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Judge dissents in denial of rehearing

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Indiana Court of Appeals Judge Margret Robb has issued a lengthy dissent from her colleagues’ denial to rehear a case involving the state’s patient compensation fund. After reviewing the case, she believed the appellate court shouldn’t have applied Restatement (Second) of Torts Section 323.

Posted Tuesday afternoon, the nine-page dissent in Indiana Dept. of Insurance, et al. v. Robin Everhart, personal representative of the estate of James K. Everhart Jr., No. 84A01-0912-CV-614, re-examines the use of Section 323 and the line of cases that developed after the Indiana Supreme Court adopted the section’s approach in Mayhue v. Sparks, 653 N.E.2d 1384 (Ind. 1995). Section 323 outlines that one is liable for harm to another if the failure to exercise reasonable care increases the risk of such harm. It allows the plaintiff to avoid summary judgment on the issue of proximate cause even when there was a less than 50 percent chance of recovery absent the negligence.

James Everhart was injured in an automobile accident and later died. It was determined that he had a better than 80 percent chance of surviving his injuries in the absence of a doctor’s negligence. The trial court awarded Everhart’s estate the statutory maximum of $1 million from the Indiana Patient’s Compensation Fund. The fund appealed and the COA reversed, finding the trial court should have awarded damages only in proportion to the increase in risk of harm that was caused by the malpractice.

Mayhue and the line of cases that followed it don’t apply to the instant matter, she decided, believing the fact that the patients in those cases had less than a 50 percent chance of recovery or survival absent medical negligence was critical to the holding of those cases.

“In my view, section 323 was adopted in Mayhue and applied in the ensuing cases to specifically address the situation where a patient already has a less than fifty percent chance of survival. A plaintiff in such a situation could never prove under traditional tort principles that a doctor whose negligence contributed to the death was also the proximate cause, but Mayhue provides an avenue of recourse,” she wrote.

Instead, in Everhart’s case, the doctor’s negligence was the proximate cause of his death. Robin Everhart proceeded to recover under a traditional tort analysis and Judge Robb believed that the appellate court should have done so as well. She would grant the petition for rehearing to affirm the trial court.

She also pointed out the overall tone of Robin Everhart’s petition for rehearing is “not in general effective appellate advocacy” with the opinion saying the previous ruling “destroys the foundation of our civil justice system” and allowing the decision to stand will render proximate cause meaningless.

“I would caution counsel that future disagreement with this court can and should be addressed without unnecessary hyperbole,” she wrote.

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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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