ILNews

Judges divided on calculation of damages after negligence

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  2. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  3. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

  4. This is easily remedied, and in a fashion that every church sacrificing incense for its 501c3 status and/or graveling for government grants should have no problem with ..... just add this statue, http://commons.wikimedia.org/wiki/File:Capitoline_she-wolf_Musei_Capitolini_MC1181.jpg entitled, "Jesus and Cousin John learn to suckle sustenance from the beloved Nanny State." Heckfire, the ACLU might even help move the statue in place then. And the art will certainly reflect our modern life, given the clergy's full-bellied willingness to accede to every whim of the new caesars. If any balk, just threaten to take away their government milk … they will quiet down straightaway, I assure you. Few, if any of them, are willing to cross the ruling elite as did the real J&J

  5. Tina has left the building.

ADVERTISEMENT