BROWN, J.
Steven Spangler and Heidi Brown (collectively, “Parents”) appeal the trial court’s grant of motions for summary judgment in favor of St. Vincent Randolph Hospital (“Hospital”) and Barbara Bechtel, nurse-midwife, and Expectations Women’s Health and Childbearing Center (Bechtel and Expectations collectively, “Midwife”) [after Brown delivered a full-term stillborn baby]. Parents raise four issues, which we consolidate, revise, and restate as whether the trial court erred in granting Hospital’s and Midwife’s motions for summary judgment. We reverse.
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Generally, for entities covered under the [Medical Malpractice] Act, such as Hospital, medical malpractice claims, including claims for negligent infliction of emotional distress, must be brought pursuant to its procedures. Ind. Patient’s Comp. Fund v. Patrick, ___ N.E.2d ___, ___ (Ind. June 23, 2010); see also Winkle, 863 N.E.2d at 7. The Act allows for medical malpractice claims for bodily injury or death of a patient as a result of “a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient.” Ind. Code § 34-18-2-18; see Ind. Code § 34-18-8-1. The Act defines “patient” broadly and includes in its definition any “individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider.” Ind. Code § 34-18-2-22. The Act defines derivative claims as including “the claim of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient including claims for loss of services, loss of consortium, expenses, and other similar claims.” Id.
We discuss separately: (1) whether Parents have a claim for negligent infliction of emotional distress; and (2) whether Parents may bring a claim under the Act.
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“In sum, in order to recover damages for the negligent infliction [of] emotional distress, a plaintiff must satisfy either the modified impact rule or the bystander rule. The elements for each are separate and distinct.” Atlantic Coast Airlines, 857 N.E.2d at 998 (footnote omitted).
Here, regarding the direct involvement element, Indiana courts have held on numerous occasions that, when a malpractice claim is brought based upon malpractice affecting a pregnancy, the mother satisfies Shuamber’s modified impact rule. . . . In fact, Hospital does not cite to a case in which an Indiana court has precluded the parents of a fetus suffering death as the result of medical malpractice from asserting a claim for negligent infliction of emotional distress.
Parents’ claimed emotional damages, directly related to Brown’s stillbirth, are of the kind and extent normally expected to occur in a reasonable person and are not likely speculative, exaggerated, fictitious, or unforeseeable. Accordingly, we conclude that Parents possess a valid claim for negligent infliction of emotional distress based upon Brown’s direct involvement in the stillbirth.
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. . . [T]he issue here . . . is whether, on these facts, Brown qualifies as an “actual victim” of negligence able to assert Parents’ claim for negligent infliction of emotional distress. We hold that she does.
In arriving at our conclusion, we find persuasive an argument advanced by Parents that “if an unborn child is not a separate ‘person’ under our laws, then the unborn child must be a part of mother, both physically and legally . . . .” Appellants’ Brief at 8. . . .
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Also, one recent case, Ind. Patient’s Comp. Fund v. Butcher, 863 N.E.2d 11 (Ind. Ct. App. 2007), highlights a potential absurdity in our case law were we to conclude that Parents could not bring their claim for negligent infliction of emotional distress. The child in Butcher was born still just as Skyleigh Spangler was in this case. Efforts to resuscitate the child in Butcher succeeded where they failed here, and the child lived on a ventilator for a few days before succumbing to the injuries inflicted by medical malpractice. Because the child did live for those few days, however, it was not at issue whether the child was a patient under the Act, and therefore the parents in Butcher had a valid negligent infliction of emotional distress claim stemming from his death. Butcher, 863 N.E.2d at 16. Here, however, because Skyleigh was not able to be resuscitated, her eligibility to qualify as a patient under the Act has been our central inquiry. We do not believe that the legislature intended such sweeping legal implications as to preclude medical malpractice liability on the one hand and allow it on the other based upon whether a full-term, viable fetus actually survives the pregnancy, even if for a day or two only. We therefore hold that a mother who suffers a stillbirth due to medical malpractice qualifies as an injured patient and satisfies the actual victim requirement under the Medical Malpractice Act regardless of whether the malpractice resulted in injuries to the mother, the fetus, or both, and Parents may assert a claim for negligent infliction of emotional distress under Shuamber’s modified impact rule. Accordingly, we conclude that the trial court erred when it granted Hospital’s motion for summary judgment.
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As Parents articulate, “[d]ue to Midwife’s election of non-coverage under the Medical Malpractice Act, that Act is inapplicable to the claims against Midwife.” Appellants’ Brief at 23. Parents argue that this court has held numerous times that 22
negligent infliction of emotional distress is an independent tort and “not contingent upon proof of a separate, underlying tort.” Id. (quoting Butcher, 863 N.E.2d at 17). Parents therefore argue that “[t]o the extent that summary judgment was granted on the premise that a separate tort must be established under the [CWDS], that premise is inconsistent with established precedent, and is in error.” Id. at 23-24.
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Our discussion of the tort of negligent infliction of emotional distress in part A.1 applies with equal force to Midwife. As the Indiana Supreme Court’s recent opinion in Patrick articulates, the Act “is procedural and [does] not enlarge the scope of damages that can be sought against healthcare providers.” Patrick, ___ N.E.2d at ___; see also Breece, 800 N.E.2d at 227 (noting that the purpose of the Act is “to protect health care providers from malpractice claims, not to create new and additional causes of action”) (citation omitted). Thus, claims which are allowable under the Act may be brought against parties not under the Act’s protection because the Act merely dictates procedures by which a claimant may bring a cause of action. Midwife, on the other hand, does not enjoy the protection provided by the Act. Also, to the extent that Midwife argues that a claim for negligent infliction of emotional distress is reliant on the CWDS, Patrick makes clear that causes of action for emotional damages as the result of a miscarriage or stillbirth are not only allowable claims, but also are not reliant on the CWDS. Patrick, ___ N.E.2d at ___ (citing Ryan, 827 N.E.2d 112, 121 (holding that “mothers who have suffered a miscarriage may pursue a claim for all intangible damages directly related to their miscarriage”); and Breece, 800 N.E.2d 224, 230 (holding that, although the parents did not have a viable cause of action under the CWDS, they may maintain an action for emotional damages stemming from their miscarriage)). In each of those cases, the court recognized the plaintiff’s ability to bring an emotional distress claim without relying on the CWDS. We therefore hold that Brown’s direct involvement in the stillbirth allows Parents to proceed on their negligent infliction of emotional distress claim against Midwife, and we conclude that the trial court erred in granting Midwife’s motion for summary judgment.
For the foregoing reasons, we reverse the trial court’s orders granting summary judgment motions in favor of St. Vincent Randolph Hospital and Barbara Bechtel, nurse-midwife, and Expectations Women’s Health and Childbearing Center, and remand for further proceedings.
Reversed.
MATHIAS, J., and BARNES, J., concur.