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The Indiana Supreme Court recently issued an opinion in Horejs v. Milford, 117 N.E.3d 559 (Ind. 2019), a medical malpractice wrongful death lawsuit in Indiana concerning the availability of “survivor damages” for wrongful death, including loss of love, care, and companionship. In Horejs, the surviving widower, the statutory beneficiary under Indiana’s wrongful death statute, died during the pendency of the case without an heir. The Court previously held in Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001) that “the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages.” Id. at 214. However, while Bemenderfer held wrongful death damages did not abate upon the death of the surviving widow under Indiana’s survival statute, which allows claims to proceed after the death of a claimant, unlike Horejs, there was an heir to recover those damages in Bemenderfer.

After the patient in Horejs died as a result of alleged medical malpractice, her surviving husband was appointed administrator of her estate and he filed a lawsuit against the medical providers for wrongful death damages, which include “survivor damages” such as loss of love, care and companionship and “final-expense damages” such as medical, funeral and burial expenses. While the lawsuit was pending, the surviving husband died intestate (without a will), leaving no heir. Thereafter, the deceased patient’s father and brothers were appointed co-administrators of the patient’s estate.

Indiana’s wrongful death statute provides that the personal representative of the decedent may maintain an action against the alleged wrongdoer if the decedent could have maintained an action had he or she lived. Wrongful death damages recovered for reasonable medical, hospital, funeral and burial expenses inure to the exclusive benefit of the decedent’s estate for payment thereof, and the remainder of damages, if any, such as loss of love, care and companionship, inure to the exclusive benefit of the widow or widower, dependent children, and dependent next of kin.

What is required of plaintiffs to protect their right to challenge the applicability of the Indiana Medical Malpractice Act when there exists a question as to whether a claim arises from medical malpractice or ordinary negligence? The Indiana Court of Appeals answered this question in Cmty. Hosps. of Indiana, Inc. v. Aspen Ins. UK Ltd., a case in which two insurance companies paid damages to persons injured in a trucking collision and then sought to recover those damages from a medical provider who had cleared the at-fault truck driver to drive a commercial motor vehicle.

The insurance companies contemporaneously filed a proposed complaint for damages with the Indiana Department of Insurance (IDOI) and an anonymous state-court complaint for damages against Community Hospitals of Indiana, Inc. (Community). Community employed a nurse practitioner who performed a physical examination of the negligent truck driver prior to the collision pursuant to a contract between Community and the truck driver’s company that required qualified Community employees to conduct physical examinations based on Department of Transportation (DOT) requirements. The insurance companies alleged that Community was negligent in not notifying the truck driver’s company of a medical condition that would have precluded the truck driver’s ability to drive a commercial motor vehicle under Federal Motor Carrier Safety Administration (FMCSA) regulations, thus preventing the trucking accident.

Medical malpractice claims are subject to the Indiana Medical Malpractice Act (IMMA), which, among other things, caps damages, maintains the doctrine of contributory negligence, and requires that claims be submitted to medical review panels prior to being presented to a jury. However, the IMMA does not apply to all cases involving healthcare providers. If a healthcare provider’s negligence is unrelated to the promotion of a patient’s health or the exercise of professional expertise, skill or judgment, then it does not constitute medical negligence, but rather ordinary negligence, falling outside the scope of the IMMA. Indiana courts have noted that a case falls under ordinary negligence when the factual issues can be resolved by a jury without regard to the applicable standard of care. Alternatively, a case sounds in medical negligence when there is a causal connection between the conduct complained of and the nature of the patient-healthcare provider relationship.

The Indiana Court of Appeals recently resolved an insurance dispute in an automobile accident case concerning uninsured motorist coverage. In Progressive Se. Ins. Co. v. Smith, a passenger, Smith, was injured in his own vehicle that was involved in a single-vehicle collision.

Smith had given the driver, Clayton, permission to drive the vehicle when the two had left a company event. Smith’s liability insurance covered his vehicle damage and he received medical payments under the medical payment portion of his policy. Smith then brought suit against Clayton which resulted in Clayton’s insurer, Allstate, tendering its policy limits to Smith to settle.

Smith then asserted an uninsured motorist (UM) claim with Progressive. Progressive, in turn, filed a complaint for a declaratory judgment against Smith, requesting a determination under the terms of the policy that Smith was not covered under the UM coverage portion of the policy. Smith then filed a motion for summary judgment seeking coverage and damages under the policy. The trial court granted Smith’s motion and Progressive appealed.

The Indiana Court of Appeals recently issued an opinion in St. Mary’s Ohio Valley Heart Care, LLC v. Smith concerning claims of medical malpractice against a cardiothoracic surgeon, a pathologist, and their respective medical groups arising out of a lung lobectomy performed for suspected, but not confirmed, lung cancer.

During the wedge resection portion of the procedure, the pathologist interpreted the intraoperative frozen section pathology slides as cancerous or suggestive of cancer, which was communicated to the cardiothoracic surgeon, who then proceeded to perform the lobectomy. The permanent section slides, however, were later interpreted as being benign, and the patient filed a lawsuit for damages.

A medical review panel was convened to review the case pursuant to the requirements of the Indiana Medical Malpractice Act and it returned a unanimous expert opinion in favor of the Defendants. After the patient filed an amended complaint for medical malpractice in state court, the Defendants filed motions for summary judgment based upon the opinion of the medical review panel that the evidence did not support the conclusion that the Defendants failed to meet the applicable standard of care.

You have exhausted every other option with your aging parent. Keep them in their own home and stop by regularly to help with meds, food, upkeep of the home, shopping. For a while that may work and you feel good about helping your parent and giving back when they have given so much to you during your lifetime.

As time progresses, your parents may find themselves unable to care for themselves on a daily basis. It is difficult for them to accomplish tasks and you may come to the point where you cannot trust their judgment. What if they leave the stove on? Or, wander outside and not know where they live. Worse yet, they get behind the wheel of their car when they are unable to drive responsibly.

We do not know what the future holds. It is impossible to promise your parent things like “we will never put you in a nursing home”, when we have no idea what situations will arise as they age with regard to their health and physical capabilities. It is hard not to feel guilty when you have run out of in-home care options. At this point, a tough decision may be in order. You have done the best you can and tried to honor their request. Because of modern medical advances, people live longer now than they did in the past. There comes a point in time when both their mental and physical capabilities may have deteriorated so much they cannot take care of themselves.