Indiana Law Review


Indiana Law Review
Volume 28 1995 Number 2

NOTES

Medical Malpractice Acts9 Statutes of Limitation as
they Apply to Minors: Are they Proper?

Scott A. DeVries*

Introduction

Kimberley Kay Rohrabaugh was separately treated and diagnosed by G. W.
Wagoner, M.D., and J. Like, D.O., for a growth at her waistline. Rosa Rohrabaugh Cross

brought suit as next friend for medical malpractice.
1

The health care providers pleaded

a statute of limitation defense pursuant to Indiana's Medical Malpractice Act of 1975.
2

The specific provisions required children between six and twenty-one years of age3 to

comply with a two-year statute of limitation on medical malpractice claims.4 Children

under six years of age had until their eighth birthday to bring a medical malpractice

claim.
5

In Rohrabaugh v. Wagoner, the Indiana Supreme Court held that the statutes

violated neither Indiana's Due Course of Law Provision6 nor the Equal Protection
Provisions of the State and the Federal Constitutions.

7

* J.D. Candidate, 1995, Indiana University School of Law—Indianapolis; B.B.A., 1981, Western
Michigan University. The author wishes to thank Henry Karlson, Professor of Law, Indiana University School

ofLaw—Indianapolis, for his invaluable assistance and insight in developing this Note's topic and themes. This
Note reflects one of Professor Karlson's primary concerns and goals—the improvement of children's mental,
physical and spiritual well-being.

1

.

Rohrabaugh v. Wagoner, 413 N.E.2d 891 (Ind. 1980).

2. Id. at 892; Act of Apr. 17, 1975, Pub. L. No. 146-1975, 1975 Ind. Acts 854 (codified as amended

at Ind. Code §§ 16-9.5-1-1 to -10-5 (1988) (repealed 1993); current versions of §§ 16-9.5-3-1, 16-9.5-3-2 at

Ind. Code Ann. §§ 27-12-7-1, 27-12-7-2 (West Supp. 1994).

3. Rohrabaugh, 413 N.E.2d at 894. At that time the age of majority in Indiana was twenty-one years

of age.

4. Ind. Code Ann. §§ 27-12-7-1, 27-12-7-2 (West Supp. 1994); Ind. Code § 34-4-19-1 (1988).

5. Ind. Code Ann. § 27-12-7-1.

6. Ind. Const, art. I, § 12. "All courts shall be open; and every person, for injury done to him in his

person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely,

and without purchase; completely, and without denial; speedily, and without delay." Id.

7. U.S. CONST, amend. XIV, § 1; IND. Const, art. 1, § 23; Rohrabaugh, 413 N.E.2d at 895. U.S.

Const, amend. XIV, § 1 provides:

No state shall make or enforce any law which shall abridge the privileges or immunities ofcitizens

of the United States; nor shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the equal protection ofthe laws.

Id. Ind. Const, art. I, § 23 provides: "The General Assembly shall not grant to any citizen, or class of citizens,

privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Id.



414 INDIANA LAW REVIEW [Vol. 28:413

Part I ofthis Note discusses the perceived medical malpractice insurance crisis ofthe

mid-1970s, including various viewpoints concerning whether a crisis actually existed. It

also covers the various enactments by state legislatures and examines whether those laws

had any effect on the perceived crisis, and focuses particularly on the statutes of limitation

that apply to minors. Part I also explores the types of approaches that courts utilize to

resolve constitutional challenges to the statutes. Part II analyzes decisions of the Indiana

Supreme Court in the area of limitations of actions as applied to minors. Part III examines

federal as well as various states' supreme court rulings on constitutional challenges to

statutes of limitation for minors. Part IV analyzes a relatively new federal statute,
heretofore unapplied to this subject matter. This Note concludes with observations and

recommendations for possible changes to Indiana's medical malpractice statute of

limitation for minors.

I. Background Information

A. Limitations ofActions

Indiana's medical malpractice limitation of action is, in effect, a statute of limitation,

rather than a different type of limitation of action. A statute of limitation bars a claim
unless it is brought within a specified period after the claim or right arises.

8 A statute of
limitation is intended to:

[PJromote justice by preventing surprises through the revival ofclaims that have

been allowed to slumber until evidence has been lost, memories have faded, and

witnesses have disappeared. The theory is that even if one has a just claim it is

unjust not to put the adversary on notice to defend within the period of limitation

and that the right to be free of stale claims in time comes to prevail over the right

to prosecute them.
9

The defense of laches is different from a statute of limitation defense. A statute of
limitation, unless otherwise provided by law, applies only to legal actions whereas the

doctrine of laches applies only to suits in equity.
10 A statute of limitation defense requires

merely the passing of the prescribed time period. In contrast, the laches defense requires

an additional showing that the lapse of time may prejudice the defendant or some other
person.

11

A statute of limitation also differs from a statute of repose, which "terminates any
right of action after a specific time has elapsed, regardless of whether there has as yet

8. Black's Law Dictionary 639 (6th ed. 1991) [hereinafter Black's].

9. Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49 (1944). See U.S.

v. Kubrick, 444 U.S. Ill, 117 (1979) (The general purpose of a statute of limitation is "to encourage prompt

presentation of claims."); see also The Act of Limitation of a Proviso, 32 Hen. 8, c.2 (1540) ("Forasmuch as the

Time of Limitation appointed for suing . . . extend, and be of so far and Long Time past, that it is above the

Remembrance of any living Man, truly to try and know the perfect Certainty of such things, as hath or shall

come in Trial ... to the great Danger of Men's Consciences that have or shall be impanelled in any Jury for the

Trial of the same . . . .").

10. 5 1 AM. JUR. 2d Limitation ofActions §6(1 970).

11. Id.



1 995] MEDICAL MALPRACTICE 4 1

5

been an injury."
12 A statute of limitation controls the time within which a claim must be

filed after the cause of action arises. A statute of repose limits the time within which a
claim can be filed and is not related to when the cause of action arose, nor whether the
injury was even discovered.

13

Indiana's medical malpractice limitation of action for minors is a statute of

limitation.
14 The Indiana Supreme Court has stated that the Medical Malpractice Act's

statute of limitations is "an 'occurrence' statute," which means that the period of

limitations "begins to run on the date of the alleged malpractice."
15

However, according

to the doctrine of continuing wrong, if the entire course of medical conduct combines to

produce injury, the time period does not begin to run until after the wrongful course of

conduct ceases.
16

In addition, "[t]he doctrine of fraudulent concealment estops a

defendant from asserting a statute of limitations defense when that person, by deception

or violation of a duty, conceals material facts from the [patient] to prevent discovery of

the wrong."
17

A national study of 48,550 medical malpractice claims resolved between 1985 and
1989 revealed that twenty months was the average time that elapsed between an incident's

occurrence and its being reported to the malpractice insurance company.
18

However, in

ten percent of the claims the time lapse was three years.
19

Thus, these claims would be

barred by "occurrence statutes."

1 2. Black's, supra note 8, at 639.

13. 54 C.J.S. Limitations ofActions §4(1 987).

14. See Jones v. Cloyd, 534 N.E.2d 257, 259 (Ind. Ct. App. 1 989) (stating that the "discovery rule" did

not apply to medical malpractice statute of limitations, and that the limitation period began to run from the date

of the alleged act, omission or neglect).

15. Havens v. Ritchey, 582 N.E.2d 792, 794 (Ind. 1991); see Hepp v. Pierce, 460 N.E.2d 186, 190 (Ind.

Ct. App. 1984).

16. O'Neal v. Throop, 596 N.E.2d 984, 987 (Ind. Ct. App. 1992). The doctrine of continuing wrong

works more to the detriment of a patient's family doctor than to the detriment of a patient's surgeon because

family doctors maintain long term relationships with their patients. In contrast, surgeons usually perform

medical services on a patient in isolated instances. Thus, family doctors' length of exposure to liability is longer

than that for surgeons.

17. Id. at 988. Furthermore, the court stated that:

When the physician-patient relationship terminates, the constructive fraud terminates and the statute

of limitations begins to run. The statute of limitations also begins to run when the patient learns

of the malpractice or discovers information that would lead to discovery of the malpractice with

the exercise of reasonable diligence.

Id. (citations omitted).

1 8. Data Sharing Committee, Physician Insurers Ass'n of America, Data Sharing Reports,

Cumulative Reports, January 1 , 1 985-June 30, 1 989 ( 1 989), as cited in, Office Technology Assessment,

Impact of Legal Reforms on Medical Malpractice Costs 25 (1993) [hereinafter "Assessment"].

19. Id.



416 INDIANA LAW REVIEW [Vol. 28:413

B. Medical Malpractice Statutes

1. The Perceived Crisis.—In the 1970s, many persons perceived a "crisis in the cost
and availability of medical malpractice insurance for health care providers."

20
The

number ofclaims filed, the average amount awarded, and malpractice insurance premiums

rose significantly between 1970 and 1975.
21

Medical malpractice statutes were passed

based upon assumptions that: (1) increased insurance premiums created a lack of

available affordable liability insurance; (2) there is a close nexus between substantive tort

law, the tort litigation process and the insurance industry's decisions regarding the

availability and the price of such insurance; and (3) placing restrictions on the tort liability

system will effectuate a reduction in insurance premiums resulting in an increase in

reasonably priced insurance.
22

These assumptions are highly debated.
23

For instance, the insurance crisis of 1974

to 1976 is not supported by well-documented insurance statistics because very few

existed.
24

Also, many of the medical malpractice statutes have very limited legislative
history with no clear documentation to support these assumptions.

25 Some states were not
even experiencing significant health care insurance problems.

26
Ralph Nader charges that

the tort reform movement was an "unprincipled public relations scam" engineered by the

20. Eleanor D. Kinney et al., Indiana 's Medical Malpractice Act: Results ofa Three-Year Study, 24

IND. L. Rev. 1275, 1276 (1991). See generally Richard C. Turkington, Constitutional Limitations on Tort

Reform: Have the State Courts Placed Insurmountable Obstacles in the Path ofLegislative Responses to the

Perceived Liability Insurance Crisis?, 32 VlLL. L. Rev. 1299 (1987). During the course of a December 15,

1976, round table discussion established to gather information on the causes and cures of the medical

malpractice dilemma, Otis R. Bowen, M.D., Governor of Indiana, stated:

It has become a crisis issue simply because of the number of suits brought against health care

providers. . . . The crisis itself is caused by two facts relating to malpractice insurance: the

premium cost to the physician has gone way up, and many companies have quit writing malpractice

insurance. The cost of the insurance may be a lesser factor than availability, which has forced

many physicians to give up their practice.

The Medical Malpractice Crisis 2 (American Enterprise Institute for Public Policy Research, Washington

D.C. ed., 1977) [hereinafter "Round Table"].

21. See generally Kinney, supra note 20 (discussing the pertinent numerical data and associated

problems); Ind. Med. Malpractice Study Comm'n, Final Report of the Medical Malpractice Study

COMM'N 5-6 (1976); FRANK A. SLOAN ET AL., INSURING MEDICAL MALPRACTICE 4-6 (1991).

22. Symposium, Tort Reform: Will it Advance Justice in the Civil System? 32 VlLL. L. REV. 1211,

1212-13 (1987) [hereinafter "Symposium"].

23. Gail Eiesland, Miller v. Gilmore, The Constitutionality ofSouth Dakota 's Medical Malpractice

Statute ofLimitations, 38 S.D. L. REV. 672, 687 & n.128 (1993) (The author stated that "[t]he validity and
severity of the medical malpractice insurance crisis of the 1970's has been seriously questioned by some, and

solid explanations for the varying rates of medical malpractice insurance claim frequency over the last twenty-

five years are not available.").

