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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. 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

  2. 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

  3. 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

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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