Judge dissents in denial of rehearing

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Indiana Court of Appeals Judge Margret Robb has issued a lengthy dissent from her colleagues’ denial to rehear a case involving the state’s patient compensation fund. After reviewing the case, she believed the appellate court shouldn’t have applied Restatement (Second) of Torts Section 323.

Posted Tuesday afternoon, the nine-page dissent in Indiana Dept. of Insurance, et al. v. Robin Everhart, personal representative of the estate of James K. Everhart Jr., No. 84A01-0912-CV-614, re-examines the use of Section 323 and the line of cases that developed after the Indiana Supreme Court adopted the section’s approach in Mayhue v. Sparks, 653 N.E.2d 1384 (Ind. 1995). Section 323 outlines that one is liable for harm to another if the failure to exercise reasonable care increases the risk of such harm. It allows the plaintiff to avoid summary judgment on the issue of proximate cause even when there was a less than 50 percent chance of recovery absent the negligence.

James Everhart was injured in an automobile accident and later died. It was determined that he had a better than 80 percent chance of surviving his injuries in the absence of a doctor’s negligence. The trial court awarded Everhart’s estate the statutory maximum of $1 million from the Indiana Patient’s Compensation Fund. The fund appealed and the COA reversed, finding the trial court should have awarded damages only in proportion to the increase in risk of harm that was caused by the malpractice.

Mayhue and the line of cases that followed it don’t apply to the instant matter, she decided, believing the fact that the patients in those cases had less than a 50 percent chance of recovery or survival absent medical negligence was critical to the holding of those cases.

“In my view, section 323 was adopted in Mayhue and applied in the ensuing cases to specifically address the situation where a patient already has a less than fifty percent chance of survival. A plaintiff in such a situation could never prove under traditional tort principles that a doctor whose negligence contributed to the death was also the proximate cause, but Mayhue provides an avenue of recourse,” she wrote.

Instead, in Everhart’s case, the doctor’s negligence was the proximate cause of his death. Robin Everhart proceeded to recover under a traditional tort analysis and Judge Robb believed that the appellate court should have done so as well. She would grant the petition for rehearing to affirm the trial court.

She also pointed out the overall tone of Robin Everhart’s petition for rehearing is “not in general effective appellate advocacy” with the opinion saying the previous ruling “destroys the foundation of our civil justice system” and allowing the decision to stand will render proximate cause meaningless.

“I would caution counsel that future disagreement with this court can and should be addressed without unnecessary hyperbole,” she wrote.


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues