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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. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

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