The intersection of the Medical Malpractice Act and the Wrongful Death Act
As attorneys who practice frequently in the area of medical negligence, it is not uncommon to be presented with a case in which the Plaintiff seeks damages under both the Medical Malpractice Act (“MMA”) and the Wrongful Death Act. While not unusual, it can still be confusing to determine what damages are recoverable in such a case, particularly when the Adult Wrongful Death Statute (“AWDS”) is in play, as both the MMA and AWDS contain provisions which “cap” damages. This article seeks to identify how these statutes work together, how to apply the caps, and discuss when a provider can be responsible for paying more than the MMA cap.
Consider the following scenario.
A Proposed Complaint is filed with the Indiana Department of Insurance against Dr. Jenna Good and an extended care facility, The Good Home, LLC. The suit is brought by James Smith, Jr., as Personal Representative of the Estate of James Smith, Sr., Deceased (“Plaintiff”). The Proposed Complaint alleges that James Smith, Sr. (“Decedent”) was a resident of The Good Home under the care Dr. Good. The Proposed Complaint goes onto to allege that due to the negligent care and treatment of Dr. Good, the Decedent died on June 30, 2017. It further alleges that The Good Home, LLC was Dr. Good’s employer and is vicariously liable for her alleged negligence. Initial discovery shows that the Decedent died without a surviving spouse or surviving parents, but he had one adult non-dependent child, Plaintiff. Dr. Good and The Good Home are “qualified providers,” so the Medical Malpractice Act will apply. I.C. § 34-18-2-24.5 and I.C. § 34-18-3-1.
What types of damages are recoverable? Is there a cap on damages against Dr. Good and The Good Home, LLC? If so, what is excluded under the cap(s)?
Under the General Wrongful Death Act (GWDS), an action for wrongful death may be brought by the personal representative of the Estate. See I.C. § 34-23-1-1. If the decedent is an “adult person” (i.e. not a child and does not have a surviving spouse, dependent children, or dependent next of kin), “the measure of damages to be recovered shall be the total of the necessary and reasonable value of such hospitalization or hospital service, medical and surgical services, such funeral expenses, and such costs and expenses of administration, including attorney fees.” Id. See also I.C. § 34-23-1-2(a). In addition, the AWDS provides that a non-dependent parent or child of the decedent may also recover damages for “[l]oss of the adult person’s love and companionship,” but the aggregate of these damages are capped at $300,000. I.C. 34-23-2(c)(3)(b), I.C. 34-23-2(d), and I.C. 34-23-2(f). The statute also specifies that damages recoverable for the wrongful death of an “adult person” may not include punitive damages or damages for grief. I.C. 34-23-1-2(c)(2).
The MMA does not specify what damages are recoverable, but it does contain two caps on damages. I.C. § 34-18-14-3(b) provides that a health care provider is not liable for an amount in excess of $250,000 for an act of malpractice that occurs between June 30, 1999, and before July 1, 2017; $400,000 for an act of malpractice that occurs after June 30, 2017 but before July 1, 2019; and $500,000 or an act of malpractice that occurs after June 30, 2019. The total amount recoverable for injury or death of a patient, regardless of the number of Defendants, is $1.25 million for an act of malpractice that occurs between June 30, 1999, and before July 1, 2017; $1.65 million for an act of malpractice that occurs after June 30, 2017 but before July 1, 2019; and $1.8 million for an act of malpractice that occurs after June 30, 2019. I.C. § 34-18-14-3(a).
In a case involving allegations of medical negligence and the death of an “adult person,” how do these statutes work together to determine what damages are recoverable and how the caps are applied?
The case of Chamberlain v. Walpole, 822 N.E.2d 959 (Ind. 2005) provides a guide for how the MMA and AWDS are applied together. In Chamberlain, the Court was presented with the issue of whether Walpole, the representative of his father’s estate, could seek damages under the MMA where the AWDS did not allow for such damages. Id. at 961. Walpole argued that because the definition of “Patient” under the MMA included persons bringing a derivative claim, and because it also defined derivative claims as “including claims for loss of services, loss of consortium, expenses, and other similar claims,” the MMA allowed him to bring such a claim for damages if even if it were not allowed under the AWDS.
