ILNews

Court upholds damages award

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals affirmed a trial court decision that excluded arguments and evidence from the Indiana Patient's Compensation Fund relating to the survival rate of the decedent because their argument regarded liability, which had already been established through a settlement.

In Jim Atterholt, Commissioner of the Indiana Department of Insurance as Administrator of the Indiana Patient's Compensation Fund v. Geneva Herbst, personal representative of the estate of Jeffrey A. Herbst, No. 49A04-0702-CV-106, the Indiana Patient's Compensation Fund appealed the grant of partial summary judgment and final judgment in favor of the estate and an award of $1 million from the fund.

Jeffrey went to his primary care doctor complaining of numbness in his hands, and his doctor said he had carpal tunnel syndrome. A few days later, Jeffrey went back to the doctor with fever, nausea, and decreased urine output, which his doctor said was pneumonia and sent him to the hospital. Once admitted, Jeffrey's condition deteriorated rapidly and he died within two hours of being admitted.

His estate brought a medical malpractice claim against his doctor, the doctor's employer, and the hospital for his wrongful death. The estate settled its claim with all of the health care providers for $187,000.

The estate also filed a petition for damages from the fund, seeking $1 million in excess damages. The estate moved for summary judgment, seeking a determination from the trial court that it would only consider the amount of damages and not whether the health care providers were liable. The fund countered it should be allowed to offer evidence relevant to the issue of the increase risk of injury or death attributable to the health care providers. The trial court granted partial summary judgment in favor of the estate on this issue.

At trial, the fund had an expert witness testify that Jeffrey would not have survived hospitalization and had a less than a 10 percent chance of surviving even absent any negligence. The trial court excluded this testimony and awarded the estate $1 million from the fund.

The fund appealed, arguing the trial court erred in granting partial summary judgment in favor of the estate and erred in excluding evidence from its expert witness.

The fund believed it should have been allowed to show Jeffrey's survival chances and the estate is only allowed to claim a portion of the damages attributable to the chance of survival due to the malpractice. The argument involves "loss of chance," which was first addressed by the Indiana Supreme Court.

In Mayhue v. Sparkman, 653 N.E. 2d 1384 (Ind. 1995), the Indiana Supreme Court looked to Section 323 of the Restatement (Second) of Torts (1965) for what to do in a situation where a patient has a less than 50 percent chance of survival, but a doctor's negligence deprives them of any chance. Section 323 permits recovery from a defendant whose negligence significantly increases the probability of harm and allows for a cause of action where traditional causation standards may not be satisfied, wrote Judge Paul Mathias.

The fund's Section 323 argument regards liability, not the amount of damages. While Section 323 explains how to calculate the amount of damages in a case falling within the section, it is not applicable in this case. The settlement between the estate and the health care providers established the health care providers' liability and established proximate cause.

"Where proximate cause is established by operation of the settlement, the claimant need not resort to Section 323 to recover, and the Fund cannot seek to diminish its liability by making an argument based upon Section 323," he wrote.
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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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