Spangler v. Bechtel

ATTORNEY FOR PLAINTIFFS ATTORNEYS FOR DEFENDANTS ATTORNEYS FOR DEFENDANT
Lance Wittry Barbara Bechtel, Nurse-Midwife, St. Vincent Randolph Hospital
Wittry Law Office and Expectations Women's Health Robert G. Zeigler
Indianapolis, Indiana and Childbearing Center Bobby J. Avery-Seagrave
Edward L. Murphy, Jr. Zeigler Cohen & Koch
Heidi K. Koeneman Indianapolis, Indiana
Murphy Ice & Koeneman LLP
Fort Wayne, Indiana
______________________________________________________________________________

In the FILED
Indiana Supreme Court
Dec 13 2011, 10:46 am

_________________________________ CLERK
of the supreme court,
court of appeals and
tax court

No. 49S05-1012-CV-703

STEVEN SPANGLER AND
HEIDI BROWN, Appellants (Plaintiffs below),

v.

BARBARA BECHTEL,
EXPECTATIONS WOMEN'S HEALTH AND CHILDBEARING CENTER, AND
ST. VINCENT RANDOLPH HOSPITAL, Appellees (Defendants below).
_________________________________

Appeal from the Marion Superior Court, No. 49D03-0306-CT-1120
The Honorable Patrick McCarty, Judge
_________________________________

On Transfer from the Indiana Court of Appeals, No. 49A05-0908-CV-482
_________________________________

December 13, 2011

Dickson, Justice.

Following the death of their full-term baby daughter in utero during labor, just before
childbirth, the plaintiffs Steven Spangler and Heidi Brown brought this action seeking damages
for negligent infliction of emotional distress. In the ensuing litigation, the trial court granted
summary judgment to St. Vincent Randolph Hospital, to Barbara Bechtel (the nurse-midwife
who provided pre-natal care during the mother's pregnancy and managed her labor at the hospi-
tal), and to Expectations Women's Health and Childbearing Center ("the Center") (alleged by the
plaintiffs to be Bechtel's employer). The Court of Appeals reversed as to all three defendants.
Spangler v. Bechtel, 931 N.E.2d 387 (Ind. Ct. App. 2010). We granted transfer and now hold
that the parents' separate actions 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.

The underlying facts of the case are not in dispute and are provided in detail by the Court
of Appeals. Id. at 389–90. Summarized briefly, Heidi Brown was pregnant with a baby girl who
was also the child of Steven Spangler. Brown arrived at St. Vincent Randolph Hospital on Feb-
ruary 24, 2003, for delivery services because she had begun active labor.1 The plaintiffs' child
was delivered stillborn the same day. Both parties concede that the child died in utero prior to
the delivery. As of the time of the summary judgment proceedings, the plaintiffs' amended com-
plaint asserted three counts. The first count, directed against all three defendants, alleges medi-
cal negligence in the provision of obstetrical care and treatment. The second and third counts,
against the hospital only, allege that the hospital inadequately supervised nurse-midwife Bechtel
and that it negligently granted her hospital privileges and failed to suspend them. As to the hos-
pital, the action is proceeding under the Indiana Medical Malpractice Act ("the MMA").2
Bechtel and the Center are not covered by the MMA because they were not qualified health care
providers under the MMA on the relevant dates of treatment.

The plaintiffs' challenges to the trial court's summary judgment rulings present only legal
issues, not factual ones. In reviewing the grant of summary judgment, an appellate court faces
the same issues that were before the trial court. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855
(Ind. 1999). "Where . . . the dispute is one of law rather than fact, a de novo standard of review
applies." Wilson v. Isaacs, 929 N.E.2d 200, 202–03 (Ind. 2010).

1
From the designated evidence, it is unclear whether the father, Steven Spangler, was present
during any part of the incident.
2
The plaintiffs' Medical Malpractice Act claim against the hospital was submitted to a medical
review panel that determined that the hospital breached the standard of care, but the panel was divided on
whether the breach "was" or "may have been" a factor in the child's death. Appellants' Br. at 5 & n.6.
2
 1. Summary Judgment Motion of the Nurse-Midwife and her Employer

The nurse-midwife, Bechtel, and her alleged employer, the Center, jointly sought sum-
mary judgment on grounds that the plaintiffs' claims for negligent infliction of emotional distress
are governed by the Indiana Child Wrongful Death Act ("the CWDA"), Ind. Code § 34-23-2-1,
under which a claim for the wrongful death of an unborn child was not cognizable at the time of
the death of the plaintiffs' child in this case. In granting the motion, the trial court concluded: (a)
that the plaintiffs' claims for emotional distress could not proceed under the CWDA because they
were based on the death of an unborn child, which was not a "child" for the purposes of the
CWDA; (b) that the plaintiffs did not have valid claims for negligent infliction of emotional dis-
tress because they do not identify any negligently-inflicted injuries on another as required under
the modified impact rule nor did they sustain a direct impact or demonstrate sufficient "direct
involvement." Findings of Fact, Conclusions of Law and Judgment, Appellants' App'x at 15–24.

