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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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