A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPE L LEE

Edward J. Fujawa Jerry A. Garau Indiana Department of Insurance Deborah K. Pennington Indianapolis, Indiana Indianapolis, Indiana
Anne L. Cowgur Indianapolis, Indiana

A TTORNEY S FOR A MICUS C URIAE D EFENSE T RIAL C OUNSEL OF I NDIANA Peter H. Pogue Katherine G. Karres Indianapolis, Indiana

James D. Johnson Evansville, Indiana

A TTORNEYS FOR A MICUS C URIAE I NDIANA H OSPITAL A SSOCIATION Angela M. Smith Matthew L. Rea

___________

___________________________________________________________________



# In the 

# Indiana Supreme Court

_________________________________ No. 49S 02

- 0909

- CV

- 402

I NDIANA P ATIENT ‟ S C OMPENSATION F UND , Appellant (Respondent b e low) ,

v.

G ARY P ATRICK , I NDIVIDUALLY A ND AS P ERSONAL R EPRESENTATIVE OF THE E STATE OF C HRISTOPHER P ATRICK , D ECEASED , 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

_________________________________2 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 f a ther also brought a derivative claim under the Medical Malpra c tice Act for his own emotional distress. Because damages for emotional distress are not available under th e Adult Wrongful Death St atute , a parent cannot bring a derivative claim seeking such damages under the Medical Malpra ctice Act.

Background

In January, 2002, 31

- year

- old Christopher Patrick (“ Son ”) was injured in a car a c cident.
He suffered a broken wri st, broken nose, and abdominal trauma. He was admitted to the hospi t al
and disch arged the next day. Son ‟s father, Gary Patrick (“ Father ”), questioned the discharge o rder because Son continued to experience pain and exhibited substantial abdominal swellin g. But the hospital staff discharged Son because of the do c tor‟s orders.

Father took S on 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
calle d 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
techn i cians 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 d iagnose.

Son was single, had no dependent survivors, and was the only child of F ather. Father , i ndividually, and as personal representative of Son ‟s Estate, brought a medical malpra c tice 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 settl e-3

ment, Fath er , individually, and as personal representative of Son ‟s Estate, filed his pet i tion 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 dama ge s. The Fund argued that damages for negligent infliction of emotional distress are not recover able under Indiana Code section 34

- 23

- 1

- 2, the Adult Wrongful Death Statute (“AWDS”). A ssuming that the AWDS could be understood to include the requested damage s, the Fund mai ntained that Father had not satisfied the requirements of Indiana‟s bystander rule for recovering
emotional di s tress 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 add itional $600,000 for his emotional distress claim

.

The Fund appealed the award for Father ‟s emotional distress. The Court of Appeals a ffirmed 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 Ind iana, have filed briefs in support of the Fund‟s transfer pet i tion.

Discussion

Wrongful dea th actions can be pursued when the death is caused by the wrong ful act or
omission of another. Ind. Code § 34

- 23

- 1

- 1. The AWDS governs actions f or the wrongful death of unmarried adult persons with no dependents. Id. § 2. Damages under this section may i nclude, but are not limited to, r easonable medical, hospital, funeral, and burial expenses necess itated by the wrongful act or omission that cau sed the adult per son‟s death, and loss of the adult4

person‟s love and companionship. I.C. § 34

- 23

- 1

- 2(c)(3) (A)

- (B) . T he loss of the adult person‟s love and companio n ship is capp ed at $300,000. Id. § 2(e).

The Medical Malpractice Act (“ MMA ”) permits a „ “patient or the representative of a p atient‟ to bring a malpractice cl aim „ 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 resu lting 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 li able for an amount in excess of $250,000 for an o c currence of malpractice. I.C. § 3 4

- 18

- 14

- 3(b). Any amount due from a judgment or settlement which is in excess of the total liability of all li able healthcare pr o viders must be paid from the Fund. See Id

. § 3(c).

The Fund re adily acknowledges that the A W D S entitles Father to recover a ctual pec uniary damages and $300,000 in non

- pecuniary damages

. Though Father recognizes that he does
not have a claim for e motional distress under the AWDS , and he is correct to do so, he co n tends
that he was entitled to bring a claim for his own emotiona l distress under the MMA.

