New Indiana Supreme Court Decisions

By: J. Richard Moore
BleekeDillonCrandall

A month ago, on June 29, 2011, the Indiana Supreme Court handed down three decisions which collectively held that under Indiana’s Adult Wrongful Death Statute, the estate of a deceased adult without a surviving spouse or dependents may recover attorney fees and “loss of services,” even though such damages are not explicitly authorized under the statute. Indiana’s General Wrongful Death Statute is intended to restore the pecuniary loss to the spouse and dependents of a person whose death is the result of tortious activity. The Adult Wrongful Death Statute was enacted to provide some means of recovery to the estate of a person who had no surviving spouse or dependents (such as a very young or a very old adult). The only damages specifically authorized under the Adult Wrongful Death Statute were final medical and burial expenses, and loss of love, society and companionship to the deceased person’s survivors. The latter category is capped at $300,000.

Leaving aside whether the Indiana Supreme Court “got it right” (notably, the Chief Justice wrote vocal dissents in each case, in which one other justice joined), this change in wrongful death recovery in Indiana directly impacts our firm’s medical and long-term care clients. The addition of attorney fees particularly broadens the scope of exposure in such cases, which frequently involve elderly and infirm patients without dependents or surviving spouses. While qualified providers’ exposure remains capped at $250,000 under Indiana’s medical malpractice statutes, this change in the law will likely increase the pressure on malpractice insurers and self-insured providers to settle for the limit of exposure. In addition, the change increases the overall exposure of the Patient’s Compensation Fund administered by the Indiana Department of Insurance.

A question that remains under the new jurisprudence is whether attorney fees and loss of services are subject to the $300,000 cap in the Adult Wrongful Death Statute. The Court’s legal reasoning for its holdings encompassed both the clause that provides for recovery which is not subject to the cap (final medical and burial expenses) and the clause which provides recovery limited to $300,000 (loss of love, society and companionship). It remains to be seen how these decisions will be implemented in practice. BleekeDillonCrandall lawyers will be monitoring these developments in our cases and in the trial and appellate courts.