Defendants filed a motion for preliminary determination of law, arguing that the AWDS specifically precluded recovery for the damages being sought by Walpole. Id. The trial court denied the motion and certified the order for interlocutory appeal. Id. The Court of Appeals affirmed. Id. The Supreme Court granted transfer, reversing the Order of the trial court and dismissing Plaintiff’s Complaint. Id. at 964. The Court explained that the MMA does not create new causes of action but “merely requires that claims for medical malpractice that are otherwise cognizable under tort law and applicable statutes be pursued through the procedures of the MMA.” Id. at 963. See also Ellenwine v. Fairley, 846 N.E.2d 657 (Ind. 2006) (stating “the MMA did not create or establish the medical malpractice claim; it only imposed procedural requirements on the prosecution of them.”) The Court held that the MMA does not provide a cause of action for damages for a wrongful death where the Wrongful Death Act does not allow such an action. Id. at 960. As such, Walpole could not recover for damages not allowed by the AWDS.
In a more recent case, Ind. Patient’s Comp. Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010), a father on behalf of his deceased thirty-one-year-old son, brought a claim under the AWDS for the negligence of his son’s medical providers and a derivative claim under the MMA for his own emotional distress. Id. at 190. The father settled his claims with the providers. Id. After settlement, the father, individually, and as personal representative of his son’s estate, filed a petition for payment of excess damages with the Indiana PCF. Id. at 191. The Fund moved for summary judgment on the father’s emotional distress damages arguing that it is not recoverable under AWDS. Id. The trial court awarded the father $600,000 for his emotional distress claim in addition to other damages. Id. The Indiana Supreme Court, using the reasoning in Chamberlain, noted that “a derivative claimant . . . can only pursue claims that are allowed at common law or under applicable statutes; the MMA does not create new causes of action that otherwise do not exist.” Id. at 194. The father’s claim was dismissed.
Therefore, if you are faced with a medical negligence case in which the AWDS also applies, damages are limited to what is recoverable under I.C. § 34-23-1-2 and the portions of I.C. § 34-23-1-1 that apply to an “adult person.” As indicated in the AWDS, damages cannot include damages for a person’s grief or punitive damages. See I.C. § 34-23-1-2(c)(2).
While the AWDS governs the type of damages recoverable, both the MMA and AWDS caps may come into play where the claim involves both statutes. The key to working with these caps is understanding that whether the aggregate damages for loss of the adult person’s love and companionship reach the cap or not, no qualified provider will pay more for damages than the amount of the cap under I.C. § 34-18-14-3(b). See e.g. Hematology-Oncology of Ind., P.C. v. Fruits, 950 N.E.2d 294, 298 (Ind. 2011) (holding that “the total judgment against the provider cannot exceed $250,000”).
For example, in our hypothetical above, assume that the jury awards $500,000 to Plaintiff – $250,000 against Dr. Good and $250,000 against The Good Home, LLC. The verdict specifies that damages for “[l]oss of the adult person’s love and companionship,” totals $200,000 against each defendant, for a total of $400,000. The remaining damages were for reasonable medical, funeral, and burial expenses. While the verdict against each defendant is under the statutory cap set out in I.C. § 34-18-14-3(b), and under the aggregate verdict in I.C. § 34-18-14-3(a), the total amount of damages for love and companionship will still be reduced to $300,000 because of the cap on this category of damages in the AWDS. Therefore, the damages attributable to Dr. Good and The Good Home, LLC, will be under each provider’s $250,000 cap on damages.
On the other hand, if the jury awarded $500,000 against Dr. Good only, and the verdict specified that $300,000 was for loss of love and companionship, Dr. Good will still only be responsible for $250,000 in damages, because the total judgment against him cannot exceed $250,000 under the cap.
