*1 Stаte, successfully peti- must Respondent pursuant for reinstatement
tion this Court 23(4) Discipline Rule
to Admission
(18). this Court is directed
The Clerk of of this order to
forward notice mail, receipt requested, return
by certified reflected the Roll
at the address
Attorneys; Disciplinary Commis-
sion; entitled to and to all other entities Discipline under Admission and
notice 23(3)(d). The is further direct-
Rule Clerk this order to the Court’s web- post
ed to
site, Reuters is directed to and Thomson this order in the bound
publish copy
volumes of this decisions. Court’s
All Justices concur.
HEMATOLOGY-ONCOLOGY OF P.C.,
INDIANA, Appellant
(Defendant below),
v. FRUITS,
Hadley Repre W. as Personal
sentative for the Estate of Elizabeth Cadou, Decеased, Appellee
Ann
(Plaintiff below).
No. 49S05-1106-CV-387.
Supreme Court of Indiana.
June
295 Indiana, availability In of an action seeking damages wrongful death is governed by § statute. Indiana Code 34- governs wrongful 23-1-1 actions for death § generally, 34-23-1-2 applies specifically wrongful to actions for the death of an dependents, unmarried adult without and § governs 34-23-2-1 wrongful death injury of a Recovery child. of fees and are expressly permitted costs un- Wrongful der both the General Death (“GWDS”) Statute and Wrongful the Child (“CWDS”), Death Statute but the AWDS Field, Karres, G. Katherine David G. damages “may states that the include but LLP, IN, Pogue, Indianapolis, Schultz & (A) are not limited the following: Rea- Jensen, Feldt, David Robert J. Eich- C. medical, funeral, sonable hospital, and bur- Eichhorn, LLP, Hammond, IN, horn & expenses by ial necessitated wrongful Attorneys Appellant. act or omission that per- caused the adult (B) son’s death. Loss Johnson, Firm, person’s of the adult Robert W. Tabor Law IN, love Attorney companionship.” § and Indianapolis, Appellee. Ind.Code 34- 23-l-2(c)(3) added). (emphasis Inc., Ind., Defense Trial Rob- Counsel Parker, Roman-Lagunas, ert F. Patricia The provider’s appeal challenges the tri- LLP, Cuppy Burke & Merrill- Costanza al court’s award of attorney litiga- fees and ville, IN, Johnson, Rudolph, James D. (a) expеnses, arguing: the GWDS Fine, Porter, LLP, Johnson, Evansville, (b) case; apply does not this the AWDS IN, Attorneys for Amicus Curiae. recovery should not be construed to allow (c) expenses;
of such fees and the fee award in this case runs afoul of the MMA’s damаges limitations on and fees. (a) The plaintiff responds that both the DICKSON, Justice. apply wrong- GWDS and the AWDS defendant, Hematology-Oncology ful death action of an unmarried adult (the Indiana, provider), appeals P.C. (b) dependents; they without shоuld be judgment awarding attorney trial court materia, pari construed in and thus attor- litigation fees and action expenses (c) recoverable; ney expenses fees and brought Wrongful under the Adult Death alternative, in the such fall within (“AWDS”), 34-23-1-2, § Statute Ind.Code the “include but are not limited to” lan- (“MMA”), Malpractice and the Medical Act (d) AWDS; guage MMA seq. Ind.Code 34-18-1-1 et The Court by jury’s not either violated award in Appeals affirmed. Hematology-Oncolo- this case nor of the plain- amount Ind., Fruits, v.
gy
P.C.
