Mayhue v. Sparkman

аppeal. an Ingram effective See v. State (1987), Ind., 805, (citing, Wayne MAYHUE, H. M.D., Washington Strickland v. 466 U.S. Appellant-Defendant, 674). 104 S.Ct. 80 L.Ed.2d A petitioner overcome, strong with SPARKMAN, Appellee-Plaintiff. Charles evidence, compelling the presumption his No. 10A05-9210-CV-359. competent. counsel is Collier v. State Ind.App., 572 N.E.2d trans. de Indiana, Appeals Court of nied. Lockert has failed to show that he was Fifth District. prejudiced. Jan. Lockert further claims that Darden failed Rehearing May Denied post-conviction amend the petition to al- lege insufficiency basis, of the factual guilty plea failurе of the comply court to with law, and effective assistance of trial coun-

sel. Lockert also claims that Darden failed

to raise these issues in appeal. his first discussed, previously

As Lockert has failed prejudiced by show he was counsel's fail

ure to raise the issue of insufficiency of the

factual Attorneys basis. incompetent are not failing to raise an issue which has no Schiro, merit. 1207; 533 N.E.2d at Hill (1984),Ind.,

v. State 462 N.E.2d

Lockert also asserts guilty plea court comply failed to Specifi the law. cally, he contends that the court was re

quired to charges against read all the him ‍‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‍at guilty plea hearing. Lockert cites no

authority support his assertion that required charges read all the Moreover,

aloud. Lockert has failed to show

prejudice, as he was not convicted of the

charges that were not Despite read. Loc-

kert's contention contrary, the issue of

effective assistance trial counsel was

raised post-conviction/appellate counsel.

Lockert has failed to show that he received

ineffective assistance of post-conviction/ap

pellate judgment counsel. The post-

conviction court is affirmed.

Affirmed. BARTEAU, JJ.,

GARRARD and concur. would that Norma agreed who all

witnesses if survival than 50% had a less months diagnosed six had been cancer earlier. for sum- the motion trial court

The accepted the and this court judgment mary issue interlocutory appeal to consider for a six- exists of action a cause diagnosis of cancer delay in the month lose a the decedent delay caused

FACTS 1981, dispute. In are not facts The thera- radiation underwent Sparkman Norma time, At the cancer. her cervical py to treat treating gynecologist. her Mayhue was Dr. when until 1985 his care under remained She family physi- care of her she returned Group. Pap smears Havens at the clans October, revealed until from taken May May 15 and On no abnormalities. by a doctor taken pap smears Prewitt, Og- Bubalo, Tracy S. Gregory J. cells. abnormal Group did reveal Havens Louisville, KY, ap- for Welch, & den Newell whom Mayhue, to Dr. referred was Norma pellant-defendant. not Mayhue did May 1989. on she saw Stein, Albany, appel- for New F. Nicholas on taken pap smears of the the results lee-plaintiff. pap another he took so Mаy 15 and abnor- also showed pap smear This smear. BARTEAU, Judge. abnormal Mayhue believed mal cells. not complaint inflammation result of Sparkman filed cells were Charles Mayhue did not cancer. dam a recurrence Mayhue to recover Wayne Dr. against had Sparkman's revealed cancer death resulting from the perform tests ages 1989. until November by Norma's returned filed wife, suit was No Norma. own suit his estate; filed oncologist, an referred was Norma com In the loss of consortium.1 for recover saw on November she whom Sparkman al malрractice, for medical plaint can- uterine had that Norma biopsy revealed delayed in negligently Mayhue leges that performed surgery was Exploratory cer. cancer, the six- and that Norma's diagnosing time, the cancer By that January of Nor proximate cause delay was month surgery to an extent spread to such had Panel is Review Medical ma's died Norma option. an not it was remove Mayhue did opinion that unanimous an sued November, 1990. appropriate standard comply with parties appeal, of this purposes Fоr complained of was care, conduct that "the but the stan- Mayhue Dr. breached May- assume damages." the resultant not a factor testimony indicates expert of care. judgment dard summary a motion hue filed than had a better expert of several Norma depositions upon based 452, reh'g (1991), Ind.App., 573 N.E.2d Corp. inde- claim is an spouse's of consortium 1. A denied; Copco Steel & to recover v. Rosander action. trans. pendent cause of (1982), Ind.App., 429 N.E.2d Engineering Co. consortium of action underlying Westinghouse Elec. spouse. Greene injured ‍‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‍zero but less than 50% chance to survive if negligence. Thus, absence of even if the physician the cancer had been blatantly negligent, detected earlier. no recov-

