2007 News Releases

Locke Reynolds Cases Set Precedent for Number of Recoveries from Patient Compensation Fund

INDIANAPOLIS, March 2007 – The Court of Appeals handed down two cases, which were favorable to health care providers and limited the number of recoveries that could be obtained from the Indiana Patient’s Compensation Fund. In both cases, the Indiana Patient’s Compensation Fund was represented by Susan E. Cline, Julia Blackwell Gelinas, and Maggie L. Smith of Locke Reynolds LLP, and plaintiffs were represented by Deb Pennington and Jerry Garau of Findling Garau Germano & Pennington.

In Indiana Patient’s Compensation Fund v. Butcher, plaintiff was involved in an automobile accident while pregnant. She immediately went to Sullivan County Community Hospital for evaluation where her physician, Dr. Pardeep Kumar, determined that the fetus’s condition was reassuring and that she should be transported to Good Samaritan Hospital in Vincennes for delivery. When plaintiff arrived at Good Samaritan, her physician was unable to obtain fetal heart tones. The baby was delivered via c-section, but died a few days later. Plaintiff and her husband filed a proposed complaint against Sullivan County Community Hospital and Dr. Kumar. After settling with the health care provider(s), plaintiff and her husband filed a petition seeking separate excess statutory damages awards from the Indiana Patient’s Compensation Fund for plaintiff’s physical injuries, for plaintiff’s emotional distress suffered from the death of her infant, and for plaintiff’s husband’s emotional distress suffered from the death of his infant. The trial court awarded three separate excess damages awards (i.e., three statutory caps) to plaintiffs. The Fund appealed.

The Court of Appeals concluded that there was insufficient evidence to establish that plaintiff sustained physical injuries as a result of the defendants’ medical malpractice. Regardless of whether plaintiff had delivered the baby at Sullivan County or at Good Samaritan, she would have required a cesarean section as a result of the car accident. There was no evidence that she endured more physical suffering as a result of the hurried nature of her c-section. She also would have experienced scarring, adhesions, and pain during recovery regardless of the timing of the c-section.

The Court of Appeals also found that the only viable claims of plaintiff and her husband would be based on emotional suffering related to the infant’s death. Although parents are entitled to assert claims for such emotional distress, the Act provides that the recovery is limited to the statutorily-dictated cap for the injury or death suffered by the “actual victim of the malpractice” - here, the infant. Because neither plaintiff nor her husband was a “victim of malpractice,” they were not entitled to recover under their own separate, individual caps. Rather, plaintiff and her husband’s recovery for emotional distress for the death of their infant were recoverable under the infant’s cap. Consequently, the Court of Appeals reversed the trial court’s award of three separate caps, reducing their recovery to one cap. The Court of Appeals’ opinion has been certified.

In Indiana Patient’s Compensation Fund v. Winkle, due to malpractice committed by doctors during her pregnancy, plaintiff suffered from malnutrition resulting in a encephalopathy and a miscarriage. Plaintiff and her husband filed a proposed complaint, settled with the health care providers, and then sought excess damages from the Fund. The trial court found that plaintiffs were entitled to three separate excess damages award (i.e., three statutory caps) – one to plaintiff for her physical injury, one to plaintiff for her emotional distress over the loss of her unborn fetus, and one to plaintiff’s husband for his emotional distress over the loss of the unborn fetus. The Fund appealed.

The Court of Appeals affirmed the trial court’s award of one statutory damages cap to plaintiff and her husband and reversed the remainder of the trial court’s order. Plaintiff and her husband were entitled to one cap for the damages plaintiff sustained as she was the actual victim of the malpractice, which included emotional distress damages plaintiff and her husband suffered as a result of the miscarriage. The Court of Appeals concluded that plaintiff and her husband were not entitled to then seek two additional separate excess damages awards for emotional distress damages from the loss of their unborn fetus who was also an actual victim of malpractice.

The Court of Appeals determined the Act limits recovery to the statutorily-dictated cap for the injury or death suffered by the “actual victim of the malpractice.” Because the baby died in utero, the Court of Appeals held plaintiff and her husband were not entitled to two additional statutory caps for their emotional distress from the loss of the unborn child because their unborn child is not a patient from whom those claims can derive.

Plaintiff and her husband have petitioned the Indiana Supreme Court for review.

Contact:

Locke Reynolds LLP
Indianapolis, Indiana
317-237-3800

Fort Wayne, Indiana
260-497-6000
www.locke.com

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