by the statute.” jury Before the commencement of the McCabe, hold that the trial court’s we case, provider trial in the filed a mo- expenses was author- litigation award of partial summary judgment tion for seek- by ized the statute. ing plaintiff a determination that the was attorney expenses to fees
not entitled Applicability of the MMA to under the AWDS. The trial court noted Attorney Fee Award the agreеment the that the recovera- parties’ bility attorney and extent of fees would also contends that the provider The be deferred for determination the it judgment against trial court for plaintiffs court the event of a verdict. $108,509.95 attоrney litigation fees and ensuing jury The trial resulted in a ver- $229,148judg to the expenses, addition $229,148 judgment dict and in the sum of jury ment on the verdict for ex thereafter, plaintiff. Shortly the the for attorney expenses, fees and was clusive plaintiff pleading filed a entitled “Satisfac- $250,000 limiting contrary cap dam Jury Judgment” notifying Verdict the ages against providers individual under jury the trial court that “the entire ver- provider portion MMA and that the of the been noting dict award has satisfied” and $20,852, expenses only feеs and should be issues, pending including attorney the $87,657.95falling upon with the balance of expenses, fees and that remain for resolu- Compensation Fund. In the Patient’s addi Appellant’s App’x tion. at 208. The tion, provider the further asserts that all plaintiffs attorney also filed his verified attorney of the fee award should be sub fees, costs, petition attorney for and ex- ject to the limitation on attor MMA’s 15% penses, which included his verified item- ney sought pro fees from the Fund. The time records showing ized 355.3 total that, attorney vider thus asserts if fees and per supporting hours at hour a total $250 expenses recoverable the $88,825, attorney fee of in addition to AWDS, only should the be $19,684.95, altogether totaling costs of (the verdict), $229,148 jury plus attorney $108,509.95, which the plaintiff requested (15% $34,872.20 verdict), jury fees of the trial court to award. Id. at 170-85. $19,648.95, which plus costs of totals provider presented evidence of the The $283,169.15, provider’s of which the liabili plaintiffs contingent attorney fee contrаct ty $250,000. provider is limited to And the Recap” showing and the “Settlement the that, argues further since none of this plaintiffs agreement represents judgment injury excess a jury judgment verdict would be distribut- death of patient, liability there is no (40% $91,659.20 gross ed as follows: $250,000. thе Fund for the excess above fees, $19,684.95 recovery) attorney to to plaintiff dispute does not that the $117,803.85 expenses, “paid to client.” provider’s aggregate liability is limited to recap Id. at 41. This also contained $250,000. plaintiff that, But the сontends that if plaintiffs agreement the then- MMA’s 15% fee limitation pending recoverability issue of applies only contingent attorney expenses pay- fee con- were resolved and fees and that, made, tracts plaintiff they “split and the ment would be 40% to “[if plaintiffs After attorney] contingency attorney have a and 60% estate.” Id. claim, plaintiffs plaintiffs the trial court ulti- attor- proceedings, further ney’s any fees from full award made from the mately judgment entered pаtient’s compensation may fund not ex- against expenses in fees and (15%) fifteen percent any recovery ceed Al- provider plaintiff. and for from the fund.” Ind.Code 34-18-18-1. arrangement though “not certain what [ajffect limitation This 15% “does not аt all made with his counsel as com- Plaintiff enforceability of contracts made re- prosecuting fee pensation garding paid fees to be from the first id. claim,” the trial portion of the [$250,000] recovery, as that amount is judgment court’s concluded: *4 compensation not received from the fund.” Therefore, opinion it this court’s is 148, Stephens, Matter 867 N.E.2d 151 of that the Plaintiff is entitled to recover (Ind.2007) (quoting Johnson v. St. Vincent reasonable value of counsel’s work in the Inc., 374, 402, Hosp., 273 404 N.E.2d prosecution the of the tort case and the (1980)). 