A. Child Wrongful Death Act and the Claims for Emotional Distress from Stillbirth

As of the date of the unborn child's death and subsequent stillbirth, February 24, 2003,
Indiana law precluded any claim for damages under the CWDA. Bolin v. Wingert, 764 N.E.2d
201, 207 (Ind. 2002) (holding that an eight- to ten-week-old fetus does not satisfy the definition
of "child" under the CWDA and that "only children born alive fall under the [CWDA]").3 Earlier
in the present litigation, the plaintiffs sought damages not only for emotional distress but also for
the wrongful death of their unborn child. But when the hospital sought partial summary judg-
ment asserting such an action was precluded by Bolin, the plaintiffs conceded that it dictated the
dismissal of their claim for wrongful death under the CWDA. Appellants' App'x at 54. As a re-
sult, the trial court granted partial summary judgment dismissing the claims of the plaintiffs
brought under the CWDA but expressly ruling: "The claims of the plaintiffs for emotional dis-
tress relating to the death of their child was [sic] not implicated in defendant's motions, and as
such, this action will proceed on this basis." Id. at 57. The plaintiffs subsequently filed an
amended complaint asserting only claims for negligent infliction of emotional distress, to which

3
After Bolin, the General Assembly amended the CWDA to allow a wrongful death action for "a
fetus that has attained viability." P.L. 129-2009, sec. 8, 2009 Ind. Acts 1172 (codified as amended at Ind.
Code § 34-23-2-1).
3
all three defendants filed renewed motions for summary judgment.

Supporting their motion for summary judgment in the trial court, Bechtel and the Center
argued that the emotional distress claims are governed by the CWDA because they are not quali-
fied providers under the MMA and because the plaintiffs' claims for emotional distress are "tan-
tamount to a claim for the loss of love and affection provided for under the CWDA." Appellants'
App'x at 234–35. These defendants argue on appeal that the CWDA governs because the plain-
tiffs' emotional distress claims necessarily arise from the death of their fetus and should not be
treated as separate torts.

The logic of this argument is dubious. On one hand, these defendants argue that the par-
ents' emotional distress claims must be interpreted under the CWDA because it is "the vehicle for
recovery following the death of a child," Appellees Bechtel's and the Center's Br. at 8, but, on the
other hand, they assert that such claims must then fail because this unborn child was not in fact a
"child" under the CWDA. Id. at 11–12. To the contrary, that the CWDA provides no remedy for
wrongful death damages for the death of an unborn child does not preclude the availability of a
separate action for damages founded on a basis other than wrongful death.

Significantly, while Bolin did not allow an action under the CWDA for wrongful death of
an unborn child, it nevertheless expressly permitted the mother to "claim damages to compensate
her for her miscarriage" resulting from a traffic accident where the mother's vehicle was struck
from behind by the defendant's vehicle. 764 N.E.2d at 203, 207–08. Noting with emphasis this
aspect of Bolin, the Court of Appeals has interpreted Bolin to allow actions for emotional dis-
tress brought by mothers who suffer a miscarriage notwithstanding the CWDA. Ryan v. Brown,
827 N.E.2d 112, 118 (Ind. Ct. App. 2005) (permitting mother of stillborn child to pursue separate
action for negligent infliction of emotional distress while prohibiting action for wrongful death
of unborn child), trans. not sought; Breece v. Lugo, 800 N.E.2d 224, 229–30 (Ind. Ct. App.
2003) (holding that Bolin does not prohibit a mother from pursuing an action for the negligent
infliction of emotional distress related to the in utero death of her unborn child), reh'g denied,
trans. denied; see also Ind. Patient's Comp. Fund v. Winkle, 863 N.E.2d 1, 9 (Ind. Ct. App.
2007) (noting that parents "may recover all emotional damages that were suffered as a result of

4
the miscarriage" but holding that such damages are limited to the mother's damage cap under the
MMA), trans. denied. We agree with the Court of Appeals' reading of Bolin.

On transfer, Bechtel and the Center argue that their position is supported by our recent
decision in Ind. Patient's Comp. Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010), which was issued
by this Court after the decision of the Court of Appeals in the present case. Appellees Bechtel's
and the Center's Transfer Br. at 5–7. Patrick was a medical malpractice action seeking damages
under Indiana's Adult Wrongful Death Act ("the AWDA") for the death of the plaintiff's 31-year-
old son resulting from alleged medical negligence in the treatment of his son's injuries. 929
N.E.2d at 190–91. Bechtel and the Center assert that Patrick held that, because the father's emo-
tional distress claims arose out of the death of his adult son, his claims were necessarily gov-
erned by but not permitted under the AWDA. Appellees Bechtel's and the Center's Transfer Br.
at 5. They contend that the CWDA should be similarly interpreted to be the exclusive vehicle for
recovering damages following the death of a child, and that, since Bolin prohibits an action for
the death of an unborn child under the CWDA, the child's parents should likewise be barred from
pursuing separate claims for emotional distress. Id. at 7. We disagree.