24. SLOAN, supra note 2 1 , at 4.

25. Sloan, supra note 2 1 , at 4.

26. SLOAN, supra note 2 1 , at 4.



1 995] MEDICAL MALPRACTICE 4 1

7

insurance industry to recoup losses resulting from cyclical downturns in interest rates.
27

Some critics state that the major causes of the perceived crisis included a poor economy

which caused insurance company investment losses, unexpected increases in the

frequency and award size of malpractice claims, and increases in physician error, as well

as increases in the possibility of mistakes from using advanced medical technology.
28

Other analysts, claiming that the crisis was real, blame the increased insurance costs

and lack of insurance availability on: (1) tort law and its broadened concepts of liability;

(2) an increase in litigation; and (3) large damage awards which caused unpredictable and

unmanageable award payments.
29

In an article about the cause ofthe medical malpractice crisis, one author commented

that "[m]any of the insurance companies' problems [could] be traced to the long-tail of

medical malpractice."
30

The term "long-tail liability" refers to the long term exposure to

liability ofcertain groups.
31

Extended statute of limitations periods, the discovery rule and

the doctrine of continuing wrong create long-tail liability because they allow for an

extended length of time between the medical treatment or care and the final disposition

of all claims resulting from that treatment or care.
32

Thus, insurance companies increase

premiums to compensate for the additional risk created by long-tail liability.
33

Another

author asserts that "[a]s a result of the discovery rule and the [doctrine of continuing

wrong], the number of medical malpractice plaintiffs expanded substantially."
34

This

author further states that both the insurance industry and the medical profession blame the

insurance crisis in large part on this expansion.
35

However, as noted in Kenyon v.

Hammer?6 eighty-eight percent of all medical malpractice claims are reported within two
years ofthe injury; thus, long-tail liability caused by the discovery rule is not a significant

factor in determining medical malpractice insurance rates.
37

Changes in medical malpractice insurance policies have alleviated long-tail liability

problems. Medical malpractice policies are unique because they provide two types of

27. Ralph Nader, The Corporate Drive to Restrict Victims ' Rights, 22 GONZ. L. REV. 15,18(1 987).

See Turkington, supra note 20, at 1299-1300; see, e.g., Boucher v. Sayeed, 459 A.2d 87 (R.I. 1983) (The court

took judicial notice that a medical malpractice insurance crisis did not exist.).

28. See Eiesland, supra note 23, at 685-86 & nn. 12 1-22.
29. Symposium, supra note 22, at 1214.

30. Milton S. Blaut, The Medical Malpractice Crisis—Its Causes and Future, 44 Ins. COUNS. J. 114,

119 (1977) (This article also includes information about the process used by actuaries to compute insurance

rates.).

31. See Eiesland, supra note 23, at 686 & n.124 (discussing the affect of occurrence policies and
claims-made policies on long-tail liability and actuarial uncertainty).

32. Nancy E. Leibowitz, Statute ofLimitations—Medical Malpractice—ConstitutionalLaw—Five Year
Statute ofRepose on Medical Malpractice Claims That Commences When an Injury Occurs Is Constitutional;

Hill v. Fitzgerald, 304 Md. 689, 501 A.2d 27 (1985); 16 U. Balt. L. Rev. 571, 574 (1987). See Eiesland, supra

note 23, at 686.

33. See Leibowitz, supra note 32, at 574-75.

34. Leibowitz, supra note 32, at 574-75.

35. Leibowitz, supra note 32, at 574-75.

36. 688 P.2d 961 (Ariz. 1984).

37. Id. at 978; see supra text accompanying note 1 8.



418 INDIANA LAW REVIEW [Vol. 28:413

"coverage forms: occurrence policies and claims-made policies. Occurrence policies

provide coverage for all claims that arise from a given accident year, regardless of when
the claim is reported. Claims-made policies . . . provide coverage only for claims reported

during the policy year."
38

Occurrence policies transfer risks to the insurer from the

physician at the time of the occurrence of the alleged negligent act, but claims-made

policies transfer the risk at the time the insurer receives the report or claim of the alleged

negligent act.
39

Actuarial uncertainty is lessened because claims-made policies only cover

those claims that are reported during the time that the medical malpractice insurance

policy is in effect.
40

Thus, the switch that occurred during the 1970s from occurrence

policies to claims-made policies helped to mitigate the long-tail problems.
41

2. The Legislative Responses.—The states have authority to regulate medical
malpractice because tort law traditionally falls under state domain,

42
and regulation of

both insurance, per the McCarran-Ferguson Act,
43
and medical practice are primarily state

responsibilities.
44

The typical state statutes enacted to meet the perceived crisis included:

( 1

)

pretrial screening panels;

(2) caps or other restrictions on non-economic and punitive damages;

(3) regulation of attorneys' fees;

(4) alternatives to lump-sum payment of damage judgments such as periodic

payments;

(5) abolition or restriction of the collateral source rule;

(6) selective restriction on statutes of limitation and alterations of related

concepts such as the discovery rule and

(7) restriction on joint and several tort liability.
45

38. Curt W. Fochtmann et al., Insurance Tax Policy and Health Care Reform: Back to the Future, 50

Wash. & Lee L. Rev. 565, 583 (1993) (As indicated by the language, claims-made policies also cover acts
occurring prior to the stated policy year, but are reported during the policy year.). "Claims-made policies cover

only claims actually filed in the policy year ... so long as they arose at an earlier time when a policy from the

same company was in force." Sloan, supra note 21, at 6.

39. Michael A. Hatch, Comm'r, Minn. Dep't of Commerce, Medical Malpractice Claim

Study: 1982-1987, at 14 (1988).

40. Id.

41. Id.

42. Eleanor D. Kinney, U.S. Congress, Office of Technology Assessment. Study on Defensive

Medicine and the Use of Medical Technology. Background Paper on: The Impact ofCurrent and Proposed Tort

Reform on the Medical Malpractice System and Physician Behavior, 3 (Sept. 1993) (unpublished manuscript,

on file with The Center for Law and Health, Indiana University School ofLaw—Indianapolis) [hereinafter "Tort
Reform"].

43. 15 U.S.C. §§ 101 1-1015 (1988).

44. Tort Reform, supra note 42, at 3.

45. Symposium, supra note 22, at 1212. See generally Randall R. Bovbjerg, Legislation on Medical

Malpractice Further Developments and a Preliminary Report Card, 22 U.C. DAVIS L. REV. 499 (1989)

(discussing the background of the perceived crisis and the various approaches taken to reach solutions).



1 995] MEDICAL MALPRACTICE 4 1

9

The goal of these medical malpractice statutes was to reduce the potential liability of

health care providers, thereby lowering medical malpractice insurance costs, assuring

availability of such insurance, reducing the necessary period of time for keeping medical

records in anticipation of possible litigation, and assuring medical care availability in

perceived high risk care areas and voluntary health care services.
46

To resolve the problems credited to the perceived crisis, Indiana passed the Medical

Malpractice Act of 1975.
47

In 1975, a total of forty-one states formally authorized

commissions to study the perceived medical malpractice problem.
48

Also in 1975,

nineteen states made changes to their statutes of limitation. Most states merely shortened

the time period, but a few states, like Indiana, amended the applicability of their statute

to include minors.
49

The purpose of these statutes of limitation is to cut off the long-tail

liability of insurance companies, thus reducing medical malpractice insurance costs.
50

The problems that result from extended periods of potential liability, such as faded

memories and unavailability of documents and witnesses, are increased when children's

cases are brought under traditional tolling statutes, which allow minors to bring suit after

reaching the age of majority.
51

Statutory medical malpractice limitations of actions were

enacted to limit these problems. Yet, in the majority of states that shortened the limitation

period for minors a minimal tolling period for young minors was allowed.
52

Combining the debate concerning the validity ofthe perceived crisis with the relative

lack of legislative history concerning the effect on minors' rights resulting from legislative

changes to the medical malpractice statute of limitation adds to the question of whether

a state's legislature, possessing the qualified power to pass a statute of limitation, violated

any rights belonging to minors.

C. Levels ofJudicial Scrutiny

The resolution of a claim that a statute is unconstitutional as violative of equal

protection depends in part on the level ofjudicial scrutiny used by a court. Faced with

constitutional equal protection challenges, federal courts use a low level "rational basis"

46. See sources cited supra note 21 ; sources cited infra notes 48, 52.

47. See sources cited supra note 2.

48. Steven A. Grossman, An Analysis of 1975 Legislation Relating to Medical Malpractice

(unpublished manuscript, on file with Health Policy Center, Georgetown University).

49. Id. (States making a change: Alabama, California, Florida, Hawaii, Illinois, Indiana, Iowa,

Louisiana, Maryland, Massachusetts, Michigan, Nevada, New York, North Dakota, Ohio, Oregon, South

Dakota, Tennessee, Texas).

50. See Eiesland, supra note 23, at 685; Leibowitz, supra note 32, at 575.

5 1

.

Jane M. Draper, Annotation, Medical Malpractice Statutes ofLimitation Minority Provisions, 62

A.L.R. 4th 758, 763 (1988) [hereinafter "Draper"].

52. Rob B. Alston, Utah 's Statute ofLimitation Barring Minorsfrom Bringing Medical Malpractice

Actions: Riding Roughshod over the Rights ofMinors?, 1992 UTAH L. Rev. 929, 970-71 nn. 188-91 (1990)

(providing a list of states with changes to their medical malpractice statute of limitation for minors). The reasons

for the tolling are varied, yet include the inability of young minors to effectively communicate their problems

and the inability to detect some defects at an early age. Id. at 939 nn.46-47.



420 INDIANA LAW REVIEW [Vol. 28:413

test, which requires that the state's statute rationally promote a legitimate governmental

objective.
53

The intermediate level ofjudicial scrutiny is usually applied only to gender-based

classifications and categories based on legitimacy.
54

This intermediate level ofjudicial

scrutiny requires a classification to be reasonable and to be based on "some ground of

difference having a fair and substantial relationship to the object of the legislation, so that

all persons similarly circumstances [are] treated alike."
55 The proponent of the statute,

which classifies individuals based on their gender, must show that the classification serves

"'important governmental objectives and that the discriminatory means employed' are

'substantially related to the achievement of those objectives.'"
56

When analyzing a charge that a state's law is unconstitutional, the highest level of
judicial scrutiny is the strict scrutiny test. This test requires a legislative scheme to

advance a compelling state interest by the least restrictive means possible.57 The courts

use strict scrutiny for fundamental rights and for suspect classifications such as race,

religion, nationality and alienage.
58

Fundamental rights are those that are "explicitly or

implicitly guaranteed by the Constitution."
59 "Only rarely are statutes sustained in the

face of strict scrutiny."
60

53. Id. at 943.

54. David R. Smith, Battling a Receding Tort Frontier: Constitutional Attacks on Medical Malpractice

Laws, 38 Okla. L. Rev. 195, 204 & n.43 (1985). See, e.g., Kadrmas v. Dickinson Public Schools, 487 U.S. 450

(1988), in which the Supreme Court noted that the intermediate level ofjudicial scrutiny "has generally been

applied only in cases that involved discriminatory classifications based on sex or illegitimacy." Id. at 45 1 (citing

Plyler v. Doe, 457 U.S. 202 (1981)).

55. See Smith, supra note 54, at 204 & n.44 (citing Reed v. Reed, 404 U.S. 71, 76 (1971) (quoting F.S.
Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920))).

56. Heckler v. Mathews, 465 U.S. 728, 744 (1984) (quoting Mississippi University for Women v.

Hogan, 458 U.S. 718, 724-25 (1982)).

57. See Smith, supra note 54, at 202.

58. Smith, supra note 54, at 202.

59. Smith, supra note 54, at 202 n.30. See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986), where the

Supreme Court stated that "the nature of the rights qualifying for heightened judicial protection . . . includes

those fundamental liberties that are 'implicit in the concept of ordered liberty,' such that 'neither liberty nor

justice would exist if [they] were sacrificed'" and "those liberties that are 'deeply rooted in this Nation's history

and tradition.'" Id. at 191 (citing Palko v. Connecticut, 302 U.S. 319, 325-26 (1937), and Moore v. East

Cleveland, 431 U.S. 494, 503 (1977)).

60. Bemal v. Fainter, 467 U.S. 216, 219 & n.6 (1984). See, e.g., Goldman v. Weinberger, 475 U.S. 503
(1986). In Goldman, Justice O'Connor reviewed the scrutiny tests previously employed by the Supreme Court

in the context of a free exercise of religion claim and stated:

First, when the government attempts to deny a free exercise claim, it must show that an unusually

important interest is at stake, whether that interest is denominated 'compelling,' 'of the highest

order,' or 'overriding.' Second, the government must show that granting the requested exemption

will do substantial harm to that interest, whether by showing that the means adopted is the 'least

restrictive' or 'essential,' or that the interest will not 'otherwise be served.'

Id. at 530 (O'Connor, J., dissenting).



1 995] MEDICAL MALPRACTICE 42

1

The differentiation between due process and equal protection is that "[d]ue process

emphasizes fairness between the state and the individual" versus "[e]qual protection . . .

