ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE ATTORNEYS FOR AMICUS CURIAE
David G. Field Robert W. Johnson Defense Trial Counsel of Ind., Inc.
Katherine G. Karres Tabor Law Firm Robert F. Parker
Schultz & Pogue, LLP Indianapolis, Indiana Patricia Roman-Lagunas
Indianapolis, Indiana Burke Costanza & Cuppy LLP
Merrillville, Indiana
David C. Jensen
Robert J. Feldt James D. Johnson
Eichhorn & Eichhorn, LLP Rudolph, Fine, Porter, Johnson, LLP
Hammond, Indiana Evansville, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Jun 29 2011, 2:21 pm
_________________________________
CLERK
of the supreme court,
court of appeals and
No. 49S05-1106-CV-387 tax court
HEMATOLOGY-ONCOLOGY OF INDIANA, P.C., Appellant (Defendant below),
v.
HADLEY W. FRUITS, AS PERSONAL
REPRESENTATIVE FOR THE ESTATE
OF ELIZABETH ANN CADOU, DECEASED, Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, No. 49D05-0611-CT-45470
The Honorable Robyn L. Moberly, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0910-CV-556
_________________________________
June 29, 2011
Dickson, Justice.
The defendant, Hematology-Oncology of Indiana, P.C. (the provider), appeals the trial
court judgment awarding attorney fees and litigation expenses in this action brought under the
Adult Wrongful Death Statute ("AWDS"), Ind. Code § 34-23-1-2, and the Medical Malpractice
Act ("MMA"), Ind. Code § 34-18-1-1 et seq. The Court of Appeals affirmed. Hematology-
Oncology of Ind., P.C. v. Fruits, 932 N.E.2d 698 (Ind. Ct. App. 2010). We grant transfer and
now affirm the trial court's ruling that attorney fees and expenses are recoverable under the
AWDS but remand to limit the provider's aggregate liability to the $250,000 cap prescribed by
the MMA.
In Indiana, the availability of an action seeking damages for wrongful death is governed
by statute. Indiana Code § 34-23-1-1 governs actions for wrongful death generally, § 34-23-1-2
applies specifically to actions for the wrongful death of an unmarried adult without dependents,
and § 34-23-2-1 governs the wrongful death or injury of a child. Recovery of attorney fees and
costs are expressly permitted under both the General Wrongful Death Statute ("GWDS") and the
Child Wrongful Death Statute ("CWDS"), but the AWDS states that the damages "may include
but are not limited to the following: (A) Reasonable medical, hospital, funeral, and burial ex-
penses necessitated by the wrongful act or omission that caused the adult person's death. (B)
Loss of the adult person's love and companionship." Ind. Code § 34-23-1-2(c)(3) (emphasis
added).
The provider's appeal challenges the trial court's award of attorney fees and litigation ex-
penses, arguing: (a) the GWDS does not apply in this case; (b) the AWDS should not be con-
strued to allow recovery of such fees and expenses; and (c) the fee award in this case runs afoul
of the MMA's limitations on damages and fees.
The plaintiff responds that (a) both the GWDS and the AWDS apply to the wrongful
death action of an unmarried adult without dependents; (b) they should be construed in pari ma-
teria, and thus attorney fees and expenses are recoverable; (c) in the alternative, such damages
fall within the "include but are not limited to" language of the AWDS; and (d) the MMA is not
violated by either the jury's award in this case nor by the amount of the plaintiff's attorney fees
awarded.
1. Recoverability of Attorney Fees and Litigation Expenses Under the AWDS
With today's opinion in McCabe v. Comm'r, Ind. Dep't of Ins., ___ N.E.2d ___ (Ind.
2011), we hold that "reasonable attorney fees incurred in the prosecution of an action under the
2
Adult Wrongful Death Statute are within the damages permitted by the statute." Id. at ___. Ap-
plying McCabe, we hold that the trial court's award of litigation expenses was authorized by the
statute.
2. Applicability of the MMA to the Attorney Fee Award
The provider also contends that the trial court judgment against it for $108,509.95 in at-
torney fees and litigation expenses, in addition to the $229,148 judgment on the jury verdict for
damages exclusive of attorney fees and expenses, was contrary to the $250,000 cap limiting
damages against individual providers under the MMA and that the provider portion of the fees
and expenses should be only $20,852, with the balance of $87,657.95 falling upon the Patient's
Compensation Fund. In addition, the provider further asserts that all of the attorney fee award
should be subject to the MMA's 15% limitation on attorney fees sought from the Fund. The pro-
vider thus asserts that, if attorney fees and expenses are recoverable under the AWDS, the aggre-
gate should be only $229,148 (the jury verdict), plus attorney fees of $34,372.20 (15% of the
jury verdict), plus costs of $19,648.95, which totals $283,169.15, of which the provider's liability
is limited to $250,000. And the provider further argues that, since none of this excess represents
a judgment for injury or death of a patient, there is no liability of the Fund for the excess above
$250,000.
The plaintiff does not dispute that the provider's aggregate liability is limited to $250,000.
But the plaintiff contends that the MMA's 15% attorney fee limitation applies only to contingent
attorney fee contracts and that, "[if the plaintiff and the plaintiff's attorney] have a contingency
contract, then [the plaintiff's] attorney fees from the $87,657.95 [due from the Fund] may not
exceed 15%." Appellee's Br. at 19.
