Indiana Patient's Comp. Fund v. Winkle

• Decision Date: 16 March 2007
• Docket Number: No. 49A05-0511-CV-653.,49A05-0511-CV-653.
• Citation: 863 N.E.2d 1
• Parties: INDIANA PATIENT'S COMPENSATION FUND, Appellant-Defendant, v. Lori WINKLE and Darrin Winkle, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

863 N.E.2d 1

INDIANA PATIENT'S COMPENSATION FUND, Appellant-Defendant, v. Lori WINKLE and Darrin Winkle, Appellees-Plaintiffs.

No. 49A05-0511-CV-653.

Court of Appeals of Indiana.

March 16, 2007.

Susan E. Cline, Julia Blackwell Gelinas, Lucy R. Dollens, Locke Reynolds LLP, Indianapolis, IN, Attorneys for Appellant.

Mark A. Scott, King & Scott, LLP, Kokomo, IN, Attorneys for Amicus Curiae, The Indiana Trial Lawyers Association.

Deborah K. Pennington, Jerry A. Garau, Findling Garau Germano & Pennington, P.C., Indianapolis, IN, Attorneys for Appellee.

Thomas J. Costakis, Greg A. Small, Krieg DeVault LLP, Indianapolis, IN, Attorneys for Amicus Curiae, The Indiana State Medical Association.

OPINION

ROBB, Judge.

Case Summary and Issue

Due to malpractice committed by doctors during her pregnancy, Lori Winkle suffered from malnutrition resulting in a neurological injury. She also lost the child she and her husband, Darrin Winkle, were expecting. Lori and Darrin initiated malpractice proceedings and ultimately settled with certain health care providers for the then-statutory limitation of $100,000. Lori and Darrin subsequently filed an action against the Indiana Patient's Compensation Fund (the "Fund") seeking payment of excess damages. The trial court determined that Lori and Darrin were entitled to three separate maximum statutory excess damage awards — one to Lori for her neurological injury, one to Lori for her emotional distress due to the loss of the child, and one to Darrin for his emotional distress over the loss of the child. The Fund now appeals the trial court's determination that three separate awards were appropriate.

Concluding that Lori and Darrin are not entitled to separate excess damage awards arising from the death of their unborn child, we affirm the trial court's award of one statutory excess damage award to Lori, and reverse the remainder of the trial court's order.

Facts and Procedural History¹

Lori and Darrin were married in 1994. In 1998, Lori became pregnant with the couple's first child. Very early in her pregnancy, Lori developed hyperemesis gravidarum, a severe form of pregnancy-related nausea and vomiting.² Lori received intravenous hydration and had gall bladder surgery, but she was never given vitamin supplements. Lori's malnutrition and vitamin deficiency caused her to suffer, inter alia, from Wernicke's encephalopathy, a degenerative brain disorder caused by lack of thiamine, and to lose her and Darrin's child at seventeen weeks. Lori continues to suffer from the effects of the Wernicke's encephalopathy and has incurred over $330,000 in medical, hospital, and related expenses.

A medical malpractice action filed by Lori and Darrin was resolved by a Final Release and Settlement Agreement with certain health care providers and their insurers³ for the statutory damage limitation of $100,000.⁴ On April 20, 2005, Lori and Darrin filed the instant action against the Fund, petitioning for payment of excess damages. In an amended petition, Lori and Darrin alleged that they suffered three separate injuries from the single occurrence of malpractice:⁵ 1) Lori's malnutrition and vitamin deficiency damages; 2) Lori's emotional distress due to the loss of the child; and 3) Darrin's emotional distress due to the loss of the child. At the conclusion of the damages hearing, the trial court indicated that it would order three separate maximum statutory excess damage awards (or "caps") to Lori and Darrin, less the $100,000 already paid by the healthcare providers pursuant to the settlement.⁶ Upon being reminded that the Fund had filed a request for findings of fact, the trial court solicited proposed findings from the parties, and thereafter entered findings of fact and conclusions thereon. The trial court assessed the maximum statutory excess damage award for each of the three injuries alleged by the Winkles and ordered that the Fund pay the Winkles $2,150,000, with interest at the rate of eight percent per annum. The Fund now appeals.