[which] emphasizes disparity in treatment by a state between classes of individuals whose

situations are arguably indistinguishable."
61

The Constitution's guarantee of due process

of law requires that the government shall not deprive individuals of "life, liberty, or

property, without due process of law."
62 A tortious cause of action, the right to sue, is a

type of property that cannot be taken without due process of law.
63

Federal courts use essentially the same tests to evaluate due process challenges as

they use for equal protection challenges. Under the rational basis test, economic and

social regulations are sustained if not completely arbitrary or unfounded.
64

However, to

withstand strict scrutiny, a state must prove that legislation involving fundamental rights

or restrictions on political processes is justified by a compelling interest.
65

Most state courts use these same three tests. The Supreme Court of South Dakota,

in Lyons v. Lederle Laboratories,
66

stated:

In traditional equal protection analysis, on both the federal and state levels, there

exists three tests to be applied depending upon the nature of the interest

involved. Strict scrutiny applies only to fundamental rights or suspect classes.

The intermediate or substantial relation test applies to legitimacy, and gender.

Lastly, the rational basis test applies to all other classes.
67

Thus, an important factor in determining whether a medical malpractice statute of

limitation for minors is constitutional is the level of scrutiny to be used. Because the level

of scrutiny employed varies in the state courts, the results of lawsuits questioning the

constitutionality of such statutes vary as well.
68

61. Smith, supra note 54, at 210 (quoting Ross v. Moffitt, 417 U.S. 600, 609 (1974)).

62. U.S. Const, amend. V; U.S. Const, amend. XIV, § 1 (Both the Fifth and the Fourteenth

Amendments use identical language, as quoted.). See Whitney v. California, 274 U.S. 357 (1927). In Whitney,

Justice Brandeis stated that "it is settled that the due process clause of the Fourteenth Amendment applies to

matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the

term liberty are protected by the Federal Constitution from invasion by the States." Id. at 373.

63. Smith, supra note 54, at 2 1 & n.87.
64. See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976).

65. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965); Foucha v. Louisiana, 112 S. Ct. 1780

(1992). "Certain substantive rights we have recognized as 'fundamental'; legislation trenching upon these is

subjected to 'strict scrutiny,' and generally will be invalidated unless the State demonstrates a compelling

interest and narrow tailoring. Such searching judicial review of state legislation, however, is the exception, not

the rule, in our democratic and federal system .-"..." Id. at 1 804 (Kennedy, J., dissenting).

66. 440 N.W.2d 769 (S.D. 1 989).

67. Id. at 771 (citations omitted).

68. Alston, supra note 52, at 943-44 nn.65-66.



422 INDIANA LAW REVIEW [Vol. 28:413

II. Indiana

A. Indiana 's Medical Malpractice Statutes

Indiana's medical malpractice statute of limitation requires children under the age of

six to file their suit by their eighth birthday; children six years of age or older have two

years in which to file.
69

Indiana is rather unique because state law allows minors to bring

a suit "(1) in their own name; (2) in their own name by a guardian ad litem or a next
friend; [or] (3) in the name of his representative, if the representative is a court appointed

general guardian, committee, conservator, guardian ofthe estate or other like fiduciary."
70

Thus, a child almost eight years old, with a viable medical malpractice cause of action

which arose before he or she was six years old, can file suit. If the suit is not filed, it is

lost.

The medical malpractice statute of limitation for minors is a bad social policy for

several reasons. First, it is a long standing rule that a minor is not bound by contracts into

which the minor enters. Such contracts are voidable.71 Thus, the possibility exists that

a contract between a minor and an attorney could be voided by the minor after a judicial

recovery. Yet, the minor may be bound if the contract is for necessaries, including items
for the basic support, use or comfort of the minor.

72
Arguably, necessaries could include

attorney fees for a medical malpractice claim. However, attorneys would be assuming

some additional risk by contracting with the minor. Therefore, a minor could have

difficulty in acquiring competent representation.

Second, allowing and requiring a minor to bring suit before the child's eighth

birthday is impractical and unfair. At age eight, a child is in the second grade of

elementary school and realistically cannot be expected to know that such a thing as a
lawsuit even exists nor how to pursue it. Due to these inherent limitations, a minor could
lose valuable and necessary compensation for injuries suffered. Society should not

impose this type of responsibility on children.

Third, the fact that a representative or guardian ad litem
73

can represent a minor

assumes that one was previously appointed or that the minor's cause of action actually

reached the litigation stage. This assumption provides relatively little protection for the

minor. Many viable claims will never be pursued because no one is appointed to protect
the minor's interests.

69. IND. Code Ann. § § 27- 1 2-7- 1,27-1 2-7-2; Ind. Code § 34-4- 19-1. Governor Bowen has stated:

"For children, ... the suit can be brought up to eight years [after the occurrence of the malpractice], so that any

brain damage as a result of a birth injury can be assessed." Round Table, supra note 20, at 9-10.

70. Ind. R. Trial P. 17. See infra subpart III.B. (discussing that other states do not allow minors to

file suit in their own name).

7 1

.

Rice v. Boyer, 9 N.E. 420 (Ind. 1 886). See also West's Ind. Law Encyclopedia Minors § 5

1

(1 959) [hereinafter ENCYCLOPEDIA]; Ind. CODE § 34-1-2-5.5 (1988) (stating that contracts cannot be voided by

a person after reaching the age of eighteen). This age limitation is affected by § 34-1-67-5 (requiring "a liberal

construction for provisions in this article").

72. Grossman v. Lauber, 29 Ind. 618 (Ind. 1868). See also ENCYCLOPEDIA, supra note 71, at § 53.

73. BLACK'S, supra note 8, at 489 (stating that a guardian ad litem is appointed by a court for a pending

litigation to represent an infant, ward or unborn person).



1995] MEDICAL MALPRACTICE 423

Fourth, a minor's claim can be filed by "a next friend,"
74 who could be a parent. But

a parent has no legal obligation to file a claim for a minor child. If a parent fails to file

the minor's claim and the statute of limitation extinguishes it, then the minor has no legal

recourse against the parent. Because of the importance of the parent-child relationship,

the Indiana Supreme Court recognized the doctrine of parental tort immunity in Barnes

v. Barnes.
15 The Barnes court found a narrow exception to this parental immunity for

intentional felonious conduct by parents toward their children when there is no issue of

parental privilege.
76

In general, however, should a parent decide to not file a claim for the

child, parental immunity deprives the minor of any legal recourse.

Parents may fail to file a claim for their child for many reasons. First, as stated by
the Texas Supreme Court in Sax v. Votteler. "It is neither reasonable nor realistic to rely

upon parents, who may themselves be minors, or who may be ignorant, lethargic, or lack
concern, to bring a malpractice lawsuit action within the time provided by [the statute]."

77

Second, the parents may be filing their own claim against the minor's health care provider
who has limited liability insurance. If the parents decide to sue for the maximum amount
of the available insurance coverage, nothing will be left for the minor to pursue. Third,

the parents may accept an out ofcourt settlement as compensation for the child's injuries,
but the child has no assurance that this settlement money will be kept for the child's sole

use. In these latter two cases, the parents may be making their decision with the intention
of providing for their child. However, the parents' action still deprives their minor child

of the right to pursue his or her own legal interest. To allow minors to lose the right to
pursue their claims for needed damages due to their parents' action or inaction is unfair

and poor public policy.

As discussed, a minor may have a viable claim meriting compensation yet for many
reasons would lose the opportunity to pursue his or her legal interest. Although the

number of lost opportunities is unknown, "empirical research in New York and California
found that one per cent of hospital medical records showed negligent medical injury

[and] there are eight to ten times more negligent injuries than claims or lawsuits."
78

These

injuries result in significant economic loss to the victim patients.
79

Thus, many negligent

injuries are not pursued through the legal system. Although the number ofthese potential

claims belonging to minors is unknown, for any minor to lose his or her right of action

due to his or her inherent limitations is unfair.

B. Indiana 's Constitutional Challenges

Legislatures are allowed to enact statutes on limitation of actions,
80
but this power is

not unqualified. "The legislature has the sole duty and responsibility to determine what

74. Ind. R. Trial P. 1 7; Black's, supra note 8, at 724 (stating that a "next friend" is one who acts for

an infant's benefit, and is an officer of the court, but is not a regularly appointed guardian).

75. 603 N.E.2d 1337 (Ind. 1992).

76. Id. at 1342.

77. Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983).

78. Tort Reform, supra note 42, at 34.

79. Tort Reform, supra note 42, at 34.

80. Bunker v. National Gypsum Co., 441 N.E.2d 8, 12 (Ind. 1982), appeal dismissed, 460 U.S. 1076

(1983).



424 INDIANA LAW REVIEW [Vol. 28:413

constitutes a reasonable time for bringing of an action unless the period allowed is so

manifestly insufficient that it represents a denial ofjustice."
81

The question raised by the

medical malpractice statute of limitation period is whether it constitutes a denial ofjustice

to minors.

1. Johnson v. St. Vincent Hospital.—Although gaps in the medical malpractice
statute of limitation may adversely affect minors, the Indiana Supreme Court upheld
Indiana's medical malpractice statutes in Johnson v. St. Vincent Hospital.*

2 The court

considered four separate appeals that were consolidated for this hearing in order to

determine whether the special controls and limitations ofthe statutes were consistent with

various guarantees of the Indiana and Federal Constitutions. More specifically, the statute

of limitation provision as it applied to minors was challenged as violative of Indiana's

Open Court and Due Course/Process of Law Provision83 and Privileges and Immunities
Provision.

84
The court used a lower level rational basis test and concluded that the statutes

were constitutional.
85

In applying the lower level of judicial scrutiny the court accorded the legislature

considerable deference.
86

Although the Indiana legislature did not enunciate a clear

purpose for the Medical Malpractice Act, the Johnson court did find a purpose after

analyzing a "great deal of proof'
87

that presumably brought about the conditions

prompting the Act. The court found that the Act's limitations were designed to allow

insurers to better anticipate their expenses and to guarantee insurance to all health care

providers.
88 The court discussed the purpose of the statute of limitation and the problems

associated with delays in filing suit.
89

Unfortunately, the court did not consider the fact

that minors also face the problem of collecting relevant evidence after a long delay in

filing suit, which makes proof of their claims more difficult. Other courts have similarly

failed to do so. When considering the feasibility of an extension to the statute of
limitation, the minors' problems partially offset the insureds' problems of collecting

relevant evidence.

81. Id. (citing Wilson v. Iseminger, 1 85 U.S. 55, 63 ( 1 902)).

82. 404 N.E.2d 585 (Ind. 1 980).

83. See supra note 6.

84. See supra note 7.

85. Cf. Collins v. Day, 644 N.E.2d 72 (Ind. 1994). In Collins, the Indiana Supreme Court drew a

distinction between the requirements of Indiana's Privileges and Immunities Clause and the Federal

Constitution's Equal Protection Clause. Also, the court dispensed with the various levels ofjudicial scrutiny,

and settled on a single degree of scrutiny for analysis of claims arising under the Privileges and Immunities

Clause. See infra subpart II.B.6. Although a privileges and immunities challenge in a case such as Johnson v.

St. Vincent Hospital would currently be analyzed differently by the Indiana Supreme Court, arguably the

resulting decision would still be the same.

86. Johnson, 404 N.E.2d at 604. See also Draper, supra note 5 1 , at 777.

87. Johnson, 404 N.E.2d at 589.

88. Id. at 590. See, e.g., Rohrabaugh, 413 N.E.2d at 894 (finding that the Act was intended to prevent

the loss of insurance availability to health care providers). See generally, Catherine Schick Hurlbut, Note,

Constitutionality ofthe Indiana Medical Malpractice Act: Re-evaluated, 19 VAL. U. L. Rev. 493 (1985).

