ILNews

Court considers broadening emotional distress 'Bystander Rule'

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus


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.

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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

ADVERTISEMENT