ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Edward J. Fujawa Jerry A. Garau
Indiana Department of Insurance Deborah K. Pennington
Indianapolis, Indiana Indianapolis, Indiana
Anne L. Cowgur
Indianapolis, Indiana
FILED
ATTORNEYS FOR AMICUS CURIAE
DEFENSE TRIAL COUNSEL OF INDIANA
Peter H. Pogue
Katherine G. Karres Jun 23 2010, 9:29 am
Indianapolis, Indiana
James D. Johnson CLERK
of the supreme court,
court of appeals and
Evansville, Indiana tax court
ATTORNEYS FOR AMICUS CURIAE
INDIANA HOSPITAL ASSOCIATION
Angela M. Smith
Matthew L. Rea
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 49S02-0909-CV-402
INDIANA PATIENT‟S COMPENSATION FUND,
Appellant (Respondent below),
v.
GARY PATRICK, INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE
OF CHRISTOPHER PATRICK, DECEASED,
Appellee (Petitioner below).
_________________________________
Appeal from the Marion Circuit Court, No. 49C01-0801-CT-3290
The Honorable Theodore M. Sosin, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0807-CV-614
_________________________________
June 23, 2010
Sullivan, Justice.
A father brought a claim under the Adult Wrongful Death Statute for his son‟s death
caused by the negligence of medical providers following an automobile accident. The father also
brought a derivative claim under the Medical Malpractice Act for his own emotional distress.
Because damages for emotional distress are not available under the Adult Wrongful Death Sta-
tute, a parent cannot bring a derivative claim seeking such damages under the Medical Malprac-
tice Act.
Background
In January, 2002, 31-year-old Christopher Patrick (“Son”) was injured in a car accident.
He suffered a broken wrist, broken nose, and abdominal trauma. He was admitted to the hospital
and discharged the next day. Son‟s father, Gary Patrick (“Father”), questioned the discharge or-
der because Son continued to experience pain and exhibited substantial abdominal swelling. But
the hospital staff discharged Son because of the doctor‟s orders.
Father took Son home where they lived together and tended to him. That evening, Son
started vomiting blood. When Father observed Son vomiting more blood later that night, he
called 911. By the time the ambulance arrived, Son had blood coming out of his nose and
mouth. Son‟s eyes rolled back in his head as he fell back on the bed. The emergency medical
technicians attempted to resuscitate him, but Son never regained consciousness. The cause of
death was a ruptured colon from seatbelt trauma, which the medical care providers failed to di-
agnose.
Son was single, had no dependent survivors, and was the only child of Father. Father, in-
dividually, and as personal representative of Son‟s Estate, brought a medical malpractice action
against both the hospital and the treating physician. Father also asserted a claim for his own
emotional distress. Father settled his claims against the health care providers. After the settle-
2
ment, Father, individually, and as personal representative of Son‟s Estate, filed his petition for
payment of excess damages with the Indiana Patient‟s Compensation Fund (“Fund”).
The Fund moved for summary judgment on Father‟s claim for emotional distress damag-
es. The Fund argued that damages for negligent infliction of emotional distress are not recovera-
ble under Indiana Code section 34-23-1-2, the Adult Wrongful Death Statute (“AWDS”). As-
suming that the AWDS could be understood to include the requested damages, the Fund main-
tained that Father had not satisfied the requirements of Indiana‟s bystander rule for recovering
emotional distress damages.
After a combined hearing on the motion for summary judgment and the issue of damages,
the trial court issued its findings of fact, conclusions of law, and judgment. The trial court found
that the AWDS applied to Father‟s claim as personal representative of Son‟s Estate and assessed
his damages at $300,000 for the loss of Son‟s love and companionship (increased by $16,531.66
for medical, hospital, funeral, and burial expenses). The trial court also awarded Father an addi-
tional $600,000 for his emotional distress claim.
The Fund appealed the award for Father‟s emotional distress. The Court of Appeals af-
firmed the trial court‟s judgment. Ind. Patient‟s Comp. Fund v. Patrick, 906 N.E.2d 194, 201
(Ind. Ct. App. 2009). The Fund sought, and we granted, transfer. 919 N.E.2d 552 (Ind. 2009)
(table). Amici Curiae, the Indiana Hospital Association and the Defense Trial Counsel of Indi-
ana, have filed briefs in support of the Fund‟s transfer petition.