89. Johnson, 404 N.E.2d at 604.



1995] MEDICAL MALPRACTICE 425

In reaching its decision, the Johnson court assumed that the legislature considered all

possible ramifications of the Act, yet no record exists of the legislature discussing the

effect of the statute of limitation on minors. In striving to find a legislative purpose, the

court stated that "the legislature may well have given consideration to the fact that most
children by the time they reach the age of six years are in a position to verbally

communicate their physical complaints to parents or other adults."
90

This point is moot,

given the limitations on children's ability to protect their legal interests, discussed supra.
91

The fact that children will be adversely affected by the statute of limitation did not

influence the court, which stated that a "statute is not unconstitutional simply because the

court might consider it born of unwise, undesirable or ineffectual policies."
92

2. Rohrabaugh v. Wagoner.—Later in 1980, the Indiana Supreme Court rejected a
claim that the medical malpractice statute of limitation denied "minors equal protection

of law guaranteed by the Fourteenth Amendment and Art. I, § 23, of the Indiana
Constitution and their remedy by due course of law guaranteed by Art. I, § 12, of the

Indiana Constitution."
93

Using a low level scrutiny test, the Rohrabaugh court stated that the statutory

classification "must be reasonable, not arbitrary, and must rest upon some ground of

difference having a fair and substantial relation to the object of the legislation, so that all

persons similarly circumstanced shall be treated alike."
94

This lower standard "is whether

the legislative classification is based upon substantial distinctions with reference to the

subject matter, or is manifestly unjust or unreasonable."
95

Reviewing the background ofthe Medical Malpractice Act, the court noted that it was

enacted as "a legislative response to the reduction of health care services available to the

public in the state."
96 One provision of the Act was to withdraw the disability protection

from minors and subject them to the same statute of limitation as persons over the age of

twenty-one. Although the legislature was silent on the purpose, the court stated that the

provision could have been enacted to reduce the potential unfairness of extended liability

exposure to health care providers and to reduce the problems of the perceived insurance

crisis.
97

Additionally, reference was made to the Johnson court's reasoning that six year

old children are able to communicate their complaints.
98

Using the lower level ofjudicial scrutiny, the Rohrabaugh court found that the statute

of limitation did not affect a fundamental right, but rather it cut off the availability of a

90. Id.

9 1

.

See supra subpart II.A.

92. Johnson, 404 N.E.2d at 591 . See, e.g., Douglas v. Stallings, 870 F.2d 1242 (7th Cir. 1989) (The

federal court upheld the constitutionality of the Indiana Medical Malpractice Act's Statute of Limitation as it

applied to minors.).

93. Rohrabaugh v. Wagoner, 413 N.E.2d 891, 892 (Ind. 1980). The court's analysis of Article I,

Section 23 ofthe Indiana Constitution is altered by the single judicial scrutiny test established in Collins v. Day,

644 N.E.2d 72 (Ind. 1994); see infra subpart II.B.6.

94. Rohrabaugh, 413 N.E.2d at 894 (quoting Royster Guano Co. v. Virginia, 253 U.S. 412 (1920)).

95. Id.

96. Id.

97. Id. at 895.

98. Id.



426 INDIANA LAW REVIEW [Vol. 28:41

3

remedy or limited the substantive right giving rise to the claim." The court also found

that the statute did not operate to the peculiar disadvantage of a suspect class. The court

defined a suspect class as one, "saddled with such disabilities, or subjected to such a

history of purposeful unequal treatment, or relegated to such a position of political

powerlessness as to command extraordinary protection from the majoritarian political
process."

100
Appellant Rohrabaugh argued that the group ofchildren from six to eighteen

years of age constituted a suspect class because this group was newly subjected to this

two year statute of limitation. Rejecting this assertion, the court stated that "[u]nlike

illegitimacy, childhood is a stage out of which millions of persons inevitably pass in an

unending flow, day after day. Children become adults and are empowered."101

The Rohrabaugh court reviewed the mixed historical treatment of children,

considering early child labor laws, mandatory school attendance laws and child abuse

protection laws. All of these laws are designed to protect children, who are inherently
vulnerable. The court noted that children are "limited in their right to operate motor

vehicles, to vote, and to marry."
102

These limitations are designed to restrict children's

activities due to their inherent level of maturity and physical skills, and such laws serve

to protect children and the rest of the public. "The laws respecting children have in the

main in recent years been based upon the premise that children are undergoing physical

and psychological growth and during this process they are limited in their capacity for

making those evaluations thought necessary [for] full participation in the political,

economic, and social life ofthe community."
103

The court acknowledged that historically

children have been discriminated against due to this growth and development factor.

Because children typically are unable to effectively assert their own claims, the court's
reasoning appeared to be a sound basis for protecting children from the two year statute

of limitation. But the court inexplicably contradicted its own reasoning. The court stated:

[T]he disparate treatment accorded children has been based in recent times upon

knowledge of the process of growth, a process to which all human beings are

subject. Consequently, we conclude that the class newly subject to this two year
statute of limitation, children between the ages of six and twenty-one, is not

suspect.
104

The court found that children as a class are not per se discriminated against and thus are

not a per se suspect class. Although the court reviewed laws designed to protect children

due to their natural limitations, and such limitations adversely affect children under the

medical malpractice statute of limitation, the court declined to afford them any protection.

The Rohrabaugh court then determined that there was a reasonable basis for the Act

and for the conclusion "that [such minors] and adults are similarly circumstanced with

regard to their ability to bring malpractice actions."
105

The court held that the statute was

99. Rohrabaugh, 4 1 3 N.E.2d at 893.

100. Id. (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 41 1 U.S. 1, 46 (1973)).

101. Id. at 894.

102. Id.

103. Id.

1 04. Rohrabaugh, 4 1 3 N.E.2d at 894.

105. Id. at 895.



1995] MEDICAL MALPRACTICE 427

consistent with the State and Federal Constitutions' guarantees of equal protection of the

laws.
106

Although the court recognized that this is a stern statute with harsh results, it

stated that a court is without "authority to annul a statute because of that fact."
107

The question is whether the medical malpractice statute of limitation is reasonable

or is manifestly unjust or unreasonable. First, by the court's own admission, the measure
is stern and some could consider it unjust. The limitations on children's ability to protect

their legal rights, discussed supra,
m

illustrates the unreasonableness of concluding that

both minors of this class and adults are equally able to pursue medical malpractice

actions. Second, the court stated that prolonged exposure to potential liability is unfair

to health care providers but failed to discuss the potential unfairness of the statute of

limitation's effect on children less than six years old who must bring suit before their
eighth birthday. Third, the Rohrabaugh ruling seems unfair as the court ruled contrary

to its line ofreasoning regarding the historical treatment of children. The court discussed

the forms ofprotection that were provided for children due to their inherent vulnerabilities

and limitations, yet declined to protect them from the harshness of the medical

malpractice statute of limitation.

The Rohrabaugh court strove to find a justification for its decision. Rohrabaugh '$

reasoning would have been more honest if the court had simply stated that it was going

to support the statute of limitation even though it was in conflict with historical social

policies for minors.

3. Sherfey v. City ofBrazil.—Both Johnson and Rohrabaugh relied on Sherfey v. City
ofBrazil

109 when they held that the statutes did not violate Indiana's due course of law

guarantee because the legislature is not constitutionally required to suspend the statute of

limitation obligations for infancy or incompetency.
110

Sherfey involved an action to recover for injuries sustained by a nine year old child

in the City of Brazil's park. An Indiana statute required that notice be given to the city
within sixty days of such an accident.

111 When Sherfey failed to meet this requirement,
he challenged the statute as violating the Indiana Constitution's Due Course of Law
Provision. The court first noted that the claim stated a good cause of action based on a

common law duty. 112 As the United States Supreme Court stated in Munn v. Illinois, xu

common law rights cannot be taken away without due process, but the legislature can
change them unless constitutional limitations prevent it from doing so.

114
Accordingly,

the Sherfey court found that the remedy for breach of a common law right could be
restricted through either statutes of limitation or notice requirements. The court also

stated "that neither infancy nor incapacity can suspend the obligation to comply with the

106. id.

107. Id.

108. See supra subpart II.A.

109. 13 N.E.2d 568 (Ind. 1938).

110. Johnson v. St. Vincent Hosp., 404 N.E.2d 585, 594 (Ind. 1980) {see supra subpart II.B.l);

Rohrabaugh, 413 N.E.2d at 893 (See supra subpart II.B.2).

111. Sherfey, 1 3 N.E.2d at 569.

112. Id. at 512.

113. 94 U.S. 113(1877).

114. Id. at 134.



428 INDIANA LAW REVIEW [Vol. 28:413

statutory notice."
115

Thus, the court rejected Sherfey's assertion that the notice

requirement should not apply to the child because the requirement violates due process

of law which "guarantees him recourse to the courts for enforcement of his common-law

rights."
116

Sherfey, a 1938 case, relied upon Touhey v. City ofDecatur"
1
a 191 1 case, to dismiss

the charge that the notice requirement should not apply to an infant claimant who was
physically unable to care for himself and unable to protect his legal interests.

118

According to the Sherfey court, Touhey held that "the fact that a claimant is an infant or

a person under mental or physical disabilities will not relieve him of [the] obligation" of

giving notice to a municipality.
1 19

The Sherfey court stated that "notice requirements may
be enacted when the action is statutory is not open to question. When one seeks the
benefit of a statute, he must" comply with its terms.

120
Because Touhey concerned a

statutory action and the statutory notice requirement, Sherfey was Indiana's first case to

consider the question of the application of notice statutes to common law actions.
Appellant Sherfey referred the court to the laws of Missouri and Illinois, which have

constitutional guarantees similar to Indiana's open court and due course of law

guarantees. In both the Missouri case of Randolph v. City ofSpringfield™ and the Illinois

case of McDonald v. City ofSpring Valley,
ni

the courts held that a disability tolls the

notice statute.
123

But, relying upon Touhey, the Sherfey court rejected these positions.
124

Thus, despite contrary persuasive authority and based upon a decision rendered twenty-

seven years earlier, Indiana extended to minors the application of the notice requirement

for statutory and common-law causes of action.

Since Sherfey concerned notice requirements, the court's mention of the statute of

limitation was dicta. Yet the Johnson court relied on Sherfey to make its decision. In

addition, the decision was made after only a brief discussion of whether the medical

malpractice statute of limitation complies with Indiana's due course of law and open court

guarantees.
125

Similarly, the Rohrabaugh court dismissed the due course of law and open

115. Sherfey, 1 3 N.E.2d at 574 (citing Touhey v. City of Decatur, 93 N.E. 540 (Ind. 1911)).

116. Id.

117. 93 N.E. 540 (Ind. 1911).

118. Sherfey, 1 3 N.E.2d at 574.

1 19. Id. at 572 (citing Touhey v. City of Decatur, 93 N.E. 540, 541 (Ind. 1911)).

120. Id. at 572-73. See, e.g., Cook v. Violent Crime Compensation Fund, 557 N.E.2d 1093 (Ind. Ct.

App. 1990). Cook, a minor, was stabbed and subsequently applied for benefits from the Violent Crime

Compensation Fund. The application was filed more than two years after the crime was committed, but less than

two years after Cook reached the age ofmajority. The court stated that the right to benefits was purely statutory;

thus, the two year requirement to file the claim after the incident is a statutory condition precedent to the creation

of an enforceable right of action. Also, the court stated that because the statute was silent concerning minority

or legal disabilities, such disabilities did not toll the time requirement. Id.

121. 257 S.W. 449 (Mo. 1923).

122. 120 N.E. 476(111. 1918).

1 23. Randolph, 257 S.W. at 452; McDonald, 1 20 N.E. at 477.

1 24. Sherfey, 1 3 N.E.2d at 574.

125. Johnson v. St. Vincent Hosp., 404 N.E.2d 585, 593-94 (Ind. 1980). See supra subpart II.B.l.



1995] MEDICAL MALPRACTICE 429

court challenge with very little discussion.
126

Thus in 1980, the Indiana Supreme Court

rejected open court and due course of law challenges to the medical malpractice statute

of limitation as it applied to minors based upon dicta contained in Sherfey, which relied

upon criticized reasoning established in Touhey, which in turn dealt with only a notice

requirement and was decided sixty-nine years before Johnson and Rohrabaugh. The 1980

Indiana Supreme Court made these decisions without considering whether Touhey, the

1911 case, was good policy and without asking if the 1911 and 1938 reasoning should

apply to the 1980 statute of limitation cases. Constitutional law develops over time, but

only by asking appropriate questions and considering appropriate policy. Now is the time
to ask whether the criticized policy for notice requirements of 191 1 should apply to the

medical malpractice statute of limitation requirements of today.

