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Does Indiana's Medical Malpractice Act Cover Claims for Emotional Distress?

Medical errors can often cause severe physical injuries. However, the physical toll caused by medical malpractice is often exceeded by the emotional toll. In Indiana, lawyers for health care providers and their insurers are currently arguing that doctors and hospitals should be immune from claims for emotional distress resulting from medical malpractice. Our law firm, Garau Germano Hanley & Pennington, P.C., is fighting to protect patients' rights to recover for their emotional injuries.

The battle is being waged in a case before the Indiana Court of Appeals. The case is Patrick v. Indiana Patient's Compensation Fund. In January of 2002, Gary Patrick's son Christopher, was injured in car accident. Christopher was discharged from the hospital shortly after the accident despite continued complaints of pain and a tremendous amount of abdominal swelling. Hours after Gary took his son home, Gary heard his son cry out from his bedroom. Gary ran to the room to find his son vomiting blood as a result of internal injuries that were undiagnosed at the hospital. Gary watched as his son died before his eyes.

Our law firm pursued Gary's claim against the Indiana Patient's Compensation Fund. Under Indiana law, the maximum amount that can be recovered for the death of an adult who leaves behind no dependents is $300,000 (Ind.Code 34-23-1-2). We argued that in addition to the claim for his son's death, Gary also had a separate claim for the emotional distress he experienced as a result of witnessing his son's death. After a trial in Indianapolis, the trial court agreed and awarded Gary the maximum of $300,000 for the death of his son, $16,531.66 for medical and funeral expenses, and an additional $600,000 for Gary's separate emotional distress claim.

On appeal, the Patient's Compensation Fund is arguing that Gary cannot bring a separate claim for his emotional distress. The Fund contends that such claims are not recoverable under the Indiana Medical Malpractice Act because they are not claims for "bodily injury or death."

The Indiana Court of Appeals will hear oral argument on this case at 3 p.m. on March 3, 2009. The oral argument will take place at Baxter Hall on the campus of Wabash College in Crawfordsville. Jerry Garau of Garau Germano Hanley & Pennington, P.C. will argue for Mr. Patrick.

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