ery couldbe had proba- who was DISCUSSION bly going to die. malpractice action, a medical Loss Chanee Doctrine

plaintiff (1) prove must physician the (2) duty owed a plaintiff, physician Due to application the the often harsh of the (8) duty, breached that physician's approach, the traditional some courts breach proximately adopted plaintiff special caused the proximate to rule of ecause to compensable suffer a injury. in use Watson v. cases to deter- Ind.App., Emergency Medical plaintiff Services mine whether a has met the burden proof 1191, 1193, on the proximate element of reh'g cause in 5 trans. appeal denied. This concerns a situation whether where the claim is that the defen- Mayhue's Dr. delay detecting the dant's deprived cancer patient the of a proximately caused Norma better result or the chance to survive. See compen- to suffer injuries (1) sable by Sparkman identified as generally 54 A.L.R.Ath supra. plain- The (2) growth tumor, tiff decreased must show the defendant's conduct (8) (1) deprived death. patient We will treat the of the chance of a better (2) injury as one because the result or recovery. chance of Stated differently, the recovery was lost growth plaintiff due to the only prove tumor's need that the defendant's - while undetected. patient the of some Many variations on this Amalysis

Traditional loss of chance doctrine applied by have been the courts. difficulty The faced plaintiff the in a case such аs this prove is the need to that the "pure" Under the doctrine, defendant's caused the death plaintiff the required is to show that it is where death might normally expected be to likely more than physician not that the de- original follow from case, the disease-in prived patient the of some chance of a better Annot., cancer. (1987). See 54 A.L.R.Ath 10 result recovery absent malpractice. Under proximate the traditional analy compensable injury result, is not the le. sis, plaintiff prove if proper death, but the loss patient chance the diagnosis or made, treatment had been the would have had for or for a better patient would have survived. Id. This anal result if the defendant had not negli- been ysis focuses on whether the defendant's con gent. generally Joseph Causation, King, probably duct more than not Valuation, caused and Chanee in Injury Personal plaintiff's injury or death. compensable Involving Torts Preexisting Conditions and injury is the death or complained-of other Consequences, Future 90 Yale LJ. Thus, result. if death probably (1981) (hereinafter than King). cited as not would have resulted even the absence rеquire Other courts plaintiff to show malpractice, plaintiff cannot recover. physician increased the risk of harm way, Stated another analysis to depriving of a requires to in the chance to recover. these go courts malpractice, absence of the decedent had a step allow, one further and any without fur- greater See, than 50% chance of survival. evidence, ther the fact-finder to infer that the e.g., Cooper v. Charity Sisters Cincin increased proximate risk was a cause of the nati 27 Ohio St.2d 272 N.E.2d 97 injury. As under the analysis, traditionаl (declining depart to proxi traditional injury generally is defined the court as mate cause recognize or to a cause result, ie., ultimate chance"). of action for "loss of plaintiff may recover where it merely pos- This burden impossible for the sible that the defendant injury. caused the meet, however, to This is a variation of the loss of chance would die from the or disease in the standard, with a relaxed causation condition by the dece employed Paramedics work. approach. as refer to which decedent, but treаted employer dent's Pa. Bashline See, e.g., Hamil hospi reaching the died before the decedent 1280.2 treatment alleged that the tal. analysis-focusing Under par employer's by the to the decedent given cannot injury-Sparkman as the death proximately negligent and amedics the evi- judgment summary survive of a him by depriving his death had not have that Norma dence shows apply asking of life." "chance if the of survival than 50% a better com theory a worker's the loss Conse- earlier. detected had been cancer evi case, plaintiff introducеd pensation adopt the urges us to quently, attack of heart 50% over dence had the Indiana doctrine. hospital they reach die before directly decide opportunity indeed, "could, number majority of that causation depart from appropriate if alive" hospital taken to be type, this cases of medical Id. We administered. had been care critical theory has been chance although the loss to were if the court that even concluded Inland Jablonski in dicta. See discussed apply it theory and adopt the N.E.2d Ind.App., 575 Co. Steel not recover case, could plaintiff plaintiff's to Watson, denied; 532 trans. reh'g best, demonstrated, at evidence because Watson, Dis the Second In 1191. N.E.2d slightly had a "may have the decedent that to this very similar pattern fact trict faced (citing Id. of survival." chance 50% less than diagnosed with was The decedent case. Jablonski, 1191) In Watson, 532 N.E.2d Assum inoperable. it was until lung cancer approaches alternative consider did not failed to negligently the defendants ing that consid that we chance loss of sooner, turned the court canсer diagnose the today. er that earlier showed to whether typically the dece- prolonged is have would loss of detection The (4th Cir. testimony States v. United most favorable to Hicks The traced life. dent's law). Virginia (applying some 1966), under treatments F.2d 626 some 368 that indicated diag life, negligently Hicks, but none prolong patient was might In cireumstances life gastroenteritis decedent's suffering from that experts testified as nosed or saved prolonged been pain killers. could