APPEAL FROM THE LAKE SUPERIOR COURT, The Honorable Cordell C. Pinkerton, Judge, Cause No. 185-1042, Court of Appeals No. 45A03-8603-CV-86, ON PETITION TO TRANSFER
Shepard, C.j., DeBRULER, Givan, Pivarnik and Dickson, JJ., Concur.
This case brings before us the issue of whether the Indiana Journey's Account Statute can operate to save a child's medical malpractice action originally brought within the statute of limitations. We hold that it can.
Suzanne Vesolowski was born on January 3, 1975, with severe and permanent brain damage. Suzanne's mother, Donna Vesolowski, had been under the care of Dr. Walter Repay during the course of her pregnancy.
On October 21, 1980, Donna Vesolowski brought an action in Illinois on behalf of Suzanne. The action alleged Suzanne's brain damage resulted from Dr. Repay's negligence. Dr. Repay contested the Illinois court's jurisdiction over him. He stated he saw Donna Vesolowski only in his office in Munster, Indiana, and at St. Margaret's Hospital in Hammond. The trial court quashed the summons, concluding that it had no personal jurisdiction over the doctor.
When the Illinois court dismissed Suzanne's suit, the Indiana statute of limitations on medical malpractice actions had not yet run. Suzanne's attorneys failed to refile the claim in Indiana. Suzanne's parents subsequently filed a legal malpractice action in Illinois on her behalf against the attorneys who represented her. The attorneys moved to dismiss that action on the ground that the Indiana Journey's Account Statute, Ind. Code § 34-1-2-8, allowed Suzanne to refile her medical malpractice action in Indiana despite the running of the statute of limitations. The Illinois trial court agreed and dismissed the Vesolowskis' legal malpractice claim with prejudice.
The controversy before us started on August 5, 1985. The Vesolowskis filed a medical malpractice action against Dr. Repay in Indiana. The action included Suzanne's original claim, brought on her behalf by her mother, and claims by both parents brought for the first time. The action sought a declaration that the Journey's Account Statute saved the medical malpractice claim. Dr. Repay moved to dismiss the complaint arguing the statute of limitations had run as to both Suzanne and her parents. The trial court granted the motion stating, "[T]he Journey's Account Statute does not have any applicability to actions for medical malpractice. . . ."
The Vesolowskis appealed the dismissal. The Court of Appeals held the Journey's Account Statute did not save medical malpractice actions refiled beyond the statute of limitations. Vesolowski v. Repay (1987), Ind. App., 505 N.E.2d 130. Presiding Judge Garrard concurred in result with the dismissal of the parents' claims and Dissented to the dismissal of Suzanne's complaint.
We grant transfer to consider the applicability of the Journey's Account Statute to a medical malpractice action.
I. Journey's Account Statute: Background and Purpose
At common law suits often were dismissed on technical grounds. In such cases, the plaintiff could file another writ known as a Journey's Account. The renewal suit was deemed to be a continuation of the first. The time to bring another suit was computed theoretically with reference to the time required for the plaintiff to journey to where court was held. Pennsylvania Co. v. Good (1913), 56 Ind. App. 562, 566, 103 N.E. 672, 673.
Although the common law remedy is no longer recognized, Indiana has created a statutory remedy in its place. Indiana's Journey's Account Statute, Ind. Code § 34-1-2-8, provides:
If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abated, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five  years after such ...