Kirsch, J.
Ann L. Miller (“Ann”) and her husband Richard A. Miller (“Richard”) (collectively, “the Millers”) appeal the trial court’s grant of summary judgment in favor of Dr. Glenn L. Dobbs, D.O. (“Dr. Dobbs”), and Partners in Health (collectively, “the Defendants”). The Millers raise several issues, of which we find the following to be dispositive: whether the trial court erred in granting summary judgment in favor of the Defendants based on a finding that the Millers’ proposed complaint was not timely filed.
We reverse and remand.
….
The filing of a proposed complaint tolls the applicable statute of limitations to and including a period of ninety days following the claimant’s receipt of the Medical Review Panel’s opinion. Ind. Code § 34-18-7-3(a). A proposed complaint is considered filed when “a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” I.C. § 34-18-7-3(b). A filing fee of $5.00 plus a processing fee of $2.00 for each additional defendant after the first defendant “must accompany each proposed complaint filed.” Ind. Code § 34-18-8-2.
Here, the Millers filed their proposed complaint with the [Indiana Department of Insurance hereinafter “Department”] on March 18, 2008, approximately two weeks before the statute of limitations expired; however, they did not include the mandatory filing and processing fees with their proposed complaint. The Millers later mailed these fees via first-class mail, and the Department received them on April 7, 2008 – three days after the statute of limitations expired. The Millers, however, filed a complaint in Dearborn Superior Court before the statute of limitations expired.
….
…Because the matter before us arises from a proposed complaint filed before a medical review panel, and not from a complaint filed in our trial courts, we do not believe our decision here is controlled by existing precedent from our Supreme Court or this court. The present case does not involve any trial or small claims rules, and the rationale from cases interpreting such does not equally apply to cases under the Medical Malpractice Act.
….
We believe that there are two ways to proceed when, as here, a proposed complaint is delivered or mailed by registered or certified mail to the Department and does not contain the filing fees. On the one hand, we could, as the trial court did here, treat the proposed complaint as unfiled until the filing fees are paid. Or, we could treat the complaint as filed and issue a show cause notice to the plaintiffs that the filing fee had not been paid and that their proposed complaint would be dismissed unless the filing fee were paid in short order. In the first instance, we dismiss what may prove to be a meritorious complaint on procedural grounds for a small delay in the payment of a small sum, here a mere seven dollars. [Footnote omitted.] In the second, we provide the parties with the opportunity to rectify their error and proceed to determine the complaint on its merits.
….
BROWN, J., concurs in result with separate opinion.
VAIDIK, J., dissents with separate opinion.
Brown, Judge, concurring in result.
I concur in the result reached by Judge Kirsch that the court’s grant of summary judgment should be reversed, but I do so for different reasons. As Judge Kirsch notes, this case arises from a proposed complaint filed before a medical review panel, rather than from a complaint filed in a trial court, and thus the outcome is dictated by the Medical Malpractice Act (“MMA”). Chapter 7 of the MMA, titled “Statute of Limitations,” contains three sections including Ind. Code § 34-18-7-3, titled “Tolling of statute of limitations; filing of proposed complaint,” which provides in relevant part that “[a] proposed complaint under IC 34-18-8 is considered filed when a copy of the proposed complaint is delivered or mailed by registered or certified mail to the commissioner.” I.C. 34-18-7-3(b) (emphasis added). Thus, for purposes of the statute of limitations, a proposed complaint under the MMA is filed when it has been delivered or mailed by registered or certified mail to the commissioner.
….
VAIDIK, Judge, dissenting.
I respectfully dissent from both Judge Kirsch’s and Judge Brown’s interpretations of the Medical Malpractice Act. I believe that the statute is clear and that a proposed medical malpractice complaint is not considered filed until the filing and processing fees are paid. Our Supreme Court precedent also requires such a result. Because the Millers’ filing and processing fees were paid after the statute of limitation expired, I would affirm the trial court’s grant of summary judgment in favor of the Defendants.
….