FOR PUBLICATION




ATTORNEY FOR APPELLANTS:                        ATTORNEYS FOR APPELLEES:

F. HARRISON GREEN                               KARL L. MULVANEY
Cincinnati, Ohio                                NANA QUAY-SMITH
                                                Bingham Greenebaum Doll, LLP
                                                Indianapolis, Indiana


                                                                         FILED
                                                                      Sep 13 2012, 9:24 am

                             IN THE
                                                                               CLERK
                   COURT OF APPEALS OF INDIANA                               of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




ANN L. MILLER and RICHARD A. MILLER,            )
                                                )
      Appellants-Plaintiffs,                    )
                                                )
             vs.                                )    No. 15A05-1108-CT-431
                                                )
GLENN L. DOBBS, D.O., and                       )
PARTNERS IN HEALTH,                             )
                                                )
      Appellees-Defendants.                     )
                                                )


                   APPEAL FROM THE DEARBORN SUPERIOR COURT
                        The Honorable Carl H. Taul, Special Judge
                             Cause No. 15D02-0803-CT-2



                                    September 13, 2012


                               OPINION - FOR PUBLICATION

KIRSCH, Judge
        Ann L. Miller (“Ann”) and her husband Richard A. Miller (“Richard”)

(collectively, “the Millers”) appeal the trial court’s grant of summary judgment in favor

of Dr. Glenn L. Dobbs, D.O. (“Dr. Dobbs”), and Partners in Health (collectively, “the

Defendants”). The Millers raise several issues, of which we find the following to be

dispositive: whether the trial court erred in granting summary judgment in favor of the

Defendants based on a finding that the Millers’ proposed complaint was not timely filed.

        We reverse and remand.

                          FACTS AND PROCEDURAL HISTORY

        In 2005, Ann was referred to Dr. Dobbs for obstetrical care. Dr. Dobbs practices

at Partners in Health in Lawrenceburg, Indiana.                  During her pregnancy, Ann was

diagnosed with gestational hypertension and gestational diabetes, but she was never

diagnosed with preeclampsia.1 On March 20, 2006, Ann gave birth to her fourth child at

Dearborn County Hospital. Dr. Dobbs delivered the baby via cesarean section and

performed a tubal ligation. Ann’s blood pressure was high during early labor, but it

normalized once she was given an epidural. Ann’s blood pressure postpartum was

“stable” and ranged from 130/80 to 165/85. Appellants’ App. at 17; see also id. at 191

(BP ranging from 139/73 to 162/85).                Dr. Dobbs discharged Ann “with suspected

gestational diabetes not preeclampsia,” gave her precautions, but no antihypertensive

medications, and instructed her to return for a follow up. Id. at 17.



        1
          Preeclampsia, a condition pregnant women are susceptible to, is marked by three important
signs: hypertension (high blood pressure), edema (fluid retention), and proteinuria (protein in the urine).
See Brinkman v. Bueter, 879 N.E.2d 549, 550 n.1 (Ind. 2008). If preeclampsia is not treated, it may
evolve into a more serious condition called eclampsia, which is characterized by convulsions. Id. at 551
n.3.
                                                    2
       Ann was scheduled to return to Dr. Dobbs’s office on Monday, March 27, 2006,

for her follow up. However, Dr. Dobbs was out of the office that day attending another

delivery, so Ann’s appointment was rescheduled for Friday, March 31. This appointment

was then rescheduled for Monday, April 3. The record, however, does not reflect who

rescheduled this appointment or the reason for the rescheduling.

       On the morning of her rescheduled appointment, Richard found Ann unconscious

in the bathroom. When the paramedics arrived, Ann was awake but disoriented and had a

blood pressure of 220/108. On the way to Dearborn County Hospital, Ann had a seizure.

Once at the hospital, a CT scan revealed that Ann had suffered bilateral infarcts, that is, a

stroke involving both hemispheres of her brain.2 According to Ann’s medical records, the

stroke was “devastating.” Id. at 17. Ann was transferred to University of Cincinnati

Hospital. She suffered permanent injuries from the stroke.

