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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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