) If the death was caused by the malpractice, (a) the malpractice claim (brought by

the legal representative of the child) terminates at the child’s death, Ind. Code § 34-9-3-1(a)(6)

(2004); and (b) any wrongful death claim must be filed within the first to expire of either the

MMA limitations period (the child’s eighth birthday) or the CWDA limitations period (two years

from the date of death). (2) If the death was from a cause other than the malpractice, both (a) the

malpractice claim (whether brought by the patient or another as the representative of the patient)

and (b) any wrongful death claim must be filed within first to expire either of the MMA limita-

tions period (the child’s eighth birthday) or of the CWDA limitations period (two years from

date of death).

13

IV

Because the relevant statutes permit the Ellenwines to proceed with their CWDA claim,

we have no need to address whether the Open Courts Clause or the Privileges and Immunities

Clause of the Indiana Constitution limit their applicability to the Ellenwines’ claim.

Conclusion

We grant transfer, thereby vacating the decision of the Court of Appeals in this case, and

reverse the trial court’s grant of summary judgment in favor of Dr. Fairley.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

14