Patrick does not stand for the proposition urged by Bechtel and the Center. The issue
presented in Patrick was whether the MMA provided an alternative possibility for recovering
emotional distress damages as a derivative claim under the MMA, assuming that emotional dis-
tress damages were precluded under the AWDA. The plaintiff's action in Patrick was brought
under the AWDA, not as a separate claim for negligent infliction of emotional distress. We stat-
ed: "Though Father recognizes that he does not have a claim for emotional distress under the
[AWDA], and he is correct to do so, he contends that he was entitled to bring a claim for his own
emotional distress under the MMA." 929 N.E.2d at 192. The issue of whether the AWDA might
preclude emotional distress damages claims related to the death of a covered adult was conceded
by the plaintiff in Patrick. Our "correct to do so" observation was nothing more than a comment
particular to the facts and issues in the Patrick case and was not a statement of law applicable in
all situations. Of particular significance to the present case is the fact that Patrick concluded
with an express recognition that the MMA would allow those claims "for which damages for
emotional distress are available" and cited Ryan and Breece (stillbirth cases noted above) among

5
such cases that permitted damage claims for emotional distress. Id. at 194. This implicit ap-
proval of Ryan and Breece is instructive. Thus, Patrick does not 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.

We hold that parents who have suffered a stillbirth of their child are not precluded by the
CWDA from seeking emotional distress damages in a negligence action.

B. Claims for Emotional Distress Damages in Negligence Actions

Apart from the CWDA, the trial court's summary judgment for Bechtel and the Center
was also based on the court's belief that the plaintiffs may not bring an action for the tort of neg-
ligent infliction of emotional distress because the evidence failed to establish (a) that the alleged
emotional distress was caused by negligently-inflicted injuries on another and (b) that either
plaintiff sustained a direct impact or had sufficient "direct involvement" with the injury-causing
event. Findings of Fact, Conclusions of Law and Judgment, Appellants' App'x at 21, 23. The
trial court's ruling is based upon its understanding of our decision in Shuamber v. Henderson,
579 N.E.2d 452 (Ind. 1991) and its progeny. Findings of Fact, Conclusions of Law and Judg-
ment, Appellants' App'x at 21.

Actions for emotional distress were originally limited by the impact rule, which required:
"(1) an impact on the plaintiff; (2) that causes physical injury to the plaintiff; (3) that in turn
causes the emotional distress." Alexander v. Scheid, 726 N.E.2d 272, 283 (Ind. 2000) (explain-
ing the genesis of the impact rule). This Court adhered to the impact rule for many years in part
because of a concern that, if recovery for emotional injuries unrelated to physical injuries were
allowed, the courts would be inundated with potentially fraudulent emotional distress claims.
Shuamber, 579 N.E.2d at 455. At the heart of the resistance to such claims was a belief that "ab-
sent physical injury, mental anguish is speculative, subject to exaggeration, likely to lead to ficti-
tious claims, and often so unforeseeable that there is no rational basis for awarding damages."
Cullison v. Medley, 570 N.E.2d 27, 29 (Ind. 1991). In Shuamber, the plaintiffs, a mother and her
daughter, were involved in an automobile accident which resulted in the death of another pas-

6
senger in their vehicle, their son/brother. 579 N.E.2d at 453. Both mother and sister brought an
action for damages against the other driver for emotional distress resulting from the loss of their
son/brother, and not for emotional distress resulting from their own injuries sustained in the ac-
cident. Id. Under the impact rule, such actions would have been barred because the rule only
allowed recovery of emotional damages caused by the plaintiff's physical injuries. Id. at 454.
Because we concluded that "the rationale for [the impact rule], whatever its historical foundation,
is no longer valid," id. at 455 (quoting Cullison, 570 N.E.2d at 30), we relaxed the requirements
of the impact rule. We held that claims for emotional damages could be brought by a plaintiff
who "sustains a direct impact by the negligence of another and, by virtue of that direct involve-
ment[,] sustains an emotional trauma which is serious in nature and of a kind and extent normal-
ly expected to occur in a reasonable person." Id. at 456. Thus, we eliminated the second ele-
ment of the traditional impact rule—the requirement of a physical injury to the plaintiff—in fa-
vor of broader recovery for emotional damages. This revised rule is generally referred to as the
modified impact rule. Condor v. Wood, 716 N.E.2d 432, 434 (Ind. 1999).

We clarified the modified impact rule in Condor where we held that an impact need not
rise to the level of a physical injury. 716 N.E.2d at 434. The plaintiff in that case brought an
action to recover emotional damages suffered when the plaintiff witnessed a coworker, who was
walking next to the plaintiff, being struck and killed by a passing truck. Id. at 433. As the truck
was running over her coworker, the plaintiff pounded on the side of the truck as it passed to
catch the attention of the driver. Id. We found the impact requirement satisfied by the plaintiff's
pounding, id. at 435, noting that an impact need not be initiated by the tortfeasor. Id. at n.3.
This Court explained: "The modified impact rule maintains the requirement of a direct physical
impact. However, the impact need not cause a physical injury to the plaintiff and the emotional
trauma suffered by the plaintiff need not result from a physical injury caused by the impact." Id.
at 434. We held that "'direct impact' is properly understood as the requisite measure of 'direct
involvement' in the incident giving rise to the emotional trauma." Id. at 435. In Ross v. Cheema,
a companion case announced the same day as Condor, we emphasized that, even though the
modified impact rule removed the physical injury requirement, "direct impact is properly under-
stood as being 'physical' in nature." 716 N.E.2d 435, 437 (Ind. 1999) (holding that the plaintiff
did not sustain a sufficient impact by hearing a loud and frightening knocking at the door to her

7
residence).

