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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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