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Court considers broadening emotional distress 'Bystander Rule'

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Parties are waiting for the Supreme Court's decision following arguments in November in a case where a trial court granted and the Court of Appeals affirmed an award for emotional distress above and beyond the capped amount in the Adult Wrongful Death Statute as defined by Indiana Code 34-23-1-2.

In Indiana Patient's Compensation Fund v. Gary Patrick, No. 49S02-0909-CV -402, Christopher Patrick, 31, was badly injured in a car accident Jan. 20, 2002. He went to the hospital for his injuries and was released the next day. His father, Gary Patrick, who lived with him, brought him home. Later that day, Gary saw that Christopher was vomiting blood so he called an ambulance.

Christopher lost consciousness shortly after the paramedics arrived and was pronounced dead on arrival at the hospital. It was later found that Christopher had an untreated ruptured colon from seatbelt trauma, which was the basis of Gary's claim for medical malpractice on behalf of his son.

Because Gary watched his son die, he filed a claim for emotional distress. Neither Christopher nor Gary was married, and the father and son were good friends.

Lawyers for the Indiana Patient's Compensation Fund argued "the trial court erred when it granted Patrick an independent claim for damages for emotional distress in conjunction with his claim under the Adult Wrongful Death Statute."

The Court of Appeals in May 2009 affirmed the Marion Circuit Court's opinion that under the Adult Wrongful Death Statute, the fund should pay Gary $300,000 "for the loss of Christopher's love and companionship, increased by $16,531.66 in medical, hospital, funeral and burial expenses."

While the fund did not disagree that this amount was appropriate, the fund did not agree with the trial court's award of $600,000 for Gary's emotional distress claim. The Court of Appeals affirmed this amount, agreeing with the trial court's conclusion "that Patrick's claim for emotional distress damages was independent of his claim for damages under the Adult Wrongful Death Statute."

How the fund works

In Indiana, when a claim for medical malpractice is above $250,000, the plaintiff can make a claim to the Indiana Department of Insurance for the amount above $250,000. A medical review panel of one attorney and three health-care providers will review the claim, according to Tina Korty of the Indiana Compensation Fund.

The patient's claim to the panel typically includes medical records and expert opinion about what happened to the patient. Then the panel determines if the health-care provider met the standard of care, failed to meet it, or if there isn't enough clear evidence to decide one way or the other, she said.

From there, the panel will determine how much if any money the patient can have from the fund. If the patient disagrees with the panel, then the patient can file suit in state court.

She said that as in this case, cases that come to the Patients Compensation Fund already received a settlement for $250,000 from the health-care provider. Because the healthcare provider already settled for $250,000, the fund would need to pay Gary the remaining $50,000, plus $16,531.66 in medical, hospital, funeral, and burial expenses.

Korty added that most health-care providers pay into the fund so they will not be at risk of losing personal assets in the case of a medical malpractice claim. It is common for hospitals in Indiana to require their health-care providers to participate in the fund, she said.

What's next

Bruce Kehoe, president of the Indiana Trial Lawyers Association and a plaintiff 's attorney with Wilson Kehoe & Winingham in Indianapolis, said this is "one of many cases that are of interest to medical malpractice practitioners and ITLA. ... It has the potential of affecting quite a number of adult wrongful death claims that occur as a result of medical malpractice."

While the damages are capped at $300,000 for the loss of love and affection of non-dependent family members, he said, "Many times the damages are well in excess of that in a fair evaluation. Here there are some facts that could support an emotional distress claim if indeed you have someone with true emotional distress from witnessing their loved one or family member suffering when he or she is going to die under unfavorable circumstances. ... But it doesn't fit every case. You have to have a true, legit emotional distress case."

Gary was able to receive an additional $16,531.66 in medical, hospital, funeral, and burial expenses because those are factored separately from the emotional distress claim capped at $300,000, according to the statute.

In its amicus brief, defense attorneys on behalf of the Defense Trial Counsel of Indiana wrote about how the decision could affect the prosecution and defense of medical malpractice claims.

"The Court of Appeals erred in concluding that the plaintiff may recover independently for his claims of negligent infliction of emotional distress following the death of his adult son. Its decision is in contravention of the recent decisions in Indiana Patient's Compensation Fund v. Butcher, 863 N.E. 2d 11 (Ind. Ct. App. 2007), Goleski v. Fritz, 768 N.E. 2d 889 (Ind. 2002), and Indiana Patient's Compensation Fund v. Wolfe, 735 N.E. 2d 1187 (Ind. Ct App. 2000)," wrote Peter H. Pogue and Katherine G. Karres of Schultz & Pogue in Indianapolis, and James D. Johnson of Rudolph Fine Porter & Johnson in Evansville on behalf of the DTCI.

"Permitting separate claims for an actual patient and an independent claim for a family member will result in multiple claims, have an adverse impact on health care costs, and is contrary to the Medical Malpractice Act's statutory language. The Court of Appeals also impermissibly broadened the 'bystander rule' as it applies to negligent infliction of emotional distress claims and has opened the floodgates for claims by family members who deal with the aftermath despite the fact that the aftermath might be days after the malpractice occurs," the amicus brief stated.

Also, in its reply brief on petition to transfer, the fund's lawyers wrote, "The question of whether the (Medical Malpractice Act) allows a claim for bystander emotional distress has not been decided by this court and the time has come for that decision to be made."

While the attorneys for both sides told Indiana Lawyer they're waiting for the results and that it's an important case, none would comment on the record prior to the Supreme Court's decision.

Jerry A. Garau and Deborah K. Pennington of Garau Germano Hanley & Pennington in Indianapolis represented Gary; Anne Cowgur of Bingham McHale represented the Indiana Patient's Compensation Fund.

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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