Horn v. Hendrickson

MATHIAS, Judge,

concurring in result.

I respectfully concur in result. I believe that the entirety of Horn's argument is controlled by Bolin v. Wingert, 764 N.E.2d 201 (Ind.2002). This court need proceed no further.

I take issue with the majority's creation of the interim legal status of an "individual" under the statute. Whether the majority wishes to recognize it or not, assigning a viable fetus the status of an "individual" will not be a singular or uniform definition. Rather, the majority's opinion will create a complicated, multi-tiered definition, completely dependent upon the level of care available to the mother and fetus at the time of injury. Will a fetus not be "viable" and therefore not an "individual" if the level of care at the delivery facility is a local county general hospital without appreciable advanced prenatal care? If the same fetus could be viable in a large metropolitan hospital with highly specialized prenatal care, should viability and "individual" status be subject to establishment merely on the chance of location of the place of injury? Will the new standard withstand constitutional serutiny when the injury occurs in a location where only a lower level of care is available? These are all questions ignored by the majority and that are more properly the province of the General Assembly. These issues should be resolved through proactive public policy debates in the legislative branch of government, rather than through reactive interpretation of statutory language by the judicial branch of government.

The majority also criticizes our Supreme Court for allegedly ignoring the in pari materia rule of statutory construction. Not only do I believe the criticism is unwarranted, it seems to me that the majority ignores a more fundamental rule about the separation of powers, namely the doe-trine of legislative acquiescence. The General Assembly has been legally and constitutionally aware of the Bolin decision for all or part of four successive annual sessions and yet has not chosen to modify the statute in the way that the majority believes it should now be interpreted. The majority's interpretation should be and is unnecessary. These are the kinds of policy decisions that the Constitution of Indiana entrusts to its legislative branch of government, not to its judicial branch.

Finally, I disagree with the majority's discussion of Horn's claim under Article 1, Section 28, of the Constitution of Indiana. In Collins v. Day, our supreme court has clearly stated that disparate treatment of classes of individuals can be constitutional, so long as inherent differences related to the subject matter of the legislation "require, necessitate, or make- expedient different or exclusive legislation with respect to members of the class." 644 N.E.2d 72, 78 (Ind.1994). The litigation cost to prove viability, which is likely to increase significantly as medical technology allows fetuses to achieve viability at earlier stages, is just such a difference. Very closely analogous differences and considerations support the constitutionality of the Workers Compensation Act and the Medical Malpractice Act. While reasonable persons might differ *705 on whether to distinguish between classes of injured persons on the basis of the litigation cost of proving viability, it is the prerogative of the legislative branch to do so. *

For all of these reasons, I would hold that Bolin v. Wingert is dispositive of all issues raised in this case. I therefore concur in result. -