Preview:

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 MAGGIE L. SMITH JULIA BLACKWELL GELINAS Indianapolis, Indiana ATTORNEY FOR APPELLEES: DONALD R. FORREST Forrest & Bourne New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA
INDIANA PATIENT'S COMPENSATION FUND, Appellant-Plaintiff, vs. THOMAS W. BREWER and PAMELA S. BREWER, Individually and as Co-Guardians of CHASE MCKINSEY BREWER, a Minor, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 10A01-0610-CV-425

APPEAL FROM THE CLARK CIRCUIT COURT The Honorable Daniel F. Donahue, Judge Cause No. 10C01-0501-CT-27

November 7, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Thomas and Pamela Brewer, individually and on behalf of their son, Chase Brewer, initiated medical malpractice proceedings stemming from Chase's birth against Daniel Edward Catalano, M.D., and Clark Memorial Hospital (the "Hospital"). Ultimately, the Brewers settled the medical malpractice claim with the Hospital for the statutory maximum of $100,000. The Brewers then sought payment of excess damages from the Indiana Patient's Compensation Fund (the "Fund"). The Fund paid the statutory maximum of $650,000 for Chase's injuries, but disputed whether Thomas and Pamela were entitled to separate excess damage awards for their alleged emotional distress injuries. Following a bench trial, the trial court concluded that Thomas and Pamela suffered distinct injuries as a result of the alleged malpractice and, therefore, were entitled to two additional excess damage awards in the amount of $750,000 to Pamela and $375,000 to Thomas. The Fund appeals, raising the following dispositive issue: whether Thomas and Pamela are entitled to separate excess damage awards for their emotional distress injuries. Concluding that Thomas and Pamela are not entitled to separate excess damage awards because Chase was the only actual victim of malpractice and any recovery to which Thomas and Pamela are entitled must be recovered as part of Chase's excess damage award, we reverse. Facts and Procedural History 1 In the early morning hours of March 23, 1999, Pamela went into labor and the

We note that in its Statement of Facts, the Fund explained some medical terminology by citing to Wikipedia, an online encyclopedia. See Appellant's Brief at 2 n.2, 4 n.3. It is acknowledged on Wikipedia's home page that it is an encyclopedia that "anyone can edit." http://en.wikipedia.org/wiki/Main_Page (last visited Oct. 17, 2007). Thus, we would caution against citing Wikipedia as a source in an appellate brief, especially when there are other, more demonstrably reliable sources also available online.

1

2

Brewers went to the Hospital for the delivery of their first child. When Pamela's labor had not progressed after several hours, she was given Pitocin to assist her labor. When her membranes ruptured, Dr. Catalano noted there was thick meconium2 in her amniotic fluid. The Brewers were told this was not a problem as long as suction was used when the child was delivered. Pamela's labor again stalled, and plans for a Cesarean section were made. However, as Pamela was being readied for the surgery, the child descended and the Cesarean section was postponed in favor of allowing Pamela to push. At approximately 4:50 p.m., Chase was finally delivered. Pamela could not see the delivery and she did not see Chase after he was delivered. Thomas, however, was able to see Chase be delivered and noted that he was "blue and floppy." Tr. at 39. Chase's Apgar score 3 was low, and he was immediately taken to a warmer where the doctors and nurses gathered around to work on him. Neither Thomas nor Pamela was able to see what was occurring, but because of the demeanor of the medical team, they knew something was wrong. Neither parent was able to hold Chase after his delivery. Several hours after delivery, Chase was transferred to a children's hospital in Louisville, where he remained for twenty-seven days. Although Thomas had been able to see Chase through a glass window prior to his transfer, Pamela was not able to see him until

"Meconium" is a "substance that builds up in the bowels of a growing fetus and is normally discharged shortly after birth." http://www.webmd.com/baby/glossary-pregnancy-related-terms?page=2 (last visited Oct. 17, 2007). When meconium or meconium-stained amniotic fluid is "aspirated" or inhaled into the lungs of term, post-term, or small newborns, respiratory distress can occur. Id. The Apgar score is "an index used to evaluate the condition of a newborn infant based on a rating of 0, 1, or 2 for each of five characteristics of color, heart rate, response to stimulation of the sole of the foot, muscle tone, and respiration with 10 being a perfect score." Merriam Webster Online Medical Dictionary, www.intelihealth.com (last visited Oct. 23, 2007).
3

2

3

she was discharged from the hospital and visited him the day after his birth in Louisville. Thomas and Pamela were not initially allowed to touch Chase because of concern that stimulation would cause seizures. Doctors informed Thomas and Pamela that Chase had aspirated a substantial amount of meconium prior to delivery, preventing adequate oxygenation to his brain. He suffers from moderate to severe cerebral palsy as a result. In February of 2000, Thomas and Pamela filed with the Indiana Department of Insurance a proposed complaint for medical malpractice against the Hospital and Dr. Catalano. The claims against the Hospital were submitted to a Medical Review Panel, which unanimously concluded that the evidence did not support the conclusion that the Hospital failed to meet the applicable standard of care. Because Dr. Catalano is a non-qualified provider under the Medical Malpractice Act, the Brewers's claims against him proceeded directly to a jury trial. The jury rejected the Brewers's negligence claims and found in favor of Dr. Catalano. After the Medical Review process was completed, the Brewers proceeded with their complaint against the Hospital. Despite the Medical Review Panel's conclusion that it was not negligent, the Hospital agreed to settle the matter with the Brewers for the statutory maximum of $100,000. 4 The Brewers then filed a petition for payment of excess damages from the Fund. The petition sought payment of three statutory maximum excess damage awards; one each to Chase, Thomas, and Pamela. 5 The Fund paid the statutory maximum

The statutory damage limitation applicable to the Brewers's action provided: "A health care provider qualified under this [Act] is not liable for an amount in excess of one hundred thousand dollars ($100,000) for an occurrence of malpractice." Ind. Code

Download Indiana Patient's Compensation Fund v. Thomas W. Brewer, et al..pdf

Indiana Law