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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. 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!!!

  2. 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?

  3. 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?

  4. 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.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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