4. City ofFt. Wayne v. Cameron.—The Johnson and Rohrabaugh courts overlooked
City ofFt. Wayne v. Cameron}

11 The Cameron court reviewed a tort action against the

city that arose out of the shooting of a minor by a city policeman. The minor, Cameron,

who was paralyzed as a result of the shooting, notified the city less than one month after
attaining majority but later than the statutory sixty-day notice requirement. The court

stated that because Cameron was mentally and physically incapacitated to give notice, a

strict application of the statute would deprive Cameron of his constitutional right to a

remedy by due course of law.
128

Also, permitting strict application of the statute "would

create a situation whereby a city could escape liability if the injuries suffered by an

individual were so great that he was unable to comply with the terms ofthe statute within

the sixty-day period."
129 The court held that if Cameron had such an incapacity then he

had a reasonable time after the removal of the disabilities in which to file the notice.
130

The shooting occurred while Cameron was a minor and he gave notice only after "he

attained his majority."
131

Curiously, the court did not mention Cameron's disability as

being one of age, although it may have been a factor in the decision. By 1977, the year
Cameron was decided, the legislature had codified the essence of this ruling by allowing

incompetents to file the required notice within 180 days after incompetency was

removed.
132

The Touhey and Sherfey courts' strict application ofthe notice requirements to minors

was not observed by Cameron. The Cameron court stated that such strict application

violated the due course of law guarantee.
133

Yet Johnson and Rohrabaugh dismissed the

charge that the medical malpractice statute of limitation violated Indiana's due course of

law guarantee by relying on Sherfey and, ultimately, Touhey. Cameron presents precedent

for reevaluation of such strict application of statutes of limitation to minors.

126. Rohrabaugh v. Wagoner, 413 N.E.2d 891, 893 (Ind. 1980). See supra subpart II.B.2.

1 27. 370 N.E.2d 338 (Ind. 1 977).

128. Mat 341.
129. Id.

130. Id.

131. Mat 339.
1 32. Cameron, 370 N.E.2d at 340 n.*.

133. Mat 341.



430 INDIANA LAW REVIEW [Vol. 28:413

5. South Bend Community Schools Corp. v. Widawski.—In October, 1993, the
Indiana Supreme Court decided South Bend Community Schools Corp. v. Widawski. XM

The minor, Widawski, was injured during gym class and brought an action against the
school and the teacher. The court held in a four to one decision that under the Indiana

Tort Claims Act,
135

minority status qualifies the person as incapacitated and postpones the

deadline for giving the required notice of the tort claim until 1 80 days after minority

ends.
136

The Widawski court stated that "children are inherently limited in their capacity for

self-sufficiency. Persons under eighteen years of age are additionally under a legal

disability."
137

Also, minors have a limited "ability to provide self-care or to fully manage

their own property." 138 Thus, the court recognized the need for special protection for
minors. The court noted that Indiana common law has long recognized minors to be
under a legal disability and that changes to the common law must be by expressed terms
or by unmistakable implication.

139
Therefore, such a statute as the Tort Claims Act, which

is in derogation of the common law, must be strictly construed. Using this rule, and
dealing with a statutory construction issue,

140
the court found that the statutory phrase

"other incapacity" included minors.
141

Widawski presents several especially interesting points. First, the court strove to find

an exception for minors despite the new statute's failure to expressly include minors in

the term "incompetent." As Chief Justice Shepard pointed out in his dissent, such

exclusion of reference by the legislature was intentional to exclude minors from any

extended time period.
142

Second, the majority's attitude toward minors is in line with the

Cameron court's attitude toward persons with disabilities. Both attitudes are contrary to

Touhey and Sherfey and their proteges Johnson and Rohrabaugh. Third, the majority

stated that its "construction is also in harmony with Article I, Section 12, of the Indiana

Constitution which provides that 'every person, for injury done to him in his person,

property, or reputation, shall have remedy by due course of law.'"
143

With the

construction issue already decided, the court's statement is curious. It may solely have
been intended to lend validity to the court's holding. Or, taking the three points together,

the majority may be sending a message to the legislature that the court is concerned for

134. 622 N.E.2d 160 (Ind. 1993).

135. Ind. Code Ann. §§ 34-4-16.5-1 to -16.5-20 (Burns 1986 & Supp. 1993). Ind. Code Ann. § 34-4-
16.5-7 (Burns 1986) requires notice of a claim against a political subdivision to be filed within 180 days after

the loss occurs. See Widawski, 622 N.E.2d at 161.

136. Widawski, 622 N.E.2d at 1 62.

137. Id.

138. Id.

139. Id.

1 40. Ind. CODE Ann. § 34-4-1 6.5-8 (West Supp. 1 993). This statute allows notice to be given 1 80 days

after incapacity is removed. IND. CODE ANN. § 34-4-16.5-2 (West Supp. 1993) defines "incapacitated" as set

forth in Ind. Code Ann. § 29-3-1-7.5 (Burns 1989), which defines the term and includes the category "other

incapacity." See Widawski, 622 N.E.2d at 161.

141. Widawski, 622 N.E.2d at 1 62.

142. Id.

143. Id.



1 995] MEDICAL MALPRACTICE 43

1

minors' constitutional rights under the due course of law guarantee as it relates to notice

statutes. Consequently, because the Touhey notice case ultimately served as the basis for

the Johnson and Rohrabaugh rulings concerning due course of law guarantee challenges

to the medical malpractice statute of limitation as it applied to minors, the Indiana

Supreme Court also may be putting the legislature on notice that the court will be less
resistant to such constitutional challenges to the statute of limitation in the future.

6. Collins v. Day.—In November, 1994, the Indiana Supreme Court decided Collins
v. Day.

144
In Collins, the court addressed the question ofwhether the requirements of the

Indiana Constitution's Privileges and Immunities Clause
145

were distinct from the

requirements of the Federal Constitution's Equal Protection Clause.
146

The court noted

the textual differences between the two clauses, specifically that "[t]he Fourteenth

Amendment prohibits laws which 'abridge' privileges or immunities, whereas Section 23

prohibits laws which 'grant' unequal privileges or immunities."
147

The court noted that,

in the past, it has "assumed various postures with respect to "the applicability of federal

Fourteenth Amendment standards to Section 23 questions."148 Although previous cases
had applied federal standards to Section 23 claims, the court "conclude[d] that there is no

settled body of Indiana law that compels application of a federal equal protection

analytical methodology to claims alleging special privileges or immunities under Indiana

Section 23 and that Section 23 should be given independent interpretation and

application."
149

After reviewing the historical development and application of the Privileges and

Immunities Clause, the court determined that such review "distill[ed] into two general

factors."
150 The court stated that "[f]irst, the disparate treatment accorded by the

legislation must be reasonably related to inherent characteristics which distinguish the

unequally treated classes."
151 The second factor is the need for all persons similarly

situated to have "uniformity and equal availability of the preferential treatment."
152

1 44. 644 N.E.2d 72 (Ind. 1 994).

145. Ind. Const, art. I, § 23; see supra note 6.

1 46. U.S. Const, amend. XIV, § 1

.

147. Collins, 644 N.E.2d at 74.

148. Id. at 74-75. The court noted that it had "considered the two provisions essentially synonymous"

in Johnson v. St. Vincent Hospital, 404 N.E.2d 585, 600 (Ind. 1980). Collins, 644 N.E.2d at 75. See supra

subpart II.B.l.; see infra notes 186-88 and accompanying text.

149. Collins, 644 N.E.2d at 75.

150. Id. at 78.

151. Id. at 80. The court also stated:

[W]here the legislature singles out one person or class of persons to receive a privilege or immunity

not equally provided to others, such classification must be based upon distinctive, inherent

characteristics which rationally distinguish the unequally treated class, and the disparate treatment

accorded by the legislation must be reasonably related to such distinguishing characteristics.

Id. at 78-79.

152. Id. at 79. The court restated the second requirement for compliance with the Privileges and

Immunities Clause:

[A]ny privileged classification must be open to any and all persons who share the inherent

characteristics which distinguish and justify the classification, with the special treatment accorded



432 INDIANA LAW REVIEW [Vol. 28:413

The court in Collins noted that this two-part standard is to be applied with

"considerable deference to the manner in which the legislature has balanced the

competing interests involved."
153

Also, the issue of classification is primarily determined

by the legislature.
154

And, to overcome the judicial presumption of constitutionality, the

burden is on "the challenger 'to negative every conceivable basis which might have

supported the classification.'"
155

Significantly, the Indiana Supreme Court stated that

claims arising under the Privileges and Immunities Clause will be analyzed with the same

degree of scrutiny for different protected classes "to prohibit any and all improper grants

of unequal privileges or immunities."
156

Collins involved a state Equal Protection Clause challenge to the Indiana Worker's

Compensation Statute, which excludes agricultural workers from coverage. Eugene

Collins suffered a broken leg during the course of his employment as an agricultural

worker, and was denied coverage under Indiana's statute.
157

The court found that

agricultural employers are inherently distinct from the general class of employers, and that

the distinctions "are reasonably related to the exemption."
158

The court also found that the

agricultural exemption was "uniformly applicable and equally available to all" agricultural

employers.
159 Key to the court's decision was the finding that the plaintiff Eugene Collins

failed to negate "every reasonable basis for the classification."
160

The Indiana Supreme Court's equal protection analysis is significant because it

seemingly condenses and clarifies the rules pertaining to Indiana's Privileges and

Immunities Clause. Although the Collins equal protection analysis differs from that used

in Johnson v. St. Vincent Hospital and Rohrabaugh v. Wagoner,
161

the similarities lead to

the conclusion that Collins would not change the result in those cases. In particular, the

Collins court placed great importance on its finding that the plaintiff failed to negate

"every reasonable basis for the [legislative] classification."
162

In Johnson, the court

assumed the existence of an acceptable legislative purpose, which by implication had not

been negated by the plaintiff.
163

Likewise in Rohrabaugh, the court noted that the

legislature was silent regarding the purpose of the medical malpractice statute of

limitation for minors, yet went on to propose an acceptable possible purpose, which by

to any particular classification extended equally to all such persons.

Id.

153. Collins, 644 N.E.2d at 80 (citing Johnson v. St. Vincent Hosp., 404 N.E.2d 585, 604 (Ind. 1980)).

154. Id.

1 55. Id. (quoting Johnson, 404 N.E.2d at 597).

156. Id. See supra subpart I.C. In sharp contrast to Indiana's single degree ofjudicial scrutiny, the

Federal Equal Protection Clause and many states' equal protection clauses are analyzed using three levels of

judicial scrutiny.

157. Id. at 73.

1 58. Collins, 644 N.E.2d at 8 1

.

159. Id.

160. Id.

161. 404 N.E.2d 585 (Ind. 1980); 413 N.E.2d 891 (Ind. 1980). See supra subparts II.B.1-2.

1 62. Collins, 644 N.E.2d at 8 1

.

1 63

.

See supra text accompanying note 90.



1995] MEDICAL MALPRACTICE 433

implication was not negated by the plaintiff.
164

Also, in Johnson, the court found that

health care providers for children face problems from extended statutes of limitation that

are unique to their profession.
165 The Indiana Medical Malpractice Act's statute of

limitation for minors was enacted to help alleviate some of these perceived problems, thus

complying with the first factor in Collins}
66 The second factor is also satisfied because

the special protection from this statute of limitation is equally available to all health care

providers for minors. Thus, this most recent constitutional analysis would neither alter

nor lend any validity to the decisions in Johnson or Rohrahaugh.

C. Results ofIndiana 's Medical Malpractice Act

Although some believe that the ends justify the means, in Indiana, few, if any,

positive results justify the harshness of imposing such a statute of limitation on minors.

First, theoretically, state legislation favorable to insurers would encourage physicians to

locate or relocate to that state.
167

"Indiana has been touted as a paradise for physicians and

anecdotal reports abound of physicians moving to Indiana to enjoy its favorable

malpractice climate."
168

Although Indiana is known for having the strongest insurance

reforms in the nation since 1975, it has not attracted more physicians than neighboring

states.
169

Actually, Indiana has fewer physicians per capita than Michigan, Ohio, or the

national average, a statistic which remains unchanged since before 1975.
170

Second, it appears that medical malpractice reforms have not had and will not have

a significant impact on physician response to medical liability. One criteria for evaluating

insurance reforms is the extent to which the reforms deter negligent medical practice.

Empirical evidence shows that the reforms have not caused changes in physician practice

resulting in the deterrence ofmedical malpractice.
171

This lack of change is due to the fact

that the "deterrent effect of malpractice on physicians operates from a psychological

perception by physicians of attack on their competence rather than [on] economic

concerns."
172

Also, physician concern with malpractice is not all bad. As Dr. Patricia

Danzon, an expert on malpractice, stated: "[S]ome physician behavior that is correctly

ascribed to the liability threat is not pure waste. Spending more time with patients,

referring difficult cases—these are precisely the types of increased care which the
malpractice system is intended to encourage."

173

1 64. See supra text accompanying notes 97-98.

165. Johnson, 404 N.E.2d at 603-04.

1 66. See supra subpart I.B.

