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Judges divided on calculation of damages after negligence

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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.

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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