Discussion
Wrongful death actions can be pursued when the death is caused by the wrongful act or
omission of another. Ind. Code § 34-23-1-1. The AWDS governs actions for the wrongful death
of unmarried adult persons with no dependents. Id. § 2. Damages under this section may in-
clude, but are not limited to, reasonable medical, hospital, funeral, and burial expenses necessi-
tated by the wrongful act or omission that caused the adult person‟s death, and loss of the adult
3
person‟s love and companionship. I.C. § 34-23-1-2(c)(3)(A)-(B). The loss of the adult person‟s
love and companionship is capped at $300,000. Id. § 2(e).
The Medical Malpractice Act (“MMA”) permits a „“patient or the representative of a pa-
tient‟ to bring a malpractice claim „for bodily injury or death.”‟ Goleski v. Fritz, 768 N.E.2d
889, 891 (Ind. 2002) (quoting I.C. § 34-18-8-1). The total amount recoverable for an injury or
death of a patient resulting from an act of malpractice occurring after June 30, 1999, is limited to
$1,250,000. I.C. § 34-18-14-3(a)(3). A healthcare provider qualified under the MMA is not lia-
ble for an amount in excess of $250,000 for an occurrence of malpractice. I.C. § 34-18-14-3(b).
Any amount due from a judgment or settlement which is in excess of the total liability of all lia-
ble healthcare providers must be paid from the Fund. See Id. § 3(c).
The Fund readily acknowledges that the AWDS entitles Father to recover actual pecu-
niary damages and $300,000 in non-pecuniary damages. Though Father recognizes that he does
not have a claim for emotional distress under the AWDS, 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.
I
The Fund argues that claims under the MMA require bodily injury or death, and that Fa-
ther cannot recover for his emotional distress without bodily injury. To support its contention,
the Fund cites our recent decisions interpreting the term “bodily injury” in certain insurance poli-
cies. In State Farm Mutual Automobile Insurance Company v. D.L.B. ex rel. Brake, we held that
“bodily injury” did not include emotional distress unless it arises from a bodily touching. 881
N.E.2d 665, 666 (Ind. 2008) (citing Wayne Twp. Bd. of Sch. Comm‟rs v. Ind. Ins. Co., 650
N.E.2d 1205, 1210 (Ind. Ct. App. 1995), trans. denied); see also State Farm Mut. Auto. Ins. Co.
v. Jakupko, 881 N.E.2d 654, 659 (Ind. 2008) (determining whether “bodily injury” as defined in
an underinsured motor vehicle policy included emotional distress). In the context of the insur-
ance policies at issue in these cases, recovery for emotional distress as a “bodily injury” under
the policy requires a bodily touching. The Fund contends that it follows that a derivative clai-
mant must allege a bodily touching to have a valid claim for emotional distress under the MMA.
4
However, our interpretation of “bodily injury” in the insurance policy context does not determine
whether emotional distress damages are available under the MMA.
The MMA does not define “bodily injury,” but we have held that the requirement for bo-
dily injury (or death) applies to the actual victim of the malpractice and not to derivative clai-
mants. See Goleski, 768 N.E.2d at 891 n.1 (“derivative claimants are „patients‟ . . . but are not
the patients upon whom „injury or death‟ is inflicted.”). Derivative claims include claims by a
parent, guardian, trustee, child, relative, attorney, or any other representative of the patient and
includes claims for the loss of services, loss of consortium, expenses, and other similar claims.
I.C. § 34-18-2-22. For example, loss of services, loss of consortium, and expenses do not neces-
sarily involve bodily injury. There is no reason why we would infer that “other similar claims”
has such a requirement. Only the “injury or death” of the actual victim of the malpractice is
within the meaning of “injury or death of a patient.” Id. The MMA does not contain a require-
ment for bodily injury for derivative claimants.
II
Where damages for emotional distress may be sought, the availability of those damages is
to be assessed under the principles enunciated by this court most recently in Smith v. Toney, 862
N.E.2d 656, 658 (Ind. 2007), and incorporating our earlier decisions, notably Atlantic Coast Air-
lines v. Cook, 857 N.E.2d 989 (Ind. 2006), Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000), Con-
der v. Wood, 716 N.E.2d 432 (Ind. 1999), and Shuamber v. Henderson, 579 N.E.2d 452 (Ind.
1991). Regardless of whether Father‟s emotional distress meets the standards for recovery enun-
ciated in Smith and its predecessors, our decision in Chamberlain v. Walpole, 822 N.E.2d 959
(Ind. 2005), dictates that he is not entitled to seek damages for emotional distress here.
