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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. 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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