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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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