Court considers broadening emotional distress 'Bystander Rule'

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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.


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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.