Thursday, April 07, 2011
Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)
For publication opinions today (1):
In Carol Cutter, et al. v. Geneva Herbst, et al. , a 20-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court properly calculated proportional damages in the amount of $750,000 payable by the Fund to the Estate for the health care providers' medical malpractice. Affirmed.NFP civil opinions today (0):
BROWN, J., concurs.
ROBB, C.J., dissents with separate opinion. [that concludes] As I explained in greater detail in my dissent from the denial of rehearing in Indiana Dep't of Ins. v. Everhart, 939 N.E.2d 1106 (Ind. Ct. App. 2010), I believe the supreme court in Mayhue adopted the Restatement approach in which damages are assessed for the increased risk of harm for only those cases in which proximate cause for the ultimate injury could not otherwise be proven because the patient already had a greater than 50% chance of that injury occurring even in the absence of negligence. Where the patient's chance of survival is greater than 50% absent the negligence, however, traditional tort principles adequately address the injury and applying the Restatement approach is unnecessary. Because the trial court determined, based upon the expert testimony, that Herbst's chance of survival absent medical negligence was 50%, I do not believe using the Restatement measure of damages is appropriate in this case. Thus, I would remand to the trial court for a recalculation.
NFP criminal opinions today (5):
Posted by Marcia Oddi on April 7, 2011 12:04 PM
Posted to Ind. App.Ct. Decisions