       The Millers retained an Indiana-licensed Cincinnati attorney to represent them and

obtained Ann’s medical records from Dr. Dobbs sometime in March 2007.

Approximately one year later, on March 18, 2008, the Millers’ attorney mailed a

proposed medical-malpractice complaint against the Defendants to the Indiana

Department of Insurance (“the Department”) via certified mail. This certified mailing

occurred approximately two weeks before the statute of limitations was due to expire on




       2
          Ann was later diagnosed with PRES, or posterior reversal encephalopathy syndrome, a late and
very rare complication associated with preeclampsia and eclampsia. Appellants’ App. at 16.

                                                  3
April 4, 2008.3 See Ind. Code § 34-18-7-1(b) (“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 . . . .”). The mailing

included a cover letter, the proposed complaint, and a return envelope, which the

Department then used to return a copy of the proposed complaint bearing a file-stamp

date of March 18, 2008. The mailing, however, did not include the filing or processing

fees that are required for proposed complaints.                 See Ind. Code § 34-18-8-2 (“The

following fees must accompany each proposed complaint filed: (1) A filing fee of five

dollars ($5). (2) A processing fee of two dollars ($2) for each additional defendant after

the first defendant.” (emphasis added)).

        Apparently later discovering the fee error, on March 31, 2008, Stephanie Mosley

(“Mosley”), a claims processor at the Department, sent the Millers’ attorney a letter

stating that the mandatory fees needed to be forwarded within thirty days. The letter

instructed, in bold, that “[a] proposed complaint will not be considered filed with the

Department until the filing fees stated in IC 34-18-8-2 are received by the Department.”

        3
            Both sides agree that the two-year statute of limitations expired on Friday, April 4, 2008. See
Appellees’ Br. at 22. Dr. Dobbs and Partners in Health explain that, because the day of Ann’s stroke,
April 3, 2006, does not count when calculating the two-year period, the statute of limitations expired on
April 4 and not April 3, 2008. Id. (citing Indiana Trial Rule 6(A), which provides that the day of the
event from which a designated period of time begins to run is not included in the computation of any
statutory time period). We therefore proceed as if the statute of limitations expired on April 4, 2008.

        We note that the Millers argued before the trial court that the statute of limitations was extended
because Ann’s stroke prevented her from recognizing that she had suffered an injury. Appellees’ App. at
60-73. The trial court rejected this argument, finding that the Millers obtained Ann’s medical records
approximately thirteen months before the statute of limitations expired, which was a reasonable amount
of time to file a complaint. The Millers do not renew this argument in their appellants’ brief. To the
extent that the Millers attempt to raise this issue (including fraudulent concealment) in their reply brief,
they cannot do so. See Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”).
                                                     4
Appellees’ App. at 37. The letter also included a copy of the Department’s proposed-

complaint procedures, which also warned that “[a] proposed complaint is considered filed

when a copy of the proposed complaint is delivered or mailed by registered or certified

mail to the Department with the required filing and processing fees. (I.C. 34-18-8-2; I.C.

34-18-9-1).” Id. at 38 (emphasis added). The Department’s website contains a similar

warning.      See Ind. Dep’t of Ins., Medical Malpractice: Filing a Complaint,

http://www.in.gov/idoi/2614.htm (last visited Aug. 2, 2012) (“A proposed complaint is

filed when a copy is delivered or mailed by registered or certified mail to the Department

with the required filing and processing fees. If an insufficient filing fee is submitted, the

proposed/amended complaint will not be considered filed until the date the appropriate

fees are received.”).

        The Millers’ attorney received Mosley’s letter on Friday, April 4, the very day that

the statute of limitations expired.4 That same day, the Millers’ attorney mailed a $7.00

check for the filing and processing fees to the Department via first-class mail, not

registered or certified mail. On Monday, April 7, the Department received the Millers’

fees and file-stamped the proposed complaint as of that date.5 The Department then sent

a copy of the April 7 file-stamped proposed complaint to the Millers’ attorney, which was




        4
          The Department’s file in this case includes a handwritten notation on Mosley’s March 31 letter
from a “S.M.,” presumably Stephanie Mosley, that she “[l]eft message for call back Ext 103.” Appellees’
App. at 44.
        5
          The Department’s file also contains a handwritten notation on Mosley’s March 31 letter that is
dated April 9 and provides, “File date was stamp[ed] for March 18, 2008 but filing fee was not rec[ei]ved
until April 7, 2008 so file date was changed to [reflect] day [that] filing fee was received.” Appellees’
App. at 44.

