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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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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