I

The Fund argues that claims under the MMA require bodily injury or death , and that F ather cannot recover for his emotional distress without bodily injury. To support its co n tention,
the Fund cites our recent decisions inter preting the term “bodily injury” in certain insurance pol icies. In State Farm Mutual Automobile Insurance Company v. D.L.B. ex rel. Brake , we held that “b odily 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. J a kupko , 881 N.E.2d 654 , 659 (Ind. 2008) (determining whether “bodily inj ury” as defined in an underinsured motor vehicle policy included emotional distress). In the context of the insu rance policies at issue in these cases , recover y for emotional distress as a “bo dily injury” under the policy requires a bodily touching

. The Fund contends that it follow s that a derivative cla imant must allege a bodily touching to have a valid claim for emotional distress under the MMA.5

However, our inte r

pretation of “bodily injury” in the insurance policy context does not determine
whether em otional distress damages are avail a ble under the MMA.

The MMA does not define “bodily injury,” but we have held that the requirement for b odily injury (or death) applies to the actual victim of the malpractice and not to derivative cla imants. See G olesk i , 768 N.E.2d at 891 n.1 (“derivative claimants are „patients‟ . . . but are not the p a tients upon whom „injury or death‟ is inflicted

. ”). Derivative claims include claims by a parent, guardian, trustee, child, relative, attorney, or any other representat ive of the patient and
includes claims for the loss of services, loss of consortium, expe nses, and other similar claims. I.C. § 34

- 18

- 2

- 22. For example, loss of services, loss of consortium, and expenses do not nece ssarily i n volve bodily injury. There i s no reason why we would infer that “o ther 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 requir ement for b o dily 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 Ai rlines v. Cook , 857 N.E.2d 989 (Ind. 2006), Groves v. Taylor , 729 N.E.2d 569 (Ind. 2000), Co nder 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 enu nciated 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 damage s for em otional distress here

.

In Chamberlain , the plaintiff‟s fath er died following surgery and the son sued for various

non

- pecuniary damages including loss of love, affection, and ext reme mental anguish. Id. at 961

- 62. The plaintiff conceded that he could no t recover non

- pecuniary damages for his father‟s
death under the AWDS. Id. at 961. The plaintiff asserted that he could do so, however, because6

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 n e cessary and reasonable value of such hospitalization or hospital service , medical and su rgical services, such funeral expenses, and such costs and expenses of administr ation, including atto r ney fees.

The plaintiff in Chamberlain reasoned that because “ the MMA i dentifies derivative claims as „ including claims for loss of serv ices, loss of consortium, expens es, and other similar claims‟ he should be able to pursue a claim for loss of his father‟s love, care, and affection u n der
that statute

. ” 822 N.E.2d at 961

- 62. In Community Hospital of Ander son and Madison County v. McKnig ht , 493 N.E.2d 775 (Ind. 1986) , and Golesk i v. Fritz , we held that the MMA only a llowed 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, respe c tively. Chamberlai n , 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 pr o viders :

The MMA‟s definition of a “patient” to include both the person who was injured and a person who has a deriv ative 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 applic able statutes be pursued through the procedures of t he MMA. The MMA‟s reco gnition of “derivative” claims is found only in the definition of “patient.” The e ffect of this provision is merely to require that any person who has a “derivative claim” for medical malpractice follow the requirements of the MMA i n filing a proposed co m plaint 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 d e fendants 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 langua ge 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 proc edural and did not create new causes of action.

Id

.7

The MMA, therefore, serves as a procedural mechanism for cl aims of medical malpra ctice. Indiana Code section 34

- 18

- 2

- 22 defines derivative claimants as patients. Goleski , 768
N.E.2d at 891 n.1. A deriv a tive claimant, however, can only pursue claims that are allowed at
common law or under applicable statutes; th e MMA does not create new causes of action that

ot h erwise do not exist. Chamberlain , 822 N.E.2d at 963. Thus, whether Father has a claim for
emotional di s tress depends not upon the MMA , but on the AW DS

.

T he plaintiff in Chamberlain argued that he cou ld assert a “derivative claim ” for dama ges. 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 deriv a tive claim that
Father has depends upon the AW DS

.

Because claims for emotional distress are n ot allowed under the AWDS, Father may not bring this type of derivative claim under the MMA.

III

For t he sake of clarity, we make a final observation that we believe is at least implicit in parts I and II supra : w ere the claim underlying the MMA action one for which damages for em otional distress are available, the M MA does not preclude derivative claims o f emotional di s tress 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 su bject to the MMA‟s procedural and substantive require m ents. Id

. S everal cases have made expl icit reference to the availability of damages for emotional distress in MMA cases. See, e.g. , Ba der 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

.8 Conclusion

The judgment of the trial court is reversed.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., con cur.