                                                   5
received on April 9.        The Millers’ attorney took no action to dispute or otherwise

challenge the new April 7 filing date.

        Meanwhile, on March 31, 2008, the Millers filed a complaint against the

Defendants in Dearborn Superior Court.              Appellees’ App. at 113.          Specifically, the

Millers alleged that Dr. Dobbs was negligent in failing to treat and care for Ann “in

accordance with standards of care and treatment generally accepted in the community,”

which resulted in Ann suffering a bilateral stroke and Richard’s loss of consortium. Id. at

117. Because the Millers filed their complaint with the trial court before the Medical

Review Panel rendered its opinion, the trial court action was stayed until the panel

proceedings were completed. Id. at 1 (motion), 3 (trial-court order); see also Ind. Code §

34-18-8-7 (providing that “a claimant may commence an action in court for malpractice

at the same time the claimant’s proposed complaint is being considered by a medical

review panel,” subject to several requirements).6

        The Medical Review Panel issued its opinion in July 2010, and the Defendants

filed their answer and affirmative defenses in the trial court in October 2010.

Specifically, they argued that the Millers’ “cause of action herein is barred for the reason

that [their] Proposed Complaint was filed with the Indiana Department of Insurance after

the expiration of the Indiana statute of limitations applicable to this claim.” Appellees’

App. at 8.




        6
         We note that one of those requirements is that the complaint filed in court “may not contain any
information that would allow a third party to identify the defendant.” Ind. Code § 34-18-8-7(a). Notably,
the complaint the Millers filed in court identified both the Defendants by name. See Appellees’ App. at
113.
                                                   6
       The Defendants followed up in November 2010 with a motion for summary

judgment “on the basis that the [Millers] filed their proposed complaint with the Indiana

Department of Insurance after the period of time allowable under the Indiana Medical

Malpractice Act, . . . and that [their] action is, therefore, barred.” Id. at 10. The Millers

filed a motion in opposition.

       Approximately five months later, in May 2011, the Millers filed a motion to strike

the Defendants’ motion for summary judgment. The Millers alleged, for the first time,

that the Defendants waived their statute-of-limitations defense by not raising the issue

before the Medical Review Panel issued its opinion.          Id. at 161.   The Defendants

responded that they properly raised their statute-of-limitations defense in the trial court

after the Medical Review Panel issued its opinion pursuant to Indiana Code section 34-

18-11-1(d).

       The trial court granted summary judgment in favor of the Defendants as follows:

       1. Plaintiff Ann L. Miller suffered a stroke on April 3rd, 2006 allegedly due
       to the negligence of the Defendants.

       2. Plaintiff filed its complaint in this Court on March 31, 2008.

       3. Plaintiff did not file a Complaint with the Indiana Department of
       Insurance until April 7, 2008.

       ....

       5. Defendants have not waived their right to raise the affirmative defense of
       the statute of limitations. I.C. 34-18-1-1(d).

       6. There exists no genuine issue of material fact and Defendant’s [sic] are
       entitled to judgment as a matter of law.

Appellants’ App. at 295-96. The Millers now appeal.


                                             7
                            DISCUSSION AND DECISION

       The Millers contend that the trial court erred in granting summary judgment to the

Defendants on grounds that they filed their proposed complaint with the Department after

the two-year statute of limitations for medical-malpractice actions expired. The defense

of a statute of limitations is peculiarly suitable as a basis for summary judgment. McGill

v. Ling, 801 N.E.2d 678, 682 (Ind. Ct. App. 2004), trans. denied. The purpose of

summary judgment is to terminate litigation about which there can be no factual dispute

and which may be determined as a matter of law. Id. The burden is on the moving party

to show that there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id. The trial court’s decision on a motion for summary

judgment enters the process of appellate review clothed with a presumption of validity.

