ILNews

DTCI: Amendment to the Child Wrongful Death Act

Back to TopE-mailPrintBookmark and Share

Palmison-DTCIBefore a 2009 Amendment to the Child Wrongful Death Act, Indiana law adhered to a bright-line rule that in order to be a “child” under the Child Wrongful Death Act, a fetus must be “born alive.” Indiana law was also clear that, in order to be a “patient” under the Medical Malpractice Act, one must be an “individual.” In the context of medical malpractice cases, in order to qualify as a patient under the Medical Malpractice Act, the child had to be an individual and, accordingly, must have been “born alive.”

Thus, a stillborn fetus was not a child under the Child Wrongful Death Act and not a patient under the Medical Malpractice Act. Nonetheless, a mother could recover damages stemming from the death of the fetus as could the father, assuming the father could otherwise satisfy the requirements of negligent infliction of emotional distress, in one statutory cap allotted to the mother. In 2009, the legislature amended the Child Wrongful Death Act, defining child as a “fetus who has attained viability.” While the effect of such amendment on cases involving stillbirths is yet to be seen, recent case law may provide plaintiffs with arguments to seek additional damage caps. In evaluating claims, counsel defending stillbirth cases should be poised to seek an early determination from the court that only one cap applies.

Before a 2009 amendment to the Child Wrongful Death Act, the Act defined child as an “unmarried individual without dependents who is:

1)Less than twenty (20) years of age; or

2)Less than twenty-three (23) years of age and is enrolled in a postsecondary educational institution or a career and technical education school or program that is not a postsecondary educational program.”

Ind. Code § 34-23-2-1 (2008).

The Indiana Supreme Court, in the context of a personal injury action involving an eight-to-ten-week-old fetus, held that only a child who is “born alive” falls under the Child Wrongful Death Act because the child must be an individual. See Bolin v. Wingert, 764 N.E.2d 201, 207 (Ind. 2002). Said the court:

[O]nly children born alive fall under Indiana’s Child Wrongful Death Statute. The legislature can certainly expand the scope of protection under the Child Wrongful Death Statute if it so chooses.

Id.

With respect to a full-term, viable fetus, the court of appeals adhered to this strict interpretation of the Child Wrongful Death Act, holding that a full-term viable fetus is not a child for purposes of the Child Wrongful Death Act. See Horn v. Hendrickson, 824 N.E.2d 690, 693 (Ind. App. 2005) (finding that “the Bolin opinion categorically precludes all parents from bringing a wrongful death claim for the death of a viable or non-viable fetus”). Thus, the courts had established a bright-line rule that only children “born alive” could recover under the Child Wrongful Death Act.

Under the Medical Malpractice Act, patient is defined as:

an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider. Derivative claims include the claim of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient including claims for loss of services, loss of consortium, expenses or other similar claims.

Ind. Code § 34-18-2-22.

Courts have held that, in order to be a patient under the Medical Malpractice Act, one must “first and foremost, be an individual.” Indiana Patients’ Comp. Fund v. Winkle, 863 N.E.2d 1, 8 (Ind. App. 2007). To be an individual one must be a living person. Id. Because a stillborn fetus is not a living person, it is not an individual, and it is not a patient for purposes of the Medical Malpractice Act. Id. at 8-9. Presumably, without a patient from whom a claim can derive, no derivative claim can exist.

However, the exclusion of unborn children from the Child Wrongful Death Act did not mean that negligently injured expectant mothers could not recover. Bolin, 764 N.E.2d at 207. Expectant mothers who suffered the loss of a fetus due to medical negligence could assert a claim for their own damages suffered as a result of the malpractice. Winkle, 863 N.E.2d at 9.

Such was the case in Indiana Patients’ Compensation Fund v. Winkle, 863 N.E.2d 1 (Ind. App. 2007), whereIin the mother, due to the malpractice of her physicians, suffered malnutrition, neurological injury, and the loss of her unborn child. The trial court concluded that the parents were entitled to three separate damage awards: one to the mother for her neurological injury, one to the mother for her emotional distress due to the loss of her child, and one to the father for his emotional distress due to the loss of the child. Id. at 3. The Fund appealed. Although acknowledging that negligent infliction of emotional distress is an independent tort, the court of appeals held that the parents’ emotional distress was derivative for purposes of Indiana Code § 34-18-2-22, but held that a separate damage cap was not permitted because it was not derivative of a patient. Id. at 8. Said the court:

We conclude that a “patient,” defined as it is in the [Child Wrongful Death Act] as an “individual,” must be a living person. Even though the unborn child is often the focus of medical care, that alone does not meet the statutory definition of a “patient.” [The parents] are not entitled to additional caps for their negligent infliction of emotional distress claims because their unborn child is not a “patient” from whom their claims can derive.

However, the court continued, the parents could “recover all emotional damages that were suffered as a result of the miscarriage” under a single statutory cap allocated to the mother. Id. at 9.