home with sent was high intestinal Applying the an suffering from diagnosis. was earlier in fact that, althоugh medi- after see noted hours court several analysis, the and died obstruction testi testimony "to a reasonable uncontradicted expert physician. cal ing the testimony as if required, that longer was certainty" experts no plaintiff's by the mony would at Id. not suffice. promptly, will operated on possibilities mere to to decide if not need even argued court did The defendant survived. theory di adopt properly to had been condition it was say did not show to speculation because mere agnosed, it was the decedent than not probable successful. have been surgery of survival. of a was stated, court or action negligent a defendant's When 1039, the dece- Jablonski, N.E.2d per- effectively terminated has inaction attack while heart a fatal dent suffered the issue § addresses Restate- 323 of the approach is based 2. This causation, criti been approach has (1965): duty, not (Second) Torts ment S.C. See, e.g., v. James Sherer undertakes, cized. con- gratuitously or for who One 148; Curry v. Summer S.E.2d sideration, which to another services to render pro- necessary for the recognize as 365, 483 91 Ill.Dec. hе should 136 Ill.App.3d (1986); generally Lisa Per- see appeal things, sub- of the other's person tection Colella, physical Smith, harm Ugo Lost liability rochet, the other ject to J. Sandra reason- to exercise resulting his failure Med Expanding Folly Recovery and the Chance undertaking, if perform his care able & Ins. LR. Liability, 27 Tort Malpractice ical increases (a) such care exercise Chance). his failure (hereinafter (1992) as Lost cited harm. risk of son's ‍‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‍chance of it does not lie in substantial chance of given survival appropri- the defendant's mouth cоnjectures to raise ate medical care." Id. at 805 P.2d at 592. as to the measure of the chances that he high How the chance of survival must be in put beyond has the possibility of realiza- order to be question "substantial" is a of fact tion. there any was possi- If to be addressed on a case case basis. The bility survival and the recognized court the injury to be defendant re- it, destroyed he is answerable.... is "not defined [Our itself, as the death dressed emphasis.] The law does not in but, rather, the exist- as the decreased chance of sur- ing require cireumstances vival the medical malpractice." show certainty to a [emphasis in original] Id. at 805 P.2d at 592. The gave compelling reason for adopting the loss of would have lived had she hospitalized been operated on prompt- chance doctrine: in the absence of the doc- ly. [Citation omitted.] trine, recovery in tort on behalf of the surviv- ors many Id. at potentially concluded, The court terminal "Since the barred, would be no testimony uncontradicted matter how was blatant that with prompt health surgery provider's care she survived, would have Id. at 805 P.2d at conclusion follows that dispensary doe- providers Health tor's care should not nullified given be whatever recovery she might had and the benefit of the uncertainty created proximate cause of the death." their negligent Id. at own 633.3 conduct. To hold oth- erwise would in effect allow Notwithstanding providers care criticism of the Hicks de cision, Hability to evade for negligent the their actions doctrine has been or inactions in situations in adopted which courts across country.4 the would not necessarily Perez v. Vegas Las (1991), Medical survived or Centеr re- covered, 1, 107 Nev. but still 589, 805 significant P.2d have a the adopted the rule that plaintiff "the present must survival or recovery. evi- dence tending show, to a reasonable medi- 5-6, Id. at 805 P.2d at (citing 591 McKellips cal probability, that negligent some act or v. Saint Hosp., Francis (1987), Okla., Inc. omission health 467, 474). providers 741 P.2d care reduced a Many 97, courts and N.E.2d commentators have criticized following § approach); 323 but using authority Hicks as recognizing for the (1986 see Dist.), Russell v. Subbiah 3rd 149 Ill. of chance Although doctrine. language 268, 102 App.3d Ill.Dec. 516, 500 N.E.2d 138 suggested Hicks (traditional for the loss of a sub proximate analysis); DeBur possibility stantial of the Hicks court in (1986), lowa, karte v. Louvar 131; 393 N.W.2d fact decided the case under a traditional causa (1984), Roberson v. 1006, Counselman 235 Kan. tion because the facts of that case were 686 P.2d (rejecting Cooper, 149 97); 272 N.E.2d plaintiff such proved that the that it was more Bourne v. (1989), Seventh Ward Hospital General probable than not negligently doctor La.App., 197; 546 So.2d Humberger Aasheim v. caused decedent's death misdiagnosing dece (1985), 127, 215 Mont. 695 P.2d 824 (following condition; thus, dent's possibility § approach 323 recognizing but lost chance as language See, e.g., mere dicta. Cooper v. injury); Wollen (1992), v. DePaul Health Center Charity Sisters (1971), Cincinnati 27 Ohio of of Mo., 828 S.W.2d (rejecting 681 272 Cooper, 242, 97; St.2d Chance, 272 N.E.2d Lost supra. 