Before a 2009 Amendment to the Child Wrongful Death Act, Indiana law adhered to a bright-line rule that in order to be a “child” under the Child Wrongful Death Act, a fetus must be “born alive.” Indiana law was also clear that, in order to be a “patient” under the Medical Malpractice Act, one must be an “individual.” In the context of medical malpractice cases, in order to qualify as a patient under the Medical Malpractice Act, the child had to be an individual and, accordingly, must have been “born alive.”
Thus, a stillborn fetus was not a child under the Child Wrongful Death Act and not a patient under the Medical Malpractice Act. Nonetheless, a mother could recover damages stemming from the death of the fetus as could the father, assuming the father could otherwise satisfy the requirements of negligent infliction of emotional distress, in one statutory cap allotted to the mother. In 2009, the legislature amended the Child Wrongful Death Act, defining child as a “fetus who has attained viability.” While the effect of such amendment on cases involving stillbirths is yet to be seen, recent case law may provide plaintiffs with arguments to seek additional damage caps. In evaluating claims, counsel defending stillbirth cases should be poised to seek an early determination from the court that only one cap applies.
Before a 2009 amendment to the Child Wrongful Death Act, the Act defined child as an “unmarried individual without dependents who is:
1)Less than twenty (20) years of age; or
2)Less than twenty-three (23) years of age and is enrolled in a postsecondary educational institution or a career and technical education school or program that is not a postsecondary educational program.”
Ind. Code § 34-23-2-1 (2008).
The Indiana Supreme Court, in the context of a personal injury action involving an eight-to-ten-week-old fetus, held that only a child who is “born alive” falls under the Child Wrongful Death Act because the child must be an individual. See Bolin v. Wingert, 764 N.E.2d 201, 207 (Ind. 2002). Said the court:
[O]nly children born alive fall under Indiana’s Child Wrongful Death Statute. The legislature can certainly expand the scope of protection under the Child Wrongful Death Statute if it so chooses.
With respect to a full-term, viable fetus, the court of appeals adhered to this strict interpretation of the Child Wrongful Death Act, holding that a full-term viable fetus is not a child for purposes of the Child Wrongful Death Act. See Horn v. Hendrickson, 824 N.E.2d 690, 693 (Ind. App. 2005) (finding that “the Bolin opinion categorically precludes all parents from bringing a wrongful death claim for the death of a viable or non-viable fetus”). Thus, the courts had established a bright-line rule that only children “born alive” could recover under the Child Wrongful Death Act.
Under the Medical Malpractice Act, patient is defined as:
an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider. Derivative claims include the claim of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient including claims for loss of services, loss of consortium, expenses or other similar claims.
Ind. Code § 34-18-2-22.
Courts have held that, in order to be a patient under the Medical Malpractice Act, one must “first and foremost, be an individual.” Indiana Patients’ Comp. Fund v. Winkle, 863 N.E.2d 1, 8 (Ind. App. 2007). To be an individual one must be a living person. Id. Because a stillborn fetus is not a living person, it is not an individual, and it is not a patient for purposes of the Medical Malpractice Act. Id. at 8-9. Presumably, without a patient from whom a claim can derive, no derivative claim can exist.
However, the exclusion of unborn children from the Child Wrongful Death Act did not mean that negligently injured expectant mothers could not recover. Bolin, 764 N.E.2d at 207. Expectant mothers who suffered the loss of a fetus due to medical negligence could assert a claim for their own damages suffered as a result of the malpractice. Winkle, 863 N.E.2d at 9.
Such was the case in Indiana Patients’ Compensation Fund v. Winkle, 863 N.E.2d 1 (Ind. App. 2007), whereIin the mother, due to the malpractice of her physicians, suffered malnutrition, neurological injury, and the loss of her unborn child. The trial court concluded that the parents were entitled to three separate damage awards: one to the mother for her neurological injury, one to the mother for her emotional distress due to the loss of her child, and one to the father for his emotional distress due to the loss of the child. Id. at 3. The Fund appealed. Although acknowledging that negligent infliction of emotional distress is an independent tort, the court of appeals held that the parents’ emotional distress was derivative for purposes of Indiana Code § 34-18-2-22, but held that a separate damage cap was not permitted because it was not derivative of a patient. Id. at 8. Said the court:
We conclude that a “patient,” defined as it is in the [Child Wrongful Death Act] as an “individual,” must be a living person. Even though the unborn child is often the focus of medical care, that alone does not meet the statutory definition of a “patient.” [The parents] are not entitled to additional caps for their negligent infliction of emotional distress claims because their unborn child is not a “patient” from whom their claims can derive.
However, the court continued, the parents could “recover all emotional damages that were suffered as a result of the miscarriage” under a single statutory cap allocated to the mother. Id. at 9.
