Atterholt v. Robinson

Decision Date22 August 2007
Docket NumberNo. 49A02-0701-CV-43.,49A02-0701-CV-43.
Citation872 N.E.2d 633
PartiesJames ATTERHOLT, Commissioner of Insurance of Indiana, and the Patient Compensation Fund of Indiana, Appellants-Defendants, v. Marilyn Ruth ROBINSON, Personal Representative of the Estate of Irene H. Gray, Deceased, Appellee-Plaintiff.
CourtIndiana Appellate Court

Susan E. Cline, Julia Blackwell Gelinas, Maggie L. Smith, Lucy R. Dollens, Locke Reynolds LLP, Indianapolis, IN, Attorneys for Appellants.

George Clyde Gray, Daniel L. Robinson, Gray Robinson Ryan & Fox, Indianapolis, IN, Attorneys for Appellee.


BAKER, Chief Judge.

Appellants-defendants James Atterholt, the Commissioner of Insurance of Indiana, and the Patient Compensation Fund of Indiana (collectively, the Fund) appeal the trial court's $1,250,000 judgment in favor of appellee-plaintiff Marilyn Ruth Robinson, the personal representative of the Estate of Irene H. Gray (the Estate). Specifically, the Fund argues that the trial court erred by allowing the Estate to recover $1,250,000 of damages pursuant to the Indiana Survival Act (the Survival Act)1 because it should have, instead, awarded damages pursuant to the Indiana Adult Wrongful Death Statute (the AWDS).2 Alternatively, the Fund argues that even if the trial court did not err by awarding damages pursuant to the Survival Act, the award was excessive. Concluding that the trial court erred by not allowing the Fund to challenge the theory of compensation at the damages hearing but that such error was harmless and the resulting award was not excessive, we affirm the judgment of the trial court.


Irene Gray was born on March 17, 1921. She married and had three children, including Robinson. Irene's husband died in 1986. Irene continued to live in the family home, but her children began to notice a decline in her health in 1997. Irene began receiving home healthcare services in 2000.

On January 5, 2001, Irene moved into Keystone Woods Assisted Living (Keystone Woods). While Irene still had her own living quarters, Keystone Woods provided more safety and assistance than Irene had received from home healthcare services. However, the staff from Keystone Woods approached Irene's family on February 12, 2003, and ultimately suggested that Irene be moved to a more restrictive facility because the staff was concerned for her safety. The staff informed the family that, on various occasions, Irene had fallen in the shower, left her room without clothing, and approached a busy street.

Irene moved into North Woods Village (North Woods) in Kokomo in February 2003 and began receiving assistance with her daily activities. Although the initial care "start[ed] out quite well," appellee's br. p. 7, Robinson soon began to notice a decline — Irene's fingernails and toenails were not being groomed and, on one occasion, Robinson noticed that her mother had feces under her nails.

On February 1, 2004, the North Woods staff put Irene to bed for a nap but neglected to dress her in the adult brief she always wore. While napping, Irene urinated and some of the urine spilled onto the floor. When Irene stepped onto the floor, she slipped in the urine and hit her head on a nightstand. Irene laid on the floor for an undetermined amount of time until the North Woods staff discovered her. Later that afternoon, North Woods called Robinson to tell her that Irene had been taken to St. Joseph's Hospital in Kokomo. The hospital's doctors evaluated Irene and closed the wound on the back of her head with three staples. Irene was released to North Woods later that day.

The next day, Irene was in immense pain and North Woods sent her back to the hospital. The doctors concluded that Irene had broken her hip when she fell, and she had hip surgery on February 3. Irene was hospitalized until February 7, and she returned to North Woods upon her release.

Shortly after her return, Irene developed pressure ulcers, which worsened over the next few months. By February 18, Irene had irritated skin surrounding her coccyx, a Stage I wound on her left ankle, and a Stage II wound on her left heel. On March 1, a North Woods nurse observed a moderate amount of wound drainage, and Irene's left heel had turned black by March 28. By July 14, the lesions to Irene's coccyx and heel had been classified as Stage IV4 wounds and her coccyx wound showed exposed bone. Both wounds had drainage and sloughing skin and emitted a foul odor.

Howard Wound Care Center Dr. Pinnamaneni performed a full-thickness debridement5 of the wounds on July 20, 2004. Dr. Pinnamaneni described the wounds as "chronic" and "nonhealing" and noted that both wounds showed exposed muscle. Appellants' App. p. 81. Given the extent of the wounds, Dr. Pinnamaneni recommended follow-up surgical debridements. Between July 27 and September 16, Irene had nine debridement surgeries on her heel and eight debridement surgeries on her coccyx.

