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COA clarifies emotional distress claims

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The Indiana Court of Appeals used an opinion today to clarify how to treat an independent action for emotional distress brought either in combination with the Wrongful Death Statute or as part of the Medical Malpractice Act.

In Indiana Patient's Compensation Fund v. Gary Patrick, individually and as personal representative of the state of Christopher Patrick, deceased, No. 49A02-0807-CV-614, the Patient's Compensation Fund appealed the trial court's findings of fact, conclusions of law, and judgment in favor of Gary Patrick in his independent claim for damages for emotional distress in conjunction with the Adult Wrongful Death Statute.

Patrick's unmarried, adult son was severely injured in a car accident and discharged from the hospital despite pain and abdominal swelling. A day later, the son collapsed and died from his injuries in Patrick's home. The hospital and physician settled the estate's medical malpractice claim for an overall payout of $250,000. Patrick then filed his petition for payment of excess damages against the fund. The trial court concluded his claim was independent of his claim for damages under the Adult Wrongful Death Statute and awarded him $600,000.

The fund argued Patrick's claim is more properly characterized as derivative rather than independent and falls under the damage limitations of the Adult Wrongful Death Statute. It also argued the statute doesn't include a provision for the recovery of damages for emotional distress.

Noting the confusion in this area of law stems from the fact that damages for emotional distress are treated differently depending upon the vehicle in which they are instituted, the Court of Appeals examined previous caselaw to clarify claims for emotional distress brought as part of a Wrongful Death Statute or part of the Medical Malpractice Act.

Patrick asserted his claim arose from the negligence of the medical personnel treating his son in the context of medical malpractice. Since the son had a claim for medical malpractice, Patrick, as his father, is considered a patient who can have a claim, wrote Judge Patricia Riley. Having met the condition precedent for a cause of action for medical malpractice, the fact the son died as a result of the malpractice and that the claim had to be pursued under the Adult Wrongful Death Statute doesn't alter the existence or nature of the claim, wrote Judge Riley. The trial court was correct in characterizing Patrick's claim for damages as independent of and in addition to the adult wrongful death claim.

Patrick's assertion for damages for emotional distress as a bystander is pursuant to Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000). Although Patrick wasn't present in the hospital when the medical malpractice occurred, he dealt with the aftermath of the malpractice, and was therefore able to bring an independent claim for damages for emotional distress in conjunction with his claim under the Adult Wrongful Death Statute, the judge wrote.

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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