Id. Nevertheless, the reviewing court faces the same issues that were before the trial

court and must carefully scrutinize the trial court’s determination to assure that the non-

prevailing party was not improperly prevented from having his or her day in court. Id.

       A medical-malpractice action may not be brought against a health care provider

unless the claim is filed within two years after the occurrence of the alleged malpractice.

Id. Indiana Code section 34-18-7-1 instructs:

       (b) 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 . . . .

Ind. Code § 34-18-7-1(b). Moreover, a medical-malpractice action may not be brought

against a health care provider until the claimant’s proposed complaint has been filed with



                                            8
the Department and an opinion has been issued by a medical review panel. McGill, 801

N.E.2d at 682. To that end, Indiana Code section 34-18-8-4 provides:

      Notwithstanding section 1 of this chapter, and except as provided in
      sections 5 and 6 of this chapter, an action against a health care provider
      may not be commenced in a court in Indiana before:

      (1)    the claimant’s proposed complaint has been presented to a medical
             review panel established under IC 34-18-10 (or IC 27-12-10 before
             its repeal); and

      (2)    an opinion is given by the panel.

Ind. Code § 34-18-8-4 (emphasis added). Accordingly, the failure to file a proposed

complaint with the Department within two years from the date of the alleged malpractice

is ordinarily fatal to a medical-malpractice action. McGill, 801 N.E.2d at 682.

      The filing of a proposed complaint tolls the applicable statute of limitations to and

including a period of ninety days following the claimant’s receipt of the Medical Review

Panel’s opinion. Ind. Code § 34-18-7-3(a). A proposed complaint is considered filed

when “a copy of the proposed complaint is delivered or mailed by registered or certified

mail to the commissioner.” I.C. § 34-18-7-3(b). A filing fee of $5.00 plus a processing

fee of $2.00 for each additional defendant after the first defendant “must accompany each

proposed complaint filed.” Ind. Code § 34-18-8-2.

      Here, the Millers filed their proposed complaint with the Department on March 18,

2008, approximately two weeks before the statute of limitations expired; however, they

did not include the mandatory filing and processing fees with their proposed complaint.

The Millers later mailed these fees via first-class mail, and the Department received them

on April 7, 2008 – three days after the statute of limitations expired. The Millers,


                                            9
however, filed a complaint in Dearborn Superior Court before the statute of limitations

expired.

       The Millers argue that they substantially complied with the Medical Malpractice

Act because they timely mailed the proposed complaint, albeit without the mandatory

fees. They contend that, in providing the proposed complaint to the Department and to

the Defendants, they substantially complied with the dictate of the statutory process. The

Millers further claim that the process was completed when the fees were mailed on April

4, 2008.

       The Defendants rely on several cases to support their position that the Millers

failed to timely submit their proposed complaint. In Boostrom v. Bach, 622 N.E.2d 175

(Ind. 1993), cert. denied, 513 U.S. 928 (1994), the plaintiff mailed a small-claims

complaint by certified mail on the day that the statute of limitations expired. However,

the plaintiff did not include the filing fee. The clerk received the complaint but did not

file it until the fee was paid. According to Indiana Small Claims Rule 2(A) at that time, a

small-claims action was commenced “by the filing of an unverified notice of claim in a

court of competent jurisdiction.”7 Id. at 175. The Indiana Supreme Court ruled that the

complaint was not filed until the fee was paid, noting that payment of the filing fee “is

wholly in the hands of the plaintiff.” Id. at 176-77. The Court also noted that the court’s

“desire to dispose of appeals on the merits whenever possible does not displace the

legislative policy which undergirds the statute of limitations,” that is, to spare courts from

stale claims and ensure that parties are given seasonable notice that a claim is being

       7
          Small Claims Rule 2(A) now provides, “An action under these rules shall be commenced by the
filing of an unverified notice of claim in a court of competent jurisdiction and by payment of the
prescribed filing fee or filing an order waiving the filing fee.”
                                                 10
asserted against them. Id. at 176. The Court found that “[t]endering the prescribed court

costs fee is relevant” to this objective. Id.

