Complex wrongful-death legal fee appeal puzzles judges

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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.”


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