We further expanded recovery for emotional injuries in Groves v. Taylor to include cer-
tain closely related bystanders to negligent conduct. 729 N.E.2d 569, 573 (Ind. 2000). There,
we allowed a claim for emotional distress damages sustained by an eight-year-old plaintiff who
"heard the loud 'pop' of a vehicle fatally striking her [six-year-old] brother and turned to observe
his body as it rolled off the highway." Id. at 571. Reviewing the Shuamber rule and its progeny,
we observed:
[T]he reason for requiring direct involvement is to be able to distinguish legitimate
claims of the emotional trauma from the mere spurious. The value of requiring "direct
impact" is that it provides clear and unambiguous evidence that the plaintiff was so di-
rectly involved in the incident giving rise to the emotional trauma that it is unlikely that
the claim is merely spurious.
Given that the prevention of merely spurious claims is the rationale for the Shuamber
rule, logic dictates that there may well be circumstances where, while the plaintiff does
not sustain a direct impact, the plaintiff is sufficiently directly involved in the incident
giving rise to the emotional trauma that we are able to distinguish legitimate claims from
the mere spurious.
Id. at 572. Applying this analysis more precisely to claims by bystanders, we held:
[W]here the direct impact test is not met, a bystander may nevertheless establish "direct
involvement" by proving that the plaintiff actually witnessed or came on the scene soon
after the death or severe injury of a loved one with a relationship to the plaintiff analo-
gous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defend-
ant's negligent or otherwise tortious conduct.
Id. at 573. Finding that the injury suffered by the plaintiff's brother was fatal and that the plain-
tiff witnessed her brother's body rolling off the highway, we vacated summary judgment and
permitted the plaintiff's action for emotional distress to continue. Id. at 573. Thus, "in order to
recover damages for the negligent infliction [of] emotional distress, a plaintiff must satisfy either
the modified impact rule or the bystander rule." Atl. Coast Airlines v. Cook, 857 N.E.2d 989,
998 (Ind. 2006).4

4
Since our adoption of the "bystander rule" in Groves, our colleagues on the Court of Appeals
have urged us on multiple occasions to abandon the modified impact and bystander rules altogether in
favor of a general test of "direct involvement." See, e.g., Delta Airlines v. Cook, 821 N.E.2d 400, 401
(Ind. Ct. App. 2005) ("We think that [the] reasoning [underlying the Shuamber decision] also supports
eliminating the physical impact requirement under the modified impact rule."), vacated by Atl. Coast Air-
lines v. Cook, 857 N.E.2d 989 (Ind. 2006); Ketchmark v. N. Ind. Pub. Serv. Co., 818 N.E.2d 522, 526
(Ind. Ct. App. 2004) (Crone, J., dissenting) ("[T]he time has come to clear the decks of the so-called
8
 The right to seek damages for emotional distress in actions for negligence often referred
to as actions for negligent infliction of emotional distress, is carefully circumscribed under Indi-
ana jurisprudence. We have never permitted, nor do we today, an action seeking damages for
emotional distress predicated upon a breach of an alleged duty not to inflict emotional injury on
another. Such independent, stand-alone actions for negligent infliction of emotional distress are
not cognizable in Indiana. See Cook, 857 N.E.2d at 998. But actions seeking damages for emo-
tional distress resulting from the negligence of another are permitted in two situations: where the
plaintiff has (1) witnessed or come to the scene soon thereafter the death or severe injury of cer-
tain classes of relatives (i.e., the bystander rule, Groves, 729 N.E.2d at 573) or (2) suffered a di-
rect impact (i.e., the modified impact rule, Shuamber, 579 N.E.2d at 456). Cook, 857 N.E.2d at
998. Under the bystander rule, the death/severe injury must have been proximately caused by
the defendant's breach of some cognizable legal duty owed by the defendant to the relative at is-
sue. Groves, 729 N.E.2d at 573. The modified impact rule is similar, though it arises in two dif-
ferent situations. In the first scenario, the plaintiff is the person to whom the defendant owes a
legal duty. See, e.g., Alexander, 726 N.E.2d at 273–74. In that case, the direct impact must have