       In Fort Wayne International Airport v. Wilburn, 723 N.E.2d 967 (Ind. Ct. App.

2000), trans. denied, this court applied the holding from Boostrom and found the

plaintiff’s complaint to be untimely filed when the plaintiff timely mailed the complaint,

which was file-marked before the statute of limitations expired, but failed to tender the

summons until after the statute of limitations had expired. Id. at 968. This court noted

that the plaintiff controls presentation of all documents necessary to commence suit – the

complaint, the summons, and the fee; accordingly, although the plaintiff submitted two of

three items necessary, it was found not to be adequate. Id.

       Later, in Ray-Hayes v. Heinamann, 760 N.E.2d 172 (Ind. 2002), reh’g granted,

768 N.E.2d 899 (2002), our Supreme Court approved the holding of Wilburn and

affirmed the trial court’s dismissal of the plaintiff’s amended complaint as being untimely

where, although an amended complaint adding new defendants and the filing fee were

timely filed, the plaintiff did not tender the summons for the new defendants until after

the statute of limitations had run. Id. at 174. The Supreme Court determined that

Wilburn had been correctly decided not only because of sound policy reasons, but also

because Indiana Trial Rule 3 had recently been amended to specify that an action is

commenced by filing the complaint, paying the filing fee, and furnishing sufficient copies

of the complaint and summons. Id. at 174-75.8



       8
         The Supreme Court’s opinion on rehearing concluded that the rule announced in its original
opinion would be applied prospectively only based upon “very specific circumstances.” Ray-Hayes v.
Heinamann, 768 N.E.2d 899, 901 (Ind. 2002).
                                                11
       The Defendants contend that the Millers had a specific obligation imposed by

Indiana Code section 34-18-8-2 to tender the filing and processing fees with their

proposed complaint, and that the Department correctly determined that the Millers’

proposed complaint was filed on April 7, 2008, the date the Department actually received

the filing and processing fees. We disagree. Because the matter before us arises from a

proposed complaint filed before a medical review panel, and not from a complaint filed

in our trial courts, we do not believe our decision here is controlled by existing precedent

from our Supreme Court or this court. The present case does not involve any trial or

small claims rules, and the rationale from cases interpreting such does not equally apply

to cases under the Medical Malpractice Act.

       It has long been the preferred policy of this State, this court and our Supreme

Court to decide cases upon their merits. “We prefer to decide a case on the merits

whenever possible.” Omni Ins. Grp. v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012)

(citing United Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060, 1067 (Ind. Ct.

App. 2004)). Indiana Code section 34-18-7-3(b) provides that, “A proposed complaint

under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered

or mailed by registered or certified mail to the commissioner.” Indiana Code section 34-

18-8-2 provides that the filing fees “must accompany each proposed complaint filed.”

       We believe that there are two ways to proceed when, as here, a proposed

complaint is delivered or mailed by registered or certified mail to the Department and

does not contain the filing fees. On the one hand, we could, as the trial court did here,

treat the proposed complaint as unfiled until the filing fees are paid. Or, we could treat


                                            12
the complaint as filed and issue a show cause notice to the plaintiffs that the filing fee had

not been paid and that their proposed complaint would be dismissed unless the filing fee

were paid in short order. In the first instance, we dismiss what may prove to be a

meritorious complaint on procedural grounds for a small delay in the payment of a small

sum,9 here a mere seven dollars.             In the second, we provide the parties with the

opportunity to rectify their error and proceed to determine the complaint on its merits.

