Eakin v. Kumiega
| Decision Date | 28 February 1991 |
| Docket Number | No. 49A02-8910-CV-530,49A02-8910-CV-530 |
| Citation | 567 N.E.2d 150 |
| Parties | Harry EAKIN, Commissioner, State of Indiana, Department of Insurance, and Patient's Compensation Fund of the State of Indiana, Defendants-Appellants, v. James KUMIEGA and Vicki Kumiega, Individually and Natural Guardians and Parents of Kara Susan Kumiega, Deceased, and Maryanne Kumiega, b/n/f James and Vicki Kumiega, Plaintiffs-Appellees, and Arthur Branco, M.D., and Rockwood Insurance Co., (Non-Appealing Defendants Below). 1 |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Kirk A. Knoll, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for defendants-appellants.
Nathaniel Ruff, Lesniak & Ruff, East Chicago, Barry D. Rooth, Theodoros, Theodoros & Rooth, Merrillville, for plaintiffs-appellees.
We are again faced with an appeal by the Commissioner of Insurance of the State of Indiana (the Commissioner), in which he challenges a trial court ruling that allowed medical malpractice claimants access to excess damages from the Patient's Compensation Fund (the Fund). Similar to our decision today in Eakin v. Reed, (1991) Ind.App., 567 N.E.2d 148, we determine that the trial court erroneously allowed the claimants here, James and Vicki Kumiega (the Kumiegas), access to the Fund for excess damages. The dispositive issue in the present appeal is whether the Fund could properly pay damages to the Kumiegas for the emotional distress they experienced when they witnessed the death of their daughter, Kara. 2 Because Indiana's impact rule bars the recovery of such damages, we hold that the trial court erred in allowing the Kumiegas access to the Fund, and thus reverse its judgment.
The facts underlying this appeal are truly tragic. Ten-year-old Kara Kumiega suffered from rheumatoid arthritis. She was under the care of an oral surgeon who recommended that she undergo a mandibular augmentation with a compound rib graft to correct a deformity in her jaw caused by the arthritis. The oral surgeon contacted a general surgeon to perform the rib graft during the surgical procedure. During the surgery, a tracheostomy was performed on Kara to maintain the integrity of the post-operative airway.
Following surgery, Kara was hospitalized. During one of the Kumiegas' and Kara's eight-year-old sister, Maryanne's visits, one of Kara's arteries ruptured. Projectile bleeding occurred from Kara's The Kumiegas filed a proposed malpractice complaint against the two surgeons. The Kumiegas subsequently entered into a settlement agreement with both surgeons, and petitioned for excess damages from the Fund. The parties stipulated that emotional distress was the basis of the Kumiega's claim for excess damages from the Fund. 3 The trial court held a hearing on the issue of damages and found in favor of the Kumiegas in the amount of $385,000.
tracheostomy tube, her nose, and her mouth. When the rupture occurred, Mrs. Kumiega, who was sitting on the bed with Kara, was splattered with her child's blood. Kara died less than an hour later.
Before we address the merits of this appeal, we would like to point out that we are mindful of the Kumiegas' insurmountable loss. While we are cognizant of the overwhelming tragedy the Kumiegas are enduring, we are bound to decide this case within the confines of the law of this State. Our opinion is meant to discuss and analyze the applicable law, and is not in any way meant to minimize the truly devastating loss the Kumiegas have experienced.
Indiana follows the general rule that damages for emotional distress are recoverable only when accompanied by and resulting from a physical injury. Cullison v. Medley (1990), Ind.App., 559 N.E.2d 619; Wishard Memorial Hosp. v. Logwood (1987), Ind.App., 512 N.E.2d 1126, trans. denied (and cases cited therein); Little v. Williamson (1982), Ind.App., 441 N.E.2d 974, trans. denied (and cases cited therein); Charlie Stuart Oldsmobile, Inc. v. Smith (1976), 171 Ind.App. 315, 357 N.E.2d 247, modified on other grounds (1977), 175 Ind.App. 1, 369 N.E.2d 947, trans. denied (and cases cited therein). The underlying rationale of this rule, known as the impact rule, "is that absent physical injury, mental anguish is speculative, subject to exaggeration, likely to lead to fictitious claims, and often so unforeseeable that there is no rational basis for awarding damages." Cullison, supra at 621. An exception to the rule exists for certain tort cases involving the intentional infliction of emotional distress, Cullison, supra; Little, supra, but Indiana has not yet recognized an exception to the impact rule for the negligent infliction of emotional distress. Little, supra; see also Pieters v. B-Right Trucking, Inc. (N.D.Ind.1987), 669 F.Supp. 1463, 1467. Evidence of our continuing commitment to the impact rule is demonstrated by this court's recent decision upholding the denial of emotional distress damages in Shuamber v. Henderson (1990), Ind.App., 563 N.E.2d 1314.
In the present case, the Commissioner argues that the impact rule bars the Kumiegas' recovery of emotional distress damages. He points out that while the event witnessed by the Kumiegas was horrifying, they did not suffer any physical injury. The Kumiegas respond that the impact rule was satisfied when Kara's ruptured artery projected blood onto Mrs. Kumiega. 4 Because the impact rule has created a clear line which this court cannot cross, we are constrained to agree with the Commissioner.
The precise issue we must decide is whether the impact rule requires actual physical injury or whether mere physical contact will suffice. As Judge Shields observed Our conclusion that actual physical injury must occur, rather than mere physical contact, is supported by the rationale of the rule. The injury must be something tangible because it "provides the added assurance that mental disturbance actually occurred[.] ..." Charlie Stuart Oldsmobile, 171 Ind.App. at 326, 357 N.E.2d at 253. The Kumiegas assert, quite understandably, that this policy does not apply to them because it is undeniable that they experienced emotional distress. While the Kumiegas' point is well taken, we are not in a position to exempt them from the harshness of the rule. 5 "[T]his...
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