'impact rule' and to allow the tort of negligent infliction of emotional distress to stand on its own inherent
elements."), trans. not sought; Keim v. Potter, 783 N.E.2d 731, 735 (Ind. Ct. App. 2003) (holding that
plaintiff mistakenly diagnosed with hepatitis C could maintain an action for negligent infliction of emo-
tional distress because the plaintiff was "sufficiently 'directly involved' to satisfy the modified impact
rule" despite the lack of any finding that the plaintiff had sustained a direct physical impact), trans. not
sought; Blackwell v. Dykes Funeral Homes, Inc., 771 N.E.2d 692, 697 (Ind. Ct. App. 2002) (holding that
the plaintiffs could maintain an action for emotional distress against a funeral home that mishandled the
remains of the plaintiffs' child even though "no physical impact occurred" because "the alleged mental
anguish . . . is not likely speculative, exaggerated, fictitious, or unforeseeable"), trans. denied. A "direct
involvement" standard is likely to encounter the same problems as those faced by one testing the genu-
ineness and foreseeability of alleged emotional distress, which has been utilized by other states. We think
California's experience with such a standard for bystander claims is instructive: twenty-one years after
adopting foreseeability as the test for determining when a claim of emotional distress should be allowed,
the California Supreme Court made "an important course correction" and adopted three mandatory re-
quirements that must be satisfied to bring a bystander claim for emotional distress. Bird v. Saenz, 51 P.3d
324, 327 (Cal. 2002) (describing the evolution of California's law on liability for negligent infliction of
emotional distress). The change in course was motivated by the "arbitrary and conflicting results and
'ever widening circles of liability'" produced by the foreseeability standard. Id. Many other states have
acknowledged the unworkable nature of a foreseeability rule as well. Restatement (Third) of Torts: Liab.
for Physical and Emotional Harm § 47f cmt. f (Tentative Draft No. 5, 2007). A pure foreseeability rule is
"unsatisfactory because genuine emotional disturbance can occur and is foreseeable in many situations in
which courts clearly would not permit recovery." Id. § 47f. A general standard of "direct involvement"
would not be any more precise. We have found no other comprehensive uniform principle capable of
satisfactorily reflecting the range of circumstances where liability for emotional distress is appropriate.
9
been proximately caused by the defendant's breach of a legal duty to the plaintiff. Id. at 284. In
the second scenario, the defendant owes a legal duty to a third-party. See, e.g., Condor, 716
N.E.2d at 433; Shuamber, 579 N.E.2d at 453. In that case, the direct impact (to the plaintiff)
must have been proximately caused by the defendant's breach of a legal duty to the third-party.
Condor, 716 N.E.2d at 435; Shuamber, 579 N.E.2d at 456. Thus, under any of the three scenari-
os, the defendant's negligence in breaching a legal duty is a required predicate.5

In the present case, the trial court granted summary judgment for Bechtel and the Center
in part concluding that the plaintiffs' actions for negligent infliction of emotional distress are pre-
cluded due to the absence of any negligently-inflicted injuries on another. This ruling raises two
issues.

First, as to the trial court's contention that the modified impact rule limits a plaintiff's re-
covery of emotional damages to situations where an injury was negligently-inflicted on another
person, we do not agree. It is correct that a plaintiff, to recover emotional damages under the
bystander rule, must prove that another person suffered a negligently-inflicted "death or severe
injury." See Groves, 729 N.E.2d at 573 (holding that a bystander may only recover for negligent
infliction of emotional distress if the bystander witnessed or came to the scene soon after the
"death or severe injury of a loved one [(injury to another)] . . . caused by the defendant's negli-
gent or otherwise tortious conduct [(negligently-inflicted)]"). In contrast, however, the same is
not required for emotional distress claims brought under the modified impact rule, where we
have permitted recovery so long as the plaintiff personally sustained a physical impact, in addi-
tion to emotional distress damages. See Bader v. Johnson, 732 N.E.2d 1212, 1215, 1222 (Ind.
2000) (holding that plaintiff-mother could assert a claim for negligent infliction of emotional dis-

5
The Court of Appeals has characterized negligent infliction of emotional distress as an "inde-
pendent" tort on several occasions. E.g., K.D. v. Chambers, 951 N.E.2d 855, 862 (Ind. Ct. App. 2011)
("Negligent infliction of emotional distress is an independent tort and not merely an element of damag-
es."), trans. denied; Baumgart ex re. Baumgart v. DeFries, 888 N.E.2d 199, 208 (Ind. Ct. App. 2008)
(recognizing negligent infliction of emotional distress as an "independent" tort), trans. denied; Ind. Pa-
tient's Comp. Fund v. Winkle, 863 N.E.2d 1, 6 (Ind. Ct. App. 2007) ("As claims of negligent infliction of
emotional distress no longer require an underlying physical injury or even a physical impact, we have
held on numerous recent occasions that it is an independent tort."), trans. denied; Clancy v. Goad, 858
N.E.2d 653, 661 n.5 (Ind. Ct. App. 2006) (recognizing negligent infliction of emotional distress as an "in-
dependent" tort), trans. denied. To the extent that these cases are inconsistent with today's opinion, we
disapprove them.
10
tress where the only injury was the mother's lost "opportunity to terminate the pregnancy" caused
by her doctor's "failure to inform" her of a potential birth defect in the child); Alexander, 726
N.E.2d at 283–84 (holding that the plaintiff could seek damages for negligent infliction of emo-
tional distress against a doctor, who failed to diagnose lung cancer during a routine x-ray, despite
the fact that the plaintiff was the only person who had suffered an injury); see also Ross, 716
N.E.2d at 437 (dismissing plaintiff's claim for negligent infliction of emotional distress because
the plaintiff "did not sustain the direct 'physical' impact necessary" and not because the plaintiff
was the only person who could have potentially sustained a negligently-inflicted injury). An ac-
tion seeking emotional distress damages, if predicated not on the bystander rule but on the modi-
fied impact rule, does not require the negligent infliction of injury on a person other than the
plaintiff. This application of the direct impact requirement, consistent with Condor, serves to sift
legitimate claims of emotional harm from the spurious. 716 N.E.2d at 435; see also Groves, 729
N.E.2d at 572 ("The value of requiring 'direct impact' is that it provides clear and unambiguous
evidence that the plaintiff was so directly involved in the incident giving rise to the emotional
trauma that it is unlikely that the claim is merely spurious."). This purpose does not necessitate
limiting recovery for emotional damages only to circumstances where someone other than the
plaintiff has suffered a negligently-inflicted injury.

