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FOR PUBLICATION

ATTORNEYS FOR APPELLANT: SUSAN E. CLINE JULIA BLACKWELL GELINAS MAGGIE L. SMITH Locke Reynolds, LLP Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE, Indiana State Medical Association: THOMAS J. COSTAKIS GREG A. SMALL Krieg DeVault, LLP Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE, Indiana Hospital & Health Association: KATHRYN E. CORDELL ANGELA M. SMITH Hall Render Killian Heath & Lyman, P.C. Indianapolis, Indiana

ATTORNEYS FOR APPELLEES: JERRY GARAU DEBORAH K. PENNINGTON Findling Garau Germano & Pennington, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
INDIANA PATIENT'S COMPENSATION FUND, ) ) Appellant-Defendant, ) ) vs. ) ) ERIC BUTCHER and DOROTHY BUTCHER, ) Individually and as Parents and Natural Guardians ) of SAMUEL L. BUTCHER, Deceased Minor, ) ) Appellees-Plaintiffs. )

No. 49A02-0603-CV-223

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Thomas J. Carroll, Judge Cause No. 49D06-0506-CT-23774

March 16, 2007 OPINION - FOR PUBLICATION BARNES, Judge

Case Summary The Indiana Patient's Compensation Fund ("the Fund") appeals the trial court's order of judgment collectively awarding Eric, Dorothy, and Samuel Butcher $3,500,000 for an act of medical malpractice. We reverse and remand. Issues The Fund raises three issues, which we consolidate and restate as: I. whether the evidence supports the trial court's finding that Dorothy sustained physical injuries as a result of the malpractice; and whether Eric and Dorothy are entitled to their own, separate caps under the Medical Malpractice Act ("the Act") for injuries they suffered as a result of the malpractice leading to Samuel's death. Facts In June 2003, when she was approximately thirty-eight weeks pregnant, Dorothy was involved in an automobile accident. Following the accident, she was taken to Sullivan County Community Hospital ("SCCH"). 2 While at SCCH, Dorothy began

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having contractions. Dr. Pardeep Kumar, the doctor attending to Dorothy at SCCH, contacted Dr. Scott Stine, the physician managing Dorothy's pregnancy, and after communicating to Dr. Stine that the fetus's heart tones were "reassuring" Dr. Stine agreed that Dorothy should be transported to Good Samaritan Hospital ("Good Samaritan") in Vincennes so that Dr. Stine could oversee her labor and delivery. Ex. 18, p. 13. When Dorothy arrived at Good Samaritan, neither the nursing staff nor Dr. Stine was able to locate any fetal heart tones. Dorothy underwent an emergency cesarean section to deliver Samuel. Samuel was not breathing and had no pulse. Samuel was eventually resuscitated, placed on a ventilator, and transferred to the neonatal intensive care unit at another, larger hospital. The Good Samaritan staff informed Eric and

Dorothy that Samuel's condition was critical. Eric accompanied Samuel to the neonatal intensive care unit, but Dorothy stayed at Good Samaritan to recover from her surgery. She and Eric stayed in frequent contact over the telephone. Within a couple of days, Eric and Dorothy decided to terminate Samuel's life support, and he died. Dorothy did not have an opportunity to hold Samuel before he died and was not able to spend time with him while he was alive. In July 2004, Eric and Dorothy filed a proposed complaint with the Indiana Department of Insurance alleging negligence by Dr. Kumar and SCCH resulting in Samuel's wrongful death, Dorothy's physical injuries and emotional distress, and Eric's emotional distress. In July 2005 the parties entered into a settlement agreement. Eric and Dorothy then filed a petition for payment of damages from the Fund.

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On February 1, 2006, a bench trial was conducted. The trial court issued findings of fact and conclusions thereon and entered individual judgments in the amount of $1,250,000 each for Samuel, Dorothy, and Eric. The trial court subtracted from the total judgment the amount previously paid by the providers pursuant to the settlement agreement and ordered the Fund to pay the Butchers $3,500,000. The Fund appeals. Analysis I. Dorothy's Injuries The Fund first argues that the evidence does not support the trial court's finding that Dorothy sustained physical injuries as a result of Dr. Kumar's and SCCH's negligence. We agree. When, as here, the trial court enters specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Anthony v. Indiana Farmers Mut. Ins. Group, 846 N.E.2d 248, 252 (Ind. Ct. App. 2006). First, we consider whether the evidence supports the findings. Id. In doing so, we liberally construe the findings in support of the judgment, and determine whether the findings are clearly erroneous. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Nieto v. Kezy, 846 N.E.2d 327, 332 (Ind. Ct. App. 2006) (quotation omitted) (citation omitted). The second step in our review is to determine whether the findings support the judgment. Anthony, 846 N.E.2d at 252. If a judgment relies on an incorrect standard, it is clearly erroneous. Nieto, 846 N.E.2d at 332. We do not defer to the trial court's conclusions of law. Id. at 333. We do not reweigh the evidence and must consider the 4

evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Id. With regard to Dorothy's physical injuries, the trial court's findings and conclusions provide in part: II. FINDINGS OF FACT

7. The doctors [at Good Samaritan] could not wait for anesthesia services because of the urgent need to deliver the baby. Dorothy's emergency surgery was performed under local anesthetic, consequently Dorothy felt the pain of the incision. As a result of the urgency of the surgery, Dorothy had extensive scarring, adhesions, and a more painful recovery

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