167. Tort Reform, supra note 42, at 38 (discussing more detailed background information).

1 68. Tort Reform, supra note 42, at 38 (referring to Andrew Slomski, How Long Can Indiana Remain

a Malpractice Paradise?, MED. ECON., February 4, 1991, at 122-35.). This legislation was enacted during the

term ofGovernor Otis R. "Doc" Bowen, M.D., who was clearly sensitive to the needs ofdoctors and the medical

profession.

1 69. Tort Reform, supra note 42, at 38.

1 70. Tort Reform, supra note 42, at 38.

171. Tort Reform, supra note 42, at 39.

1 72. Tort Reform, supra note 42, at 39.

1 73. Tort Reform, supra note 42, at 37 (quoting Senate Hearings 1 984: 1 (statement ofPatricia Danzon,

Ph.D.)).



434 INDIANA LAW REVIEW [Vol. 28:413

The federal government recently published the results of its study concerning the
impact of the states' legal reforms on medical malpractice insurance costs.

174
This report

stated that "limiting the statute of limitations show[s] conflicting results."
175 One study

indicates that shortening the statute of limitation period for minors had no significant

effect on claim frequency.
176 Two studies reached conflicting results concerning whether

shorter statutes of limitation lower insurance premiums.
177

Also, another government

survey reports that "a steady increase in the number of claims per [one hundred]

physicians over the period 1980-84" occurred in Indiana.
178

Even if some persons do subscribe to the notion that the end justifies the means,

which is the notion that Indiana's General Assembly and Supreme Court appear to

support, the ends do not appear to actually justify the means.

III. Other Jurisdictions' Constitutional Challenges

A. Federal Constitutional Challenges

The federal courts have rejected challenges that a state's medical malpractice

legislation is unconstitutional under either the Equal Protection Clause or the Due Process

Clause.
179

The Supreme Court views a statute of limitation as both affecting a remedy and

not destroying fundamental rights.
180

Federal courts dismiss equal protection challenges

by finding that malpractice legislation does not interfere with any fundamental right and

that the differentiation between medical malpractice claimants and tort claimants
181

does

1 74. See Assessment, supra note 1 8.

1 75. See Assessment, supra note 1 8, at 2, 65. The report stated:

The one reform consistently shown to reduce malpractice cost indicators is caps on damages.

Requiring collateral source payments to be deducted from the plaintiffs malpractice award has also

been shown to reduce certain malpractice cost indicators. Pretrial screening panels and limiting the

statute of limitations show conflicting results. Finally, statutes that restrict attorney fees, require

periodic payment of awards, and codify the standard of care have not been shown to have the

intended result of reducing malpractice cost indicators.

Assessment, supra note 18, at 2 (emphasis omitted).

1 76. See Assessment, supra note 1 8, at 65 (citing Stephen Zuckerman et al., Effects ofTort Reforms and

Other Factors on Medical Malpractice Insurance Premiums; 27 INQUIRY 167 (1990)).

1 77. See Assessment, supra note 1 8, at 65 (citing Zuckerman, supra note 1 76, and Glenn Blackmon &
Richard Zeckhauser, State Tort Reform Legislation: Assessing Our Control ofRisks, TORT LAW AND THE

Public Interest (1991)).

1 78. See Assessment, supra note 1 8, at 1 5 (citing GENERAL ACCT. Off., MEDICAL MALPRACTICE: Six

State Case Studies Show Claims and Insurance Costs Still Rise Despite Reforms ( 1 986)). This GAO

report reflected no impact on claim frequency, payment per paid claim or insurance premiums due to shortened

statutes of limitation for minors. Assessment, supra note 1 8, at 66.

1 79. Paul C. Weiler, Medical Malpractice on Trial 39 ( 1 99 1 ). See Turkington, supra note 20, at

1308-17; see, e.g., Douglas v. Stallings, M.D., Inc., 870 F.2d 1242 (7th Cir. 1989).

180. 5 1 Am. Jur. 2d Limitation ofActions §27(1 970). See, e.g. , Chase Securities Corp. v. Donaldson,

325 U.S. 304(1945).

181. See Ind. CODE § 34- 1 -2-2 (1988) (providing for a two-year statute of limitation for personal injury

claims); Ind. CODE § 34-1-2-5 (1988) (providing a tolling period: a person "under legal disabilities when the



1995] MEDICAL MALPRACTICE 435

not use suspect or quasi-suspect classifications.
182

Similarly, federal due process

objections have been rejected.
183

The United States Supreme Court has stated that "the [Constitution of the United

States . . . gives to minors no special rights beyond others, and it [is] within the legislative

competency of the state ... to make exception in their favor or not."184

B. State Constitutional Challenges

State constitutional challenges to shortened medical malpractice statutes oflimitation

as they apply to minors have met with success in various states.
185

Several states have

found such statutes to be unconstitutional.
186

State courts have greater discretion and

authority than federal courts to declare a state's law unconstitutional.
187 When

interpreting individual rights, state courts may interpret their own state constitutions more
expansively than the federal courts have interpreted the United States Constitution. This

expansiveness is because the Supremacy Clause of the Constitution establishes a

minimum, not a maximum, level for interpretation by a state court of those individual

rights.
188

State constitutions typically expand upon the rights enumerated in the

Constitution.

cause of action accrues may bring his action within two (2) years after the disability is removed"); Ind. Code

§ 34-1-67-1 (1988) (defining the phrase "under legal disabilities" to include persons less than eighteen years

old). Section 34-1-67-1 was replaced by Ind. Code Ann. § 34-1-67-5 (West 1993) (stating that "the provisions

of this article shall be liberally construed and shall not be limited by any rules of strict construction"). Thus,

for personal injury claims, a disabled person has two years in which to bring suit after the disability, as defined

by court, is removed. There was a potential conflict with § 16-9.5-3-1 as originally enacted because a person

had two years after his or her eighteenth birthday in which to bring a tort claim, but was limited for medical

malpractice claims. However, the Indiana Supreme Court, in Johnson v. St. Vincent Hospital, 404 N.E.2d 585

(Ind. 1980), stated that due to the irreconcilable conflict between § 34-1-2-2 and § 16-9.5-3-1, the latter statute

controls. Johnson, 404 N.E.2d at 603. Thus, now § 27-12-7-1 (replacing § 16-9.5-3-1) controls.

1 82. Weiler, supra note 1 79, at 39 & n. 1 00.
1 83. WEILER, supra note 1 79, at 39 & nn. 1 01 -05.
1 84. Vance v. Vance, 1 08 U.S. 5 1 4, 52 1 ( 1 883). See Robbins v. United States, 624 F.2d 97 1 ( 1 0th Cir.

1980) (rejecting a complaint that the Federal Tort Claims Act's statute of limitation, treating minors the same

as adults, violated the Constitution).

1 85. Tort Reform, supra note 42, at 29. See Turkington, supra note 20, at 1 3 1 7-22; Alston, supra note

52.

186. See, e.g., Barrio v. San Manuel Div. Hosp., 692 P.2d 280 (Ariz. 1984) (holding a statute

unconstitutional under state's constitutional guarantee of right to recover for injury); Austin v. Litvak, 682 P.2d

41 (Colo. 1984) (holding a statute unconstitutional under equal protection guarantee); Strahler v. St. Luke's

Hosp., 706 S.W.2d 7 (Mo. 1986) (holding that a statute violates guarantee of open access to courts); Carson v.

Maurer, 424 A.2d 825 (N.H. 1980) (holding that a statute violates state's constitution's equal protection

guarantee under intermediate scrutiny test); Mominee v. Scherbarth, 503 N.E.2d 717 (Ohio 1986) (holding that

a statute violates due course of law guarantee under rational basis test); Lyons v. Lederle Labs., 440 N.W.2d

769 (S.D. 1989) (holding that a statute violates equal protection guarantee under rational basis test); Sax v.

Votteler, 648 S.W.2d 661 (Tex. 1983) (holding that a statute violates open court guarantee).

1 87. Smith, supra note 54, at 208 (discussing the various reasons for this greater state court authority).

188. Turkington, supra note 20, at 1 32 1

.



436 INDIANA LAW REVIEW [Vol. 28:413

Challenges to the medical malpractice statutes rely on several constitutional

objections including: "(1) equal protection and due process guarantees . . .
, (2)

prohibitions against special legislation, (3) the right to trial by jury, (4) right of access to

courts, and (5) usurpation of the judicial function."
189 As one commentator noted:

State legislatures reacted in the 1970's to a perceived crisis in medical

malpractice insurance by enacting these types of limitations provisions. While

such provisions no doubt go some distance in alleviating the problems of

malpractice insurance and health care providers, they do so only at a high cost.

Their effect is to bar the malpractice suits of minors without regard to the

validity of their claims or the fact that the minors are wholly innocent in failing

to timely pursue their claims. Such a result seems to unfairly penalize the

blameless minor in order to protect the potentially negligent health care

provider.
190

Several states adhere to this view, upholding state constitutional challenges to their

medical malpractice statute of limitation.
191

1. Due Process and Open Court Guarantees.—States typically have constitutional
due process guarantees similar to those in the United States Constitution. Although

challenges to statutes as violating due process guarantees have been met with mixed

success, several states have upheld such challenges. The Ohio Supreme Court found such

a challenge to be valid. In Schwan v. Riverside Methodist Hospital?
92

the court held that

Ohio's medical malpractice statute of limitation, which treated minors under ten years of

age differently than minors over ten years of age, violated the Ohio Constitution's equal

protection guarantee.
193 The court stated that no rational basis supported the statute's

tolling the statute of limitation for those younger than ten until their fourteenth birthday,

while requiring minors older than ten to file an action within one year of the accrual ofthe

cause of action.
194

Then, in Mominee v. Scherbarth, 195 in a five to two decision, the Ohio Supreme Court

held that the four year limitation was unconstitutional as applied to minors because it

violated the due process and due course of law guarantees.
196 The Mominee court stated

1 89. Smith, supra note 54, at 2 1 3.

1 90. Thea Andrews, Infant Tolling Statutes in the Medical Malpractice Cases: State Constitutional

Challenges, 5 J. LEGAL MED. 469, 486 (1984).

191. See, e.g. , Mominee v. Scherbarth, 503 N.E.2d 7 1 7, 723 (Ohio 1 986) (quoting Andrews, supra note

190).

1 92. 452 N.E.2d 1 337 (Ohio 1 983).

193. Id. at 1338-39.

194. Mat 1338.
1 95. 503 N.E.2d 7 1 7 (Ohio 1 986).

1 96. Ohio Const, art. I, § 1 (providing: "All men are, by nature, free and independent, and have certain

inalienable rights, among which are those of enjoying life and liberty, acquiring, possessing, and protecting

property, and seeking and obtaining happiness and safety."); OHIO CONST, art. I, § 16 (stating in relevant part:

"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall

have remedy by due course of law, and shall have justice administered without denial or delay."). See also

Mominee, 503 N.E.2d at 726-27 (Clifford, J., concurring) (stating: "A statute which violates the open court



1995] MEDICAL MALPRACTICE 437

that a statute is "valid on due process grounds [1] if it bears a real and substantial relation

to the public health, safety, morals or general welfare of the public and [2] if it is not

unreasonable or arbitrary."
197

First, the court found that the legislative goals of the statute

were to insure health care availability to Ohio citizens by reducing medical malpractice

insurance premiums, and to prevent stale claims. The court found these goals proper.

However, it determined that no real and substantial relationship existed between those

goals and the statute as applied to minors because the defendant health care providers

failed to proffer any evidence that the statute of limitation as applied to minors had any

effect on insurance premiums or that malpractice claims by minors even constituted a

significant part of all the medical malpractice claims.
198

The Mominee court also found that the statute of limitation as applied to minors was

"totally unreasonable and patently arbitrary."
199

The court stated that the Ohio

Constitution's Due Process/Due Course ofLaw Provisions, which guarantee that all courts
are open to everyone who is injured, were violated by the statute of limitation, which
effectively barred minors from the courts because they could not bring suit before

reaching majority and they would lose their right to redress before reaching majority.200

For various reasons, the court rejected the assertion that a minor's suit could be brought

by their parent or guardian. One reason was that parents may be unaware of the existence
ofany medical malpractice problems because ofchildren's inherent inability to recognize

or articulate their physical problems. Additionally, "the parents may themselves be
minors, ignorant, lethargic, or lack the requisite concern to bring a malpractice action

within the time provided by statute."
201

Finally, the minor might not have a parent or a

concerned guardian.
202

Next, the Mominee court rejected the appellate court's reasoning that children could
sue their parents, due to the abolition of parental immunity in Ohio, for failing to file suit

in the child's behalf.
203

The court stated that being forced to choose between suing their

parents and abandoning their claims effectively chills children's due process rights.
204

Additionally, because the evidentiary concerns of stale medical malpractice claims remain

for such a suit against a parent, the statute of limitation "would not advance its ostensible

goal of preventing stale claims."
205

Moreover, putting the parents in this dilemma may
prompt purely speculative claims. And as protector of their child's possible law suit, the
physician-parent relationship becomes adversarial, eroding the essential mutual

provision ... is also in violation per se of the due course of law provision . . . of the Ohio Constitution." The

judge also noted that the statute additionally violated the due process and equal protection clauses of the

Constitution.).

