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Justices: emotional distress actions not barred

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The Indiana Supreme Court held Tuesday that separate actions by parents seeking damages for emotional distress from experiencing the stillbirth of their child are not barred by the Indiana Child Wrongful Death Act or the Indiana Medical Malpractice Act. As such, the court reversed summary judgment for a nurse-midwife, her alleged employer and the hospital.

In Steven Spangler and Heidi Brown v. Barbara Bechtel, Expectations Women's Health and Childbearing Center, and St. Vincent Randolph Hospital, No. 49S05-1012-CV-703, parents Steven Spangler and Heidi Brown filed three counts against the defendants after their child died in utero prior to delivery. Nurse-midwife Barbara Bechtel and Expectations Women’s Health and Childbearing Center argued that the claims for negligent infliction of emotional distress are governed by the Indiana Child Wrongful Death Act, under which a claim for the wrongful death of an unborn child wasn’t cognizable at the time of the death of the parent’s child in this case. The trial court concluded that the baby wasn’t a “child” for purposes of the CWDA.

The justices rejected the defendants’ argument that Ind. Patient’s Comp. Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010), supports their claim and held that Patrick doesn’t preclude the possibility of a separate claim, outside the wrongful death statutes, for negligent infliction of emotional distress by a parent suffering a miscarriage or full-term stillbirth.  

“The only arguable support for the trial court's finding a lack of negligently-inflicted injury that we can perceive is that … the injuries to the plaintiffs' child were not actionable either at common law or under the Child Wrongful Death Statute in effect at the time of the death. Yet, this does not alter the undeniable fact that the death of an unborn child is an injury to the child. It simply means the injury is not one for which the unborn-child-victim can seek recovery; such an injury, however, is enough to support a claim for negligent infliction of emotional distress,” wrote Justice Brent Dickson for the unanimous court.

As long as the plaintiffs can satisfy the other requirements of the bystander rule, they may proceed with their actions seeking emotional distress damages, he continued.

With regards to the hospital, the high court found that claims for negligent infliction of emotional distress, if arising from alleged medical malpractice, are subject to the Medical Malpractice Act not because they are derivative, but because they are “otherwise” a result of alleged malpractice. They did not read Ind. Patient’s Comp. Fund. v. Winkle, 863 N.E.2d 1 (Ind. Ct. App. 2007), to preclude the plaintiff’s MMA actions for negligent infliction of emotional distress from the stillbirth of their child as the hospital had argued.  

“Thus a parent who suffers emotional distress from experiencing the birth of a lifeless child resulting from medical negligence is a ‘patient’ subject to the MMA, but such claims need not be seen as ‘derivative’ ones. Without the ‘derivative’ claim rationale, it was unnecessary for the Winkle court to opine that the CWDA's treatment of unborn children should be imported into the MMA. The scope of ‘patient’ under the MMA does not turn on whether the CWDA extends to unborn children,” wrote Dickson.

The high court remanded for further proceedings.

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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