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Justices: Claim not allowed under MedMal act

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Because claims for emotional distress aren’t allowed under the Adult Wrongful Death Statute, a father can’t bring this type of derivative claim under the Medical Malpractice Act, the Indiana Supreme Court ruled today.

Gary Patrick brought a claim, individually and as representative of his son’s estate, under the Adult Wrongful Death Statute for his son Christopher’s death caused by negligence of health-care providers after Christopher was injured in a car accident. The hospital discharged him despite complaints of pain and Christopher later died of a ruptured colon at the home he shared with his father.

Patrick also brought a derivative claim under the Medical Malpractice Act for his own emotional distress.

After settling with the health-care providers, Patrick filed his petition for payment of excess damages with the Indiana Patient’s Compensation Fund.

The trial court found the AWDS applied to Patrick’s claim as personal representative of Christopher’s estate and awarded him more than $300,000 in damages for loss of love and companionship and other expenses. The trial court also awarded him $600,000 for his emotional distress claim. The Indiana Court of Appeals affirmed.

In Indiana Patient’s Compensation Fund v. Gary Patrick, No. 49A02-0909-CV-402, Patrick argued he’s entitled to bring a claim for his own emotional distress under the MMA. The MMA doesn’t define “bodily injury” and the Supreme Court declined to define it in the same manner it has in caselaw dealing with insurance polices. The high court has also held that the requirement for bodily injury or death in the MMA applies to the actual victim of the malpractice and not derivative claimants.

And, based on Chamberlain v. Walpole, 822 N.E.2d 959 (Ind. 2005), Patrick can’t seek damages for emotional distress. The MMA serves as a procedural mechanism for claims of medical malpractice and a derivative claimant can only pursue claims allowed at common law or under applicable statutes, wrote Justice Frank Sullivan. The MMA doesn’t create new causes of action that don’t otherwise exist, so whether Patrick has a claim for emotional distress depends on the AWDS.

“It was Son who was the victim of the medical malpractice; therefore, any claim in Father’s own right is a derivative claim. As discussed above, any derivative claim that Father has depends upon the AWDS,” wrote the justice. “Because claims for emotional distress are not allowed under the AWDS, Father may not bring this type of derivative claim under the MMA.”

The justices also clarified that were the claim underlying the MMA action one for which damages for emotional distress were available, the MMA doesn’t preclude derivative claims of emotional distress by those whom the law refers to as “bystanders.”
 

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  1. Don't we have bigger issues to concern ourselves with?

  2. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  3. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  4. Different rules for different folks....

  5. I would strongly suggest anyone seeking mediation check the experience of the mediator. There are retired judges who decide to become mediators. Their training and experience is in making rulings which is not the point of mediation.

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