Martin v. Richey

DARDEN, Judge,

dissenting.

I respectfully dissent. Although I agree that the statute of limitations contained in Indiana’s Medical Malpractice Act is brutal in its application, I am unable to agree that the statute of limitations is unconstitutional.

When construing a statute, we must give effect to the intention of our legislature. Bunker v.- National Gypsum Co., 441 N.E.2d 8,11 (Ind.1982). This is because the Indiana Constitution explicitly vests in the General Assembly the exclusive power to legislate. Ind. Const, art. 4, § 1. Our supreme court has “repeatedly warned that the judiciary must not usurp the constitutional function of the legislature.” Id. Therefore, appellate courts must not substitute judicial judgment for legislative judgment in legislative matters that neither affect fundamental rights nor proceed along suspect lines. Id.

Further, an act of the legislature must be afforded a presumption of constitutionality. Id. Accordingly, the burden to rebut this presumption is upon the challenger and all reasonable doubts must be resolved in favor of an act’s constitutionality. Id. Although appellate courts may review the power of the legislature to act, the courts must not evaluate the policies adopted by the legislature. Id. at 12.

Legislative statutes of limitations carry a general presumption of constitutionality. Id. A statute' of limitations will comport with the constitutional demand for due process so long as it provides a reasonable time for the bringing of an action. Id. The legislature has the sole duty and responsibility to determine what constitutes a reasonable time for the bringing of an action unless the period allowed is so manifestly insufficient that it represents a denial of justice. Id.

Here, the majority has contravened settled case law in finding the statute of limitations in the Medical Malpractice Act to be unconstitutional. The statute of limitations has survived numerous attacks on its constitutionality. See e.g., Bohrabaugh v. Wagoner, *1030 274 Ind. 661 , 413 N.E.2d 891 (1980); Johnson v. St. Vincent Hosp., 273 Ind. 374 , 404 N.E.2d 585 (Ind.1980); Nahmias v. Trustees of Indiana University, 444 N.E.2d 1204 (Ind. Ct.App.1983); Carmichael v. Silbert, 422 N.E.2d 1330 (Ind.Ct.App.1981).

In Rohrabaugh, our supreme court noted that the Medical Malpractice Act was enacted as a legislative response to the reduction of health care services available to the public. Rohrabaugh, at 794. This health care reduction was the result of health care providers making the decision to stop providing their services. Id. It was the legislature’s perception that health care providers were making this decision because of increased malpractice claims and the difficulty in obtaining malpractice insurance. Id. One of the methods that the legislature used to remedy this problem involved limiting patient remedies against health care providers, in part by restricting the time in which a plaintiff has to bring suit. The legislature required medical malpractice plaintiffs to bring their cause of action within two years of the time the act, omission, or neglect occurred.

In Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind.1991), our supreme court noted that “Indiana courts have previously acknowledged the inherent harshness of the occurrence rule on certain plaintiffs, but have found the rule to be reasonable in light of other policies intended to be furthered by the rule.” If two years is no longer a reasonable time for the bringing of a medical malpractice action, see Bunker, supra, the legislature, not the court of appeals, needs to revisit the rule.

For the foregoing reasons, I would affirm the trial court’s grant of summary judgment in favor of Dr. Richey.