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Judges divided over complicated issue of wrongful-death attorney fees

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A complex and complicated case regarding whether attorney fees awarded from the Indiana Patient’s Compensation Fund are capped at 15 percent led to a split in the Indiana Court of Appeals. The majority decided that the cap does not apply to the calculation of excess damages of any type from the fund.

“As attorney fees are recoverable as pecuniary damages in an adult wrongful death action, we cannot adopt the Fund’s position that the total amount of attorney fees recoverable may be only 15% of what is taken from the Fund, without regard to whether or to what extent that amount includes attorney fees on the amount recovered before the Fund is reached. Instead, the 15% limitation applies only to new monies from the fund, not monies that otherwise might be characterized as attorney fees on the amount recovered before the Fund is reached, but that is included as damages when applied to the Fund,” Judge Melissa May wrote in Indiana Patient's Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louis Cochran, Deceased, 49A05-1207-CC-340. Judge Rudolph Pyle III joined her decision.

The issue of the amount of legal fees owed by the Patient’s Compensation Fund stems from the death of Mable Louise Cochran in 2011 allegedly caused by medical malpractice. Judy Holcomb, her personal representative, opened the estate to pursue a wrongful death claim under the Adult Wrongful Death Statute against the nursing home where Cochran resided.

The trial court awarded Holcomb’s attorneys $50,440 in attorney fees to be paid by the fund after she settled with the nursing home and sought additional money from the fund. That amount was calculated by Holcomb’s attorneys based on a $400 hourly rate and hours worked. But the IPCF claimed the amount exceeds that permitted under I.C. 34-18-18-1, which says the attorney fees may not exceed 15 percent of any recovery from the fund. The fund sought the attorney fee award cut to $17,852.98, which would be 15 percent of the $101,166.89 awarded.

“Under the facts the parties have placed before us, including an agreement regarding the Fund’s liability that purported to include no attorney fees as damages, it is impossible to reach a result that is fair to the Estate and to its counsel, yet consistent with the statutory 15% limitation. As the trial court’s award does not accurately reflect either the proper amount of attorney fees or proper allocation of money awarded from the Fund, we must reverse and remand for further proceedings consistent with this opinion,” May wrote.

The judges on the appellate panel at times were stumped during oral arguments on the issues in this case, which is reflected in Chief Judge Margret Robb’s dissent. She pointed out the majority addressed issues that weren’t before the court. All the COA should rule on is the total amount of the fund’s excess damages liability. She would affirm the trial court’s award, plus the $50,000 in attorney fees.

She wrote the probate court should determine how much Holcomb’s counsel receives from the excess damages payment, taking into account the Medical Malpractice Act’s 15 percent limitation.

“In other words, when the time comes to distribute the Fund payment – which is not now – the probate court could not approve distribution of more than $22,741.03 of the Fund’s payment to the Estate’s attorneys ($151,606.89 x .15 = $22,741.03). Any fee balance remaining due to the attorneys pursuant to the fee agreement would have to be paid out of the earlier provider payment to the Estate,” she wrote.
 

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  1. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  2. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  3. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

  4. Sounds like overkill to me, too. Do the feds not have enough "real" crime to keep them busy?

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