Goldman v. Cha
| Decision Date | 15 January 1999 |
| Docket Number | No. 45A05-9709-CV-403,45A05-9709-CV-403 |
| Citation | 704 N.E.2d 157 |
| Parties | Helen GOLDMAN, Individually and in her capacity as Administrator of the Estate of Laverne Gillespie, Deceased, Appellant-Petitioner, v. Dr. Jin S. CHA d/b/a Jin S. Cha, Inc., Appellee-Respondent. |
| Court | Indiana Appellate Court |
Helen Goldman, as Administratrix of the Estate of LaVerne Gillespie, appeals from an adverse judgment in her wrongful death action against Jin S. Cha, M.D., based upon the alleged medical malpractice of Dr. Cha which caused the death of Gillespie. We affirm.
The Administratrix raises but one issue on appeal and that is whether the trial court erred in allowing Dr. Cha to testify in violation of the Dead Man's Statute as to conversations he had with the decedent regarding the issue of informed consent.
On September 6, 1987, LaVerne Gillespie, died at the Northwestern University Hospital in Chicago. Goldman contends in this action that Gillespie's death was caused by Dr. Cha's negligent performance of surgical procedures on Gillespie at the Munster Community Hospital in August of 1987, and that Dr. Cha failed to get Gillespie's informed consent to the surgery. After having filed a proposed complaint with the Commissioner of Insurance as required by the Medical Malpractice Statute, Ind.Code § 34-18-1-1, et seq., and receiving the report of the medical review panel indicating Dr. Cha deviated from the standard of care, "but that deviation was not a factor of any resultant damages" (R. 1001), this action for wrongful death was filed by Goldman as personal representative of the Estate of Gillespie. At trial, Dr. Cha was permitted to testify as to his conversations with Gillespie concerning her giving informed consent. 1 The jury returned a verdict in favor of Dr. Cha.
We are confronted with the sole issue of whether or not the defendant-physician in a wrongful death action based upon his alleged malpractice was incompetent under the Dead Man's Statute to testify as a witness in his own behalf. There is a body of case law holding that interested parties are not rendered incompetent to testify in wrongful death actions. 51 AM. JUR.2d, Witnesses, § 577; H.H. Henry, Annotation, Competency of Witness in Wrongful Death Action as Affected by Dead Man Statute, 77 A.L.R.2d 676, 681 (1961). These decisions are predicated upon the theory that any recovery is not for the benefit of the estate, or that the personal representative in bringing the action is merely a nominal party. 77 A.L.R.2d at 681. Therefore, in resolving this issue, we look to the Indiana Wrongful Death Statute, the Dead Man's Statute, and the purposes of those statutes, as well as to prior Indiana decisions on the subject.
The Wrongful Death Statute, Ind.Code § 34-1-1-2, (now Ind.Code § 34-23-1-1), provides that the personal representative of one whose death is caused by the wrongful act of another may bring an action against that person, and that damages over and above reasonable medical, hospital, funeral and burial expenses, "shall inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children" or dependent next of kin. Wrongful death proceeds do not become part of the decedent's estate and are not subject to claims of creditors of the decedent. Matter of Estate of Bruck, 632 N.E.2d 745, 748 (Ind.Ct.App.1994); Thomas v. Eads, 400 N.E.2d 778, 783, (Ind.Ct.App.1980). In bringing the wrongful death action, the personal representative is not acting as such, but acts only as a trustee for the statutory beneficiaries. Flock v. Snider, 700 N.E.2d 466, 468 (Ind.Ct.App.1998).
At the time of the trial, the Dead Man's Statute, Ind.Code § 34-1-14-6 2, in relevant part provided:
[i]n suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue of record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against the estate.
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Estate of Thornton v. Sea Quest, Inc., 2:97-CV-232-RL-1.
...the wrongful death action, the personal representative acts only as a trustee for the statutory beneficiaries. Goldman v. Cha, 704 N.E.2d 157, 158 (Ind. Ct.App.1999); Flock v. Snider, 700 N.E.2d 466, 468 (Ind.Ct.App.1998). The surviving next of kin are not and have no right to become, parti......
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Phelps v. Book (In re Phelps)
...it has long been held that the proceeds from a wrongful death action are not part of the decedent's estate . See Goldman v. Cha , 704 N.E.2d 157, 158 (Ind. Ct. App. 1999) ("Wrongful death proceeds do not become part of the decedent's estate and are not subject to claims of creditors of the ......
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In re Estate of Inlow
...to require parties entering into a wrongful death settlement to itemize the settlement award. Instead, we agree with Goldman v. Cha, 704 N.E.2d 157, 158 (Ind.Ct.App.1999) (quoting I.C. § 34-23-1-1), trans. denied, that Indiana Code § 34-23-1-1 simply requires that "damages over and above re......