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. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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