KINDRED NURSING CENTERS, d/b/a ROYAL OAKS HEALTH CARE AND REHABILITATION CENTER, Appellant-Petitioner,
THE ESTATE OF CARRIE ETTA McGOFFNEY, Appellee-Respondent
INTERLOCUTORY APPEAL FROM THE VIGO SUPERIOR COURT. The Honorable Charles D. Bridges, Special Judge. Cause No. 84D02-1205-MI-3481.
ATTORNEYS FOR APPELLANT: MELINDA R. SHAPIRO, LIBBY Y. GOODKNIGHT, CATHERINE E. SABATINE, Krieg DeVault LLP, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: MATTHEW DALEY, Daley Law Firm, L.L.C., Terre Haute, Indiana.
BRADFORD, Judge. BARNES, J., and BROWN, J., concur.
Carrie Etta McGoffney was a resident of the Royal Oaks Health Care and Rehabilitation Center, a facility operated by Appellant-Petitioner Kindred Nursing Centers (" Royal Oaks" ), from September 30, 2008, until June 30, 2009. Carrie, who is now deceased, had two daughters, Ivy and Kelly McGoffney, and a granddaughter, Kelly's daughter Keeli Mayes. In December
of 2010, at a time when Ivy was Carrie's sole guardian and attorney-in-fact, Kelly filed a proposed complaint in superior court alleging medical malpractice against Royal Oaks on behalf of Carrie. Around that time, the Vigo Probate Court, which had established Ivy's guardianship, issued an order providing Kelly with the authority to pursue a medical malpractice action on Carrie's behalf. Royal Oaks challenged the Probate Court's order and also filed a motion to dismiss the proposed complaint in superior court on the basis that Kelly did not have standing. The Probate Court declined to rescind its order, but the superior court dismissed the complaint filed by Kelly in late December of 2011.
In early January of 2012, the Probate Court removed Ivy as Carrie's guardian and appointed Keeli in her place. The next month, Keeli filed what she styled an amended proposed medical malpractice complaint against Royal Oaks. In May of 2012, Royal Oaks filed for summary judgment on the basis that the filing by Keeli was untimely. In November of 2012, Carrie died. Kelly was appointed personal representative of Appellee-Respondent Carrie's estate (" the Estate" ), and the Estate was substituted as plaintiff in the proposed complaint against Royal Oaks. The trial court eventually denied Royal Oaks' summary judgment motion, and we accepted jurisdiction over Royal Oaks' interlocutory appeal. Royal Oaks argues that because neither Indiana Trial Rule 15(C), the tolling the provisions of the Medical Malpractice Act, nor the Journey's Account Statute (" the JAS" ) apply, the trial court erred in allowing the Estate's proposed complaint to proceed. Concluding that the JAS applies to revive Keeli's complaint, we affirm.
FACTS AND PROCEDURAL HISTORY
Carrie, who is now deceased, had two daughters, Ivy and Kelly. In February of 2004, Carrie signed a durable power of attorney appointing Kelly as her attorney-in-fact. Carrie resided at Royal Oaks from September 30, 2008, until June 30, 2009. On November 18, 2008, Carrie revoked her appointment of Kelly as her attorney-in-fact and signed a new durable power of attorney naming Ivy in her place. On January 23, 2009, Kelly petitioned the Probate Court in Vigo County to appoint her Carrie's guardian (" the Guardian" ), which petition Ivy opposed. On April 1, 2009, the Probate Court appointed Ivy as the Guardian, an appointment this court affirmed on appeal.
On December 22, 2010, while Ivy was still the Guardian, Kelly filed a proposed medical malpractice complaint in Vigo Superior Court against Royal Oaks on Carrie's behalf. (Appellant's App. 49). Meanwhile, on February 4, 2011, the Probate Court issued a nunc pro tunc order amending an order it issued on December 17, 2010, as follows: " *IT IS FURTHER ADJUDGED AND DECREED by the Court that Ivy McGoffney waives the right to file a mal-practice lawsuit against Royal Oaks Healthcare therefore entitling Kelly McGoffney to file said mal-practice lawsuit if she so desires." Appellee's App. p. 6. On April 1, 2011, Royal Oaks, even though a non-party to the guardianship case, filed a motion to withdraw the Probate Court's nunc pro tunc order. On April 13, 2011, the Probate court denied Royal Oaks' motion to withdraw the nunc pro tunc order. On May 23, 2011, Royal Oaks filed a motion to dismiss Kelly's proposed medical malpractice complaint on the ...