The Indiana Court of Appeals recently revisited the damages recoverable in the context of a medical malpractice claim resulting from a stillbirth. On July 27, 2010, the Indiana Court of Appeals issued its opinion in Spangler v. Bechtel, 2010 Ind. App. LEXIS 1500 (July 27, 2010), trans. pending. (As of September 1, 2010, a petition for transfer and a brief in opposition to transfer have been filed. The Indiana Supreme Court has not issued an order granting or denying transfer.) In Spangler, the unmarried parents were expecting a child. While in active labor, the mother suffered a prolapsed umbilical cord resulting in the stillbirth of the child. The mother was not physically injured. The parents brought a malpractice claim against the hospital and the nurse-midwife who provided health care to the mother asserting emotional distress and wrongful death damages. The hospital and midwife moved for summary judgment. The hospital argued that, in the absence of a patient from whom damages were recoverable, the parents’ claims must fail. The trial court agreed and granted summary judgment. On appeal, the court of appeals first determined that, by virtue of satisfying the modified impact rule, the mother had a valid claim for emotional distress under Indiana law. (For a discussion of the modified impact rule, see Shaumber v. Henderson, 579 N.E.2d 452 (Ind. 1991).) The court next addressed whether the parents may assert the claim under the Medical Malpractice Act. The court held that the mother was the “actual victim” of malpractice permitting her to assert her negligent infliction of emotional distress claim under the Medical Malpractice Act. Integral to the court’s holding was its distinction that, in Winkle, the issue was whether the parents were entitled to additional damage caps for negligent infliction of emotional distress whereas, in Spangler, the parents had conceded a single damage cap award. Accordingly, the court held that the mother qualified as the “actual victim” of negligence allowing her to assert the parents’ claim for negligent infliction of emotional distress. Thus, Spangler held:

[A] mother who suffers a stillbirth due to medical malpractice qualifies as an injured patient and satisfies the actual victim requirement under the Medical Malpractice Act regardless of whether the malpractice resulted in injuries to the mother, the fetus, or both, and Parents may assert a claim for negligent infliction of emotional distress under Shaumber’s modified impact rule.

Therefore, according to Spangler, the mother, not the fetus, is the “actual victim” for purposes of the Medical Malpractice Act; no damages are recoverable on behalf of the fetus; and the father’s recovery is subject to the limitations of the modified impact rule and the statutory cap allotted to the mother.

In 2009, the legislature amended the Child Wrongful Death Act to include “a fetus that has attained viability (as defined in IC 16-18-2-365).” (P.L. 129-2009, § 8 (eff. July 1, 2009). “‘Viability,’ … means the ability of a fetus to live outside the mother’s womb.” Ind. Code § 16-18-2-365.) Following the recent amendment to the Child Wrongful Death Act, a “child” includes a full-term, viable fetus. Pursuant to this amendment, plaintiffs are likely to argue that the child is an individual for purposes of the Child Wrongful Death Act and therefore a patient under the Medical Malpractice Act. Accordingly, the argument continues, the reasoning behind Spangler and Winkle compels the application of additional damage caps: one for the “patient” child and one for the “actual victim” mother. In other words, if the courts’ reluctance to award a separate damage cap for the fetus was based exclusively on the fetus not being an individual so as to qualify as a patient under the Medical Malpractice Act, the legislature accepted the Indiana Supreme Court’s invitation in Bolin, providing plaintiffs with the right to seek damages on behalf of both the fetus and the parents. Indeed, Winkle may provide support for such argument. Said the court of appeals in Winkle:

We agree with the Winkles that the malpractice inflicted two distinct injuries--one to [the mother] and one to the unborn child.

If the “unborn child” is interpreted to be a patient under the Medical Malpractice Act, then the legislature may have expanded the scope of liability in stillbirth cases and provided for the applicability of multiple damage caps.

If this argument succeeds, multiple difficulties may arise. For example, courts would have to address whether viability is an issue of fact for the jury under either disputed or undisputed facts. If viability is to be determined by a jury, defendants will face a host of troubling issues. First, competing experts will likely offer differing testimony as to whether a fetus was viable as defined by statute. Despite proper instructions from the court, the jury will be left to determine, based on its own views, experience, and beliefs, when a fetus is able to “live outside the mother’s womb.” Counsel, during voir dire, would have no choice but to question potential jurors with respect to this philosophical and sensitive issue. Second, if the plaintiff successfully convinced the court that more than one cap is recoverable in the event that a fetus is found to be viable, defendants would be subject to the uncertainty as to whether the potential damages would double after the verdict is rendered. The potential adverse verdict range would factor in to every aspect of the case assessment to the sole detriment to the defendant who stands only to win, lose, or lose big.

Mindful of the coming dispute over the ramifications of the amendment to the Child Wrongful Death Act, counsel defending stillbirth cases should be poised to address the issue of damages to which a plaintiff may be entitled. Accordingly, evaluation of the viability of the fetus should be sought in the case through discovery or expert review. If the facts appear to be undisputed regarding the viability of the fetus, counsel should consider using partial summary judgment to limit damages to a statutory cap allotted to the mother. Such determination would assist in the proper evaluation of exposure and, ultimately, proper litigation strategy.

In conclusion, the legislature’s amendment to the Child Wrongful Death Act to include a viable fetus in the definition of child may have significant ramifications for the defense of stillbirth cases. The defense bar should be prepared to address the potential uncertainties early in the case in order to properly evaluate and defend the claim.•

Mr. Palmison is an associate in the Fort Wayne office of Rothberg Logan & Warsco and is a member of the Defense Trial Counsel of Indiana’s Health Law Litigation Section. The opinions expressed in this article are those of the author.

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

ADVERTISEMENT