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Justices: emotional distress actions not barred

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The Indiana Supreme Court held Tuesday that separate actions by parents seeking damages for emotional distress from experiencing the stillbirth of their child are not barred by the Indiana Child Wrongful Death Act or the Indiana Medical Malpractice Act. As such, the court reversed summary judgment for a nurse-midwife, her alleged employer and the hospital.

In Steven Spangler and Heidi Brown v. Barbara Bechtel, Expectations Women's Health and Childbearing Center, and St. Vincent Randolph Hospital, No. 49S05-1012-CV-703, parents Steven Spangler and Heidi Brown filed three counts against the defendants after their child died in utero prior to delivery. Nurse-midwife Barbara Bechtel and Expectations Women’s Health and Childbearing Center argued that the claims for negligent infliction of emotional distress are governed by the Indiana Child Wrongful Death Act, under which a claim for the wrongful death of an unborn child wasn’t cognizable at the time of the death of the parent’s child in this case. The trial court concluded that the baby wasn’t a “child” for purposes of the CWDA.

The justices rejected the defendants’ argument that Ind. Patient’s Comp. Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010), supports their claim and held that Patrick doesn’t preclude the possibility of a separate claim, outside the wrongful death statutes, for negligent infliction of emotional distress by a parent suffering a miscarriage or full-term stillbirth.  

“The only arguable support for the trial court's finding a lack of negligently-inflicted injury that we can perceive is that … the injuries to the plaintiffs' child were not actionable either at common law or under the Child Wrongful Death Statute in effect at the time of the death. Yet, this does not alter the undeniable fact that the death of an unborn child is an injury to the child. It simply means the injury is not one for which the unborn-child-victim can seek recovery; such an injury, however, is enough to support a claim for negligent infliction of emotional distress,” wrote Justice Brent Dickson for the unanimous court.

As long as the plaintiffs can satisfy the other requirements of the bystander rule, they may proceed with their actions seeking emotional distress damages, he continued.

With regards to the hospital, the high court found that claims for negligent infliction of emotional distress, if arising from alleged medical malpractice, are subject to the Medical Malpractice Act not because they are derivative, but because they are “otherwise” a result of alleged malpractice. They did not read Ind. Patient’s Comp. Fund. v. Winkle, 863 N.E.2d 1 (Ind. Ct. App. 2007), to preclude the plaintiff’s MMA actions for negligent infliction of emotional distress from the stillbirth of their child as the hospital had argued.  

“Thus a parent who suffers emotional distress from experiencing the birth of a lifeless child resulting from medical negligence is a ‘patient’ subject to the MMA, but such claims need not be seen as ‘derivative’ ones. Without the ‘derivative’ claim rationale, it was unnecessary for the Winkle court to opine that the CWDA's treatment of unborn children should be imported into the MMA. The scope of ‘patient’ under the MMA does not turn on whether the CWDA extends to unborn children,” wrote Dickson.

The high court remanded for further proceedings.

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  1. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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