585, statutory 602-03 The lan- Estate, administration of the without re- however, guage, does not restrict the im- counsel gard contingent fee which position attorney of the 15% fee limitation to contract pursuant has received his fees, only contingent attorney to but rath- Clearly, with the Plaintiff. the award of applies er it to all a “plaintiffs of attor- estate, attorney fees should benefit the ney’s any fees from award.” Ind.Code cоunsel, just not Court would § 34-18-18-1.1 all, majority that if not of anticipate Applying these we principles, find that go this award will to the Estate make parties agreement correct their it whole for the costs it has incurred to judgment against that the totаl the provid- its counsel. date for services of $250,000, er cannot exceed which includes Court finds that the Plaintiff is entitled $229,148 jury’s damage both the verdict judgment against the Defendant for $20,852 of the attorney fees and ex- attorney costs of fees оf addition, penses. In the portion of the $88,825.00, for a total judgment plaintiffs attorney paid by fees to be $108,509.95. provider subject is not ato reduction to Id. at 22. the 15% MMA limitation on fee awards Malpractice The Indiana Medical from the Fund. Bеcause this is not an provides provider Act that “A health care any appeal proceeding involving from ... is not liable for an amount excess of Fund, however, it is for inappropriate us to ($250,- fifty two hundred thousand dollars providеr’s arguments consider the assert- 000) for an malpractice.” occurrence of ing that the Fund is not liable under the § 34-18-14-8. Amounts in ex Ind.Code attorney expenses. MMA for fees or We payable of this are from the cess Patient’s appеal also decline to consider Compensation upon petition. Fund Ind. propriety plaintiffs attorney’s ap- of the 34-18-14-3(c), §§ Code 15-3. With re pearing to seek a substantial further fee fees, attorney spect to the MMA states in recovery on the fees from the part: plaintiff repre relevant “When a or the provider Fund. But we share the all, prosecution expectation sented an in the trial court’s that “if not separate provision, employment.” In а the MMA declares Ind.Code 34-18-18-2. This patient right pay provision unambigu- that a "has the to elect to does not undermine the attorney’s mutually application services on a satisfac- ous of the limitation in Sec- 15% basis,” tory per any diem 18-1 to the but this election "must fees from award be exercised in written form at the time of made from the Fund. immediately suspended dent not be go award will to the Es- should majority of this for the costs it has of law in this state for practice to make it wholе tate services its cooperate incurred to date with the failure to Commission’s at 22. App’x Appellant’s counsel.” against a filed investigation grievance Respondent. required The order that Re- judgment and the granted Transfer is writing shоw cause in within ten spondent finding to its court is affirmed as the trial days of the Although of service order. expenses are recov- attorney fees and that response filed a to the Com- the Adult erable under 11, petition April mission’s show cаuse on Statute, remanded for but this cause is 2011, asserting peti- he was aware of the judgments of the limitation tion, he deny he does not received the Indiana, Hematology-Oncology of against 10, May order to show cause. On Court’s jury’s for the tо a total of P.C. “Request filed a Commission plus portion plain- damage award Costs,” Ruling and to Tax to which Re- attorney fees. tiffs spondent responded. has not *5 DAVID, JJ., concur. SULLIVAN and advised, Being duly the Court ORDERS C.J., SHEPARD, separate with dissents Respondent suspended be RUCKER, J., concurs. opinion in which practice noncooperation lawof with Commission, immediately. effective Justice, SHEPARD, dissenting. Chief Discipline Pursuant to Admission and Rule Believing that the Court has reached the 23(10)(f)(3), suspension this shall continuе attorney fees as a wrong conclusion about (1) Secretary until: the Executive separate element of under the Disciplinary Commission certifies to the Statute, I Adult dissent Respondent cooperated Court that has ful- explained my for the reasons dissent (2) ly investigation; investiga- with the Comm’r, Dep’t Ins. McCabev. disciplinary proceedings arising tion or any of; from the investigation disposed RUCKER, J., concurs. (3) Court, until further pro- order of this vided there are no other suspensions then Respondent in effect. is ordered fulfill of a suspended duties 23(26). Discipline Admission and Rule Timothy In the Matter of D. ORDERED, pursu- IT IS FURTHER FREEMAN, Respondent. Discipline ant to Admission and Rule No. 49S00-1103-DI-168. 23(10)(f)(5), that Respondent reimburse Disciplinary $516.32 Commission Supreme of Indiana. Court proseсuting proceeding. the costs of this July Clerk this Court is directed to PUBLISHED ORDER SUSPENDING give Respondent by notice of this order to THE
RESPONDENT FROM PRAC- mail, return receipt requested, certified TICE IN INDIANA OF LAW FOR the address in the Roll of Attor- reflected NONCOOPERATION neys. The Clerk of this Court further 28, 2011, give directed to notice of this order to the On March ordered Court why Disciplinary to all other Respon- to show cause Commission and