Discussion and Decision⁷

I. Standard of Review

Under Trial Rule 52, we "shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Ind. Trial Rule 52(A). Findings of fact are clearly erroneous when the record lacks any reasonable inference from the evidence to support them, and the trial court's judgment is clearly erroneous if it is unsupported by the findings and the conclusions that rely upon those findings. Purcell v. Southern Hills Investments, LLC, 847 N.E.2d 991, 996 (Ind.Ct.App. 2006). In determining whether the findings or judgment are clearly erroneous, we will not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. Hill v. Davis, 832 N.E.2d 544, 548 (Ind.Ct.App.2005).

We are dealing here with the interpretation of the medical malpractice statute. The interpretation of a statute is a question of law. City of Jasper v. Collignon, 789 N.E.2d 80, 95 (Ind.Ct.App.2003), trans. denied. Although we defer substantially to findings of fact, we do not so defer to conclusions of law. Purcell, 847 N.E.2d at 996. We review questions of law under a de novo standard and owe no deference to a trial court's legal conclusions. State Auto Ins. Cos. v. Shannon, 769 N.E.2d 228, 231 (Ind.Ct.App.2002), trans. denied.

II. Are the Winkles Entitled to Three Caps?

The trial court concluded that Darrin was a "patient" for purposes of the Act because "[h]e is a person having a claim of any kind — in this case, a claim for negligent infliction of emotional distress — as a result of alleged malpractice on the part of a health care provider."⁸ Appellant's Appendix at 10. The trial court also stated that "[t]here is no dispute that [Lori's] malnutrition injury is compensable under the Act," and concluded that her "emotional distress injury resulting from the loss of her unborn child is an injury distinct from the Wernicke's encephalopathy." Id. at 10-11. The trial court further concluded that "Darrin's emotional distress claim is also a distinct injury caused by the health care providers' malpractice. Darrin has an independent emotional distress claim because he had direct involvement in the events which caused his emotional distress injury." Id. at 11.

No one disputes that Lori is entitled to a cap for the injuries she sustained as a result of the malpractice. Moreover, the Fund concedes that the Winkles may seek emotional distress damages. See Brief of Appellant at 18 (Darrin and Lori "may certainly seek emotional damages because they satisfy the direct impact test and the bystander rule."); see also Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind.1991) (holding that when a plaintiff sustains a direct impact by the negligence of another and sustains emotional trauma as a result thereof, the plaintiff is entitled to maintain an action to recover for that emotional trauma regardless of physical injury); Groves v. Taylor, 729 N.E.2d 569, 573 (Ind.2000) (holding that when there is no direct impact, a bystander who actually witnessed or came on the scene soon after the death or severe injury of one with a close relationship to the plaintiff caused by negligent conduct may maintain an action for emotional trauma); Ryan v. Brown, 827 N.E.2d 112, 121, 124-25 (Ind.Ct.App. 2005) (holding that both parents who suffer the loss of an unborn child due to medical malpractice have a claim for negligent infliction of emotional distress). The Fund asserts, however, that "the emotional damages must be recovered under the same statutory damages cap allotted for Lori's injury as a patient because those emotional damages stem from Lori's injury." Brief of Appellant at 13-14.

We do not agree that the emotional damages Darrin and Lori assert stem from Lori's injury. Certainly, there was some emotional distress attendant to Lori's injury, and the cap allotted to her includes compensation for those emotional damages. However, Lori's doctors were treating both her and her unborn child, and both she and her unborn child were injured by their malpractice. It is the emotional distress Lori and Darrin suffered because of the injury to their unborn child for which they are seeking to recover additional caps. In this respect, we agree with the Winkles that the malpractice inflicted two distinct injuries — one to Lori and one to the unborn child.

Recovery of excess damages for "an injury or death of a patient" resulting from "an act of malpractice" occurring after January 1, 1990 is limited to a certain amount:

The total amount recoverable for an injury or death of a patient may not exceed five hundred thousand dollars ($500,000) except that, as to an act of malpractice that occurs on or after January 1, 1990, the total amount recovered for an injury or death may not exceed seven hundred fifty thousand dollars ($750,000).

Ind.Code § 34-18-14-3(a) (emphasis added).⁹

The Act defines "patient" as follows:

"Patient" means an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider. Derivative claims include the claim of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient including claims for loss of services, loss of consortium, expenses, and other similar claims.

Ind.Code § 34-18-2-22 (emphasis added).

A cause of action is derivative if it may be brought only where a separate, related claim is actionable. Durham v. U-Haul Int'l, 745 N.E.2d 755, 764 (Ind.2001). The derivative claimant must prove all the elements of the related tort in order to recover. Mayhue v. Sparkman, ...