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ATTORNEYS FOR APPELLANT Michael L. Hanley Vernon J. Petri & Assoc., Indianapolis, Indiana Mary A. Findling Findling Garau Germano & Pennington, P.C. Indianapolis, Indiana

ATTORNEYS FOR APPELLEES BALL MEMORIAL HOSPITAL AND ROBERT HUNTER, M.D. Mary K. Reeder Pamela G. Schneeman Riley Bennett & Egloff, LLP Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE IND. STATE MEDICAL ASSOC. Linda J. Cooley Libby Y. Mote Krieg DeVault, LLP Indianapolis, Indiana

ATTORNEY FOR APPELLEE LAWRENCE BENKEN, M.D. James W. Brauer Stewart & Irwin, PC Indianapolis, Indiana _____________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S02-0412-CV-501 MARSHA LEDBETTER, v. ROBERT HUNTER, M.D., LAWRENCE BENKEN, M.D., AND BALL MEMORIAL HOSPITAL Appellees (Defendants below). _________________________________ Appeal from the Marion Superior Court, No. 49D02-9409-CT-384 The Honorable Kenneth H. Johnson, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0309-CV-770 _________________________________ February 22, 2006 Dickson, Justice. Appellant (Plaintiff below),

In this appeal following the trial court's dismissal of the plaintiff's complaint alleging medical negligence, the Court of Appeals concluded that the Indiana Medical Malpractice Act's statute of limitations regarding claims of minors violated the Privileges and Immunities Clause of the Indiana Constitution. Ledbetter v. Hunter, 810 N.E.2d 1095, 1103 (Ind. Ct. App. 2004).

We granted transfer, thereby automatically vacating the opinion of the Court of Appeals, and now deny the plaintiff's claim that the challenged statutory provision is unconstitutional.

This lawsuit seeks damages for injuries to Trenda Ledbetter, who was born at defendant Ball Memorial Hospital on November 25, 1974, with birth complications causing serious and permanent physical and mental injuries. For religious reasons, Trenda's mother did not assert a malpractice claim on behalf of her daughter. On April 22, 1994, less than two years after her eighteenth birthday, Trenda filed a medical malpractice claim against the hospital and defendants Robert Hunter, M.D. and Lawrence Benken, M.D., the physicians who attended her birth. The defendants moved to dismiss, contending that the action was not commenced before Trenda's eighth birthday pursuant to the Indiana Medical Malpractice Act limitations period for claims of minors. The trial court granted the motion, but the Court of Appeals reversed and remanded to the trial court for consideration of the constitutionality of the statutory limitation period under the Privileges and Immunities Clause. Ledbetter v. Hunter, 652 N.E.2d 543 (Ind. Ct. App. 1995), transfer not sought. Trenda died shortly thereafter, and her mother, Marsha Ledbetter, was substituted as the plaintiff in this action. After further proceedings, the trial court again dismissed the action, finding that the plaintiff had failed to demonstrate that the statute was unconstitutional. Appellant's App'x. at 28.

The plaintiff contends that the medical malpractice statute of limitations for minors violates Article 1, Section 23, of the Indiana Constitution as interpreted by Collins v. Day, 644 N.E.2d 72 (Ind. 1994). Section 23 states: "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." In Collins, we analyzed the enactment of this provision and synthesized prior case law, concluding that: Article 1, Section 23 of the Indiana Constitution imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of persons. First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics [that] distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion. 644 N.E.2d at 80. The first prong itself has two necessary components: "[a] such classification

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must be based upon distinctive, inherent characteristics [that] rationally distinguish the unequally treated class, and [b] the disparate treatment accorded by the legislation must be reasonably related to such distinguishing characteristics." Id. at 79. Likewise, the second prong is described as comprising two elements: "[a] any privileged classification must be open to any and all persons who share the inherent characteristics [that] distinguish and justify the classification . . . , [and] [b] the special treatment accorded to any particular classification [must be] extended equally to all such persons." Id.

We cautioned in Collins that, in applying the two-prong standard, courts "must accord considerable deference to the manner in which the legislature has balanced the competing interests involved," id. at 80, that "[s]o long as the classification is based upon substantial distinctions with reference to the subject matter, we will not substitute our judgment for that of the legislature[,] nor will we inquire into the legislative motives prompting such classification," id. (quoting Chaffin v. Nicosia, 261 Ind. 698, 701, 310 N.E.2d 867, 869 (1974)), and that a challenger must "negative every conceivable basis which might have supported the classification," id. (quoting Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 392, 404 N.E.2d 585, 597 (1980)).

Nevertheless, Collins clearly emphasized our anticipation that "our independent state privileges and immunities jurisprudence will evolve in future cases facing Indiana courts to assure and extend protection to all Indiana citizens." Collins, 644 N.E.2d at 81. Although we explicitly noted that preferential legislative treatment that was proper when enacted "may later cease to satisfy the requirements of Section 23 because of intervening changes in social or economic conditions," a challenger must carry its burden to negate every reasonable basis for the classification. Id.

The plaintiff challenges the constitutionality of the limitation period in the Indiana Medical Malpractice Act, which states: A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor's eighth birthday to file.

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Ind. Code

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