ILNews

Complex wrongful-death legal fee appeal puzzles judges

Back to TopCommentsE-mailPrintBookmark and Share

Judges on a panel of the Indiana Court of Appeals were stumped at times Friday in a case regarding legal fees due from the Indiana Patient’s Compensation Fund to the estate of a woman who won a wrongful death judgment after she died from burns at a care facility.

“You’ve basically just lost me,” Judge Melissa May said at one point to attorney Dan Robinson, who sought to explain why the estate should receive $50,440 in attorney fees from the PCF as was ordered by a Marion Superior judge. Robinson, a member of Gray Robinson Ryan & Fox P.C. in Indianapolis, represents the adult children of the estate of Mable Cochran in Indiana Patient’s Compensation Fund v. Judy Holcomb, 49A05-1207-CC-340. Watch the oral argument here.

Susan Cline, a Lewis Wagner LLP partner representing the Patient’s Compensation Fund, argued that legal fees awarded from the fund are clearly capped at 15 percent of total damages under I.C. 34-18-18-1.
 
“The Patient Compensation Fund asks that this case be remanded back to the trial court,” Cline said, with an order for damages for legal fees reduced to $17,852.

Beyond the $250,000 policy coverage limit, the estate also was entitled to $101,166.89 from the PCF based on provisions of a settlement, which the fund paid. Attorneys took a fee of 40 percent from that amount, pursuant to their contract with the client, according to testimony. Robinson told the judges the legal fees of $50,440 from the fund would go directly to the estate.

Judge Rudy Pyle III and Chief Judge Margret Robb also appeared to wrestle with the conflicting formulas for legal fee awards from the fund and whether the 15 percent cap should apply. Cline acknowledged that a formula proposed for awarding legal fees from the fund wasn’t found in statutes, but represented an attempt to reconcile recent caselaw with statutes.

But Robinson and Johnson Jensen LLP attorney Robert W. Johnson, representing the Indiana Trial Lawyers Association, argued that the award was justified under the adult wrongful death statute, I.C. 34-23-1-2. The fee would have been subject to the 15 percent cap under medical malpractice statutes, he said.

“Attorney fees as damages are totally different from what the attorney charges his client,” Johnson said. He noted estates are afforded protections from excessive legal fees through probate court.

But Cline warned that allowing the lower court award of legal fees to stand could create unforeseen hardships for the fund. “You create the windfall with no place to go.”

Struggling to find the heart of the case, Robb seemed to reach an epiphany at one point in the oral arguments that ran about 20 minutes longer than the time typically granted. She quipped, “It’s clear as mud, now.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  2. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  3. It's a capital offense...one for you Latin scholars..

  4. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

  5. The promise of "Not to Tell" is the biggest lie ever given to a Birth Mother. THERE WERE NEVER ANY PROMISES GIVEN TO ANY OF US. One of the lies used to entice us to give up our Babies. There were many tactics used to try to convince us that it was best for Mother and Baby to cut the cord at birth. They have no idea of the pain and heartache that was caused by their attitude. The only thing that mattered was how great and wonderful they appeared to the prospective parents and their community. I completed my search, but that didn't stop the pain, heartbreak and the tears of the last 62 Years. I keep track and do know that he is alive, well educated and a musician. That little knowledge in itself is a Godsend to me. I pray that other Mothers also know that much and more to help heal their pain and open wounds. open wounds.

ADVERTISEMENT