DICKSON, J.
The defendant, Hematology-Oncology of Indiana, P.C. (the provider), appeals the trial court judgment awarding attorney fees and litigation expenses in this action brought under the Adult Wrongful Death Statute (“AWDS”), Ind. Code § 34-23-1-2, and the Medical Malpractice Act (“MMA”), Ind. Code § 34-18-1-1 et seq. The Court of Appeals affirmed. Hematology-Oncology of Ind., P.C. v. Fruits, 932 N.E.2d 698 (Ind. Ct. App. 2010). We grant transfer and now affirm the trial court’s ruling that attorney fees and expenses are recoverable under the AWDS but remand to limit the provider’s aggregate liability to the $250,000 cap prescribed by the MMA.
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With today’s opinion in McCabe v. Comm’r, Ind. Dep’t of Ins., ___ N.E.2d ___ (Ind. 2011), we hold that “reasonable attorney fees incurred in the prosecution of an action under the Adult Wrongful Death Statute are within the damages permitted by the statute.” Id. at ___. Applying McCabe, we hold that the trial court’s award of litigation expenses was authorized by the statute.
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Sullivan and David, JJ., concur. Shepard, C.J., dissents with separate opinion in which Rucker, J., concurs.
Shepard, Chief Justice, dissenting.
Believing that the Court has reached the wrong conclusion about attorney fees as a separate element of damages under the Adult Wrongful Death Statute, I dissent for the reasons explained in my dissent in McCabe v. Comm’r, Ind. Dep’t of Ins.
Rucker, J., concurs.