Under our above hypothetical, can Plaintiff be awarded attorney’s fees and expenses, and if so, are these things “damages” subject to the MMA cap? These questions were analyzed in the landmark case of McCabe v. Comm’r, 949 N.E.2d 816 (Ind. 2011), which was published in conjunction with companion cases Hematology-Oncology of Ind., P.C. v. Fruits, 950 N.E.2d 294 (Ind. 2011) and Ind. Patient’s Comp. Fund v. Brown, 949 N.E.2d 822 (Ind. 2011).
Following the death of his mother, Jeffrey McCabe asserted a medical malpractice claim against her medical care providers, who eventually agreed to a settlement that was sufficient to allow him to access the Indiana Patient Compensation Fund (the “Fund”). Id. at 817. McCabe argued he was entitled to attorney fees related to the administration of the wrongful death estate and prosecution of the action. Id. at 818. The Fund argued that the distinct difference in language between the GWDS and AWDS suggests specific legislative intent to preclude attorney fees. Id. The Indiana Supreme Court noted that the AWDS only specifically designated two types of damages that were not recoverable: punitive damages and damages for a person’s grief. Id. The Court held that the phrase “may include but are not limited to” in the AWDS includes the availability of attorney fees and other elements of damages permitted under the GWDS. Id. at 821. See also SCI Propane, LLC v. Frederick, 39 N.E.3d 675 (Ind. 2015) (confirming that attorney’s fees are recoverable under the AWDS).
The Court in McCabe also noted that while attorney’s fees were recoverable in a case involving the MMA and AWDS, “the total judgment against the healthcare provider cannot exceed $250,000, which includes both the jury’s damage award… [and] the attorneys’ fees and expenses. McCabe, 950 N.E.2d at 298. See also Hematology, 950 N.E.2d (holding that a Plaintiff can seek litigation expenses under the AWDS). The rationale for this determination is found in Brown, which noted that items such as “[a]ttorney fees, probate administration costs, and litigation costs are compensatory damages that remedy actual pecuniary losses.” See Brown, 949 N.E2d at 824. Therefore, as compensatory damages, attorney’s fees and litigation expenses are recoverable but subject to the MMA caps.
It is important to note that there may be amounts owed by a provider after a verdict which are not part of the “judgment,” and therefore not subject to the MMA caps. While not a case involving the AWDS, the Indiana Supreme Court has held that post-judgment interest and court costs are not subject to the caps. Poehlman v. Feferman, 717 N.E.2d 578 (Ind. 1999). In so holding, the Court analyzed the recovery limitation section of MMA, finding that it “unambiguously establishes that the legislature intended to only limit the amount of damages, not collateral litigation expenses.” Poehlman, 717 N.E.2d at 581. It further held that each judgment debtor is “individually responsible for its collateral litigation expenses . . . even when these collateral litigation expenses are added to a settlement or judgment figure and the resultant total exceeds the Act’s statutory damage limits.” Id. at 583. Post-judgment interest begins accruing the day the money judgment is entered by the trial court but is accrued only on the amount of damages owed by the provider after the cap. Id. at 583, 584. The Court also held that court costs are also a collateral litigation expense and are not included in the cap. Id.
In summary, when faced with a case seeking damages under the MMA and AWDS, remember that damages are limited to what is recoverable under the AWDS. While aggregate damages for loss of love and companionship are capped at $300,000 under the AWDS, a qualified provider is not responsible for damages over the amount specified in I.C. § 34-18-14-3(b). While attorney’s fees and litigation expenses are damages (and therefore also included in the MMA cap), items which are not damages, including post-judgment interest and court costs, must be paid by the provider regardless of whether the cap has been reached.
This article was first published in the Defense Trial Counsel of Indiana’s section of the Indiana Lawyer (Feb. 7, 2018). Reprinted with permission of the Defense Trial Counsel of Indiana.
Emily VanTyle is an associate in the firm’s Crown Point, Indiana office, where her practice consists of a wide range of civil litigation defense matters.
Heather T. Gilbert is partner in the firm’s Indiana office, where she concentrates her practice in civil litigation, including medical negligence, construction, and transportation. She is licensed in both Indiana and Illinois.