The Indiana Supreme Court recently issued an opinion in Horejs v. Milford, 117 N.E.3d 559 (Ind. 2019), a medical malpractice wrongful death lawsuit in Indiana concerning the availability of “survivor damages” for wrongful death, including loss of love, care, and companionship. In Horejs, the surviving widower, the statutory beneficiary under Indiana’s wrongful death statute, died during the pendency of the case without an heir. The Court previously held in Bemenderfer v. Williams, 745 N.E.2d 212 (Ind. 2001) that “the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages.” Id. at 214. However, while Bemenderfer held wrongful death damages did not abate upon the death of the surviving widow under Indiana’s survival statute, which allows claims to proceed after the death of a claimant, unlike Horejs, there was an heir to recover those damages in Bemenderfer.
After the patient in Horejs died as a result of alleged medical malpractice, her surviving husband was appointed administrator of her estate and he filed a lawsuit against the medical providers for wrongful death damages, which include “survivor damages” such as loss of love, care and companionship and “final-expense damages” such as medical, funeral and burial expenses. While the lawsuit was pending, the surviving husband died intestate (without a will), leaving no heir. Thereafter, the deceased patient’s father and brothers were appointed co-administrators of the patient’s estate.
Indiana’s wrongful death statute provides that the personal representative of the decedent may maintain an action against the alleged wrongdoer if the decedent could have maintained an action had he or she lived. Wrongful death damages recovered for reasonable medical, hospital, funeral and burial expenses inure to the exclusive benefit of the decedent’s estate for payment thereof, and the remainder of damages, if any, such as loss of love, care and companionship, inure to the exclusive benefit of the widow or widower, dependent children, and dependent next of kin.
Indiana’s survival statute provides that if a person who is entitled in a cause of action dies, the action survives and may be brought or allowed to continue by the decedent’s legal representatives or successors, and it is considered to be a continued action accruing to the representatives or successors at the time the action would have accrued to the deceased if the deceased had survived.
The medical providers in Horejs argued the plaintiffs were only entitled to recover “final-expense damages” because any recovery related to “survivor damages” would be punitive in nature since the surviving husband, the statutory beneficiary for “survivor damages,” left no heirs. The Court reviewed Indiana’s wrongful death statute and Indiana’s survival statute, as well as Bemenderfer, and held the claim for “survivor damages” did not abate upon the death of the surviving husband and was not dependent upon the existence of an heir. However, unlike the plaintiff in Bemenderfer, the plaintiffs in Horejs had not been appointed personal representatives of both the patient’s estate and the surviving husband’s estate, which due to the lack of an heir, escheated to the State of Indiana. Therefore, while reversing the trial court’s grant of partial summary judgment in favor of the medical providers, the Indiana Supreme Court remanded the matter to the trial court for additional proceedings to determine whether a proper party existed to continue the claim.
Barsumian Armiger handles medical malpractice and nursing home negligence wrongful death claims in Indiana. You can read the full Indiana Supreme Court opinion in Horejs here