The Indiana Court of Appeals was split in deciding whether an estate received the correct amount of damages from the Indiana Patients’ Compensation Fund. One judge believed the trial court used an incorrect approach for calculating damages because the deceased man had at least a 50 percent chance of survival before the medical negligence.

At issue in Carol Cutter, et al. v. Geneva Herbst, personal representative of the Estate of Jeffry A. Herbst, deceased, No. 49A04-1006-PL-343, is whether the trial court was correct in concluding that Jeffry Herbst had a 50 percent pre-negligence survival chance verses a 10 percent post-negligence survival chance resulting in $750,000 in damages. Both the Indiana Patients’ Compensation Fund and Herbst’s estate challenged the numbers, with the estate claiming the ultimate post-negligence chance of survival was 0 percent.

After Herbst’s death from fulminant myocarditis in the hospital, his estate brought a wrongful death action against Herbst’s primary care doctor, who believed he had pneumonia; the doctor’s employer, and the hospital. The estate sought the statutory maximum in damages from the fund. The case made its way through Indiana courts previously and is now before the Indiana Court of Appeals a second time. The trial court found that the estate was entitled to only recover $250,000 but then granted the estate’s motion to correct error and awarded the estate $750,000 by calculating the percent of chance lost multiplied by the total amount of damages that are ordinarily allowed in a wrongful death action.

The majority found nothing wrong with using this calculation, which was explained by the Indiana Supreme Court in Cahoon v. Cummings, 734 N.E.2d 535, 541 (Ind. 2000). Chief Judge Margret Robb dissented on this point, disagreeing with the trial court’s use of the Mayhue/Restatement approach to calculate the damages since Herbst’s pre-negligence chance of survival was 50 percent.

“Where the patient's chance of survival is greater than 50% absent the negligence, however, traditional tort principles adequately address the injury and applying the Restatement approach is unnecessary,” she wrote, noting she would remand for a recalculation of damages.

The Court of Appeals also disagreed with the estate that Herbst’s post-negligence chance of survival should be 0 percent because his death was the end result of the medical malpractice.

“Accepting the Estate‘s argument would in essence amount to making the Fund liable for the full value of the wrongful death claim. This holding would be inconsistent with the statutory requirement that the defendant should only be liable for the increase in risk already leading to a likely result,” wrote Judge Patricia Riley.