Damages for Negligent Infliction of Emotional Distress Continue to be Unavailable in Indiana Adult Wrongful Death Medical Malpractice Claims

The Indiana Court of Appeals recently reaffirmed the unavailability of damages for negligent infliction of emotional distress (NIED) in adult wrongful death medical malpractice claims. In Hyzy v. Anonymous Provider 1, Mark Hyzy filed a medical malpractice claim for the death of his mother Carolyn Hyzy. He sought various damages, including damages for NIED. The Defendant filed a motion for preliminary determination to dismiss Hyzy’s NIED claim. After a hearing, the trial court dismissed the claim, and Hyzy appealed to the Indiana Court of Appeals.

The Indiana Court of Appeals first reviewed the nature of Indiana’s wrongful death statutes. Since there was no tort liability for another’s death at common law, recovery for wrongful death in Indiana is purely statutory and Indiana’s wrongful death statutes are strictly construed. Pecuniary loss, as opposed to loss of life itself, is the foundation of wrongful death claims in Indiana. Indiana has three wrongful death statutes: the General Wrongful Death Statute, applicable when there is a surviving spouse, dependent children, or dependent next-of-kin, the Child Wrongful Death Statute, applicable when there is the death of a child, and the Adult Wrongful Death Statute (AWDS).

When an adult unmarried individual without dependents dies due to a wrongful act or omission of another person, the personal representative of the adult person’s estate may pursue damages for wrongful death under the AWDS, Indiana Code § 34-23-1-2. Damages under the AWDS may include medical and funeral and burial expenses, which inure to the estate for the payment thereof, and damages for the loss of the adult person’s love and companionship, which inure to nondependent parents or children of the adult person. Attorney’s fees and expenses and loss of services are also available. However, damages cannot be obtained under the AWDS for a person’s grief, punitive damages, or lost earnings of the deceased, and damages for the loss of love and companionship suffered by nondependent parents and children are capped at $300,000.

Indiana NIED claims can be pursued under the impact rule, the modified impact rule, the bystander rule, and in cases involving sexually abused children. Recovery is available under the impact rule when a claimant suffers a direct physical impact that causes physical injury and emotional trauma. Recovery is available under the modified impact rule when there is an injury or death to a third party and the claimant sustains a direct physical impact and thereby suffers emotional trauma serious enough to affect a reasonable person. Recovery under the bystander rule, which Hyzy attempted to pursue his NIED claim under, is available when a claimant, without any direct impact, witnesses a relative’s severe injury or death or witnesses the immediate aftermath.

The Court in Hyzy ultimately affirmed the trial court’s order dismissing Hyzy’s claim holding “the trial court properly dismissed Hyzy’s [NIED] claim which was brought under the [AWDS] and pursuant to the procedures of the Medical Malpractice Act.” The Court based its decision on Indiana Supreme Court precedent in Indiana Patient’s Compensation Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010) and Chamberlain v. Walpole, 822 N.E.2d 959 (Ind. 2005). The Supreme Court in Chamberlain concluded that “the MMA is procedural and [does] not create new causes of action” and the Supreme Court in Patrick found “damages for emotional distress are not available under the [AWDS], [and thus] a [claimant] cannot bring a derivative claim seeking such damages under the Medical Malpractice Act.” Patrick, 929 N.E.2d at 190; Chamberlain, 822 N.E.2d at 963.

Relying on Patrick and Chamberlain, the Indiana Court of Appeals in Hyzy found his claim for NIED “exists exclusively under the AWDS” and “Hyzy’s NIED claim cannot proceed under the AWDS.” While recognizing Indiana Supreme Court precedent that separate claims for NIED outside the wrongful death statutes are not precluded, the Hyzy Court nonetheless rejected Hyzy’s argument that his NIED claim was independent of the AWDS, with the Court reasoning—for some reason—that to be outside the AWDS Hyzy’s claim would necessarily also have to be outside the MMA (“whether Hyzy’s NIED claim… was brought ‘outside the wrongful death statutes,’ we acknowledge that to be outside these statutory parameters, ‘a health care provider’s actions must be demonstrably unrelated to the promotion of the plaintiff’s health or an exercise of the provider’s professional expertise, skill, or judgment.’”). The Court concluded Hyzy’s claim “[fell] within the statutory framework of the MMA and the AWDS” because there was an “absence of any necessary facts [in the Proposed Complaint] which could propel [the] claim outside the province of the MMA and AWDS and place it within the auspices of the bystander doctrine.”

You can read the full opinion here.