Second, we also disagree with the trial court's conclusion that the plaintiffs cannot identi-
fy any negligently-inflicted injuries. Here the plaintiffs' child died in utero as a result of the al-
legedly negligent care provided by the defendants during Brown's labor. Negligence consists of
(1) a duty owed by the tortfeasor to the tort victim, (2) a breach of that duty, and (3) an injury to
the tort victim proximately caused by the breach. Estate of Mintz v. Conn. Gen. Life Ins. Co.,
905 N.E.2d 994, 998–99 (Ind. 2009). Individuals including health care providers owe unborn
children a duty of care. Walker v. Rinck, 604 N.E.2d 591, 595 (Ind. 1992); Cowe v. Forum Grp.,
Inc., 575 N.E.2d 630, 636–37 (Ind. 1991); see also Restatement (Second) of Torts § 869 (1977)
("One who tortiously causes harm to an unborn child is subject to liability to the child for the
harm if the child is born alive."); W. Prosser & W. Keeton, The Law of Torts § 41 at 368 (5th ed.
1984) ("The child, if he is born alive, is now permitted in every jurisdiction to maintain an action
for the consequences of prenatal injuries . . . ."). As to breach and causation, the plaintiffs have
alleged that the obstetrical care provided by Bechtel, the Center, and the Hospital fell below the

11
relevant standard of care and that this breach proximately caused the death of their child in utero.
Appellants' App'x at 31. The only arguable support for the trial court's finding a lack of negli-
gently-inflicted injury that we can perceive is that, as noted above in Part 1-A, 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.

It was thus incorrect to grant summary judgment in favor of Bechtel and the Center. The
plaintiffs are not precluded from maintaining an action seeking emotional distress damages under
the bystander rule.6 Our conclusion is unchanged by the fact, relied on by the trial court, that for
purposes of the CWDA a stillborn infant is not a child. Findings of Fact, Conclusions of Law
and Judgment, Appellants' App'x at 23–24. As we discussed above in Part 1-A, the CWDA's
provisions do not limit the availability of other remedies for emotional damages related to the
death of a child. The CWDA's provisions are limited to wrongful death actions. Thus, the
CWDA's definition of "child" is limited to the context of wrongful death actions, and the CWDA
does not define what it means to be a child in all contexts. So long as the plaintiffs can satisfy

6
Some states have resolved this issue by recognizing a distinct tort for the recovery of emotional dam-
ages resulting from a negligently caused stillbirth. E.g., Burgess v. Superior Court, 831 P.2d 1197, 1203,
1209 (Cal. 1992) ("For the reasons set forth herein, we hold that Burgess is not required to satisfy the cri-
teria for recovery as a bystander and may state a claim for damages for serious emotional distress arising
from the negligent delivery of her child."); Tanner v. Hartog, 696 So.2d 705, 708 (Fla. 1997) ("As a natu-
ral evolution of the common law, we conclude . . . that public policy dictates that an action by the parents
for negligent stillbirth should be recognized in Florida."); McClain v. Univ. of Mich. Bd. of Regents, 665
N.W.2d 484, 486 (Mich. Ct. App. 2003) ("[P]laintiff's cause of action for damages in her own right as a
result of her miscarriage is well grounded in Michigan law . . . ."); Giardina v. Bennett, 545 A.2d 139,
143 (N.J. 1988) ("We are satisfied that our common law has evolved to a point that would recognize a
valid cause of action for the emotional injuries suffered by parents in this kind of a case."); Broadnax v.
Gonzalez, 809 N.E.2d 645, 649 (N.Y. 2004) ("We therefore hold that, even in the absence of an inde-
pendent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a viola-
tion of a duty of care to the expectant mother, entitling her to damages for emotional distress."); Phelps v.
Physicians Ins. Co. of Wis., Inc., 768 N.W.2d 615, 624 (Wis. 2009) ("Specifically, a mother in childbirth
suffers injuries as a participant or victim of the medical malpractice, and her injuries are distinct from
witnessing the injury to and death of her child. As a result, a mother can pursue a separate claim for med-
ical malpractice." (citation omitted)). We believe Indiana jurisprudence is better served by application of
the modified impact and bystander rules than by creation of a new tort.
12
the other requirements of the bystander rule, they may proceed with their actions seeking emo-
tional distress damages.7

2. Summary Judgment Motion of the Hospital

In support of its motion for summary judgment, the hospital has presented three conten-
tions to the trial court. First, it asserts: (a) because neither of the parents suffered physical injury
and their claim is only for emotional injuries, such claim may only be asserted under the Indiana
Medical Malpractice Act as one derivative of an injury to a patient covered by the MMA; (b) an
unborn child is not a "patient" under the MMA; and (c) the parents thus may not bring any such
derivative medical malpractice action under the MMA. Appellants' App'x at 354–60. Second,
the hospital alleges that it was neither liable for any failures in the manner in which Bechtel was
supervised nor vicariously liable for her actions. Id. at 360–61. And third, the hospital asserts
that the plaintiffs' negligent credentialing claim is barred because such claim was not specifically
submitted to a medical review panel under the MMA. Id. at 361.