97); N.E.2d Vegas v. Las Perez Medical Center (1991), 1, 107 Nev. 805 P.2d (adopting 589 See, e.g., "pure" (1981), Ala., doctrine); Murdoch v. loss of Thomas chance 404 v. Seiler Scafidi (1990), 93, 119 N.J. 574A.2d (rejecting 398 580; So.2d Thompson City v. Sun Community (1984), Hosp., 597, 97); Inc. Cooper, 141 Ariz. 272 688 N.E.2d Kallenberg P.2d 605 v. Beth Israel (following § approach); (1974), Hosp. 323 Sharp 177, App.Div.2d v. 45 Kaiser 357 N.Y.S.2d (1985), Foundation Health Plan Colo.App., 710 508, 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 aff'd (rejecting P.2d 1153 Cooper 128; v. Charity McKellips Sisters N.E.2d v. Saint Hosp., Francis of (1971), 242, (1987), Okla., Cincinnati 27 Ohio St.2d Inc. 272 оf N.E.2d 741 P.2d (following 467 323& 97, following § approach), approach); 323 'd ‍‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‍Group Herskovits v. Co-op Health aff (1987); 741 P.2d 714 (1983), County 609, Richmond Hosp. 99 Wash.2d 664 P.2d (following 474 Authority Operating University Hospital approach); CAMC, v. Dicker 323 (1983), Thornton v. etc. son Ga.App. 182 548; 356 S.E.2d 172 W.Va. 305 S.E.2d (following § 316 323 Northern Trust Co. v. Louis A. Weiss approach); Ehlinger Memorial Sipes (1990), v. 155 Wis.2d (1986 Hosp. Dist.), 1st Ill.App.3d 143 97 454 (rejecting N.W.2d 754 Cooper, 272 N.E.2d Ill.Dec. (rejecting Cooper, 97). tort with traditional is inconsistent Perez court by the taken approach upon a recovery is allowed concepts because chance pure in line physi that the showing а mere question King. by Professor expounded patient's death. cian's issue distinct separate ais causation 103; Dumas also see Cooper, 272 N.E.2d toas valuation. question 1593, 1 Cal.App.3d Cooney proba reasonable causation, (1992); Fen review Cal.Rptr.2d and the applied bility test is Center, Hosp. Maryland proba v. Southern nell to a reasonable demonstrate 206. This 580 A.2d Md. Inc. decreased provider health care bility distinet varia recognize two fails criticism chance chance, whatever doctrine. of chance the loss tions of As treаtment. was, successful or of survival valuation, of survival doctrine, adopt which pure Under small, is treatment, matter how no successful compensated being injury today, negli for which interest compensable con- a causal show plaintiff must which Damages for liable. gent defendant deprivation in or the is the decrease nection "percentage by the measured are lost had for of the chance tortious the defendant's by which probability recovering for the value is not achiev the likelihood diminished conduct of recov- death; lost chance just for the Lost result." favorable .ing some compensation if the be no ery. will There supra at King, Chance, (quoting supra at 620 patient of deprive the negligence did 1382). example, in a case chance-for of survival even have a patient did not the loss convinced areWe Under absence form, place doctrine, pure in its recovering is not doctrine, pure believe malpractice actions. We in medical a causal not bear that does a death has been which the the chance negligence. relаtionship to the of something, regardless deprived is worth ultimately As dies. patient § Restatement the 328 the fact that the under compensable only notes, regard (Second) approach, the the if King we of Torts Professor injury, the and compensable death as the as the viewed injury generally death ab- in the is allowed death recovery for the result, though even nothing an all faces the something relationship between of deprived a causal has been sence of patient the King, This-and negligence. and the negligence defendant's due as a duty, not causa- a lost (recognizing that § addresses supra that reason approach gap reject in fills the injury why value we with tion-is compensable of chance pure loss adopt prove and cannot cases those neg relationship between death, but where causal requires caused negligence being compen- injury a chance to lose patient cause the ligence did death). the court agree with We avoiding sated. 591, that P.2d at Perez, Nev. at in the loss adopting argues that dissent to untenable" "simply it is in erroneous will rеsult chance doctrine of on behalf recovery in tort any First, bar the dissent outcomes. inequitable pa- many potentially terminal survivors in presented a statistical quotes the health tients, blatant matter how no argue to Fennel, 320 Md. neg- Through provider's care will, on aver of chance that the loss care health or other physician ligence, a plaintiffs. to awards in erroneous age, result chances reduce a could provider acknowledges course, passage same Of to, fifty percent high as from as of survival producеs approach also yet remain percent, example, ten but, to more plaintiffs; awards erroneous of tort. in the law unanswerable mathemati about is not law point, "[tlort fairness niceties; to do it has cal courts, loss of rejecting the in Some by harm suffered who victims fault-free Supreme the Ohio doctrine, have followed omissions acts or tortious argue that Cooper, reason lead Court's others." Id. at (Adkins, 580 A.2d at 216 against believe that when argu- balanced J., dissenting). ments favor of recognizing the loss of doctrine, weighs balance more argues dissent adoption also that heavily in favor recognition of the doctrine. the loss of chance doctrine will result in escalating malpractice premiums insurance Application Loss Chance Doctrine and consumer costs because the number of medical claims will increase and We now must determine whether physicians compelled prac- will be Sparkman has made showing a sufficient un tice Certainly, defensive medicine. tort law der the loss of chance doctrine to avoid sum is as much influencing about conduct civil mary judgment. "рure" Under the sanctions as it is compensating injured about chance doctrine that adopt today, we persons. However, nothing in opinion present must tending evidence requires physicians to anything do more in show negligent that some act or omission way of reasonable medical care than is providers health care already required. The fact is the medical a substantial chance of given appro survival panel review here found that reasonable priate medical care. What a "substantial" medical given. cаre was not We cannot con- chance is must be determined on a case done the notion that reasonable medical care case emphasize basis. We injury only due those