197. Mominee, 503 N.E.2d at 720-21 (quoting Benjamin v. Columbus, 146 N.E.2d 854, 856 (Ohio

1957)).

198. Id. at 721.

199. Id.

200. Id.

20 1

.

Id. (citing Sax v. Votteler, 648 S.W. 2d 66 1 (Tex. 1 983)).

202. Mominee, 503 N.E.2d at 72 1 -22.

203. Id. at 722.

204. Id.

205. Id.



438 INDIANA LAW REVIEW [Vol. 28:413

confidence of the physician-patient relationship.
206

"Thus the ultimate goal of [the statute

of limitation], the advancement of health care to Ohioans, would be frustrated."207

In his dissent, Justice Wright referred to published opinions and statistics that seemed

to support the validity and wisdom of the legislature's enactment of the statute of
limitation as a way to end the problems of stale claims and long-tail liability.208 The court
rejected Justice Wright's view, stating that the legislature may enact legislation to meet
perceived needs, but the legislation still must comply with constitutional provisions.209

As one commentator noted: "[I]f anyone invokes in an American court law which the
judge considers contrary to the Constitution, he can refuse to apply it. This is the only

power peculiar to an American judge, but great political influence derives from it."210

The Mominee court restored the "disabilities" tolling statute; thus, minors with a
cause of action arising before their majority have until their nineteenth birthday to file

their suit.
211

Minors discovering the alleged medical malpractice after their eighteenth

birthday have one year or until their twenty-second birthday, whichever is first, to file a

suit.
212

As noted in Mominee, several other jurisdictions have upheld similar due process
challenges to medical malpractice statutes of limitation as applied to minors. The Arizona

Supreme Court held the statute of limitation to be unconstitutional because it abolished

the fundamental right to recover damages through a common law action.213 In Missouri,
the court determined that the statute of limitation unconstitutionally deprived a minor of

the guarantees of a court open to everyone, and of a certain remedy afforded for every

injury to a person.
214

Texas, treating the open court constitutional guarantee as

synonymous with due process, found the statute to be in violation of the guarantee.215

Although the above jurisdictions do not allow minors to bring suit in their own name,

the difference from Indiana's rule, which allows minors to file suit, is immaterial when

evaluating the constitutionality of Indiana's applicable medical malpractice statute of

limitation. As mentioned in Rohrabaugh v. Wagoner, 216 minors are limited in their legal

capacity to do many actions which persons of majority age are allowed to do. People are

prohibited from voting due to their age because they may lack the maturity to make an
informed and well-considered decision. But, these same people are held responsible for

206. Id.

207. Mominee, 503 N.E.2d at 722.

208. Id. at 736.

209. Id. at 722 n.4.

210. Alexis DeTocqueville, Democracy in America 1 02 ( 1 969). See Smith, supra note 54, at 229.

211. Mominee, 503 N.E.2d at 723.

212. Id.

213. Barrio v. San Manuel Div. Hosp., 692 P.2d 280 (Ariz. 1984).

214. Strahler v. St. Luke's Hosp., 706 S.W.2d 7 (Mo. 1986). See Draper, supra note 51, at 735. See

generally John F. Applequist, Will Missouri's 'Open Courts' Guarantee Open the Door to Adoption ofthe

'Discovery Rule ' in Medical Malpractice Cases? Strahler v. St. Luke's Hospital, 52 Mo. L. REV. 977 ( 1 987).

215. Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983). See Christopher J. Volkmer, Limitation of

Actions—Disability ofInfancy—Medical Malpractice statute which Prevents Tolling of Limitations During
Infancy Violates Due Process Clause of Texas Constitution, 15 St. MARY'S L.J. 207 (1983).

216. 413 N.E.2d 89 1 (Ind. 1 980); see supra subpart II.B.2.



1995] MEDICAL MALPRACTICE 439

failing to comply with the medical malpractice statute of limitation, just because

they—minors—may file suit. Arguably, voting and filing a timely and proper claim
require an equal level ofmaturity. Thus, denying minors the right to vote while requiring

them to fulfill the responsibility of complying with the statute of limitation seems

unreasonable. One can only speculate as to whether legislatures would subject minors to

these statutes of limitation if minors had voting rights. Because of their inherent

limitations, the legal right ofminors to file suit in Indiana should not be a factor in support

of the constitutionality of Indiana's medical malpractice statute of limitation as it applies

to minors.

2. Equal Protection Guarantee.—
a. Rational basis test.—In Lyons v. Lederle Laboratories? 11 a. South Dakota case,

eighteen-year-old Jody Lyons brought a medical malpractice action against the estate of

Dr. Heidepriem alleging negligent care while Jody was a minor. In 1977 South Dakota's

legislature enacted the statute which required actions to be:

[CJommenced only within three years after the alleged malpractice, error or

mistake or failure to cure occurred, unless the minor is less than six years of age

at the time of the alleged malpractice, error, mistake or failure to cure in which

case the action shall then be commenced within two years after the sixth birthday

of the minor.
218

Per the statute, the time had run to bar Lyons' claim. In a three to one decision, the court

used the rational basis test and held that the statute of limitation provision violated the

equal protection guarantees of the South Dakota and Federal Constitutions.
219 The court

found the statute's classification to be arbitrary and not rationally related to the legitimate

purpose of the statute, which was to alleviate the problems of the perceived medical

malpractice crisis.
220

After discussing the three tests used for judicial scrutiny, which are applied

depending upon the nature of the interest, the court held "that the rational basis test is

most appropriate in this case involving age classification."
221 The court's rational basis

test has two prongs, which ask: "(1) [WJhether the statute does set up arbitrary

classifications among various persons subject to it. (2) [Wjhether there is a rational

relationship between the classification and some legitimate legislative purpose."
222

Applying the test's first prong, the court labeled the case a "classic example of the

arbitrariness of the classification."
223 The court found that the statute did not apply

equally to all people, because it created "an arbitrary classification of minors who have
medical malpractice claims as opposed to minors with any other kind of tort claim."

224

217. 440 N.W.2d 769 (S.D. 1 989).

218. Id. at 770 (citing S.D. CODIFIED Law § 1 5-2-22. 1 enacted by the 1 977 legislature).

219. Mat 771, 772.
220. Id. at 771.

221. Id.

222. Lyons, 440 N.W.2d at 771 (citing City of Aberdeen v. Meidinger, 233 N.W.2d 331, 333 (S.D.

1975)).

223. Id.

224. Id.



440 INDIANA LAW REVIEW [Vol. 28:413

Minors with other types of tort claims have until one year after their eighteenth birthday

to file their claims.
225

Applying the test's second prong, the court determined that the legislation was
enacted to alleviate a perceived malpractice crisis and insure health care availability to the

South Dakota citizens.
226

The court found no rational basis for assuming that requiring

suits to be filed earlier would reduce medical malpractice claims.227

The Lyons court referred to Schwan v. Riverside Methodist Hospital, which had used

the same basic reasoning to strike down, on state equal protection grounds, a similar

statute of limitation which was based upon the age of ten instead of six. Lyons quoted

Schwan, stating:

[W]e recognize that the [legislature] often must draw lines in legislation. Yet,

it is the age of majority which establishes the only rational distinction. Young
people eagerly anticipate their legal 'adulthood.' At the age of majority, our

society puts them on notice that they are assuming an array of rights and

responsibilities which they never had before. Age ten, however, arrives with
little fanfare. It is difficult to imagine that parents or guardians—much less the
children themselves—would recognize that any change in status occurs on a
child's tenth birthday. We acknowledge, however, the importance of the
purpose of [the statute] to alleviate the 'medical malpractice crisis' of the mid-

1970 's .... Therefore, in light of our conclusion that [the statute] creates an

irrational classification which does not rationally further the purpose of [the

legislation], we hold that [it] is unconstitutional on its face with respect to
medical malpractice litigants who are minors.228

Like Rohrabaugh, both the Lyons and Schwan courts noted the inherent limited

abilities of minors. However, unlike Rohrabaugh, Lyons and Schwan found that

expecting and requiring minors to be able to comply with the statute of limitation was

irrational. Additionally, neither the Lyons court nor the Schwan court was able to find a

rational purpose for the legislative differentiation of this class of minors.

b. Intermediate test.—New Hampshire used the intermediate level ofequal protection
scrutiny to hold that the medical malpractice statute of limitation provision applying to

minors was unconstitutional in Carson v. Maurer.
229

Like Indiana's statute, minors aged

eight and above were required to comply with the same two year statute of limitation time

period as that applicable to adults.
230 The medical malpractice statutes were enacted to

reduce liability insurance costs and insure the availability of adequate liability insurance

for health care providers.
231

225. Id.

226. Id.

227. Lyons, 440 N.W.2d at 772.

228. Id. (quoting Schwan v. Riverside Methodist Hosp., 452 N.E.2d 1337, 1339 (Ohio 1983)).

229. 424 A.2d 825 (N.H. 1 980). See Turkington, supra note 20, at 1 328-30; Draper, supra note 5 1 , at

780-81 ; Andrews, supra note 190, at 484-86.

230. Carson, 424 A.2d at 833 (citing N.H. Rev. STAT. Ann. 507-C:4 (Supp. 1979)).

231. Id. at 830.



1 995] MEDICAL MALPRACTICE 44

1

First, the court held that the right to recover for one's injuries is not a fundamental

right,
232

and no suspect classification was created. Thus, the strict scrutiny test was not

required. The Carson court chose the intermediate level ofreview after determining that

the right to recover for personal injuries was "sufficiently important to require that the

restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than

allowed under the rational basis test."
233

Carson recognized that the Supreme Court

restricts this intermediate level test, also known as the fair and substantial relationship

test, to classifications based on gender and illegitimacy.
234

However, the court recognized

its right, when interpreting the state constitution, to grant more freedoms than the federal

Constitution requires.
235

Under the intermediate level of review, the statutes' classifications "must be

reasonable, not arbitrary, and must rest upon some ground of difference having a fair and

substantial relation to the object of the legislation."
236 The court's function is "not to

second-guess the wisdom of or necessity of legislation."237 Rather, its function is to

determine whether the legislature could reasonably find the factual basis for the

classifications to be true.
238 The court found that the legislature had sufficient facts to

determine that special legislation was required.239 Consequently, the issues became

whether the statute had a fair and substantial relation to the legislative goal and whether

unreasonable limitations were placed on private rights.

First, the Carson court determined that the medical malpractice statute of limitation

did not "substantially further" the legislative goal of reducing liability insurance costs

because the number of malpractice claims filed by or for minors was comparatively

small.
240

Second, the court noted that previously New Hampshire's saving statute allowed
all minors to bring their action within two years after their disability was removed.

241
But

now, only the class of medical malpractice claimants was denied the saving statute's

protection. Also, the statute of limitation extinguished causes of action before minors, due

to their age, may have learned that they even exist. The Carson court found that the
medical malpractice statute of limitation "unfairly burdens and discriminates" against

these minors and "is unconstitutional insofar as it extinguishes rights conferred by" the

saving statute.
242

Carson did not state that the legislature failed to rationally further the

purpose of the statute. Rather the court found that the classification did not further the

legislative goals enough to justify such a limitation on minors' rights.

The Carson court held virtually every aspect of New Hampshire's medical
malpractice reform to be in violation of the state's constitution. This case illustrated the

232. Id.

233. Id.

234. Mat 831.
235. Carson, A2A A.2d at 83 1 ; see supra notes 1 87-88 and accompanying text.

236. Carson, 424 A.2d at 83 1 (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 4 1 2, 4 1 5 ( 1 920)).

237. Id.

238. Id. (citing Vance v. Bradley, 440 U.S. 93, 1 1 1 (1979)).

239. Id.

240. Id. at 834.

241

.

