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ATTORNEY FOR APPELLANTS Jerry Garau Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Edward L. Murphy, Jr. Heidi K. Koeneman Fort Wayne, Indiana

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In the Indiana Supreme Court
_________________________________ No. 71S03-0605-CV-164 MICHELLE ELLENWINE and ALVIE ELLENWINE, as Parents and Natural Guardians of Dustin Ellenwine, Deceased, Appellants (Plaintiffs below), v. DAWN FAIRLEY, D.O., Appellee (Defendant below). _________________________________ Appeal from the St. Joseph Superior Court, No. 71D06-0110-CP-1497 The Honorable William C. Whitman, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 71A03-0403-CV-124 _________________________________ May 3, 2006 Sullivan, Justice.

Michelle Ellenwine gave birth to a son, Dustin, on December 19, 1996. Dr. Dawn Fairley was Michelle's treating physician throughout the pregnancy. Complications arose during the delivery and within days of the birth one of Dustin's physicians informed Dustin's parents, Michelle and Alvie, that Dustin had suffered brain damage and was experiencing seizures as a

result of oxygen deprivation during delivery. Dustin died on February 2, 1999, when he was two years old.

On October 12, 1999, the Ellenwines filed a proposed medical malpractice complaint against Dr. Fairley with the Indiana Department of Insurance. In the proposed complaint, the Ellenwines alleged that Dr. Fairley's failure to meet the applicable standard of care was the proximate cause of Dustin's injuries and death. On October 23, 2001, the statutory medical review panel issued a unanimous written opinion in favor of the Ellenwines, and seven days later, on October 30, the Ellenwines filed a claim in the trial court under Indiana's Child Wrongful Death Act, Indiana Code Section 34-23-2-1 ("CWDA").

Dr. Fairley filed a motion for summary judgment, arguing that the action was barred by the requirement of the Indiana Medical Malpractice Act, Indiana Code Sections 34-18-1-1, et seq. ("MMA"), that any claim based on medical malpractice be filed within two years of the alleged malpractice. Ind. Code

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Indiana Law