who probability have a of by May- recovery and denied only those who have hue's is the the chance of recovery Norma had. Although Sparkman Finally, the argues dissent that the loss of identifies Norma's compensable death as a chanee doctrine allows for the mere injury resulting Mayhue's negligence, physician's Sparkman cannot recover on his loss of con was a cause of the death. As explained sortium claim because, for Norma's death as above, however, injury being compensat- we noted above, his evidence does not show ed is the loss of the chance of recovery or a Mayhue than not caused result, better course, not the death. Of re- Norma's death. covery for the loss of chanee of survival can As for compensable injury identi occur where dies because a fied as Norma's loss of chance of recovery, who is still living has not lost Sparkman presented expert But, survival. testimo the doctrine is not ny that Norma only significant had a applicable chanee of where death occurs. The resectability tumor) (surgical removal of applicable doctrine is also patient, where the May, in expert 1989. The further testified who is still alive condition, but in a worse was if the tumor was May, of resectable in the chance of a better result- 1989, Norma would not have had at necessarily least a 50-50 negli- survival-absent gence. Although chanee of the loss of chance doctrine survival with surgery. From evidence, jury a pure in could its infer that form that Norma adopt today we allows recovery only had a substantial proves recovery May, in Mayhue's and that in failing defendant probably than not in- steps jured take to detect the plaintiff, tumor at that time supreme note that our deprived Norma of court allowed chance. where there exist- Thus, response in Maybhue's only ed a motion for negli- defendant's summary judgment, gence Sparkman came would result in forward getting with showing evidence genuine that there is meningitis becoming epileptiс. Dayton issue of material fact on question of Corp. Walther Caldwell 273 Ind. proximate cause. Consequently, trial properly Mayhue's motion for The dissent has arguments identified the summary judgment. embraced courts who have declined to logs adopt the chance doctrine. We note that today, our Spark- decision to the arguments merit, extent those we man summary judgment avoids on the issue allow all rule would of chance The loss proximately Mayhue's recover, but each would patients chance to deprived of a to be Norma cаused of the normal value of the on his loss prevail recover In order to 334% recover. proper care 83 Again, with case. prove still claim, consortium pa- the 83 survived. would underlying negli- the elements all of statistically have survived who of con- tients his loss then gence claim only one- receive proper care would with by that sortium recovery, while appropriate third of AFFIRMED. as a result patients who died the 66 condition, negligence, not the pre-existing C.J., SHARPNACK, concurs. by one-third. overcompensated would be pro- rule would of chanсe The loss STATON, J., opinion. dissents cases. in all 99 errors duced dissenting. STATON, Judge, Hospital Maryland v. Southern Fennell 212-13 320 Md. following reasons: for the I dissent of loss adopt the doctrine (declining to chance of survival the lost Adoption of survival). awards yield erroneous will resulting outcome inequitable A second plaintiffs. . doctrine is adoption of this inequi- avoiding apparent than Rather mal only professional physicians will be lost chance ties, adoption of the liability in subjected to practice defendants inequities. greater will create negli alleged that thеir proof absence of adopted chance doctrine If the lost injury. Good probably caused gence Indiana, be the physicians will Bldg., Inc. University Hosp. ing v. malpractice defendants professional The number Fla., 445 So.2d liability in the absence subjected to will consequently claims medical alleged their proof in escalating malpractice increase, thereby injury. caused the Also costs. and consumer premiums surance of lost cost of the doctrine increased example contributing of how An unnecessary treatment inequita- care will be erroneous will result physicians Court of inevitably performed when provided testing ble outcomes defensive practice medicine Maryland: compelled to Appeals of are cure; it medicine does ly. Defensive recovery is based Because availability medical treatment kills ap- might be it probabilities, statistical unreasonably expensive. others. It proba- the statistical to examine propriate 'just' with loss achieving result to erode holding threatens today's Lastly, bilities ways oth- damages.... of tort law principles of chance readily apparent: which are than those er rules, assume compare the two To person negligently treats a doctor patients, [Ilf 99 cancer group of hypothetical recovery and chance a 40% had a have whom would 33%% each reduces negligence negli- doctor's Each received survival. chanee of 10%, whether recovery only care, Tradi- all 99 died. gent medical negli- dies, the doctor's recovery in all or deny lives patient tort law would tional patient a 80% genee cost had lеss each 99 cases dies, proba- If the of survival. than a 50% pre-existing of death was cause ble pre-exist- was the of death probable unlikely that the injury; it is disease negligence. Statistical- not the ing cancer pa- If the the death. treatment, negligence proper 99 received ly, had all clearly did lives, negligence died; tient 66 would lived and scenarios, there In both cause the have statisti- rule would so the resulting in a 380% by denying recov- 33 errors cally produced going to are If courts survival. ery to all damages allow solely for the loss of chance logically ought there to be re-