In Chamberlain, the plaintiff‟s father died following surgery and the son sued for various
non-pecuniary damages including loss of love, affection, and extreme mental anguish. Id. at
961-62. The plaintiff conceded that he could not recover non-pecuniary damages for his father‟s
death under the AWDS. Id. at 961. The plaintiff asserted that he could do so, however, because
5
the MMA creates a claim independent of the AWDS. Id. Indiana Code section 34-23-1-1, the
AWDS, provides that when the decedent leaves no
widow, widower, or dependent children, or dependent next of kin, surviving him
or her, the measure of damages to be recovered shall be the total of the necessary
and reasonable value of such hospitalization or hospital service, medical and sur-
gical services, such funeral expenses, and such costs and expenses of administra-
tion, including attorney fees.
The plaintiff in Chamberlain reasoned that because “the MMA identifies derivative
claims as „including claims for loss of services, loss of consortium, expenses, and other similar
claims‟ he should be able to pursue a claim for loss of his father‟s love, care, and affection under
that statute.” 822 N.E.2d at 961-62. In Community Hospital of Anderson and Madison County
v. McKnight, 493 N.E.2d 775 (Ind. 1986), and Goleski v. Fritz, we held that the MMA only al-
lowed a claimant to use the procedures provided in the MMA to pursue a claim directly that
would be pursued under the AWDS and the Survival Statute, respectively. Chamberlain, 882
N.E.2d at 963. We held that the MMA is procedural and did not enlarge the scope of damages
that can be sought against healthcare providers:
The MMA‟s definition of a “patient” to include both the person who was
injured and a person who has a derivative claim because of that person‟s injury
does not imply that the MMA creates a new claim. It merely requires that claims
for medical malpractice that are otherwise recognized under tort law and applica-
ble statutes be pursued through the procedures of the MMA. The MMA‟s recog-
nition of “derivative” claims is found only in the definition of “patient.” The ef-
fect of this provision is merely to require that any person who has a “derivative
claim” for medical malpractice follow the requirements of the MMA in filing a
proposed complaint with the Insurance Commissioner, etc. The MMA‟s listing of
what qualifies as a “derivative claim” is to ensure that the MMA applies to all
available claims for medical malpractice. But the MMA does not create new
substantive rights or create new causes of action. As the defendants point out, the
MMA was designed to curtail liability for medical malpractice, not to expand it.
Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 379-80, 404 N.E.2d 585, 589-90
(1980). The language of the definition of patient, as it fits in the statute and as
applied in McKnight and Goleski leads to the conclusion that the MMA is proce-
dural and did not create new causes of action.
Id.
6
The MMA, therefore, serves as a procedural mechanism for claims of medical malprac-
tice. Indiana Code section 34-18-2-22 defines derivative claimants as patients. Goleski, 768
N.E.2d at 891 n.1. A derivative claimant, however, can only pursue claims that are allowed at
common law or under applicable statutes; the MMA does not create new causes of action that
otherwise do not exist. Chamberlain, 822 N.E.2d at 963. Thus, whether Father has a claim for
emotional distress depends not upon the MMA, but on the AWDS.
The plaintiff in Chamberlain argued that he could assert a “derivative claim” for damag-
es. Father asserts that he has an independent claim for damages for the negligent infliction of
emotional distress. It was Son who was the victim of the medical malpractice; therefore, any
claim in Father‟s own right is a derivative claim. As discussed above, any derivative claim that
Father has depends upon the AWDS.
Because claims for emotional distress are not allowed under the AWDS, Father may not
bring this type of derivative claim under the MMA.
III
For the sake of clarity, we make a final observation that we believe is at least implicit in
parts I and II supra: were the claim underlying the MMA action one for which damages for emo-
tional distress 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 sub-
ject to the MMA‟s procedural and substantive requirements. Id. Several cases have made expli-
cit reference to the availability of damages for emotional distress in MMA cases. See, e.g., Bad-
er v. Johnson, 732 N.E.2d 1212 (Ind. 2000); Baumgart ex rel. Baumgart v. DeFries, 888 N.E.2d
199 (Ind. Ct. App. 2008), trans. denied; Ryan v. Brown, 827 N.E.2d 112 (Ind. Ct. App. 2005);
Breece v. Lugo, 800 N.E.2d 224 (Ind. Ct. App. 2003), trans. denied.
7
Conclusion
The judgment of the trial court is reversed.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
8