Before the commencement of the jury trial in this case, the provider filed a motion for
partial summary judgment seeking a determination that the plaintiff was not entitled to attorney
fees and expenses under the AWDS. The trial court noted the parties' agreement that the recove-
rability and extent of attorney fees would be deferred for determination by the court in the event
of a plaintiff's verdict. The ensuing jury trial resulted in a verdict and judgment in the sum of
3
$229,148 for the plaintiff. Shortly thereafter, the plaintiff filed a pleading entitled "Satisfaction
of Jury Verdict Judgment" notifying the trial court that "the entire jury verdict award has been
satisfied" and noting the pending issues, including attorney fees and expenses, that remain for
resolution. Appellant's App'x at 208. The plaintiff's attorney also filed his verified petition for
attorney fees, costs, and expenses, which included his verified itemized time records showing
355.3 total hours at $250 per hour supporting a total attorney fee of $88,825, in addition to costs
of $19,684.95, altogether totaling $108,509.95, which the plaintiff requested the trial court to
award. Id. at 170–85. The provider presented evidence of the plaintiff's contingent attorney fee
contract and the "Settlement Recap" showing the plaintiff's agreement that the $229,148 jury
verdict judgment would be distributed as follows: $91,659.20 (40% of gross recovery) to attor-
ney fees, $19,684.95 to expenses, and $117,803.85 "paid to client." Id. at 41. This recap also
contained the plaintiff's agreement that, if the then-pending issue of recoverability of attorney
fees and expenses were resolved and payment is made, they would be "split 40% to attorney and
60% to estate." Id. After further proceedings, the trial court ultimately entered judgment for the
full $108,509.95 in fees and expenses against the provider and for the plaintiff. Although "not
certain what arrangement Plaintiff made with his counsel as compensation for prosecuting the
attorney fee portion of the claim," id. at 21, the trial court's judgment concluded:
Therefore, it is this court's opinion that the Plaintiff is entitled to recover the reasonable
value of counsel's work in the prosecution of the tort case and the administration of the
Estate, without regard to the contingent fee which counsel has received pursuant to his
contract with the Plaintiff. Clearly, the award of attorney fees should benefit the estate,
not just counsel, and the Court would anticipate that if not all, the majority of this award
will go to the Estate to make it whole for the costs it has incurred to date for the services
of its counsel. The Court finds that the Plaintiff is entitled to judgment against the De-
fendant for costs of $19,684.95 and attorney fees of $88,825.00, for a total judgment of
$108,509.95.
Id. at 22.
The Indiana Medical Malpractice Act provides that "A health care provider . . . is not lia-
ble for an amount in excess of two hundred fifty thousand dollars ($250,000) for an occurrence
of malpractice." Ind. Code § 34-18-14-3. Amounts in excess of this are payable from the Pa-
tient's Compensation Fund upon petition. Ind. Code §§ 34-18-14-3(c), 15-3. With respect to at-
torney fees, the MMA states in relevant part: "When a plaintiff is represented by an attorney in
4
the prosecution of the plaintiff's claim, the plaintiff's attorney's fees from any award made from
the patient's compensation fund may not exceed fifteen percent (15%) of any recovery from the
fund." Ind. Code § 34-18-18-1. This 15% limitation "does not [a]ffect at all the enforceability of
contracts made regarding fees to be paid from the first [$250,000] of recovery, as that amount is
not received from the compensation fund." Matter of Stephens, 867 N.E.2d 148, 151 (Ind. 2007)
(quoting Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 402, 404 N.E.2d 585, 602–03 (1980)).
The statutory language, however, does not restrict the imposition of the 15% attorney fee limita-
tion only to contingent attorney fees, but rather it applies to all of a "plaintiff's attorney's fees
from any award." Ind. Code § 34-18-18-1.1
Applying these principles, we find that the parties are correct in their agreement that the
total judgment against the provider cannot exceed $250,000, which includes both the jury's dam-
age verdict of $229,148 and $20,852 of the attorney fees and expenses. In addition, the portion
of the plaintiff's attorney fees to be paid by the provider is not subject to a reduction to the 15%
MMA limitation on fee awards from the Fund. Because this is not an appeal from any proceed-
ing involving the Fund, however, it is inappropriate for us to consider the provider's arguments
asserting that the Fund is not liable under the MMA for attorney fees or expenses. We also de-
cline to consider in this appeal the propriety of the plaintiff's attorney's appearing to seek a sub-
stantial further fee on the recovery of attorney fees from the provider or the Fund. But we share
the trial court's expectation that "if not all, the majority of this award will go to the Estate to
make it whole for the costs it has incurred to date for the services of its counsel." Appellant's
App'x at 22.
Transfer is granted and the judgment of the trial court is affirmed as to its finding that
attorney fees and expenses are recoverable under the Adult Wrongful Death Statute, but this
cause is remanded for limitation of the aggregate judgments against Hematology-Oncology of
1
In a separate provision, the MMA declares that a patient "has the right to elect to pay for the
attorney's services on a mutually satisfactory per diem basis," but this election "must be exercised in writ-
ten form at the time of employment." Ind. Code § 34-18-18-2. This provision does not undermine the
unambiguous application of the 15% limitation in Section 18-1 to the attorney fees from any award made
from the Fund.
5
Indiana, P.C. to a total of $250,000 for the jury's damage award plus a portion of the plaintiff's
attorney fees.
Sullivan and David, JJ., concur. Shepard, C.J., dissents with separate opinion in which Rucker,
J., concurs.
6
Shepard, Chief Justice, dissenting.
Believing that the Court has reached the wrong conclusion about attorney fees as a sepa-
rate element of damages under the Adult Wrongful Death Statute, I dissent for the reasons ex-
plained in my dissent in McCabe v. Comm’r, Ind. Dep’t of Ins.
Rucker, J., concurs.