The trial court granted the hospital's motion for summary judgment on a single basis,
finding "there is no material issue of fact that the Plaintiffs' claim for wrongful death of a fetus is
precluded by Indiana law." Appellants' App'x at 26. The ruling did not otherwise address the
hospital's summary judgment claims regarding supervisory or vicarious liability or whether the
medical review panel considered the negligent credentialing claim. We thus understand the trial
court to have concluded that all of the plaintiffs' theories of liability against the hospital were
foreclosed only because the court concluded that the MMA generally does not allow actions for
emotional injuries to parents resulting from the in utero death of their child because such a child
is not a "patient" under the MMA. The hospital makes no claim on appeal that the trial court's
ruling was a separate adjudication of the hospital's assertions regarding supervisory or vicarious
liability or the panel's review of the negligent credentialing claim. As to the hospital, the sole
issue on appeal is thus whether an emotional distress claim may be brought under the Medical
Malpractice Act by parents alleging that the stillbirth of their child was caused by medical negli-

7
Because we hold that the plaintiffs are not precluded from pursuing their emotional distress
claims under the bystander rule, we need not address whether either plaintiff also suffered a direct impact
sufficient to satisfy the modified impact rule.
13
gence.

As to this issue, the hospital argues that the plaintiffs' claims for negligent infliction of
emotional distress are "derivative" of the injuries sustained by the unborn child, that a fetus not
born alive should not be considered a "patient" under the MMA, and that the plaintiffs' claims
are thus barred under the MMA because "there must be a patient from whom such a claim must
derive." Appellee Hospital's Br. at 9–10.

The MMA "does not create new causes of action that otherwise do not exist." Patrick,
929 N.E.2d at 194. The MMA simply requires that "claims for medical malpractice that are oth-
erwise recognized under tort law and applicable statutes be pursued through the procedures of
the MMA." Chamberlain v. Walpole, 822 N.E.2d 959, 963 (Ind. 2005). In both Patrick and
Chamberlain, we held that the MMA is procedural only and does not create new causes of action.
929 N.E.2d at 193–94; 822 N.E.2d at 963. As noted above in Part 1-A, Patrick explicitly in-
cludes a "final observation" made for "the sake of clarity":
[W]ere the claim underlying the MMA action one for which damages for emotional dis-
tress are available, the MMA does not preclude derivative claims of emotional distress by
persons whom the law refers to as "bystanders." Indeed, as Chamberlain makes clear, the
MMA requires any "derivative claim" to be included as part of the MMA action, making
it subject to the MMA's procedural and substantive requirements. Id. Several cases have
made explicit reference to the availability of damages for emotional distress in MMA
cases. See, e.g., Bader v. Johnson, 732 N.E.2d 1212[, 1222] (Ind. 2000) [(regarding emo-
tional distress claim, holding that mother's "continued pregnancy and the physical trans-
formation her body underwent as a result, satisfy the direct impact requirement of our
modified impact rule")]; Baumgart ex rel. Baumgart v. DeFries, 888 N.E.2d 199 (Ind. Ct.
App. 2008) [(holding that mother's MMA emotional distress claim not entitled to separate
statutory damage cap)], trans. denied; Ryan v. Brown, 827 N.E.2d 112 (Ind. Ct. App.
2005) [(allowing mother's MMA claim for negligent infliction of emotional distress aris-
ing from miscarriage)]; and Breece v. Lugo, 800 N.E.2d 224 (Ind. Ct. App. 2003) [(per-
mitting MMA emotional distress claim from stillbirth)], trans. denied.
929 N.E.2d at 194. It is clear, therefore, that Patrick does not preclude the possibility of a sepa-
rate claim outside the wrongful death statutes for negligent infliction of emotional distress by a
parent suffering a miscarriage or full-term stillbirth.

The hospital also argues that its position is supported by Ind. Patient's Comp. Fund v.
Winkle, 863 N.E.2d 1 (Ind. Ct. App. 2007), trans. denied. Appellee Hospital's Br. at 15. The

14
hospital contends that Winkle "stands for the principle" that parents such as the plaintiffs here
"are barred from pursuit of derivative claims arising from their stillborn fetus's death because a
stillborn fetus is not a patient under the [MMA]." Id. at 12.

In Winkle, decided three years before our opinion in Patrick, the Court of Appeals con-
fronted a medical malpractice action in which the mother developed a severe nutritional defi-
ciency disorder during her pregnancy that resulted in a miscarriage at seventeen weeks. 863
N.E.2d at 3. The trial court awarded separate damages for each of three alleged separate injuries:
(a) the mother's Wernicke's encephalopathy, a degenerative brain disorder caused by lack of thi-
amine; (b) the mother's emotional distress due to the loss of the child; and (c) the father's emo-
tional distress due to the loss of the child. Id. at 4. On appeal, the Fund conceded that the par-
ents may seek damages under the MMA for their emotional distress under the impact test and
bystander rule but contended that all the parents' claims were subject to the single statutory dam-
age cap applicable to the mother. Id. at 5. The primary issue in Winkle was whether the MMA
provided three separate caps—one for the mother's direct injury and two others for the mother's
and the father's claims for negligent infliction of emotional distress for the death of their child.
The court interpreted the damage cap language of the MMA, Ind. Code § 34-18-14-3(a), to re-
quire the emotional damages sought in all three actions be recovered under a single statutory cap.
The court declared, "In their negligent infliction of emotional distress claims, [the parents] may
recover all emotional damages that were suffered as a result of the miscarriage; however, those
emotional damages must be recovered under the single statutory cap allotted to [the mother]."
863 N.E.2d at 9.

