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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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