        We often write of our desire to determine disputes on their merits. If that be so,

our jurisprudence should be brought in line with this desire. The statute of limitations

exists not only to spare courts from stale claims, but also “to insure that parties are given

formal and seasonable notice that a claim is being asserted against them.” Boostrom, 622

N.E.2d at 176 (citing State ex rel. Young v. Noble Circuit Court, 263 Ind. 353, 359, 332

N.E.2d 99, 103 (1975)). Where, as here, the proposed complaint was delivered or mailed

by registered or certified mail to the Department within the statute of limitations, but did

not contain the filing and processing fees, and the fees were paid shortly after the

plaintiffs were informed of their inadvertent failure to pay the fees, such complaints

should be determined on their merits. This is particularly true, when, as occurred in the

present case, such minimal delay in paying the fees did not prejudice the defendant in its

ability to proceed in its defense of such a claim. The Defendants received seasonable

notice of the Millers’ claim against them as they were aware of the proposed complaint

when it was originally sent on March 18, 2008 and, believing that the proposed complaint

was timely filed, they participated in normal preparation for the submission of evidence

        9
         Here, the sum involved was $7.00 which was paid three days after the statute of limitations
expired. It is ironic that the parties have now spent more than four years in litigation and countless sums
of money in a dispute over seven dollars and three days.
                                                    13
to the Medical Review Panel. We therefore conclude that the Millers rectified their error

in failing to send the fees with the proposed complaint in a prompt fashion, and their

proposed complaint should have been deemed timely filed. The trial court erred in

granting summary judgment in favor of the Defendants.

      Reversed and remanded.

BROWN, J., concurs in result with separate opinion.

VAIDIK, J., dissents with separate opinion.




                                              14
                              IN THE
                    COURT OF APPEALS OF INDIANA

ANN L. MILLER and RICHARD A. MILLER,             )
                                                 )
       Appellants-Plaintiffs,                    )
                                                 )
              vs.                                )    No. 15A05-1108-CT-431
                                                 )
GLENN L. DOBBS, D.O., and                        )
PARTNERS IN HEALTH,                              )
                                                 )
       Appellees-Defendants.                     )


Brown, Judge, concurring in result.

       I concur in the result reached by Judge Kirsch that the court’s grant of summary

judgment should be reversed, but I do so for different reasons. As Judge Kirsch notes,

this case arises from a proposed complaint filed before a medical review panel, rather

than from a complaint filed in a trial court, and thus the outcome is dictated by the

Medical Malpractice Act (“MMA”).          Chapter 7 of the MMA, titled “Statute of

Limitations,” contains three sections including Ind. Code § 34-18-7-3, titled “Tolling of

statute of limitations; filing of proposed complaint,” which provides in relevant part that

“[a] proposed complaint under IC 34-18-8 is considered filed when a copy of the

proposed complaint is delivered or mailed by registered or certified mail to the

commissioner.” I.C. 34-18-7-3(b) (emphasis added). Thus, for purposes of the statute of

limitations, a proposed complaint under the MMA is filed when it has been delivered or

mailed by registered or certified mail to the commissioner.

                                            15
       Indeed, a plain reading of the relevant sections of the MMA demonstrate that,

although paying filing and processing fees is necessary to bring an action under the

MMA, it does not bear on the tolling statute under Chapter 7. Ind. Code § 34-18-8-2, the

fees section, is contained in Chapter 8 of the MMA, titled “Commencement of a Medical

Malpractice Action,” and states that “[t]he following fees must accompany each proposed

complaint filed.” (Emphasis added). Thus, in harmonizing Section 2 with Ind. Code §

34-18-7-3(b), one can only conclude that a proposed complaint is filed when it has been

delivered or mailed by registered or certified mail to the commissioner, and that there are

fees which must accompany the proposed complaint in order to commence the action.

See Burd Mgmt., LLC v. State, 831 N.E.2d 104, 108 (Ind. 2005) (“So long as two

statutes can be read in harmony with one another, we presume that the Legislature

intended for them both to have effect.”).

