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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. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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