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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. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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