       Although I agree with Judge Kirsch that existing precedent governing statutes of

limitation is not controlling with regard to a proposed complaint filed under the MMA, an

examination of the Indiana Supreme Court’s decision in Boostrom v. Bach, 622 N.E.2d

175 (Ind. 1993), illustrates how the statute of limitations under the MMA is different. In

Boostrom, the applicable statute of limitations, Ind. Code § 34-1-2-2,10 dictated that

“after a cause of action has accrued, an action must be commenced within the period

therein prescribed and not afterwards.” 622 N.E.2d at 175 (emphasis added). Boostrom

argued that Ind. Trial Rule 5(E), which provided “that the ‘filing of pleadings, motions,

and other papers with the court as required by these rules’ may be made by mailing to the


       10
            Ind. Code § 34-1-2-2 was repealed by Pub. L. No. 1-1998, § 221.2
                                                   16
clerk via registered or certified mail return receipt requested, [] that filings so made ‘shall

be complete upon mailing,’” and that “this rule, read in conjunction with S.C.R. 2(A),

leads to the conclusion that a small claims action is commenced when a notice of claim is

mailed to the clerk.” Id. at 176. The Court held that “[t]his view misapprehends the

significance of T.R. 5(E), which only defines how a required filing may be made” and

that “it does not necessarily follow that an action is commenced by mailing only the

notice.” Id. (emphasis added).

       Here, as explained above, Ind. Code § 34-18-7-3(b) contains no such language

about having “commenced” an action in order to toll the statute of limitations and instead

provides that “[a] proposed complaint under IC 34-18-8 is considered filed when a copy

of the proposed complaint is delivered or mailed by registered or certified mail to the

commissioner.”     (Emphasis added).       Thus, under the MMA, filing the proposed

complaint by delivering or mailing by registered or certified mail, by itself, tolls the

statute of limitations. To that end, there is no dispute that on March 18, 2008, over two

weeks prior to the limitations period expiring, the Millers’ attorney mailed the proposed

complaint by certified mail to the Department. Thus, under Ind. Code § 34-18-7-3(b), the

limitations period was tolled beginning on that date. Also, pursuant to Ind. Code § 34-

18-8-2 the Millers still owed $7 in filing and processing fees in order to commence their

medical malpractice action which they satisfied in short order. To the extent that the

Department changed the filing date to April 7, 2008, following the receipt of the $7 filing

fee, I find that such a change is immaterial for statute of limitations purposes.




                                              17
                              IN THE
                    COURT OF APPEALS OF INDIANA

ANN L. MILLER and RICHARD A. MILLER,              )
                                                  )
       Appellants-Plaintiffs,                     )
                                                  )
              vs.                                 )     No. 15A05-1108-CT-431
                                                  )
GLENN L. DOBBS, D.O. and                          )
PARTNERS IN HEALTH,                               )
                                                  )
       Appellees-Defendants.                      )


VAIDIK, Judge, dissenting.

       I respectfully dissent from both Judge Kirsch’s and Judge Brown’s interpretations

of the Medical Malpractice Act. I believe that the statute is clear and that a proposed

medical malpractice complaint is not considered filed until the filing and processing fees

are paid. Our Supreme Court precedent also requires such a result. Because the Millers’

filing and processing fees were paid after the statute of limitation expired, I would affirm

the trial court’s grant of summary judgment in favor of the Defendants.

       Our Supreme Court has created several bright lines in the law.             Statutes of

limitation and filing fees are two of them.       That is, filing a complaint outside the

applicable statute of limitation, even by one day, or failing to include the filing fee with a

complaint can lead to the dismissal of the complaint. Statutes of limitation exist to spare

courts from stale claims and to ensure that parties are given formal and seasonable notice

that a claim is being asserted against them. Boostrom v. Bach, 622 N.E.2d 175, 176 (Ind.

1993), reh’g denied. Tendering court costs is also relevant to this objective. Id. Failing
                                          18
to include sufficient postage on an envelope can lead to the dismissal of the complaint as

well. Webster v. Walgreen Co., 966 N.E.2d 689 (Ind. Ct. App. 2012), trans. denied; see

also Comer v. Gohil, 664 N.E.2d 389, 391-92 (Ind. Ct. App. 1996) (the plaintiff did not

include sufficient postage for her proposed medical malpractice complaint, and by the

time the plaintiff resent it, the statute of limitation had expired; this Court held that the

plaintiff’s action was “time-barred”), trans. denied. I believe that the same bright line

applies to filing and processing fees for a proposed complaint in the context of the

Medical Malpractice Act.

