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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. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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