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ATTORNEYS FOR APPELLANT Alan VerPlanck Daniel G. McNamara Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE Milford M. Miller Edward L. Murphy, Jr. Michael A. Barranda Fort Wayne, Indiana

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Indiana Supreme Court
_________________________________ No. 90S05-0812-CV-768 THERESE NEWKIRK, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARTHA O'NEAL, DECEASED,

In the

FILED
Dec 24 2008, 12:46 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Plaintiff below), v. BETHLEHEM WOODS NURSING AND REHABILITATION CENTER, LLC, Appellee (Defendant below). _________________________________ Appeal from the Wells Circuit Court, No. 90C01-0409-PL-0008 The Honorable David L. Hanselman, Sr., Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 90A05-0705-CV-271 _________________________________ December 24, 2008

Sullivan, Justice.

This is one of two cases we decide today involving the interaction of the statute of limitations provision of the Indiana Wrongful Death Act ("WDA") and the statute of limitations provision for an underlying substantive tort claim. In this case, the limitations period for the underly-

ing tort claim had expired before the lawsuit was filed, but the limitations period under the WDA had not. In Technisand, Inc. v. Estate of Melton ex rel. Melton, the other case we decide today, the sequence was reversed: the limitations period under the WDA had expired before the lawsuit was filed, but the limitations period for the underlying tort claim had not. --- N.E.2d ---, No. 30S01-0801-CV-28, slip op. (Ind. Dec. 24, 2008). Our decision in Ellenwine v. Fairley, 846 N.E.2d 657 (Ind. 2006), provides the answer in both cases, as explained below with respect to this case and in our separate opinion with respect to Melton.

Background On September 10, 2001, Martha O'Neal was admitted to Bethlehem Woods Nursing and Rehabilitation Center ("Bethlehem") for rehabilitation following surger y. During her stay at Bethlehem, O'Neal was the victim of several acts of medical malpractice. On September 22, 2001, a Bethlehem employee discovered O'Neal lying in a pool of her own blood. She was transferred to the hospital. O'Neal died on November 6, 2001.

On October 22, 2003, more than two years after the medical negligence occurred, but within two years of O'Neal's death, the Estate of Martha O'Neal ("Estate") filed a complaint under the WDA, Ind. Code

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