       Indiana Code section 34-18-7-3(b) provides that a proposed complaint is

considered filed when “a copy of the proposed complaint is delivered or mailed by

registered or certified mail to the commissioner.”        Indiana Code section 34-18-8-2

provides that a filing fee of $5.00 plus a processing fee of $2.00 for each additional

defendant after the first defendant “must accompany each proposed complaint filed.”

Despite the straightforward language used by our legislature, both of my colleagues strain

to interpret the statute.

       Judge Kirsch creates a new test. That is, he finds that if a plaintiff delivers or

mails a proposed complaint to the Department but the proposed complaint does not

contain the required filing and processing fees, the court can treat the proposed complaint

as filed and issue a show-cause notice to the plaintiff that the proposed complaint will be

dismissed unless the fees are paid “in short order.” Slip op. at 13. I believe that this in-

short-order test is too subjective and fraught with problems. Although in this case the

$7.00 fee was received 3 days after the statute of limitation expired, where is the line


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drawn in other cases? 10 days? 30 days? $17.00? $105.00?                             Additionally, Judge

Kirsch places the burden of ensuring that filing and processing fees are paid not on the

plaintiff but on the Department and the trial court. That is, he requires the Department to

file the complaint and advise the trial court that costs have not been paid so the trial court

can issue a show-cause order. To be sure, to a certain extent, the Department, as every

clerk’s office does, serves as the gatekeeper or enforcer of filing and processing fees by

not allowing a case to be filed before fees are paid.11 But to require trial courts and the

Department to file show-cause orders to ensure that filing and processing fees are paid

goes too far in my opinion. Instead, the burden of timely paying such fees should remain

on attorneys.

        Likewise, I respectfully disagree with Judge Brown’s concurring-in-result opinion.

She distinguishes tolling a statute of limitation from commencing an action and believes

that a statute of limitation can be tolled before an action is commenced.12 The purpose of

a statute of limitation is to notify a party that a claim has been asserted. It is axiomatic

that a claim not commenced is a claim not asserted. Thus, an action must be commenced

before the statute of limitation is tolled. Additionally, if filing and processing fees are not

paid, then there is no processing, including no notice to the party sued.                    Under Judge

Brown’s interpretation, a complaint could sit dormant in the Department’s office for

years “not commenced” and yet the statute of limitation would be tolled. Since notice to

the sued party and sparing courts from stale claims are the reasoning behind statutes of


        11
           Here, the Department sent a letter to the Millers’ attorney that the fees needed to be sent before
the statute of limitation expired, giving the attorney an opportunity to correct his error. He did not do so.
        12
             To toll is to stop the running of a time period. Black’s Law Dictionary 1525 (8th ed. 1999).
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limitation, this interpretation of the statute would defeat the very purpose of the

limitations period.

       The Medical Malpractice Act spells out that a proposed complaint must be

accompanied by filing and processing fees, and so does the Department’s website. See

Ind.    Dep’t      of     Ins.,    Medical     Malpractice:      Filing    a     Complaint,

http://www.in.gov/idoi/2614.htm (last visited Aug. 21, 2012) (“A proposed complaint is

filed when a copy is delivered or mailed by registered or certified mail to the Department

with the required filing and processing fees. If an insufficient filing fee is submitted, the

proposed/amended complaint will not be considered filed until the date the appropriate

fees are received.”).    We should expect a minimum level of competence from the

attorneys who practice in this State, and this minimum level of competence includes

knowing that the filing and processing fees must be included with a proposed complaint

in order for it to be considered filed.

       I get it. It is hard to punish the plaintiff for the errors of her attorney. But,

although the remedy is less than perfect, the plaintiff is not without one. This is the

quintessential case of bad facts that create bad law. Our Supreme Court and legislature

have created a bright line with regard to statutes of limitation and payment of filing and

processing fees. We have bright lines in the law for a reason: they bring certainty to the

law. Because a proposed complaint is not considered filed until the filing and processing

fees are paid and the Millers’ filing and processing fees were paid after the statute of

limitation expired, I would affirm the trial court’s grant of summary judgment in favor of

the Defendants.


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