Carson, 424 A.2d at 833.

242. Id. at 833-34.



442 INDIANA LAW REVIEW [Vol. 28:413

major constitutional problems of the reform legislation of the mid-1970s. First, the

empirical data is inadequate to show that the reduced costs, which result from such
reforms, will provide greater availability of reasonably priced insurance. Secondly, as

Carson noted, "basic notions of fairness and justice" are offended and "[s]ociety cannot

escape its responsibility to provide justice by simply eliminating the rights of its

citizens."
243

The court also recognized the unfairness of requiring minors, a group that is

disadvantaged and represents a relatively small number of the injured victims of medical

malpractice, to bear the burden of a perceived insurance crisis. Recognizing this

unfairness, the Carson court used its authority to constitutionally invalidate legislation.

The court applied a modified federal intermediate level test, and then used its authority

to return and to grant more freedoms to individual citizens.

The same factors that faced the Carson court also faced the 1980 Indiana Supreme

Court in Rohrabaugh v. Wagoner.
244

Both courts discussed the harshness of the medical

malpractice statute of limitation for minors. Both courts dealt with the same empirical

data that was available to the legislatures of the mid-1970s. Yet, only Carson found a

way to continue the historical protection afforded minors by relieving them of the
statutory obligation. Now, the Indiana Supreme Court may be trying to follow the
example by sending a message to the legislature to provide more medical malpractice

protection to minors.
245

IV. Federal Statutory Challenge

The Americans with Disabilities Act of 1990 (ADA) is a viable, yet currently

untested, legal device that should be used to challenge various states' medical malpractice

statutes of limitation as they apply to minors.
246

The ADA was enacted "[t]o establish a
clear and comprehensive prohibition ofdiscrimination on the basis of disability."

247
Title

II, Subchapter A of the ADA specifically deals with the public services area and the
prohibition against discrimination ofpersons with disabilities.

248
This Subchapter became

effective on January 26, 1992.
249

It covers "public entities]," which include "any State

or local government" and "any department, agency, special purpose district, or other

instrumentality of a State or States or local government."
250

Thus, public entities must

adhere to the requirement that "no qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or be denied the benefits of the

243. Id. at 838.

244. 413 N.E.2d 891 (Ind. 1980); see supra part II.B.2.

245. See supra subpart II.B.5.

246. 42 U.S.C.A. §§12101-12213 (West 1994).

247. S. 933, 101st Cong., 2d Sess. (1990).

248. 42 U.S.C.A. §§ 12131-12134 (West 1994).

249. 42 U.S.C.A. §12131, Note (Other Provisions). Subchapter A "shall become effective 1 8 months

after the date of enactment of this Act [July 26, 1990]" and § 12134 "shall become effective on the date of [the]

enactment of this Act." Id.

250. 42 U.S.C.A. §12131(1 )(A)-(B).



1995] MEDICAL MALPRACTICE 443

services, programs, or activities of a public entity, or be subjected to discrimination by

any such entity."
251

The Attorney General is responsible for promulgating regulations to implement

Subchapter A.
252 The regulations dictate that Title II applies to the activities of executive

agencies, as well as those of "the legislative and judicial branches of State and local

governments."
253 The regulations define disability, "with respect to an individual, [as] a

physical or mental impairment that substantially limits one or more of the major life

activities of such individual."
254 Age is such a disability as reflected by the fact that age

clearly restricts minors' ability to do many life activities that persons ofmajority age can
do.

255
Such restrictions include the lack of ability to independently manage their own

legal affairs.
256

Also, state courts have recognized that minors, due to age, are under a

legal disability.
257

Thus, Title II applies to legislative enactments such as medical

malpractice statutes of limitation applying to minors.

The application of Title II to such enactments is further evidenced by the fact that

statutes of limitation affect minors' abilities to pursue their claims in the judiciary, which

is expressly covered by Title II. Furthermore, a major activity covered by the regulation

includes "programs that provide State or local government services or benefits."
258

Additionally, a state's court system can be considered such a program providing both a

service and a benefit to individuals, especially in lieu of states' constitutional provisions

granting individuals the right of access to state courts.
259

States' medical malpractice

statutes of limitation are preempted by the ADA, which establishes the minimum level of
protection to individuals with disabilities.

260
Thus, state statutes that restrict the ability

251. Id. § 12132.

252. Id. § 12134(a).

253. 28 C.F.R. § 35.102, App. A (1994). The miscellaneous provisions of the ADA provide:
A State shall not be immune under the eleventh amendment to the Constitution of the United

States from an action in Federal or State court of competent jurisdiction for a violation of this

chapter. In any action against a State for a violation of the requirements of this chapter, remedies

(including remedies both at law and in equity) are available for such a violation to the same extent

as such remedies are available for such a violation in an action against any public or private entity

other than a State.

42U.S.C.A. § 12202.

254. 28 C.F.R. §35.104.

255. See supra text accompanying notes 102-03.

256. See supra subpart H.A.; text accompanying note 200.

257. South Bend Community Sch. Corp. v. Widawski, 622 N.E.2d 160, 162 (1993). See supra subpart

II.B.5.

258. 28 C.F.R. § 35.102, App. A (1994).
259. See, e.g., supra note 6.

260. See 28 C.F.R. § 35.103. Title II, Subchapter A "does not invalidate or limit the remedies, rights,
and procedures of any other Federal laws, or State or local laws (including State common law) that provide

greater or equal protection for the rights of individuals with disabilities or individuals associated with them."

Id. State laws that require minors to comply with medical malpractice statutes of limitation accord minors less

protection than that provided under most tort statutes of limitation and less protection than persons of majority

age with medical malpractice claims are afforded. See supra note 5 1 and accompanying text; subpart II.A.



444 INDIANA LAW REVIEW [Vol. 28:413

of minors to wait until they have reached the age of majority to bring their medical

malpractice claims violate the ADA. This conclusion furthers the stated purpose of the
ADA—to prohibit discrimination based on disabilities.261

One analogous case is Concerned Parents to Save Dreher Park Center v. City ofWest
Palm Beach?

62
In Concerned Parents, the city ofWest Palm Beach, Florida, (the "City")

had provided recreational programs at the Dreher Park Center for persons with

disabilities.
263

However, in 1993, due to budget constraints the City eliminated the

programs for persons with disabilities, and the plaintiffs sought injunctive relief.
264 The

case was removed to federal court pursuant to jurisdiction conferred by the ADA.265 The
court noted that the plaintiffs had to pass a three part test to establish a violation of Title

II.
266

After finding that the plaintiffs satisfied the "disability" prong, the court found that

such disabled individuals were discriminated against by the City.267

The court noted that the ADA bans both intentional acts ofdiscrimination and actions
that have discriminatory effects.

268
Significantly, the court noted that even if a

governmental entity is not required to offer a program, when it does then the program

must be conducted such that its purpose or effect does not impair "its objectives with

respect to individuals with disabilities."
269

The court found that the elimination of the

programs effectively impaired the City's goal ofproviding recreation services for disabled

individuals.
270

Such impairment occurred because disabled individuals were unable to

benefit from the remaining general programs.
271 The court in Concerned Parents noted

that the ADA requires public entities to "provide 'integrated settings' for services and
programs,"

272
or "separate benefits or services ... if they are 'necessary to provide

qualified individuals with disabilities with aids, benefits, or services that are as effective

as those provided to others.'"
273 By eliminating the special programs, and due to the

inadequacy of the general programs, the City had excluded disabled persons from being

Because these state laws do not provide equal or greater protection for minors, they are preempted by the ADA.

261

.

See supra note 247 and accompanying text.

262. 846 F. Supp. 986, consent decree entered, 853 F. Supp. 424 (S.D. Fla. 1994).

263. Id. at 988.

264. Id. at 989.

265. Id. (The court also based jurisdiction on 28 U.S.C. §§ 1331, 1441 (1988 & Supp. V 1993).).
266. Id. at 989-90.

[A] plaintiff must show: (1) that he is, or he represents, the interests of a 'qualified individual with

a disability'; (2) that such individual was either excluded from participation in or denied the benefits

of some public entity's services, programs, or activities or was otherwise discriminated against; and

(3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiffs

disability.

Id. at 990.

267. Concerned Parents, 846 F. Supp. at 990-9 1

.

268. Id. at 991 (citing 28 C.F.R. § 35.130(b)(3) (1993)).

269. Id.

270. Id.

271. Id.

272. Concerned Parents, 846 F. Supp. at 991 (quoting 28 C.F.R. § 35.130(d) (1993)).

273. Id. (quoting 28 C.F.R. § 35.130(b)(l)(iv) (1993)).



1995] MEDICAL MALPRACTICE 445

able to benefit from the City's recreation services. Such exclusion violated the second

prong of the court's Title II test.
274

The court in Concerned Parents found that the elimination of the benefits was due

to the plaintiffs' disabilities.
275 The court noted that although Title II does not per se

require particular services for disabled persons, it does require that services being made

available to non-disabled individuals must be made equally available to disabled

individuals.
276

Thus, since a great disparity in the amount of funds provided for disabled

persons and non-disabled persons existed, the court found that the denial of benefits was

due to the plaintiffs' disabilities.
277 The court in Concerned Parents held that the

plaintiffs had "shown a substantial likelihood of prevailing on the merits of the ADA
claim."

278

Concerned Parents serves as persuasive precedent for using Title II to invalidate

states' medical malpractice statutes of limitation for minors. First, minors are under the

legal disability of age.
279

Second, due to concerns of increased medical malpractice

insurance costs, states enacted laws changing the statutes of limitation for minors to bring

such claims, thus eliminating minors' traditional common-law right to toll statutes of

limitation until reaching the age of majority.
280

Through state constitutional provisions,

each individual has the right to his or her day in court.
281 By eliminating minors' rights

to toll statutes of limitation until the age of majority, states have effectively impaired their

ability to exercise their constitutional right of access to courts.
282

At the very least,

medical malpractice statutes of limitation containing shortened or eliminated tolling

periods for minors discriminate against minors by failing to treat them equally with

persons of majority age who are better able to manage their legal matters.
Third, the change in tolling laws for minors was made specifically because of the

unique problems associated with minors' disability—age.283 Thus, these medical
malpractice statutes of limitation for minors meet the Concerned Parents three prong test,

and are in violation of Title II of the ADA.

Conclusion

In the case of medical malpractice statutes of limitation for minors, the ends do not

justify the means. The legislatures of the mid-1970s enacted legislation when they were
faced with a perceived medical malpractice crisis. Requiring minors to carry their present

burden resulting from the medical malpractice reform is an unfair and unreasonable social

274. Id. at 992.

275. Id.

276. Id.

277. Concerned Parents, 846 F. Supp. at 992.

278. Id. at 992.

279. See supra subpart II.A.; text accompanying notes 102-03; text accompanying note 200; subpart

II.B.5; note 257 and accompanying text.

280. See supra subpart LB.; note 5 1 and accompanying text.

281. See, e.g., supra note 6.

282. See supra subpart II.A.; text accompanying note 200.

283. See supra notes 5 1 -52 and accompanying text.



446 INDIANA LAW REVIEW [Vol. 28:413

policy. Requiring minors, who lack the physical, mental and emotional skills to drive a
car, to file a suit within the prescribed time period or lose the right to recover for their

injuries is inequitable. These statutes harm minors and protect the potentially negligent

physician or health care worker. We as a society should be willing to find a way to
relieve minors ofthis burden, or at least make the burden more tolerable for them to bear.

State courts are split on the issue of whether the statutes of limitation are

unconstitutional. State courts use different standards of review, and some courts even

apply the same standard differently with different results. The better position is the one

that strikes down the statutes as being unconstitutional. Due to minors' inherent
limitations, the statutes of limitation effectively bar minors from the courts. Moreover,

minors under the medical malpractice statutes of limitation are treated differently than

minors with other tort claims.

Courts and legislatures, especially those ofIndiana, should be willing to continue the

historical trend of providing protection for minors by protecting them from these

unreasonable situations. Medical malpractice statutes of limitation should allow all

people to have the opportunity to file their claim. This opportunity only exists when

people have the personal ability to handle their legal affairs, or when someone is legally

responsible and accountable for handling the affairs for them. Legislatures have the

responsibility to provide this opportunity for minors. Courts should strike down any

legislation that does not provide such an opportunity for minors. And now, under the
ADA, minors have a federal legislative enactment that arguably requires federal courts
to invalidate state statutes of limitation that require minors to bring their medical

malpractice claims before reaching the age of majority.