The Indiana Court of Appeals recently revisited the damages recoverable in the context of a medical malpractice claim resulting from a stillbirth. On July 27, 2010, the Indiana Court of Appeals issued its opinion in Spangler v. Bechtel, 2010 Ind. App. LEXIS 1500 (July 27, 2010), trans. pending. (As of September 1, 2010, a petition for transfer and a brief in opposition to transfer have been filed. The Indiana Supreme Court has not issued an order granting or denying transfer.) In Spangler, the unmarried parents were expecting a child. While in active labor, the mother suffered a prolapsed umbilical cord resulting in the stillbirth of the child. The mother was not physically injured. The parents brought a malpractice claim against the hospital and the nurse-midwife who provided health care to the mother asserting emotional distress and wrongful death damages. The hospital and midwife moved for summary judgment. The hospital argued that, in the absence of a patient from whom damages were recoverable, the parents’ claims must fail. The trial court agreed and granted summary judgment. On appeal, the court of appeals first determined that, by virtue of satisfying the modified impact rule, the mother had a valid claim for emotional distress under Indiana law. (For a discussion of the modified impact rule, see Shaumber v. Henderson, 579 N.E.2d 452 (Ind. 1991).) The court next addressed whether the parents may assert the claim under the Medical Malpractice Act. The court held that the mother was the “actual victim” of malpractice permitting her to assert her negligent infliction of emotional distress claim under the Medical Malpractice Act. Integral to the court’s holding was its distinction that, in Winkle, the issue was whether the parents were entitled to additional damage caps for negligent infliction of emotional distress whereas, in Spangler, the parents had conceded a single damage cap award. Accordingly, the court held that the mother qualified as the “actual victim” of negligence allowing her to assert the parents’ claim for negligent infliction of emotional distress. Thus, Spangler held:
[A] mother who suffers a stillbirth due to medical malpractice qualifies as an injured patient and satisfies the actual victim requirement under the Medical Malpractice Act regardless of whether the malpractice resulted in injuries to the mother, the fetus, or both, and Parents may assert a claim for negligent infliction of emotional distress under Shaumber’s modified impact rule.
Therefore, according to Spangler, the mother, not the fetus, is the “actual victim” for purposes of the Medical Malpractice Act; no damages are recoverable on behalf of the fetus; and the father’s recovery is subject to the limitations of the modified impact rule and the statutory cap allotted to the mother.
In 2009, the legislature amended the Child Wrongful Death Act to include “a fetus that has attained viability (as defined in IC 16-18-2-365).” (P.L. 129-2009, § 8 (eff. July 1, 2009). “‘Viability,’ … means the ability of a fetus to live outside the mother’s womb.” Ind. Code § 16-18-2-365.) Following the recent amendment to the Child Wrongful Death Act, a “child” includes a full-term, viable fetus. Pursuant to this amendment, plaintiffs are likely to argue that the child is an individual for purposes of the Child Wrongful Death Act and therefore a patient under the Medical Malpractice Act. Accordingly, the argument continues, the reasoning behind Spangler and Winkle compels the application of additional damage caps: one for the “patient” child and one for the “actual victim” mother. In other words, if the courts’ reluctance to award a separate damage cap for the fetus was based exclusively on the fetus not being an individual so as to qualify as a patient under the Medical Malpractice Act, the legislature accepted the Indiana Supreme Court’s invitation in Bolin, providing plaintiffs with the right to seek damages on behalf of both the fetus and the parents. Indeed, Winkle may provide support for such argument. Said the court of appeals in Winkle:
We agree with the Winkles that the malpractice inflicted two distinct injuries–one to [the mother] and one to the unborn child.
If the “unborn child” is interpreted to be a patient under the Medical Malpractice Act, then the legislature may have expanded the scope of liability in stillbirth cases and provided for the applicability of multiple damage caps.
If this argument succeeds, multiple difficulties may arise. For example, courts would have to address whether viability is an issue of fact for the jury under either disputed or undisputed facts. If viability is to be determined by a jury, defendants will face a host of troubling issues. First, competing experts will likely offer differing testimony as to whether a fetus was viable as defined by statute. Despite proper instructions from the court, the jury will be left to determine, based on its own views, experience, and beliefs, when a fetus is able to “live outside the mother’s womb.” Counsel, during voir dire, would have no choice but to question potential jurors with respect to this philosophical and sensitive issue. Second, if the plaintiff successfully convinced the court that more than one cap is recoverable in the event that a fetus is found to be viable, defendants would be subject to the uncertainty as to whether the potential damages would double after the verdict is rendered. The potential adverse verdict range would factor in to every aspect of the case assessment to the sole detriment to the defendant who stands only to win, lose, or lose big.
Mindful of the coming dispute over the ramifications of the amendment to the Child Wrongful Death Act, counsel defending stillbirth cases should be poised to address the issue of damages to which a plaintiff may be entitled. Accordingly, evaluation of the viability of the fetus should be sought in the case through discovery or expert review. If the facts appear to be undisputed regarding the viability of the fetus, counsel should consider using partial summary judgment to limit damages to a statutory cap allotted to the mother. Such determination would assist in the proper evaluation of exposure and, ultimately, proper litigation strategy.
In conclusion, the legislature’s amendment to the Child Wrongful Death Act to include a viable fetus in the definition of child may have significant ramifications for the defense of stillbirth cases. The defense bar should be prepared to address the potential uncertainties early in the case in order to properly evaluate and defend the claim.•
Mr. Palmison is an associate in the Fort Wayne office of Rothberg Logan & Warsco and is a member of the Defense Trial Counsel of Indiana’s Health Law Litigation Section. The opinions expressed in this article are those of the author.