To determine whether the plaintiffs' claims were controlled by a single or multiple caps
under the MMA, the Winkle court examined the MMA damage cap provision that states, "The
total amount recoverable for an injury or death of a patient may not exceed the following . . . ."
Ind. Code § 34-18-14-3(a) (emphasis added). The word "patient" is defined in the MMA as fol-
lows:
"Patient" means 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 par-

15
 ents, guardian, trustee, child, relative, attorney, or any other representative of the patient
including claims for loss of services, loss of consortium, expenses, and other similar
claims.
Winkle, 863 N.E.2d at 6 (some emphasis added) (quoting Ind. Code § 34-18-2-22). While opin-
ing that the negligent infliction of emotional distress is an "independent tort," the court believed
that the parents' claims for negligent infliction of emotional distress, "suffered because of their
unborn child's death," when made under the MMA, nevertheless "constitute 'derivative claims' as
defined in Indiana Code section 34-18-2-22[, the MMA's definition of 'patient']." Id. at 6–8. Be-
lieving that as "derivative" claims, they had to derive from a separate cognizable claim of the ac-
tual victim of the malpractice (here, the unborn child), the Winkle court then imported into the
MMA the rationale of Bolin excluding from the Child Wrongful Death Act claims for the death
of a child not born alive. Id. at 8–9. The court concluded: "Because the Winkles' unborn child is
not a 'patient' pursuant to the [MMA] and because [they] therefore have no one from whom their
negligent infliction of emotional distress claims can derive, they are not entitled to separate statu-
tory caps for the emotional damages." Id. at 11. The hospital urges application of this rationale
in the present case. Because claims for negligent infliction of emotional distress need not be
viewed as "derivative claims," we disagree.

As discussed above in Part 1-B, Indiana law recognizes that parents may seek damages
for emotional distress in negligence actions either under the modified impact rule if plaintiff suf-
fered physical injury or under the bystander rule. Such claims, however, are not necessarily "de-
rivative" actions seeking damages associated with the personal injury or wrongful death of an-
other, such as direct pecuniary losses (e.g., medical costs, funeral expenses, and loss of income)
or non-pecuniary losses (e.g., loss of consortium, loss of love and affection, etc.). Rather, such
claims of emotional distress represent injuries directly inflicted on a plaintiff and are not deriva-
tive in the traditional sense. The definition of "patient" is much broader than the "and other simi-
lar claims" language included in the description of derivative claims relied on by the Winkle
court. The definition begins by providing that "patient" 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." Ind. Code § 34-18-2-22 (emphasis added). It is this language that assures the
expansive applicability of the MMA—including the damage cap provision—to a variety of ac-
tions alleging medical negligence. Claims for negligent infliction of emotional distress, if arising

16
from alleged medical malpractice, are subject to the MMA not because they are derivative but
because they are "otherwise" a result of alleged malpractice. We do not read Winkle to preclude
the plaintiffs' MMA actions for negligent infliction of emotional distress from the stillbirth of
their child. 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.8 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 ex-
tends to unborn children.

Accordingly, we reject the hospital's summary judgment request that the plaintiffs' be
precluded from asserting MMA claims for negligent infliction of emotional distress because their
unborn child should not be considered a "patient" under the MMA. To the contrary, the parents'
claims for emotional distress damages from experiencing the stillbirth of their child as a result of
alleged medical malpractice are separate valid actions. Acknowledging that the hospital provid-
ed medical care to both the unborn child and the mother, the plaintiffs do not dispute that their
action against the hospital is governed by the MMA. The plaintiffs' actions seeking damages for
emotional distress resulting from alleged medical negligence are not precluded under the MMA.

3. Conclusion

The judgment of the trial court granting summary judgment in favor of Barbara Bechtel,
Expectations Women's Health and Childbearing Center, and St. Vincent Randolph Hospital is
reversed. This cause is remanded for further proceedings.

Shepard, C.J., and Sullivan, Rucker, and David, JJ., concur.

8
We note, however, as did the Winkle court, that the MMA "applies the damages cap to all
claims, whoever may assert them, for a single 'injury or death of a patient.'" 863 N.E.2d at 10 (quoting
Goleski v. Fritz, 768 N.E.2d 889, 891 n.1 (Ind. 2002) (quoting Ind. Code § 34-18-14-3(a)). Therefore,
had the Winkle court permitted the plaintiffs in that case to recover separate emotional damages related to
the stillbirth of their child, the parents would nevertheless have only been entitled to one damage cap un-
der the MMA for all such emotional distress damages.
17