Robinson did not learn of the severity of Irene's coccyx wound until July 27, the day the Wound Care Center staff invited her to see the wound. Robinson called her sister, Judith Irene Gray, and both became "most upset at what [Robinson] had seen." Id. at 206. Robinson and Gray went to North Woods and, coincidentally, the State Department of Health (DOH) was inspecting the facility at the same time. The sisters talked with the DOH surveyors and decided to remove their mother from North Woods.

Irene was moved to Century Villa on July 29, 2004. Robinson soon noticed positive changes in her mother—Irene seemed more relaxed, began eating more, and her wounds began healing. However, Irene died on September 24, 2004. Her death certificate listed the cause of death as "acute renal failure and severe hypernatremia."6 Appellee's App. p. 84. The medical bills attributable to Irene's fractured hip and the resulting pressure ulcers totaled $95,878.22.

The Estate filed a proposed complaint against North Woods with the Indiana Department of Insurance on December 21, 2004. The complaint alleged breach of contract, negligence, and wrongful death, and sought damages pursuant to the AWDS or, alternatively, the Survival Act. The parties reached a settlement in May 2006 (the settlement agreement), which provided that North Woods would pay the Estate $250,000 and that the Estate would have "the right to pursue the collection of damages in excess [of $250,000] from [the Fund] pursuant to I.C. § 34-18-15-3 [of the Indiana Medical Malpractice Act]." Appellants' App. p. 39. The settlement agreement released North Woods from all of the Estate's claims but did not specify whether the damages were awarded pursuant to the AWDS or the Survival Act.

On May 10, 2006, the Estate filed a petition with the trial court to determine the amount of excess damages it could recover from the Fund. The Fund indicated that it would award the Estate the amount of excess statutory damages available pursuant to the AWDS, but the Estate claimed that it was entitled to damages pursuant to the Survival Act and demanded $1,000,000 from the Fund.

On October 2, 2006, the Fund filed a motion to define recoverable damages or, in the alternative, for a preliminary determination and clarification of the underlying settlement agreement. Because the settlement agreement did not specify the theory of recovery, the Fund's motion asked the trial court to clarify whether a wrongful death claim or an injury survival claim "prevailed in the payment of damages by the defendants in the underlying claim." Appellee's App. p. 5. The Estate responded on October 10, 2006, arguing that the underlying settlement agreement with North Woods controlled both claims and that the settlement did not contain a stipulation or admission of liability. The trial court denied the Fund's motion to clarify on November 21, 2006.

After the trial court denied the Fund's motion, the Fund disclosed that it intended to argue that North Woods's negligence had caused Irene's death and that additional damages should be awarded pursuant to the AWDS. In response, on November 30, the Estate filed a motion to exclude any evidence of causation, arguing that the Fund could not litigate the cause of death in order to defeat liability for the personal injury claim because the claim survived Irene's death pursuant to the Survival Act. On December 4, 2006, the trial court granted the Estate's motion to exclude any evidence contesting the causation of Irene's death, ordering that the Fund "is precluded from offering any evidence contesting liability or causation at the damages hearing." Id. at 55.

On December 5, 2006, the trial court held a bench trial regarding the Estate's damages. On December 27, 2006, the trial court entered findings of fact and conclusions of law and ordered judgment in favor of the Estate, finding that the Estate was entitled to $1,250,000 in total damages and that the Fund was responsible for $1,000,000. In relevant part, the trial court found that:


* * *

(29) The Court finds that the cause of death indicated on the death certificate and the Affidavit of Dr. Marler, the treating physician, that Irene Gray died from causes other than the underlying defendant's neglect, out-weights the opinion of Dr. Lammers on the cause of death, which the Fund relied on for its argument that the [Estate] is only entitled to pursue wrongful death damages.

(30) The evidence on cause of death from Dr. Marler and Dr. Lammers, considered as a whole, does not establish any basis to bar the Estate from its election to obtain excess damages from the Fund on the survival injury claim of Irene Gray. * * *


* * *

(3) This matter is governed by the terms of the Indiana Medical Malpractice Act, I.C. 34-17-1-1 et seq.

(4) [The Estate] settled [its] cause of action with The Health & Hospital Corporation of Marion County d/b/a North Woods Village.

(5) As a condition precedent to a party petitioning the Patient's Compensation Fund, a healthcare provider or...

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