The following is a description of some of the laws that protect and benefit wrongdoers at the expense of victims and consumers:

Last year, the Indiana Supreme Court held that “the Medical Malpractice Act was designed to curtail liability for medical malpractice, not expand it.” Chamberlain v. Walpole, 822 N.E.2d 959 (Ind. 2005).

Indiana Code § 34-18-1-1 which is Indiana’s Child Wrongful Death Act only allows a claim for the death of a child born alive. Bolin v. Wingert, 764 N.E.2d 201, 203 (Ind. 2002). This means that a doctor who commits malpractice on a pregnant woman resulting in the death of the fetus cannot be held liable for the malpractice even if the fetus was 8 ½ months developed. The Bolin decision also means that if a drunk driver slams into the rear of a vehicle occupied by a woman 8 ½ months pregnant, resulting in injury or death to the mother, and death to the fetus, the drunk driver (and his/her insurance company) gets the fetus “free”. For example, if the drunk driver had insurance with policy limits of $25,000.00 per person, $50,000.00 per occurrence, the most the insurance company would have to pay is $25,000.00.

The Indiana Supreme Court determined in 2001 that punitive damages are not recoverable under the state’s Wrongful Death Statute. “Despite any resulting unfairness, punitive damages are not recoverable under the wrongful death statute.” Durham v. U-Haul International, 745 N.E.2d 755, 762 (Ind. 2001). Even more disturbing is that in Indiana, a person may recover punitive damages from the wrongdoer where the wrongdoer’s gross negligence causes the destruction of the person’s property. The effect of the laws is that woman whose husband is killed in a wreck caused by a 16 year old driving 90 miles an hour cannot recover punitive damages for the death of her husband, but can recover punitive damages for the destruction of the child safety seat in the car at the time of the wreck. The law places a higher value on property than on human life.

Indiana Code § 34-18-14-3 places a cap on the amount of damages recoverable for an injury or death of a patient. The cap is $1,250,000 for an act of malpractice even if the injured patient will incur more than that amount in medical bills alone as a result of the doctor’s malpractice.

Indiana Code § 34-51-3-6 requires that 75% of a punitive damages award be paid to the state. The person who received the award of punitive damages only recovers 25% of the damages. Unlike the person recovering just a portion of the punitive damages, the state does not have to pay any attorney fees or costs in prosecuting the case. 

For all practical purposes, punitive damages are no longer pursued – no matter how outrageous the conduct of a party.

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