covery for regardless

whether the succumbs to the unre-

lated pre-existing problem or mi-

raculously despite recovers

and unfavorable odds.

Since loss of damages are

permitted patient dies, when the it is also

arguable that, strip away when we

rhetoric, damages really being are award-

ed for

was a cause of the death.

Fennell, supra, 580 possi 213. Mere

bilities are support insufficient to an award of ‍‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌​‌‌​​‌​​‌‌‌​‌​‌‌​‌‌​​​‌‌‌‌​​‌‍damages under Indiana law. Watson v. Ind.App.,

Medical Emergency Services 1191, 1195, 32 N.E.2d reh.

5 trans. denied.

Because it undisputed that Norma

Sparkman would died even in

the absence of negligence, I would reverse

and instruct the trial grant Dr.

Mayhue's motion summary judgment. REED, Jr., Reed,

Thomas Sandra L. Co.,

Allied Appellants- Construction Below,

Defendants LUZNY, Joyce Pinkerton,

Anna C. Decraene,

Judith Appellees- Below.

Plaintiffs

No. 71A03-9302-CV-64. Appeals Indiana,

Court of

Third District.

Jan.

Case Details

Case Name: Mayhue v. Sparkman

Court Name: Indiana Court of Appeals

Date Published: Jan 31, 1994

Citation: 627 N.E.2d 1354

Docket Number: 10A05-9210-CV-359

Court Abbreviation: Ind. Ct. App.