# Cutter v. Herbst

> Indiana Court of Appeals · April 7, 2011 · 945 N.E.2d 240

URL: https://www.frixlaw.com/law-library/cases/9782770

## Case

- **Full name:** Carol CUTTER, Indiana Commissioner of Insurance, as Administrator of the Indiana Patients’ Compensation Fund, and the Indiana Patients’ Compensation Fund, Appellants-Defendants/Cross-Appellees, v. Geneva HERBST, Personal Representative of the Estate of Jeffry A. Herbst, Deceased, Appellee-Plaintiff/Cross-Appellant
- **Court:** Indiana Court of Appeals
- **Decided:** April 7, 2011
- **Citations:** 945 N.E.2d 240; 2011 Ind. App. LEXIS 602; 2011 WL 1331853
- **Precedential status:** Published
- **Opinion:** Dissent by Robb
- **Judges:** Riley, Brown, Robb
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9782770

## Opinion text

ROBB, Chief Judge,
dissenting.
I respectfully dissent. As does the majority, I note the evidence supports the trial court’s determination that Herbst’s pre-negligence chance of survival was at least 50%. 4 See op. at 250. Because his pre-negligence chance of survival was 50%, however I disagree with affirming the trial court’s use of the Mayhue /Restatement approach to calculate the damages. As I explained in greater detail in my dissent from the denial of rehearing in Indiana Dep’t of Ins. v. Everhart, 939 N.E.2d 1106 (Ind.Ct.App.2010), I believe the supreme court in Mayhue adopted the Restatement approach in which damages are assessed for the increased risk of harm for only those cases in which proximate cause for the ultimate injury could not otherwise be proven because the patient already had a greater than 50% chance of that injury occurring even in the absence of negligence. Where the patient’s chance of survival is greater than 50% absent the negligence, however, traditional tort principles adequately address the injury and applying the Restatement approach is unnecessary. Because the trial court determined, *252 based upon the expert testimony, that Herbst’s chance of survival absent medical negligence was 50%, I do not believe using the Restatement measure of damages is appropriate in this case. Thus, I would remand to the trial court for a recalculation.
. In addition to the testimony cited by the trial court, there was also testimony that Herbst’s chances of survival may have been greater than 50%. See Appellee’s App. at 84 (deposition testimony of Paul L. McHenry, M.D., that if he had been given appropriate treatment, "I have no reason to believe [Herbst] wouldn't have fallen into the high 50 percent or higher range” of survivability); id. at 137 (deposition testimony of Mark Farber, M.D., that the outcomes for people with similar conditions to Herbst who receive adequate treatment is "survival of between 70 and 80 percent.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9782770. Public record. Not legal advice.