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. 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.

  2. 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!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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