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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: SUSAN E. CLINE JULIA BLACKWELL GELINAS MAGGIE L. SMITH Locke Reynolds, LLP Indianapolis, Indiana

ATTORNEY FOR APPELLEES: JERRY GARAU Findling Garau Germano & Pennington, P.C. Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

INDIANA PATIENT'S COMPENSATION FUND, Appellant-Defendant, vs. RUTH HOEFLIN-OAKLEY, ROBERT OAKLEY, and FAITH OAKLEY, Appellees-Plaintiffs.

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No. 49A02-0607-CV-565

APPEAL FROM THE MARION CIRCUIT COURT The Honorable Theodore M. Sosin, Judge Cause No. 49C01-0503-CT-10173

April 27, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

Due to malpractice committed by Dr. Carol Borden during the birth of their daughter, Ruth Hoeflin-Oakley and Robert Oakley (the Oakleys) initiated malpractice proceedings individually and on behalf of their daughter, Faith Oakley. They ultimately settled with Dr. Borden for the statutory limit of $250,000. The Oakleys then filed an action against the Indiana Patient's Compensation Fund (the Fund) seeking payment of excess damages. The Fund paid the statutory maximum of $1,000,000 for Faith's

injuries, but disputed whether Ruth and Robert were entitled to recover under separate statutory caps for their alleged emotional distress injuries. The case proceeded to a bench trial with respect to Ruth and Robert's claims against the Fund. The trial court

determined that Ruth, Robert, and Faith suffered three distinct injuries as a result of the health care provider's single act of malpractice and, therefore, were entitled to recover under separate caps. Accordingly, the court awarded $550,000 to Ruth for her emotional distress injury and $400,000 to Robert for his emotional distress injury. On appeal, the Fund presents three issues of which we find the following restated issue dispositive: Were Ruth and Robert entitled to recover under separate caps pursuant to the Medical Malpractice Act (the Act) for emotional distress injuries they suffered as a result of the malpractice that led to Faith's physical injuries? We reverse. On July 6, 2001, Ruth arrived at Floyd Memorial Hospital for the induction of labor for the delivery of Faith. After laboring for over twenty-seven hours, Ruth began to 2

deliver the ten-pound-fifteen-ounce baby. Robert was present for and witnessed Faith's delivery. During the course of the delivery and after her head emerged, Faith's body became caught in the birth canal. Dr. Borden, the treating physician, was eventually able to complete the delivery by pulling hard on Faith's head. Upon delivery, Faith had bruising on her right side and no movement in her right arm. Dr. Borden advised the Oakleys that Faith had suffered a brachial plexus injury, but that these injuries usually resolved within two weeks. After discharge, the Oakleys sought medical treatment for Faith's injury from specialists. These consultations

revealed that Faith's injury was severe and likely permanent. Faith has undergone multiple surgical procedures to address her injury. She still has virtually no use of her right arm, which hangs limply at her side and is significantly shorter than her left arm. In August 2002, the Oakleys, individually and on behalf of Faith, filed a proposed complaint for damages with the Indiana Department of Insurance. In addition to the injuries suffered by Faith, the Oakleys sought compensation for their own emotional distress. After Dr. Borden settled the claim for the statutory maximum allowed against the provider ($250,000) in March 2005, the Oakleys petitioned for payment of excess damages from the Fund. The Fund disputed whether the Act permitted Ruth and Robert to obtain separate recoveries for their emotional distress injuries, but agreed that Faith was entitled to excess damages. Thus, the Fund promptly settled Faith's excess-damages claim for the statutory maximum of $1,000,000 in June 2005. 1

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The Act provides that the "total amount recoverable for an injury or death of a patient" is limited to $1,250,000 "for an act of malpractice that occurs after June 30, 1999." Ind. Code Ann.

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