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Justices: Claim not allowed under MedMal act

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Because claims for emotional distress aren’t allowed under the Adult Wrongful Death Statute, a father can’t bring this type of derivative claim under the Medical Malpractice Act, the Indiana Supreme Court ruled today.

Gary Patrick brought a claim, individually and as representative of his son’s estate, under the Adult Wrongful Death Statute for his son Christopher’s death caused by negligence of health-care providers after Christopher was injured in a car accident. The hospital discharged him despite complaints of pain and Christopher later died of a ruptured colon at the home he shared with his father.

Patrick also brought a derivative claim under the Medical Malpractice Act for his own emotional distress.

After settling with the health-care providers, Patrick filed his petition for payment of excess damages with the Indiana Patient’s Compensation Fund.

The trial court found the AWDS applied to Patrick’s claim as personal representative of Christopher’s estate and awarded him more than $300,000 in damages for loss of love and companionship and other expenses. The trial court also awarded him $600,000 for his emotional distress claim. The Indiana Court of Appeals affirmed.

In Indiana Patient’s Compensation Fund v. Gary Patrick, No. 49A02-0909-CV-402, Patrick argued he’s entitled to bring a claim for his own emotional distress under the MMA. The MMA doesn’t define “bodily injury” and the Supreme Court declined to define it in the same manner it has in caselaw dealing with insurance polices. The high court has also held that the requirement for bodily injury or death in the MMA applies to the actual victim of the malpractice and not derivative claimants.

And, based on Chamberlain v. Walpole, 822 N.E.2d 959 (Ind. 2005), Patrick can’t seek damages for emotional distress. The MMA serves as a procedural mechanism for claims of medical malpractice and a derivative claimant can only pursue claims allowed at common law or under applicable statutes, wrote Justice Frank Sullivan. The MMA doesn’t create new causes of action that don’t otherwise exist, so whether Patrick has a claim for emotional distress depends on the AWDS.

“It was Son who was the victim of the medical malpractice; therefore, any claim in Father’s own right is a derivative claim. As discussed above, any derivative claim that Father has depends upon the AWDS,” wrote the justice. “Because claims for emotional distress are not allowed under the AWDS, Father may not bring this type of derivative claim under the MMA.”

The justices also clarified that were the claim underlying the MMA action one for which damages for emotional distress were available, the MMA doesn’t preclude derivative claims of emotional distress by those whom the law refers to as “bystanders.”
 

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  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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